Nevada Reports 1998 (114 Nev.) PDF

114 Nev.
1, 1 (1998)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
____________
Volume 114
____________
114 Nev. 1, 1 (1998) Maduike v. Agency Rent-A-Car
ASSUMPTA MADUIKE, PETER MADUIKE Individually, and as Guardian ad Litem for
AMANDA MADUIKE, PATRICK MADUIKE and KINGSLEY MADUIKE,
Appellants, v. AGENCY RENT-A-CAR, Respondent.
No. 28082
January 22, 1998 953 P.2d 24
Appeal from a judgment of the district court. Second Judicial District Court, Washoe
County; Peter I. Breen, Judge.
Family sued rental car agency for injuries from accident allegedly caused by rental
car's faulty brakes. District court dismissed family's claims for strict liability in tort,
intentional infliction of emotional distress, and punitive damages, and jury awarded family
$10,000 in compensatory damages on family's negligence and gross negligence claims but
found family 45 percent comparatively negligent. Family appealed. The supreme court held
that: (1) agency's conduct was not extreme and outrageous in failing to replace car after
family reported problem with brakes, and thus, agency did not commit intentional infliction
of emotional distress; (2) agency did not subject family to cruel and unjust hardship with
conscious disregard of their rights, as statutory requirement for punitive damages award; but
(3) family established prima facie case of strict liability in tort;
facie case of strict liability in tort; and (4) improper dismissal of strict liability claim was not
harmless.
Reversed and remanded.
Glade L. Hall, Reno, for Appellants.
Thorndal, Backus, Armstrong and Balkenbush and Charles L. Burcham and Michael
E. Sullivan, Reno, for Respondent.
1. Pretrial Procedure.
In ruling on motion to dismiss, court must accept plaintiff's evidence as true and draw all permissible inferences in plaintiff's
favor, and may not assess credibility of witnesses or weight of evidence. NRCP 41(b).
2. Damages.
Prima facie case of intentional infliction of emotional distress requires, among other elements, that defendant's conduct was
extreme and outrageous with either reckless disregard or intent to cause emotional distress.
3. Damages.
Extreme and outrageous conduct, as element of intentional infliction of emotional distress, is that which is outside all possible
bounds of decency and is regarded as utterly intolerable in a civilized community. Persons must necessarily be expected and required
to be hardened to occasional acts that are definitely inconsiderate and unkind.
4. Damages.
Rental car agency's conduct was not extreme and outrageous in failing to replace rental car after customer reported problem with
brakes, and thus, agency did not commit intentional infliction of emotional distress. Agency employee's statement that There is
nothing I can do, man was at most unkind or inconsiderate behavior.
5. Damages.
Rental agency's conduct in refusing to replace rental car after customer reported problem with brakes was not causally connected
with events after refusal that allegedly caused emotional distress to customer, and thus did not constitute intentional infliction of
emotional distress; post-refusal events included driving around to find motel room, unsuccessfully attempting to cash check, and being
accosted by individuals in casino parking lot.
6. Automobiles; Bailment.
Rental car agency did not subject family to cruel and unjust hardship with conscious disregard of their rights, as statutory
requirement for punitive damages award as to non-contract claims, though family contended that refusing to repair or replace unsafe
vehicle rented by young couple with small children who were four hundred miles from home was oppression. NRS 42.001, 42.005.
7. Products Liability.
To present prima facie case for strict liability in tort, plaintiff must establish that plaintiff's injuries were caused by defect in the
product, and that defect existed when product left defendant's control.
8. Appeal and Error.
Supreme court would not address argument of rental car agency that strict liability does not apply to lessors of personalty, as
agency failed to raise the argument in its brief and predicated its brief on the assumption
that strict liability was applicable,
raise the argument in its brief and predicated its brief on the assumption that strict liability was applicable, subject to standards
governing sellers of personalty.
9. Automobiles; Bailment.
Customer of rental car agency established prima facie case of strict liability in tort as to rental car which allegedly had defective
brakes or tires. Previous renter of car believed that brakes pulsated and that car wobbled while braking, and car had not received
service or repair after previous customer's use.
Improper dismissal of strict liability claim was not harmless, though compensatory damages awarded on negligence claim
contemplated same injuries as strict liability claim, as jury's special verdict reduced plaintiffs' recovery according to plaintiffs'
comparative negligence, and such reduction would not apply to strict liability claim. NRCP 61.
OPINION
Per Curiam:
While driving an automobile rented from Agency Rent-A-Car (Agency), the Maduike family was involved in an accident. The
Maduikes had rented the car in Reno and driven to Las Vegas for an eleven-day family vacation. Approximately one hour into their drive
home to Reno, they heard a loud whistling noise. Peter Maduike called Agency's Reno office to complain about the noise, and was
instructed to return the vehicle to the Las Vegas Agency lot. On the trip to Las Vegas, the car caused a minor collision when its brakes
failed.
When the Maduikes arrived at Agency's Las Vegas location, Agency refused to replace or repair the vehicle. The next morning, the
Maduikes decided to drive the car to Reno, despite their concern about the whistling noise and problems with the brakes. On the drive to
Reno, the vehicle went out of control, veered off of the road and hit a rock. Three of the Maduikes were injured in the accident.
The Maduikes claimed negligence, gross negligence, strict liability in tort and intentional infliction of emotional distress, and
sought compensatory and punitive damages against Agency. At the conclusion of the Maduikes' case-in-chief, Agency moved to dismiss
the causes of action for strict liability, intentional infliction of emotional distress and the prayer for punitive damages. The district court
granted these motions.
Following a jury verdict on the remaining causes of action, a judgment was entered awarding the Maduikes $10,000.00 in
compensatory damages. The jury also returned a special verdict finding Peter Maduike forty-five percent comparatively negligent and
reducing the damages award commensurately. The Maduikes now appeal from the district court's judgment,
now appeal from the district court's judgment, claiming that the district court erred in
dismissing their causes of action for strict liability and intentional infliction of emotional
distress and their prayer for punitive damages.
[Headnote 1]
NRCP 41(b) provides that a party may move for involuntary dismissal on the ground
that upon the facts and the law the plaintiff has failed to prove a sufficient case for the court
or jury. In ruling on a motion to dismiss, the court must accept the plaintiff's evidence as true
and draw all permissible inferences in the plaintiff's favor, and may not assess the credibility
of witnesses or the weight of the evidence. Chowdry v. NLVH, Inc., 109 Nev. 478, 482, 851
P.2d 459, 461 (1993) (citation omitted).
Intentional infliction of emotional distress
[Headnote 2]
A prima facie case of intentional infliction of emotional distress requires, among other
elements, that the defendant's conduct was extreme and outrageous with either reckless
disregard or intent to cause the emotional distress. Star v. Rabello, 97 Nev. 124, 625 P.2d 90
(1981). The district court dismissed the cause of action for intentional infliction of emotional
distress based on the Maduikes' failure to show outrageous conduct.
[Headnote 3]
According to the California Book of Approved Jury Instructions (BAJI) No. 12.74,
extreme and outrageous conduct is that which is outside all possible bounds of decency and
is regarded as utterly intolerable in a civilized community. BAJI 12.74 further instructs that
persons must necessarily be expected and required to be hardened . . . to occasional acts that
are definitely inconsiderate and unkind.
[Headnote 4]
The Maduikes contend that Agency's conduct was extreme and outrageous. They
argue that evidence was presented that: (1) Agency rented to the Maduikes a three-year-old
car with over 53,000 miles of service and only $349.00 in repairs expended; (2) Agency
rented the car to them without inspecting its safety equipment after a rental of over a month to
another customer; (3) Agency rented the car to them despite a readily apparent brake or tire
problem; (4) after the Maduikes had been directed to return to Las Vegas and after the brakes
had failed, causing the rear-end accident, Agency refused to take any measures to repair or
prevent further driving of the car.
Peter Maduike testified that the Las Vegas Agency employee who refused to replace
the rental car stated, There is nothing I can do, man.
can do, man. There is nothing I can do, man. According to testimony, the employee then
ignored Peter. Agency argues that this conduct, at most, can be considered an indignity or
unkind or inconsiderate behavior, but does not rise to the level of being atrocious, intolerable
or outside all possible bounds of decency.
[Headnote 5]
Agency also notes that the Maduikes base their emotional distress claim on events that
occurred after Agency refused to replace the vehicle, including driving around Las Vegas
looking for a motel room, unsuccessfully attempting to cash a check and being accosted by
individuals in a casino parking lot. Agency challenges the causal connection between its
conduct and the emotional distress resulting from these events.
We agree with Agency's argument, and conclude that the district court, after considering
all evidence in a light most favorable to the Maduikes and drawing all inferences in their
favor, did not err by finding that the element of extreme and outrageous conduct was not met
in the Maduikes' case-in-chief.
Punitive damages
NRS 42.005 provides:
1. Except as otherwise provided in NRS 42.007, in an action for breach of an
obligation not arising from contract, where it is proven that defendant has been guilty of
oppression, fraud or malice, express or implied, the plaintiff, in addition to the
compensatory damages, may recover damages for the sake of example and by way of
punishing the defendant.
NRS 42.001 defines oppression as despicable conduct that subjects a person to cruel and
unjust hardship with conscious disregard of the rights of the person. The Maduikes argue
that refusing to repair or replace an unsafe vehicle rented by a young couple with small
children who are four hundred miles from home meets the definition of oppression.
Therefore, the Maduikes argue, the jury should have been allowed to consider awarding
punitive damages.
[Headnote 6]
Agency argues that the factual record in this case fails to show proof of oppression as
a matter of law because the Maduikes provided no evidence of Agency's intent to cause
hardship or conscious disregard for the Maduikes' rights. In First Interstate Bank v. Jafbros
Auto Body, 106 Nev. 54, 57, 787 P.2d 765, 767 (1990), this court held that even
unconscionable irresponsibility will not support a punitive damages award.
We conclude that the district court could not have reasonably inferred from the
evidence that Agency subjected the Maduikes to cruel and unjust hardship with conscious
disregard of the rights of the person. See NRS 42.001. Accordingly, we hold that the district
court properly granted the motion for involuntary dismissal of the Maduikes' punitive damage
claim.
Strict liability
[Headnotes 7, 8]
To present a prima facie case for strict liability in tort, a plaintiff must establish that
her injuries were caused by a defect in the product, and that the defect existed when the
product left the defendant's control.
1
Shoshone Coca-Cola Bottling Co. v. Dolinski, 82 Nev.
439, 420 P.2d 855 (1966). The district court dismissed the Maduikes' cause of action for strict
liability based on their failure to show that the car was defective when it left Agency's control.
[Headnote 9]
The Maduikes presented trial testimony that the rented vehicle had defective brakes
which caused the car to lose control, injuring some of the Maduike family members. The
person who rented the car prior to the Maduikes' rental testified that the vehicle had not
performed properly, that the brakes pulsated and that the car pulled, shimmied and wobbled
while braking, and that he thought the problem was related to the tires. Evidence that the car
had not received any service or repair between that rental and the time the Maduikes took the
car was also presented. Therefore, the Maduikes argue that they made a prima facie case of
strict liability by showing that the car had a defect when it left the Agency lot in Reno, and
that the brake and tire defect caused the car to lose control, inflicting injuries on some of the
Maduike family members.
Agency argues that the Maduikes experienced no brake related problems in the first eleven
days of the rental, and, therefore, the Maduikes failed to show that the alleged defect existed
at the time the vehicle left Agency's control. Agency also points to a service report evaluating
the condition of the brakes after the rental, which indicated that, although the brakes were in
an impaired condition, they were still functioning. In light of this evidence, Agency argues
that the facts do not provide a reasonable basis for the court to draw the necessary
inference that the brakes were defective when the car left Agency's hands.
__________

1
At oral argument of this appeal, Agency contended that strict liability does not and should not apply to
lessors of personalty. However, Agency failed to raise this argument in its brief, and predicated its brief on the
assumption that strict liability is applicable, subject to the standards governing sellers of personalty.
Accordingly, we decline to address the general applicability of strict liability to lessors of personalty.
the court to draw the necessary inference that the brakes were defective when the car left
Agency's hands. See Griffin v. Rockwell Int'l., Inc., 96 Nev. 910, 620 P.2d 862 (1990) (actual
facts shown at trial did not provide a reasonable basis for inferring a product defect). We
disagree. Agency's reliance on evidence contrary to the Maduike's evidence is not sufficient to
support a motion to dismiss. When considering a motion to dismiss, the district court must
accept the plaintiff's evidence as true and draw all permissible inferences in the plaintiff's
favor. Chowdry, 109 Nev. at 482, 851 P.2d at 461 (citation omitted). Accordingly, we
conclude that Agency's argument lacks merit.
The district court could have reasonably inferred from the Maduikes' evidence that the
car had a defect when it left the Agency lot in Reno, and that the defect caused the car to lose
control, satisfying the requirements for a prima facie case of strict liability. Therefore, we
hold that the district court erred in granting Agency's motion to dismiss the cause of action for
strict liability in tort.
[Headnote 10]
The jury awarded the Maduikes compensatory damages for their injuries on the cause
of action for negligence. Their strict liability claim contemplated those same injuries;
therefore, a finding of culpability for strict liability would not affect the calculated damages.
However, the jury rendered a special verdict reducing the Maduikes' recovery by forty-five
percent due to their comparative negligence. Such comparative negligence reductions do not
apply when the claim is based on strict liability. Accordingly, the improper dismissal of the
Maduike's strict liability claim was not harmless. See NRCP 61. We therefore reverse the
district court's judgment and remand this case to the district court for proceedings consistent
with this opinion.
2

__________

2
The Honorable A. William Maupin, Justice, voluntarily recused himself from participation in the decision of
this appeal.
____________
114 Nev. 8, 8 (1998) Leslie v. State
WILBERT EMORY LESLIE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 28753
January 22, 1998 952 P.2d 966
Appeal from a conviction of one count each of burglary, robbery with the use of a
deadly weapon, and first degree murder with the use of a deadly weapon, and the imposition
of the death penalty. Eighth Judicial District Court, Clark County; Stephen L. Huffaker,
Judge.
Defendant was convicted, in the district court of first-degree murder with the use of a
deadly weapon, robbery with the use of a deadly weapon, and burglary, and the death penalty
was imposed. Defendant appealed. The supreme court, Shearing, J., held that: (1) state did
not improperly bargain for particularized testimony of witness as to her knowledge of
defendant's involvement in murder; (2) Justice of the Peace's warnings to that witness at
preliminary hearing to testify truthfully, and state's subsequent action in charging that witness
with numerous crimes, including perjury, did not constitute improper interference with
potential defense witness which violated defendant's due process; (3) closing argument in
penalty phase that You'll be sending a message to future convenience store robbers did not
deny defendant's right to fair trial; (4) trial court did not abuse its discretion by admitting, at
penalty phase, evidence that murder weapon was stolen; (5) trial court did not abuse its
discretion by admitting, at penalty phase, evidence of disciplinary incidents while defendant
was in county jail; (6) evidence at penalty phase did not support aggravating circumstance
that defendant knowingly created great risk of death to more than one person when he fired
shot into wall; (7) evidence at penalty phase supported aggravating circumstances that murder
was committed during robbery or burglary or during flight after robbery or burglary, and that
murder was random and without apparent motive; (8) evidence, reweighed after reversal of
one aggravating circumstance, supported death sentence; (9) death sentence was not
excessive, as murder was cold-blooded; and (10) death sentence was not imposed under the
influence of passion, prejudice, or any arbitrary factor.
Affirmed.
[Rehearing denied March 23, 1998]
Morgan D. Harris, Public Defender, and Robert L. Miller and Roger Hillman, Deputy
Public Defenders, Clark County, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Stewart Bell, District Attorney,
James Tufteland, Chief Deputy District Attorney, and David Roger, Deputy District Attorney,
Clark County, for Respondent.
1. Criminal Law.
State did not improperly bargain for particularized testimony of witness as to her knowledge of defendant's involvement in
murder, though defendant contended that state used perjury charge against witness to dictate the truth to her. Witness admitted in
plea agreement that her earlier testimony at grand jury hearing and preliminary hearing was perjurious, agreement called for witness to
testify truthfully, and credible evidence, including witness' original statement to police and her possession of murder weapon, indicated
her presence at murder scene and confirmed other details of her testimony. NRS 174.061(1)(b).
2. Constitutional Law; Criminal Law.
Justice of the peace's warnings to witness at preliminary hearing to testify truthfully, and state's subsequent action in charging
witness with numerous crimes, including perjury, did not constitute improper interference with potential defense witness which
violated defendant's due process rights by effectively driving witness off the witness stand. Prosecutor and justice of the peace warned
witness about consequences of perjury only after hearing some of her testimony, and the warnings were not threats. U.S. Const. amend
14.
3. Criminal Law.
Prosecutor's argument to jury, in closing argument of penalty phase of trial for capital murder arising from convenience store
robbery, that You'll be sending a message to future convenience store robbers, did not constitute misconduct which denied defendant
of his right to fair trial. U.S. Const. amend. 6.
4. Homicide.
Trial court did not abuse its discretion by admitting, at death sentencing, evidence that murder weapon was stolen, though
defendant contended evidence was dubious and tenuous and prejudicially suggested that he had stolen the gun. Evidence was relevant
to proving that gun was not registered to defendant and that defendant knew gun was stolen, and witness' testimony that he did not
know how defendant gained possession of gun negated inference that defendant stole it.
5. Criminal Law.
Trial court did not abuse its discretion by admitting, at death sentencing, evidence of disciplinary incidents while defendant was
in county jail, including evidence that defendant was grumpy, swore at detention officer, and did not answer questions; though
evidence had little probative value, it also had little prejudicial effect.
6. Homicide.
Evidence at death sentencing did not support aggravating circumstance that defendant knowingly created great risk of death to
more than one person when he fired shot into wall, above convenience store clerk's head, as evidence did not establish that defendant
knew that two other clerks were in storage room on other side of wall; other clerks did not make eye contact with defendant, and other
clerks' fear of defendant was irrelevant. NRS 200.033(3).
7. Homicide.
Evidence at death sentencing supported aggravating circumstance that murder was committed during
robbery or burglary, or flight after robbery or burglary;
that murder was committed during robbery or burglary, or flight after robbery or burglary; woman who drove defendant to convenience
store testified he entered store with intent to commit robbery, defendant entered store with gun, and jury convicted defendant of
robbery and burglary. NRS 200.033(4).
8. Homicide.
Evidence at death sentencing supported aggravating circumstance that murder was random and without apparent motive;
defendant, who entered convenience store with intent to commit robbery, had received money from convenience store clerk and could
have left store unfettered, but defendant killed clerk anyway. NRS 200.033(9).
9. Homicide.
Evidence at death sentencing, reweighed by supreme court after reversal of one aggravating circumstance, supported death
sentence. Mitigating circumstance of lack of significant criminal history was outweighed by aggravating circumstances that killing
occurred during robbery and that defendant shot convenience store clerk while defendant was escaping from scene of crime unfettered.
NRS 200.033(4), (9).
10. Homicide.
Death sentence was not excessive, as murder was cold-blooded. Defendant had already completed robbery of convenience store
and was escaping from crime scene when he shot store clerk, who was not chasing defendant and had not pulled gun or threatened
defendant. NRS 177.055(2)(d).
OPINION
By the Court, Shearing, J.:
Wilbert Leslie was convicted of burglary, robbery with the use of a deadly weapon, and murder with the use of a deadly weapon,
and sentenced to death. We affirm the conviction and sentence.
FACTS
On August 9, 1994, Prewitt was working as a clerk in a 7-Eleven store in Las Vegas. At approximately 9:00 p.m., Prewitt was
shot and killed by an African-American man during a robbery of that store. Leslie was tried and convicted of the crime.
Bobby Roberts testified that at approximately 9:00 p.m. on August 9, 1994, he and his wife Lois were returning to their mobile home
from grocery shopping. Bobby stated that he had parked his car in the back parking lot area of the 7-Eleven store, which placed him
directly in front of his mobile home and approximately fifty feet from the 7-Eleven store. Bobby stated that the 7-Eleven store was
well-lighted and that as he exited his car he saw an African-American man, whom he later identified in a photo and physical line-up and at
trial, as Leslie, standing at the outside rear of the 7-Eleven store. He described Leslie as being tall with a thin face and long curly hair,
wearing dark pants, a white T-shirt, and tennis shoes.
white T-shirt, and tennis shoes. Bobby also stated that he saw a gold, luxury-type car with
tinted windows pull into the 7-Eleven parking lot and saw the man approach the car and
speak to the driver through the driver's side window. Lois's testimony mirrored Bobby's, and
she also identified Leslie as the man she saw at the 7-Eleven.
Approximately fifteen to thirty minutes after last witnessing the man, Bobby heard
sirens and a helicopter, looked out of his mobile home window, and saw police cars and an
ambulance at the 7-Eleven. Bobby spoke with a police officer, learned that the clerk in the
7-Eleven had been shot, and asked the officer if an African-American had committed the
crime. The officer informed Bobby that an African-American man had committed the crime,
and Bobby gave the officer a statement and a description of the man he had seen at the rear of
the store just minutes earlier.
Amy Eggers testified that she was a regular customer at the 7-Eleven and had arrived there
shortly before 9:00 p.m. on August 9, 1994. She was playing video poker and was seated at
the fifth and farthest machine from the door. She heard the door ringer, indicating that
somebody had come through the front door, and looked up from her machine to see who had
entered the store. An African-American man had entered the store wearing dark pants, a
white T-shirt and white tennis shoes; she only saw his left profile. She looked back to her
machine, but her attention was directed back to the counter area when the African-American
man yelled, Give me the money, and fired a gunshot over Prewitt's head. The gun was a
black steel revolver with a wooden handle. Prewitt opened the cash register, and the assailant
reached in, grabbed the money, backed away, and then shot Prewitt in the chest, killing him.
After the shooting, the man turned and left the store, at which time she saw his right profile;
she never saw the front of his face. After the shooting, the two other clerks who had been in
the back room came out to help, and one of them called 911 for assistance. On October 12,
1994, Eggers attended a physical line-up in which Leslie was present. She saw the front of
Leslie's face and both profiles and identified Leslie as the man who had shot Prewitt on
August 9, 1994.
Kristen Motyka was working as a clerk in the 7-Eleven on August 9, 1994. During a
lull, Kristen took a break to eat a hot dog in the back room of the store. The assailant entered
the store, and Prewitt told Kristen that he would tend to the customer. Shortly thereafter,
Kristen stated that she heard a pop, which she believed was a box hitting the floor, and
looked over her shoulder and around the corner to see an African-American man pointing a
gun at Prewitt. She stated that the assailant was wearing a white T-shirt, had a long "jerri
curl" hairstyle,
wearing a white T-shirt, had a long jerri curl hairstyle, and was pointing a black revolver at
the wall behind Prewitt. She heard the assailant yell, Give me the money, heard another
pop, and then heard Prewitt say, Call 911. Kristen was shown a photo line-up and picked
Leslie's picture as the person that she believed was the man she had seen shoot Prewitt.
However, at a physical line-up, Kristen picked a person other than Leslie as the man she
believed shot Prewitt.
1

Senior crime analyst David Horn testified that there was a bullet hole in the wall
behind the counter approximately five to seven feet above the floor. The bullet was found in
the storage area on the other side of the wall in a Slurpee cup box. Horn also stated that he
processed the interior and exterior of the store for fingerprints, but neither he nor another
crime scene analyst found any identifiable fingerprints.
The 7-Eleven store was equipped with a video surveillance system which recorded the
killing. The videotape indicated that the killing occurred at 9:05 p.m. Detective Robert
Leonard testified that he viewed the videotape of the killing and that Eggers' description of
the assailant and how the killing occurred basically matched what was on the videotape.
On September 28, 1994, a telephone call came to Leonard through the police's Secret
Witness program. The caller stated that the person who had killed the 7-Eleven clerk had told
her of the crime. She identified the killer as Wilbert, but did not know his full name
because everybody called him Tuggy. She gave the police directions to Tuggy's house, but
was unsure of the exact address. The caller also told the police that they already had the
murder weapon in their possession because Tuggy had sold the gun to a girl, the girl had
placed the gun in her Cadillac which had been towed by the police, and when the girl got the
car back the gun was not in the car. The caller never identified herself and was never
identified by the police.
Leonard followed the caller's directions and eventually discovered that Leslie and his
mother lived in the house that the caller had described. Leonard obtained a physical
description and a photograph of Leslie and put together a photographic line-up. This
photographic line-up was shown to all of the witnesses in this case.
Leonard then went to the police department to search for the gun which the caller
suggested was in police custody. The bullets recovered from the 7-Eleven wall and Prewitt's
body were .38 caliber, and Leonard searched for a matching gun. One of the weapons in
police custody was a .3S caliber pistol
__________

1
Gary Cole, the other clerk on duty that night, was unable to identify the assailant because he was also in the
back room and only briefly saw the assailant.
weapons in police custody was a .38 caliber pistol recovered from the trunk of a bronze
Cadillac Fleetwood which had been impounded from a park on Gowan Road and Lincoln
Road. The police had impounded the car because it had a broken rear window and they
believed that the car had been stolen. The park where the car had been towed from was
located two blocks south of Leslie's home and approximately one mile from the 7-Eleven.
Leonard took the gun to firearms examiner Richard Good. The gun was black with a
brown grip, which matched Eggers' description of the gun. Leonard stated that the gun was
supposed to be double action, meaning that when the trigger was pulled the hammer came
back (was cocked) and then was released, firing a shot. However, when Good examined the
gun, he discovered that the trigger would not move and that the hammer had to be manually
cocked before the gun could be fired. Leonard stated that the assailant in the video could be
seen manually cocking the gun and then firing it. After examining both the gun and the
bullets found in the Slurpee box and Prewitt's body, Good concluded that both bullets were
fired from the gun found in the trunk of the Cadillac.
Leonard identified the owner of the bronze Cadillac Fleetwood as Rhesa Gamble. Leonard
contacted Gamble on October 7, 1994, and Gamble gave a recorded statement to Leonard. In
her statement, Gamble stated that she and Leslie were dating and were in love, but that she
did not know his full name and that she called him Tuggy. She also stated that the murder
weapon had originally belonged to Leslie and that she had purchased it from him for fifty
dollars. Gamble also identified Leslie's photograph from the photo line-up.
After he talked with Gamble, Leonard, along with Detective James Franks,
immediately went to Leslie's house to talk with him. Franks testified that they knocked on
Leslie's door and an African-American man answered. Franks asked for Tuggy, and the
man stated, There's no Tuggy here. Franks then asked to speak to Wilbert Leslie, and the
man stated that he was Wilbert Leslie. Franks and Leonard took Leslie to the police station
for questioning, and during the interview, Leslie denied owning a firearm and going by the
name Tuggy. When asked if he was familiar with the bronze Cadillac, Leslie stated that he
knew of many Cadillacs. When asked if he was familiar with a Cadillac owned by Rhesa
Gamble, Leslie first asked, Rhesa who?, and then stated that he knew someone named
Rhesa; however, Leslie denied that Gamble was his girlfriend. When Franks told Leslie that
Gamble had indicated that she had obtained the murder weapon from him, Leslie gasped and
stated, Oh no. Franks testified that Leslie was frightened, nervous, surprised, and "totally
caught off guard" by his statement.
totally caught off guard by his statement. Leslie denied involvement in the killing, but at
the conclusion of the interview, the police placed him under arrest.
At trial, Gamble testified that she and Leslie were dating in the summer of 1994, and
Leslie went by the nickname Tuggy. On August 9, 1994, the day of the 7-Eleven killing, she
drove to the 7-Eleven in her bronze Cadillac with Leslie, who was wearing a white T-shirt
and dark pants, and a friend called Big Dave. She pulled into the front parking lot of the
7-Eleven, but Leslie told her to park on the side of the store not the front; Leslie then got out
of the car and told her to drive down the street. She drove down the street and then returned
to the 7-Eleven, and Leslie was still standing on the side of the 7-Eleven in the same place
where she had dropped him off. Leslie approached the car and spoke to her through the
driver's window, telling her to drive down the street and to then return.
When Gamble and Big Dave returned to the 7-Eleven, Leslie was walking down the street
away from the 7-Eleven. Leslie, appearing nervous, got into the car, told Gamble to drive
away, and asked her and Big Dave if they had heard any gunshots. Leslie then began yelling,
I killed him. When she asked him what had happened, Leslie stated that he had killed the
clerk because the clerk would not give him the money. She kept the murder weapon in her car
because she did not want Leslie to have it, and on September 2, 1994, she left her car near
Leslie's house because the battery was dead; when she returned to retrieve the car the next day
it had been towed away. She later told a friend, Shanee Lakes, that she had been present at the
7-Eleven with Leslie and Big Dave when Prewitt was killed.
At trial, Shanee Lakes testified that Gamble had confessed to her presence at the
7-Eleven with Leslie and Big Dave when Prewitt was killed. She also stated that Gamble had
told her that Leslie had robbed and shot the clerk. Rochelle Jones, another of Gamble's
friends, testified that Gamble had told her that she went to the 7-Eleven with Leslie and that
Leslie had gone into the 7-Eleven while she waited inside the car.
Leslie did not testify at trial, but several witnesses testified on his behalf. Michael
Johnson, Orbey Mitchell, Randy Brumfield, and Richard Cheesbro, all testified generally as
follows. On the day of the killing, they, along with Leslie (whom they knew as Tuggy), went
to a basketball game at the Doolittle Community Center. They all met at Johnson's house
around 6:00 p.m., and they then went to pick up several more friends at a house on Ferguson
Street, staying at that house for approximately one or two hours. The game began at
approximately 10:00 p.m., and they stayed at the game until approximately midnight, at
which time they all went back to the house on Ferguson Street.
At the conclusion of trial, the jury found Leslie guilty on all countsburglary,
robbery with the use of a deadly weapon, and first degree murder with the use of a deadly
weapon. At the penalty phase, the State alleged four aggravating circumstances: the murder
was committed by a person who knowingly created a great risk of death to more than one
person by means of a weapon, device or course of action which would normally be hazardous
to the lives of more than one person; the murder was committed while Leslie was engaged in
the commission of or an attempt to commit or flight after committing or attempt to commit a
burglary; the murder was committed while Leslie was engaged in the commission of or an
attempt to commit or flight after committing or attempting to commit a robbery; and the
murder was committed upon one or more persons at random and without apparent motive.
Leslie presented mitigating evidence from his father who stated that Leslie had done well
in high school and was a loving child with a good heart. Leslie's sister testified that they had a
close family and that Leslie was a good person. Leslie's mother testified that Leslie was a
good son and had always been respectful and obedient.
At the conclusion of the penalty phase, Leslie was assessed the death penalty by the
jury for the murder charge because the jury found that all four aggravating circumstances had
been proven beyond a reasonable doubt and that they outweighed the mitigating
circumstancethat Leslie had no significant criminal history. Leslie was also sentenced to
ten years imprisonment for the burglary charge and fifteen years imprisonment for the robbery
charge, plus a consecutive fifteen years imprisonment for the use of a deadly weapon
enhancement.
DISCUSSION
The district court did not commit reversible error by allowing into evidence the testimony of
a witness with whom the State had reached a plea bargain
[Headnote 1]
Leslie argues that the State improperly bargained for Gamble's particularized
testimony and that the district judge improperly admitted Gamble's testimony into evidence.
We disagree.
Gamble gave a recorded statement to Leonard on October 7, 1994, stating that she bought
the gun from Leslie. On December 1, 1994, Gamble testified at a grand jury hearing convened
to investigate Prewitt's death. Gamble's testimony at the grand jury hearing was similar to her
earlier recorded statement except that she stated at the grand jury hearing that she had not
purchased the gun from Leslie and instead had purchased it from a man on the street near
the Opera House casino.
street near the Opera House casino. She also stated that she had never spoken to Leslie about
the 7-Eleven killing and had never told anybody that she was present at the 7-Eleven on the
night of the killing. During her testimony, the district attorney stopped the proceedings to
counsel Gamble about the penalty for perjury, and Gamble indicated that she was telling the
truth.
On December 22, 1994, a preliminary hearing was held. Gamble's testimony mirrored
that given to the grand jury. After Detective Franks testified as to Gamble's recorded
testimony regarding her purchasing the gun from Leslie, Gamble was recalled to the witness
stand and asked specifically whether she had been in the car parked outside of the 7-Eleven
with a man named Big Dave on the night that Prewitt was killed. Gamble answered the
question in the negative. The justice of the peace cautioned Gamble that she could face
perjury charges if she did not testify truthfully. Gamble concluded her testimony by stating
that she had never told her friends Shanee Lakes and Rochelle Jones that she was with Leslie
and Big Dave when Prewitt was killed. Shanee Lakes then testified that Gamble had told her
over the telephone that she was with Leslie and Big Dave when Prewitt was killed, and
Rochelle Jones testified that Gamble had told her that she was at the 7-Eleven when Prewitt
was killed.
At the conclusion of the preliminary hearing, the justice of the peace stated that he
believed that Gamble had lied under oath and asked the State to consider bringing perjury
charges against her. The deputy district attorney requested permission to charge Gamble with
perjury immediately; the court agreed and addressed Gamble directly and informed her that
probable cause existed to believe that she had lied under oath. Gamble was placed under
arrest at that time.
The State filed an information on February 13, 1995, charging Gamble with murder
with the use of a deadly weapon, accessory to a felony, burglary, robbery with the use of a
deadly weapon, and perjury. On February 14, 1995, Gamble signed a Guilty Plea
Memorandum in which she pleaded guilty to perjury and the State agreed to drop the other
charges and recommend a ten-year suspended sentence and probation. The guilty plea
memorandum stated:
I testified that I knew nothing about Wilbert Leslie's participation in the robbery and
murder of William Prewitt inside a 7-11 store on North Nellis on August 9, 1994. That
testimony was false because I had driven Leslie to the 7-11 and waited for him outside
in my car. When Wilbert Leslie came out of the 7-11 he told me he had shot the clerk
because he refused to give him money.
Gamble also agreed to cooperate with the State in the case against Leslie and to testify
truthfully in that case, and acknowledged that the guilty plea agreement would be nullified if
she did not testify truthfully.
Leslie argues that this agreement to cooperate constituted an improper bargaining for
particularized testimony. See Sheriff v. Acuna, 107 Nev. 664, 669, 819 P.2d 197, 200 (1991).
We conclude that the State did not improperly bargain for particularized testimony.
Gamble was charged with perjury and the other charges because evidence of her October
recorded statement to the police and the testimony of Shanee Lakes and Rochelle Jones all
indicated that Gamble was present at the 7-Eleven with Leslie and that Leslie had sold her the
murder weapon, contrary to her later testimony. In her plea agreement, Gamble admitted to
giving perjurious testimony at the two previous proceedings and admitted that she drove
Leslie to the 7-Eleven. Furthermore, the Agreement to Cooperate memorandum stated only
that Gamble agreed to testify truthfully at Leslie's trial, as determined by the court. This
requirement is in accord with NRS 174.061(1)(b), which states that if a defendant agrees to
testify for the prosecution against another defendant in exchange for a reduced sentence, the
agreement [m]ust be in writing and include a statement that the agreement is void if the
defendant's testimony is false.
Leslie argues that the prosecution dictated to Gamble what the truth was by virtue of the
fact that she was charged with perjury for her testimony at the two previous proceedings and,
therefore, that this case is substantially similar to People v. Medina, 116 Cal. Rptr. 133, 135
(Ct. App. 1974) (concluding that the prosecution improperly bargained for particularized
testimony when it granted defendants immunity in return for testimony on the condition that
the witness not materially or substantially change her testimony from her tape recorded
statement already given to law enforcement officers). We conclude that Leslie's argument
lacks merit. Credible evidence, including Gamble's original statement to the police, her
possession of the murder weapon, the testimony of Shanee Lakes and Rochelle Jones, and
wiretap recordings of conversations between Shanee and Gamble, all indicated that Gamble
was present with Leslie at the 7-Eleven. Therefore, pursuant to Acuna, the prosecution was
permitted to bargain for specific testimony essentially consistent with the information
represented to be factually true during Gamble's negotiations with the State. Acuna, 107 Nev.
at 669, 819 P.2d at 200.
[Headnote 2]
Leslie also argues that the State's action in charging Gamble with numerous crimes
constituted an improper interference with a potential defense witness which "effectively
drove that witness off the stand,
with numerous crimes constituted an improper interference with a potential defense witness
which effectively drove that witness off the stand, and thus deprived [the appellant] of due
process of law under the Fourteenth Amendment. Webb v. Texas, 409 U.S. 95, 98 (1972).
We disagree and note that the facts in Webb are distinctly different from those presented in
the case at bar. In Webb, the judge told the defendant's only witness prior to testifying about
the penalty for perjury and that he expected the witness to lie, and also informed the witness,
who was serving a prison sentence at the time, that a conviction of perjury would hurt the
witness' chances of parole. Id. at 97. The Supreme Court stated that such threatening remarks
effectively drove the witness off the stand and deprived the defendant of due process. Id. at
98.
No such threats were made in the instant case. The prosecutor and justice of the peace
warned Gamble about perjury only after hearing some of her testimony, and the warnings
were not threatening as were those in Webb. Furthermore, the district court did not err in
advising Gamble of the consequences of perjury or in cautioning her about testifying
truthfully. State v. Martinez, 653 P.2d 879, 884 (N.M. Ct. App. 1982).
The prosecutor did not engage in misconduct which deprived Leslie of a fair trial
In the guilt phase closing argument, the prosecutor made the following statement:
And on cross-examination, [Gamble] very freely discussed how detectives allegedly
planted information with her, how detectives allegedly told her that number two in the
photographic lineup was Tuggy before she even saw it. We now know that's incorrect.
In opening arguments during the penalty phase of the trial, the prosecutor stated the
following:
Obviously, this is a case that will not be soon erased in your minds. You are also,
perhaps to a certain extent, victims. You will perhaps never forget the video tape that
you saw of this killing by the defendant.
During the penalty phase closing argument, the prosecutor allegedly implied that there
was a presumption in favor of finding the death penalty over life with or without the
possibility of parole when the aggravating circumstances outweighed the mitigating
circumstances, stating:
I suggest to you that [Leslie] does have a substantial criminal history.
But even if you disagree with our perspective, you have to ask yourself the important
question:
ask yourself the important question: Is this enough to mitigate the death penalty,
mitigate these aggravating circumstances? Is this enough to say that he doesn't deserve
the ultimate punishment in this case?
Leslie argues that each passage emphasized above constituted prosecutorial
misconduct; however, Leslie failed to object to the statements and the issues were not
preserved for appeal. Miranda v. State, 101 Nev. 562, 570, 707 P.2d 1121, 1126 (1985). We
conclude that they certainly do not constitute plain error. Therefore, we will not address the
propriety of these statements.
[Headnote 3]
However, in the penalty phase closing arguments, the prosecutor stated:
We also take a look at what is the message that we are to send to the defendant and
others like him in society?
By your verdict, you will be sending a message to society. You'll be sending a
message to future 7-Eleven, AM/PM robbers.
Leslie's counsel objected to this statement. However, we have recently concluded in Witter v.
State, 112 Nev. 908, 924-25, 921 P.2d 886, 897-98 (1996), that such statements were proper
as they only focused on what the appropriate punishment should be under the facts presented,
as well as what was necessary to deter others from committing such an act.
The trial court did not erroneously admit dubious and tenuous evidence of character at the
penalty hearing
[Headnote 4]
Leslie argues that the trial court erred by admitting into evidence at the penalty phase
two items of testimony which constituted dubious and tenuous evidence of Leslie's character.
First, over the objection of Leslie's counsel, Franks testified that the murder weapon
recovered from Gamble's car was registered to a Mr. Henry Washington. Franks testified that
Washington told him that the weapon was his and that an unknown woman had taken the gun
and traded it for rock cocaine in 1990 or 1991. However, through some type of error with the
police, no report of the theft was filed.
The decision to admit particular evidence during the penalty phase is within the sound
discretion of the trial court, and will not be overturned absent an abuse of discretion. The
evidence must be relevant and must be more probative than prejudicial. Pellegrini v. State,
104 Nev. 625, 631, 764 P.2d 484, 488 (1988) (citations omitted). Leslie argues that the
evidence of the stolen gun was overly prejudicial because no evidence was presented that
Leslie stole the gun or knew that the gun was stolen.
gun was overly prejudicial because no evidence was presented that Leslie stole the gun or
knew that the gun was stolen. However, we conclude that the district court's decision to admit
Franks' testimony was not an abuse of discretion. The evidence was relevant because it helped
to prove that the gun was not registered to Leslie and that Leslie knew that the gun was
stolen. Additionally, on cross-examination, Franks testified that he did not know how the gun
got into Leslie's possession, thereby negating the inference that Leslie had stolen the gun from
its registered owner. Therefore, the evidence could clearly be considered more probative than
prejudicial by the district judge.
Furthermore, the prosecution attempted to use the evidence of the stolen gun to prove
that Leslie had a significant history of prior criminal activity. However, the jury concluded
that sufficient evidence supported the mitigating circumstance that Leslie had no significant
history of prior criminal activity. Therefore, Leslie was not prejudiced by Franks' testimony.
[Headnote 5]
The second alleged error was that the district judge permitted Kenneth O'Rourke, a
detention center officer, to testify concerning Leslie's confinement in the county jail,
specifically as to an incident which occurred on April 11, 1995. O'Rourke testified that on
that day, Leslie was late for a medication call, swore at O'Rourke, grumbled when he was told
to return to his cell, and repeated all of the questions that O'Rourke asked him. O'Rourke filed
a report regarding this incident and testified that other disciplinary reports regarding similar
behavior had also been filed. None of those reports involved violence.
Leslie argues that this testimony was trivial and too tenuous to be considered in deciding
whether to impose a sentence of death, citing Allen v. State, 99 Nev. 485, 665 P.2d 238
(1983). We conclude that while the evidence had little probative value, it also had little
prejudicial effect; therefore, the decision to admit it was not an abuse of discretion.
Evidence did not support the finding of one of the aggravating circumstances
[Headnote 6]
NRS 177.055(2)(b) requires this court to examine the record to determine whether
evidence supports the finding of an aggravating circumstance. Four aggravating
circumstances were presented to the jury, and the jury found that all of the aggravating
circumstances were proven beyond a reasonable doubt. We conclude that evidence existed to
support the jury's finding of three of the aggravating circumstances.
Evidence did not support the jury's finding that the murder was committed by a person who
knowingly created a great risk of death to more than one person
The prosecutor asked the jury to find, pursuant to NRS 200.033(3), that the murder
was committed by a person who knowingly created a great risk of death to more than one
person by means of a weapon, device, or course of action which would normally be
hazardous to the lives of more than one person based on the fact that Kristen and Cole were
in the storage room where Leslie's first bullet (fired into the wall over Prewitt's head) lodged.
We conclude that evidence did not exist to support the jury's finding beyond a reasonable
doubt that Leslie knowingly committed a great risk of death to more than one person.
Therefore, the jury's finding of NRS 200.033(3) was improper.
No evidence was presented at either the guilt phase or the penalty phase that Leslie
knew that the two clerks were in the storage room. Kristen's testimony was as follows:
I got a hot dog and started walking towards the back of the room when somebody
came in. I went to put the hot dog down to go to the register, and [Prewitt] told me,
No, I'll get it. You finish eating your dinner.
The prosecutor argues that because Kristen stated that she was walking towards the back of
the room when somebody came in, it is possible that Leslie could have seen Kristen walk
into the storage room. Kristen testified that she had been worried that Leslie might have seen
her upon entering the store, but this testimony does not support the jury's finding that, beyond
a reasonable doubt, Leslie saw Kristen.
Cole testified that he was tending to the hot dog stand and had stepped into the back
room around the same time that Leslie entered the room. There was no testimony regarding
whether Leslie saw Cole, and Cole was unable to describe Leslie other than to say that he was
black and had curly hair.
Based on Moran v. State, 103 Nev. 138, 734 P.2d 712 (1987),
2
the jury's finding that
this aggravating circumstance was proven beyond a reasonable doubt was not supported by
evidence. Neither Kristen nor Cole stated that they had made eye contact with Leslie or that
Leslie gave them any indication that he knew they were in the storage room.
__________

2
In Moran, Moran shot seven bullets at his ex-wife, five of which entered her body and two of which passed
through a wall of an adjacent apartment. This court stated that because nobody else was present in the apartment
when Moran shot his ex-wife, and because there was no evidence that any neighbor was at an immediate risk of
death, or that Moran was aware that any other person was within close proximity of the crime scene, the finding
of an aggravating circumstance pursuant to NRS 200.033(3) was improper Moran v. State, 103 Nev. 138, 142,
734 P.2d 712, 714 (1987).
Leslie or that Leslie gave them any indication that he knew they were in the storage room.
Furthermore, the prosecutor's argument that evidence of NRS 200.033(3) existed because
Kristen and Cole were fearful for their lives lacks merit; based on the plain language of the
statute, Kristen's and Cole's state of mind was irrelevant.
Evidence supported the jury's findings that the murder was committed while the person was
engaged in the commission of or an attempt to commit or flight after committing or attempt to
commit a burglary or robbery
[Headnote 7]
The jury had previously convicted Leslie of burglary and robbery in the guilt phase.
Evidence presented from Eggers, Kristen, Cole, and Gamble all indicated that the killing took
place either during the robbery or the flight after committing a robbery. This testimony
provided evidence to support the jury's finding that the murder was committed during a
robbery or flight after a robbery pursuant to NRS 200.033(4).
Additionally, Gamble's testimony that Leslie had entered the store with the intent to
commit a robbery therein, and other evidence, namely the fact that Leslie entered the store
with a gun, provided evidence to support the jury's finding that the murder was committed
during a burglary or flight after committing a burglary pursuant to NRS 200.033(4).
Evidence supported the jury's finding that the murder was committed upon one or more
persons at random and without apparent motive
[Headnote 8]
We have stated that a murder can be random and without apparent motive if the
killing of a person was not necessary to complete a robbery. Bennett v. State, 106 Nev. 135,
143, 787 P.2d 797, 802 (1990). Evidence indicated that Leslie had received the money and
could have left the store unfettered, but killed Prewitt anyway. Therefore, we conclude that
evidence supported the jury's finding that the murder was random and without apparent
motive pursuant to NRS 200.033(9).
The jury's death sentence can still be maintained
[Headnote 9]
Because one of the aggravating circumstances was not supported by substantial
evidence and must be vacated, we will reweigh the remaining aggravating circumstances
against the mitigating circumstance
igating circumstancethat Leslie had no significant criminal history. Witter v. State, 112
Nev. 908, 929, 921 P.2d 886, 900 (1996). We did the same in Libby v. State, 109 Nev. 905,
859 P.2d 1050 (1993), overruled on other grounds by Libby v. State, 516 U.S. 1037, 116 S.
Ct. 691 (1996).
Because the facts supporting the mitigating circumstance have unequal persuasive
impact when compared with those supporting the aggravating circumstances, we affirm
Leslie's death sentence. Libby, 109 Nev. at 918, 859 P.2d at 1058. The facts showed that
Leslie committed the killing during the robbery, and that he shot Prewitt after he had taken
the money from the cash register and was exiting the store. Based on the evidence, Leslie was
escaping from the scene of the crime unfettered when he shot Prewitt apparently solely
because Prewitt did not give him the money fast enough.
We conclude that the aggravating circumstances far outweigh the mitigating
circumstance. Therefore, we will uphold the jury's death sentence.
The sentence of death was not excessive and was not imposed under the influence of passion
or prejudice
[Headnote 10]
NRS 177.055(2)(d) requires this court to review [w]hether the sentence of death is
excessive, considering both the crime and the defendant. We conclude that the sentence of
death was not excessive. As stated above, Leslie had already completed the robbery of the
store and was escaping from the crime scene, Prewitt was not chasing Leslie, and Prewitt had
not pulled a gun or threatened Leslie in any way. The murder was cold-blooded, and it is clear
that the death sentence was not excessive.
NRS 177.055(2)(c) requires this court to review [w]hether the sentence of death was
imposed under the influence of passion, prejudice or any arbitrary factor. We conclude that
the sentence of death was not imposed under the influence of passion, prejudice, or any
arbitrary factor. The jury heard evidence relating to both the aggravating and mitigating
circumstances and concluded that the aggravating circumstances outweighed the mitigating
circumstance. Therefore, we conclude that the sentence of death was not imposed under the
influence of passion, prejudice, or any arbitrary factor.
CONCLUSION
The prosecutor neither improperly bargained for Gamble's particularized testimony
nor improperly interfered with a defense witness. Additionally, the prosecutor did not engage
in any misconduct.
conduct. Furthermore, the district judge did not err in permitting the introduction of evidence
of Leslie's character during the penalty phase of the trial because its probative value
outweighed its prejudicial effect. Furthermore, while evidence did not exist to support the
jury's finding of an aggravating circumstance under NRS 200.033(3), Leslie's death sentence
is still affirmed because the remaining aggravating circumstances outweighed the mitigating
circumstance. Finally, the death sentence was not excessive and was not imposed under the
influence of passion or prejudice.
Young and Maupin, JJ., concur.
Springer, C. J., concurring:
I concur in the majority's affirming the death penalty, but I disagree with its
reweigh[ing] the remaining aggravating circumstances against the mitigating
circumstances. See Canape v. State, 109 Nev. 864, 859 P.2d 1023 (1993) (Springer, J.,
concurring in part and dissenting in part). I concur because I conclude that, as a matter of law,
mitigating circumstances cannot outweigh the aggravating circumstances in this case.
Rose, J., concurring:
The jury was instructed that it could find that the murder was committed upon one or
more persons at random and without apparent motive if the robbery which preceded the
murder could have been completed without killing the victim. This instruction is based upon
our holding in Bennett v. State, 106 Nev. 135, 143, 787 P.2d 797, 802 (1990). However, as I
expressed in my dissent in Nika v. State, 113 Nev. 1424, 951 P.2d 1047 (1997), this
interpretation of the phrase random and motiveless expansively broadens this aggravator
when the goal of establishing aggravators is to narrow the scope of those who are eligible for
the death penalty. This expansive interpretation is not a logical extension of this aggravator
and it has become a catchall for prosecutors in death penalty cases.
In cases where it is not reasonably clear that the random and motiveless aggravator
could apply, the definition of the three operative words (i.e. apparent, random, motive) should
be given as I explained in my dissent in Nika. The facts of this case are anything but what an
average person would think was a random and motiveless killing; therefore, it was essential
that a definition be given for these terms used to assist the factfinder.
The facts of the case also establish that the random and motiveless aggravator was
not applicable. The testimony the prosecution presented indicated that Leslie waited outside
of the 7-Eleven prior to robbing the store, apparently casing the store to see if he could rob it,
see if he could rob it, and only killing Prewitt after entering the store and demanding money
from him. Leslie killed Prewitt because Prewitt would not give him the money immediately
and, therefore, the killing was directed at a specific individual. Geary v. State, 112 Nev.
1434, 1446-47, 930 P.2d 719, 727 (1996). Only our tortured, expansive interpretation of this
random and motiveless aggravator in Bennett would permit a factfinder to reach the
conclusion that this aggravator was proven beyond a reasonable doubt.
However, there are two aggravators that the jury found which are supported by
overwhelming evidence, that Leslie committed the murder while he was engaged in the
commission of both a burglary and robbery. These two aggravators are sufficient to support
the jury's death penalty verdict. Therefore, I join with the majority in affirming both the first
degree murder conviction and the death penalty imposed.
____________
114 Nev. 25, 25 (1998) Elliot v. Resnick
ROBERT D. ELLIOT, Appellant, v. MARILYN A. RESNICK, Respondent.
No. 27894
January 22, 1998 952 P.2d 961
Appeal from a final judgment granting declaratory relief in favor of respondent.
Eighth Judicial District Court, Clark County; John S. McGroarty, Judge.
Buyer who had purchased her interest in bar and liquor license from predecessors in
interest who had contracted directly with seller brought suit for declaratory relief against
seller, claiming that seller had breached his obligation to transfer license. The district court
entered declaratory relief for buyer, finding that buyer was lawful owner of licenses and had
right to its transfer subject to approval by city. Seller appealed. The supreme court held that:
(1) on matter of first impression, failure to obtain city's prior approval of transfer did not
render contract illegal between parties to transaction, but merely conditioned completion of
transfer on city's approval, and (2) buyer had right to seller's cooperation in transfer, pursuant
to her purchase of license from her predecessors in interest or as assignee of their interest in
license.
Affirmed.
David M. Schieck, Las Vegas, for Appellant.
Kirby R. Wells & Associates, Las Vegas, for Respondent.
1. Pleading.
If affirmative defenses are not pleaded or tried by consent, they are waived. NRCP 8(c).
2. Pleading.
Affirmative defense of illegality of contract that was not raised in answer was tried by consent where plaintiff did not object
when defendant raised issue in pretrial memorandum and presented evidence on issue at trial. NRCP 8(c).
3. Intoxicating Liquors.
Sale of liquor license without obtaining governmental approval prior to completion of sale does not render transfer illegal and
unenforceable between parties; however, completion of transfer is subject to governmental approval.
Transfer of liquor license as part of sale of bar was not rendered illegal between parties or contrary to public policy by municipal
ordinance that required prior city approval of transfer; effect of ordinance was simply to delay completion of transfer until such time as
city's conditions were satisfied.
Sale of bar and liquor license obligated seller to take all steps necessary to transfer liquor license to buyer, and buyer's sale of
liquor license to third party before completion of liquor license transfer necessarily included seller's obligation to cooperate in transfer,
such that third party could enforce seller's obligation.
Assuming that buyer of bar and liquor license assigned his rights in liquor license to third party, third party stepped into buyer's
shoes and acquired buyer's right to have seller effectuate transfer.
OPINION
Per Curiam:
Respondent Marilyn A. Resnick bought a bar in Las Vegas, Nevada, on January 9, 1993, from Steve Kaboli. Resnick purchased
the property under the belief that the liquor license was included in the sale of the business. However, appellant Robert D. Elliot, the
original owner, who had sold the bar to Kaboli, asserted that he still had the right, title, and interest in the license, even though he no longer
owned the physical premises of the bar. Resnick accused Elliot of failing to cooperate with the City of Las Vegas (the City) in her
application for the transfer of the liquor license. The district court found that Resnick was the lawful owner of the liquor license and that
she had the right to have the license transferred to her subject to approval by the City.
Elliot appeals the lower court's decision, arguing that earlier contracts he had made with Resnick's predecessors in interest were illegal
and void because the contracts included the sale of a liquor license. Elliot contends that these purchasers did not have the right to the
liquor license,
the right to the liquor license, because according to the Las Vegas Municipal Code (LVMC),
a liquor license cannot be sold or transferred without prior approval. Therefore, Elliot argues
that he is still the rightful owner of the liquor license and that the subsequent purchasers of
the business and license, including Resnick, are not legally entitled to the license. We
conclude that Resnick had the right to have the liquor license transferred to her, subject to the
City's approval of the transfer and, therefore, affirm the district court's judgment.
FACTS
In 1991, Elliot owned a bar named Faces of Las Vegas (Faces) located at 2354 East
Bonanza Road in Las Vegas. Elliot had been issued a liquor license by the City, and Elliot's
brother, Jay Elliot (Jay), oversaw the opening of Faces, but did not hold an interest in the
business. In April of 1991, Kaboli negotiated with Jay to buy fifty percent of Faces from
Elliot for $15,000.00. According to Jay and Elliot, Kaboli was not interested in the liquor
license; Kaboli only wanted to be a partner in the business. Elliot informed Kaboli that the
liquor license could not be used as collateral or encumbered pursuant to the Las Vegas
Municipal Code and Nevada statutes.
Around this time, Kaboli's office manager, Ira Martinez, informed Kaboli that she wanted
to purchase a share of Faces. On April 11, 1991, instead of purchasing a share of the business
himself, Kaboli loaned Martinez $15,000.00 in order for her to buy fifty percent of the bar
and the liquor license. That same day, Elliot sold Martinez a fifty percent interest in Faces,
including the liquor license, for $15,000.00. The contract between Elliot and Martinez read:
Seller [Elliot] does hereby sell, convey and transfer to Buyer [Martinez] one-half (1/2)
of his ownership interest in the business including the liquor license hereinbefore
referred to for the sum of Fifteen Thousand Dollars ($15,000.00). Buyer is purchasing
her one-half (1/2) interest in the business as is and she shall take all steps necessary to
become licensed as a co-owner with Seller.
After acquiring the property, Martinez never applied for and was never approved to hold a
liquor license.
On May 13, 1991, Martinez assigned her fifty percent interest in Faces to Kaboli,
which included the rights to the business and liquor license that she had acquired from Elliot.
The assignment of this interest to Kaboli constituted Martinez's repayment in full of Kaboli's
April 11, 1991 $15,000.00 loan. On June 25, 1991, Elliot sold one-half of his remaining fifty
percent interest {twenty-five percent of the total) in Faces to Kaboli for $10,000.00.
(twenty-five percent of the total) in Faces to Kaboli for $10,000.00. Kaboli's interest in the
bar now totaled seventy-five percent, and Elliot owned the remaining twenty-five percent.
The June 25, 1991 sales agreement signed by Kaboli listed the assets of the business
and included a description of the liquor license. Specifically, the sales agreement included:
fixtures and equipment and a City of Las Vegas Liquor License No. LO-4-00120-4-000015.
The contract specifically states that:
[Elliot] does hereby sell, convey and transfer to [Kaboli] one-half (1/2) of his
ownership interest in the business including the liquor license hereinbefore referred to
for the sum of Ten Thousand Dollars ($10,000.00). [Kaboli] is purchasing his one-half
(25%) interest in the business as is and he shall take all steps necessary to become
licensed as a co-owner with [Elliot].
Id.
On or about October 4, 1991, Elliot sold his remaining twenty-five percent interest in
Faces and the liquor license to Kaboli for $5,000.00. After this transaction, Kaboli owned one
hundred percent of Faces. On January 9, 1993, Kaboli sold, transferred, and assigned his
entire interest in Faces, including the liquor license, to Resnick for the sum of $60,000.00.
The sales agreement between Kaboli and Resnick stated that the undersigned [Kaboli] does
hereby sell, transfer and deliver unto Marilyn A. Resnick (buyer) his right, title and interest in
Las Vegas City Liquor License known as LO4-00120-4-000015. Kaboli drafted and signed
the agreement. Resnick recorded this sales agreement with the Clark County Recorder.
Resnick did not seek City approval of the liquor license transfer prior to purchasing the
property from Kaboli. However, she subsequently secured a new location in which to operate
Faces and submitted an application with the City to transfer the liquor license. The City
informed Resnick that the title of the liquor license was clouded, as Elliot had transferred his
purported interest in the liquor license to his nephew for $500.00 just two days prior to the
date of Resnick's application for the transfer of the liquor license. Elliot refused to
acknowledge Resnick's interest in the liquor license. Resnick was told by the city licensing
service that she needed to obtain a court order before her application could be further
processed.
On February 17, 1994, Resnick filed a complaint against Elliot, claiming that she was
the lawful owner and holder of the liquor license and that Elliot had no right, title, or interest
therein. Resnick also claimed that Elliot had breached his sales contracts with her
predecessors in interest. On March 8, 1994, Elliot filed an answer denying Resnick's claims.
Elliot filed an answer denying Resnick's claims. A bench trial took place on May 18, 1995.
At trial, Resnick claimed that Elliot deliberately clouded the title to the license so that
Resnick's application could not be processed. Resnick argued that Elliot had an obligation to
take all steps necessary to effectuate the transfer of the liquor license to her, even though
Elliot had not directly sold her the license. Resnick presented evidence that Elliot had sold the
license to Martinez and Kaboli, promising to ensure that the liquor license would be
transferred to them, and that she had purchased the bar and liquor license from Kaboli with
this same condition. Kaboli testified that he had never been authorized to hold the liquor
license and that he had never applied to, nor requested approval from, the City to sell the
liquor license.
Elliot asserted that the January 9, 1993 sales agreement between Kaboli and Resnick
falsely stated that Kaboli was the lawful owner of the liquor license and that the license was
free of any encumbrances. Elliot submitted a letter from the City dated June 18, 1993, as
evidence that he remained the licensee. The letter memorialized a June 11, 1993 meeting
between Elliot and the chief of the privilege license division of the City. The letter stated that
the license will remain in non-operational status and you [Elliot] will remain the licensee
[until] the dispute between you and Mr. Kaboli is settled. The non-operational status meant
that the license could not be operated until a new location for it was found or until a new
owner was approved by the City. The license services supervisor for the City testified at trial
that if Resnick obtained a court order resolving the conflicting claims in her favor, the City
would proceed with processing her application.
In closing arguments, Elliot's attorney argued that the contracts for the sale of the
liquor license were illegal and unenforceable pursuant to Nevada law. Resnick's attorney
objected to this illegality defense, claiming that it had not been pleaded as an affirmative
defense and that he was unaware that illegality of the contracts was an issue. However,
because Elliot had raised the issue in his pre-trial memorandum, the court permitted the
parties to file post-trial briefs regarding the issue of whether Elliot's illegality defense was
valid.
The district court concluded that Elliot had breached his agreement with Resnick's
predecessors, Kaboli and Martinez, when he attempted to transfer his interest in the liquor
license to his nephew. The district court declared that nothing in the contracts rendered them
illegal or unenforceable. Thus, the district court held that Resnick was entitled to the liquor
license and that she had the exclusive right to transfer the liquor license to a suitable location,
location, in compliance with City ordinances and subject to approval by the City. The lower
court ordered Elliot to execute documents necessary to effectuate the transfer of the liquor
license to Resnick.
DISCUSSION
[Headnote 1]
As a preliminary matter, Resnick argues that the district court erred in permitting
Elliot to argue that the contracts at issue were void ab initio. NRCP 8(c) addresses affirmative
defenses and states that a party shall set forth affirmatively . . . illegality . . . and any other
matter constituting an avoidance or affirmative defense. If affirmative defenses are not
pleaded or tried by consent, they are waived. Idaho Resources v. Freeport-McMoran Gold,
110 Nev. 459, 461, 874 P.2d 742, 743 (1994). It is uncontroverted that Elliot failed to raise
the illegality issue as an affirmative defense in his answer and first raised the issue in a
pre-trial memorandum; however, NRCP 7 states that a pre-trial memorandum is a motion or
other paper and is not a pleading.
NRCP 15(b) states, in part, that [w]hen issues not raised by the pleadings are tried by
express or implied consent of the parties, they shall be treated in all respects as if they had
been raised in the pleadings. We have further stated that an affirmative defense can be
considered (if not pleaded) if fairness so dictates and prejudice will not follow. Ivory Ranch
v. Quinn River Ranch, 101 Nev. 471, 473, 705 P.2d 673, 675 (1985); see also NRCP 15(b).
[Headnote 2]
Elliot first raised the illegality issue in a pre-trial memorandum, and Resnick did not
object to its contents. In addition, Elliot put witnesses on the stand who discussed the statutes
regarding the sale of a liquor license and testified as to what constitutes an illegal sale of a
liquor license, making it clear that illegality was the basis of Elliot's defense; Resnick did not
object to this testimony. See Schwartz v. Schwartz, 95 Nev. 202, 206, 591 P.2d 1137, 1140
(1979) (stating that the issue was tried by consent where the defendant had raised the issues in
his opening argument, it had been explored in discovery, and there was no objection to the
admission of evidence relevant to the issue at trial). Given these facts, we conclude that the
district court properly considered the defense of illegality.
Elliot argues that the district court erred in not finding that his contracts with Resnick's
predecessors in interest, and between Kaboli and Resnick, were void ab initio because those
contracts involved the sale of the liquor license prior to obtaining City approval. We disagree.
LVMC 6.50.420 states that:
It is unlawful for any person to encumber any license by means of a lease, pledge,
mortgage, deed of trust, security interest or other manner of alienation; provided,
however, that this prohibition shall not apply to a transfer or encumbrance of a person's
interest in the licensee pursuant to the prior approval of the City Council, if such
approval is otherwise required by this Chapter.
The district court determined that Resnick had the exclusive right to the liquor license
and that the actual transfer was subject to approval by the City. The district court noted that
Resnick would have to comply with all city ordinances in connection with her application and
ordered Elliot to execute all documents necessary to transfer the license.
[Headnote 3]
While we have never addressed the issue of the sale of a liquor license without
obtaining governmental approval prior to the completion of the sale, courts in other
jurisdictions have resolved the issue in a manner consistent with the district court's ruling. See
Kurpjuweit v. Northwestern Development Company, Inc., 708 P.2d 39 (Wyo. 1985).
Kurpjuweit argued that a provision in a bar lease requiring reassignment or transfer of the
liquor license to Northwestern was illegal and unenforceable because it violated a Wyoming
statute very similar to LVMC 6.50.420, which stated that the licensing authority must give
prior approval to a transfer or assignment of a liquor license. Id. at 45.
The Wyoming court concluded that because the statute expressly permitted the transfer of
a liquor license, the provision in the lease containing the requirement that the lessee transfer
the liquor license to the lessor at the conclusion of the lease was valid and enforceable as
between the parties. Id. at 46. However, the court further held that although the provision in
the lease was enforceable between the parties, it did not bind the county commissioners to
allow the transfer and that [t]he licensing authority still must follow the statutory
procedures and exercise its independent judgment whether such transfer should be allowed.
Id.; see also Groshelle v. Reid, 893 P.2d 314, 317 (Mont. 1995) (stating that the owner of a
beer and wine license may transfer the license, subject to approval of the Department of
Revenue); Samuel's Realty Co., Inc. v. McCarthy, 512 A.2d 872, 874 (R.I. 1986) (stating
that [a]s a general rule, the holder of a liquor license may freely contract to transfer the
license to other persons subject to official approval of the transfer, and such contracts are
valid and specifically enforceable). We find the reasoning in Kurpjuweit, Groshelle, and
Samuel's Realty Co. to be persuasive support for the district court's ruling.
In White v. Mattox, 619 P.2d 9 (Ariz. 1980), Mattox sold his liquor license to White
pursuant to a sales agreement. After making several installment payments to Mattox, White
learned that the transfer of a liquor license without an accompanying sale of a business was
illegal pursuant to a statute. Id. at 10. Thereafter, White brought suit for recision of the sales
agreement and restitution of all the monies paid to the defendant. However, Mattox argued
that the contract was legal and, even if it was not, that the court should leave the parties where
it found them. Id. at 10, 12. The Arizona Supreme Court rejected Mattox's argument and
concluded that:
[T]he Legislature has not prohibited the transfer of liquor licenses. Transfers are not per
se illegal. The transfer is made subject to conditions and must conform to the standards
prescribed by the State. Hence, since the act of transfer is not forbidden as illegal or
contrary to public policy, recovery of the purchase price for the license should not be
withheld.
Id. at 12.
[Headnote 4]
LVMC 6.50.420 does not render the transfer of the liquor license illegal; rather, it
subjects sales or transfers of liquor licenses to several conditions. Therefore, as stated in
White, we conclude that the transfer was not illegal or contrary to public policy; however, as
stated by the district court, the transfer will not be completed until the City's conditions are
satisfied.
1
See Greve v. Leger, Limited, 415 P.2d 824, 827 (Cal. 1966) (stating that transfers
or sales of licenses are valid and specifically enforceable, but are subject to official approval).
[Headnote 5]
Elliot makes a secondary argument that it was improper for Resnick to sue him
because no contract existed between himself and Resnick.
__________

1
Questions of statutory construction are subject to de novo review by this court. SIIS v. Snyder, 109 Nev.
1223, 1227, 865 P.2d 1168, 1170 (1993). However, an administrative agency charged with the duty of
administering an act is impliedly clothed with the power to construe the relevant laws and set necessary
precedent to administrative action, and the construction placed on a statute by the agency charged with the duty
of administering it is entitled to deference. Id. at 1228, 865 P.2d at 1170. It appears that the City permitted liquor
licenses to be transferred by the method exhibited in the instant case. The license services supervisor for the City
at the time of the contested sale testified that the sale of a liquor license was often completed prior to seeking
approval for the sale, that all transfers were contingent upon approval of the City, and that without the approval
of the City, there could be no effective transfer. The supervisor opined that the agreements at issue implicitly
stated that the sale of the liquor license was subject to government approval. We think deference should be given
to this opinion.
Resnick to sue him because no contract existed between himself and Resnick. We reject this
contention. The sale from Elliot to Martinez, and later to Kaboli, was valid pending further
governmental approval, and Elliot was under the obligation to take all steps necessary to
effectuate the transfer of the liquor license. However, before Elliot could take the steps
necessary to effectuate the transfers to Kaboli and Martinez, Kaboli sold his interest in the
liquor license to Resnick.
[Headnote 6]
We conclude that such an interest necessarily included Elliot's obligation to take all
steps necessary to effectuate that transfer. Therefore, after the Kaboli sale to Resnick, Elliot
owed that obligation to Resnick, and Resnick's lawsuit to enforce that obligation was proper.
Furthermore, if Kaboli assigned his rights in the liquor license to Resnick, Resnick would
have stepped into the shoes of Kaboli and had all the rights that Kaboli had. Cf. Estate of
Jordan v. Hartford Acc. & Indem., 844 P.2d 403, 407 (Wash. 1993). Because Kaboli had the
right to have Elliot effectuate the transfer, Resnick had the same right after the assignment,
and her lawsuit against Elliot was proper.
CONCLUSION
We conclude that the district court did not err in permitting Elliot to raise the illegality
issue. We further conclude that the sale from Elliot to Martinez/Kaboli and from
Kaboli/Martinez to Resnick was legal and enforceable and that Resnick had standing to sue
Elliot.
____________
114 Nev. 33, 33 (1998) Smith v. State
JOSEPH WELDON SMITH, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 28786
January 22, 1998 953 P.2d 264
Appeal from a judgment of conviction and sentences of death for murder with use of a
deadly weapon. Eighth Judicial District Court, Clark County; Jeffrey D. Sobel, Judge.
Defendant, convicted and sentenced to death for first-degree murder with use of
deadly weapon of his wife and her two daughters, appealed sentences. The supreme court
vacated sentences, and remanded for new penalty hearing. Smith v. State, 110 Nev. 1094, 881
P.2d 649 (1994). On remand, defendant was sentenced to death in the district court.
Defendant appealed. The supreme court, Shearing, J., held that:
114 Nev. 33, 34 (1998) Smith v. State
supreme court, Shearing, J., held that: (1) instruction on depravity of mind was deficient; (2)
instruction on mutilation was proper; (3) evidence of wife's murder was admissible; and (4)
evidence supported denial of defendant's motion to waive counsel.
Affirmed in part and vacated in part.
Springer, C. J., dissented.
Steven G. McGuire, State Public Defender, Carson City; Donald York Evans, Reno,
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. Homicide.
Depravity of mind aspect of aggravating circumstance under first-degree murder statute, as narrowly construed to require
torture, mutilation or other serious and depraved physical abuse beyond killing itself, was not unconstitutionally vague and ambiguous
as written. NRS 200.033(8).
2. Homicide.
Depravity of mind, as aggravator under first-degree murder statute, may only be relied on where evidence of torture or
mutilation exists. NRS 200.033(8).
3. Homicide.
In first-degree murder sentencing, instruction on aggravating circumstance of depravity of mind was deficient in failing to
give guidance as to what constituted serious and depraved physical abuse. Aggravating circumstance based upon depravity of mind
must include torture or mutilation beyond act of killing itself. NRS 200.033(8).
4. Homicide.
Instruction, that term mutilate means to cut off or permanently destroy limb or essential part of body or to cut off or alter
radically so as to make imperfect, was proper for determining existence of aggravating circumstance in first-degree murder sentencing.
NRS 200.033(8).
5. Homicide.
In first-degree murder sentencing, despite defendant's contention that because medical examiner testified external injuries of one
victim occurred at about same time as her death and that blows to her head could have rendered her unconscious, torture or mutilation
could not be proved beyond reasonable doubt, there was sufficient evidence from which reasonable jury could conclude beyond
reasonable doubt that murder involved mutilation. NRS 200.033(8).
6. Homicide.
In step-father's sentencing for first-degree murder of his two step-daughters, any error in admitting testimony and autopsy
photographs regarding murdered mother was harmless. Evidence regarding mother was cumulative of other evidence of violence to
daughters, and revealed that mother suffered fewer blows in comparison to one daughter.
114 Nev. 33, 35 (1998) Smith v. State
that mother suffered fewer blows in comparison to one daughter. NRS 200.033(8).
7. Criminal Law.
Defendant has unqualified right to self-representation provided he has made voluntary and intelligent waiver of right to
counsel; however, self-representation may be denied where defendant abuses right of self-representation by disrupting judicial process.
U.S. Const. amend. 6.
8. Criminal Law.
Trial judge, who noted that defendant had engaged in several disruptive acts during trial, and who additionally believed that
defendant had dilatory purpose when he moved to waive counsel, did not abuse his discretion in denying motion to waive counsel. U.S.
Const. amend. 6.
OPINION
The facts of this case are set forth in Smith v. State, 110 Nev. 1094, 881 P.2d 649 (1994) (Smith I). On October 6, 1990,
police officers for the City of Henderson entered the home of appellant Joseph Weldon Smith (Smith) and discovered, in separate
bedrooms, the bodies of Judith Cox (Judith), Smith's wife, and Smith's stepdaughters Kristy Cox (Kristy) and Wendy Jean Cox
(Wendy). On December 11, 1992, Smith was convicted of three counts of first-degree murder with use of a deadly weapon and sentenced
to death for the murders of Kristy and Wendy.
In Smith, I we stated:
Since the jury was not instructed that depravity of mind must include torture, mutilation or other serious and depraved physical
abuse beyond the act of killing itself and since the jury may have found depravity of mind and not torture or mutilation, we hold
that NRS 200.033(8) was unconstitutionally applied in this case.
110 Nev. at 1104, 881 P.2d at 655-56. Since NRS 200.033(8)
1
was the single aggravating circumstance at issue,
we vacated the sentences of death and remanded the case to the district court for a new
penalty hearing.
__________

1
Prior to October 1995, NRS 200.033(8) read: The only circumstances by which murder of the first degree
may be aggravated are: . . . . (8) The murder involved torture, depravity of mind or the mutilation of the victim.
The revised provision states in pertinent part: The murder involved torture or the mutilation of the victim.
NRS 200.033(8). This amendment went into effect on October 1, 1995 and did not apply to murders committed
before that date. 1995 Nev. Stat., ch. 467, 2, at 1491. Accordingly, the pre-1995 version was the law at the
time of Smith's trial.
114 Nev. 33, 36 (1998) Smith v. State
On April 16, 1996, a second penalty hearing was held. After the close of evidence,
Smith's counsel made a motion to dismiss all aggravating circumstances as to Kristy, arguing
that there was insufficient evidence of torture, mutilation, or depravity of mind. The court
granted the motion in part, eliminating the grounds of torture and mutilation of Kristy.
The jury found that the murder of Wendy involved depravity of mind and mutilation and
that the murder of Kristy involved depravity of mind. The jury then found that the
aggravating circumstances outweighed any mitigating circumstance or circumstances in each
case and imposed a sentence of death for each murder. On May 7, 1996, the district court
entered an amended judgment of conviction. Smith now appeals.
Smith argues that NRS 200.033(8) was unconstitutionally vague and ambiguous as
written and as applied.
To avoid the arbitrary and capricious infliction of the death penalty, a state must
channel the sentencer's discretion by clear and objective standards' that provide specific and
detailed guidance,' and that make rationally reviewable the process for imposing a sentence
of death.' Godfrey v. Georgia, 446 U.S. 420, 428 (1980) (footnotes omitted).
In Godfrey, the statutory aggravating circumstance at issue authorized imposition of
the death penalty if a murder was outrageously or wantonly vile, horrible or inhuman in that
it involved torture, depravity of mind, or an aggravated battery to the victim. 446 U.S. at
422. A plurality of the United States Supreme Court held that the petitioner's death sentence
must be reversed because the state courts had failed to apply a narrowing construction of this
aggravating circumstance. Id. at 432.
Writing for the plurality, Justice Stewart explained the state supreme court's responsibility
to keep the statutory aggravating circumstance within constitutional bounds. Id. at 429. In
Gregg v. Georgia, 428 U.S. 153, 201 (1976), the joint opinion by Justices Stewart, Powell,
and Stevens had stated, It is . . . arguable that any murder involves depravity of mind or an
aggravated battery. But this language need not be construed in this way, and there is no
reason to assume that the Supreme Court of Georgia will adopt such an open-ended
construction. Thus, the state courts' construction of this aggravating circumstance determines
its constitutionality.
[Headnote 1]
In Deutscher v. Whitley, 884 F.2d 1152, 1162 (9th Cir. 1989), vacated on other
grounds, 500 U.S. 901 (1991), the Ninth Circuit held that a jury instruction on depravity of
mind based on NRS 200.033(8) did not satisfy the Godfrey requirements.
2
Accordingly, in
Robins v. State,
__________

2
The instruction in Deutscher stated:
114 Nev. 33, 37 (1998) Smith v. State
ingly, in Robins v. State, 106 Nev. 611, 629, 798 P.2d 558, 570 (1990), we adopted a narrow
construction, requiring torture, mutilation or other serious and depraved physical abuse
beyond the act of killing itself, as a qualifying requirement to an aggravating circumstance
based in part upon depravity of mind. Thus construed, the depravity of mind aspect of the
aggravating circumstance is not unconstitutional as written. Id.
[Headnote 2]
Since Robins, this court has upheld sentences of death based on depravity of mind
only where there has been evidence of mutilation or of torture. In Jones v. State, 107 Nev.
632, 635, 817 P.2d 1179, 1181 (1991), we explained, According to NRS 200.033(8), as
construed by this court, depravity of mind is an aggravating circumstance where the murder
involves torture or mutilation of the victim. In Domingues v. State, 112 Nev. 683, 917 P.2d
1364 (1996), cert. denied, 519 U.S. 968, 117 S. Ct. 396 (1996), we held that there was
insufficient evidence to support the aggravating circumstance of torture, depravity of mind, or
mutilation because there was no evidence that the defendant had committed an act of torture
or mutilation.
3

In the present case, the trial judge determined that there was insufficient evidence that
mutilation and torture were involved in the murder of Kristy. Accordingly, the trial judge
ruled that mutilation and torture would not be considered as to Kristy, and the jury was
instructed as follows:
Instruction No. 7:
4

The State has alleged that an aggravating circumstance is present in this case.
__________
[T]he condition of mind described as depravity of mind is characterized by an inherent deficiency of
moral sense and rectitude. It consists of evil, corrupt and perverted intent which is devoid of regard for
human dignity and which is indifferent to human life. It is a state of mind outrageously, wantonly vile,
horrible or inhuman.
884 F.2d at 1162 n.1.

3
To the extent that the above-quoted passage from Smith I may have created some confusion on the issue,
depravity of mind, as an aggravator, may only be relied upon where evidence of torture or mutilation exists.

4
The trial judge interrupted defense counsel's closing argument to elaborate on Instruction No. 7 as follows:
to the extent that Mr. Evans is saying that there may be some confusion as to whether there is one
aggravating circumstance or more than one, he's absolutely correct; there is only one aggravating
circumstance that is alleged by the State in this case, and that is composed of the subparts mutilation,
torture or depravity of mind.
I'm going to correct what is a fairly broad instruction, which is Instruction Number 7, to specifically say,
The State has alleged that an aggravating circumstance is present in this case, so there can be no
114 Nev. 33, 38 (1998) Smith v. State
The defendant have [sic] alleged that certain mitigating circumstances are present in
this case.
It shall be your duty to determine:
(a) Whether an aggravating circumstance or circumstances are found to exist; and
(b) Whether a mitigating circumstance or circumstances are found to exist; and
(c) Based upon these findings, whether a defendant should be sentenced to life
imprisonment or death.
The law never requires that you impose a sentence of death. The jury may impose a
sentence of death only if it finds at least one aggravating circumstance has been
established beyond a reasonable doubt and further finds that there are no mitigating
circumstances sufficient to outweigh the aggravating circumstances found.
Otherwise, the punishment imposed shall be imprisonment in the State Prison for life
with or without the possibility of parole.
Instruction No. 8:
You are instructed that the following factors are circumstances by which Murder of
the First Degree may be aggravated:
The murder involved, torture, depravity of mind or the mutilation of the victim.
The State is alleging depravity of mind in the murder of Kristy Cox.
The State is alleging torture or depravity of mind or mutilation in the murder of
Wendy Cox.
Jury Instruction No. 10 was identical to the instruction on depravity of mind given in
the first penalty hearing:
The condition of mind described as depravity of mind is characterized by an inherent
deficiency of moral sense and rectitude. It consists of evil, corrupt and perverted intent
which is devoid of regard for human dignity and which is indifferent to human life. It is
a state of mind outrageously, wantonly vile, horrible or inhuman.
In addition, on remand, the jury was given Instruction No. 11:
In order to find either torture or mutilation of a victim you must find that there was
torture or mutilation beyond the act of killing itself.
__________
doubt that it is one aggravating circumstance with three subparts. One of those subparts is related to one
of the victims or is alleged by the State with reference to one of the victims, all three of the subparts are
alleged with reference to the other victim; but it is only one total aggravating circumstance.
114 Nev. 33, 39 (1998) Smith v. State
must find that there was torture or mutilation beyond the act of killing itself.
In order to find depravity of mind you must find serious and depraved physical abuse
beyond the act of killing itself.
Given the insufficient evidence that the murder of Kristy involved torture or
mutilation, the trial judge may have implicitly decided that serious and depraved physical
abuse involved less physical abuse than torture or mutilation. In any event, the jury was
given definitions for torture and mutilation, but given no guidance as to what constitutes
serious and depraved physical abuse. This jury instruction is a departure from what this
court has previously determined is constitutionally acceptable.
[Headnote 3]
We conclude that the jury instruction on depravity of mind failed to properly channel
the jury's discretion in connection with the charges, stemming from Kristy's death. See
Godfrey, 446 U.S. at 428. An aggravating circumstance based upon depravity of mind must
include torture or mutilation beyond the act of killing itself. We vacate the sentence of death
as to Kristy and impose a sentence of life imprisonment without the possibility of parole in its
place. NRS 177.055(3)(c).
Smith contends that the jury instruction regarding mutilation was unconstitutionally vague
and ambiguous. Smith further contends that because the medical examiner testified that
Wendy's external injuries occurred at about the same time as her death and that the blows to
her head could have rendered her unconscious, torture or mutilation could not be proved
beyond a reasonable doubt.
The jury was instructed that the term mutilate means to cut off or permanently
destroy a limb or essential part of the body or to cut off or alter radically so as to make
imperfect. This court upheld this definition of mutilation in Deutscher v. State, 95 Nev. 669,
677, 601 P.2d 407, 412-13 (1979), vacated on other grounds, 500 U.S. 901 (1991).
[Headnotes 4, 5]
We conclude that the jury instructions regarding mutilation were constitutionally
sound. We further conclude that there was sufficient evidence from which a reasonable jury
could conclude beyond a reasonable doubt that the murder of Wendy involved mutilation.
Smith argues that the trial judge abused his discretion by admitting testimony and autopsy
photographs regarding Judith's death. Smith contends that any probative value of this
evidence was outweighed by its prejudicial effect because the hearing only concerned the
murders of Kristy and Wendy.
114 Nev. 33, 40 (1998) Smith v. State
The State argues that the probative value of evidence regarding Judith outweighed its
prejudicial effect because the crimes against Judith, Kristy and Wendy were intertwined.
The decision to admit particular evidence during the penalty phase is within the sound
discretion of the trial court, and will not be overturned absent an abuse of that discretion. The
evidence must be relevant and must be more probative than prejudicial. Pellegrini v. State,
104 Nev. 625, 631, 764 P.2d 484, 488 (1988) (citations omitted); see NRS 48.035.
[Headnote 6]
The testimony and photographs regarding Judith had little probative value because
Smith was not being resentenced for Judith's murder. However, the record reveals that Judith
suffered few blows in comparison to Wendy. The State presented extensive testimony and
autopsy photographs regarding Kristy's and Wendy's physical injuries. Evidence regarding
Judith was cumulative of other evidence of violence to Wendy and Kristy; therefore, we
conclude that any error in admitting it was harmless.
Smith argues that the trial judge committed reversible error in denying his
constitutional right to represent himself at the second penalty hearing. Smith argues that he
was forced to proceed with court-appointed counsel whom he had clearly rejected and with
whom he refused to cooperate.
[Headnote 7]
A defendant has an unqualified right to self representation provided he has made a
voluntary and intelligent waiver of the right to counsel. Lyons v. State, 106 Nev. 438, 443,
796 P.2d 210, 213 (1990). However, self representation may be denied where the defendant
abuses the right of self representation by disrupting the judicial process. Id. at 443-44, 796
P.2d at 213.
[Headnote 8]
At the hearing on Smith's motion to waive counsel, the trial judge noted that Smith
had engaged in several disruptive acts during trial. Additionally, the trial judge believed
Smith had dilatory purposes when he moved to waive counsel. We conclude that the trial
judge did not abuse his discretion when he denied Smith's motion to waive counsel.
We vacate the sentence of death for the murder of Kristy, and impose a sentence of
life imprisonment without the possibility of parole in its place. We affirm Smith's sentence of
death for the murder of Wendy.
Rose, Young and Maupin, JJ., concur.
114 Nev. 33, 41 (1998) Smith v. State
Springer, C. J., dissenting:
I dissent to the death penalty judgment with respect to the murder of Wendy. The
death penalty is based entirely upon mutilation as the sole aggravating factor. The definition
of mutilation given by the court is incomplete and lacks the element of specific intent. See
Browne v. State, 113 Nev. 305, 933 P.2d 187 (1997) (Springer, J., dissenting).
____________
114 Nev. 41, 41 (1998) State, Dep't Mtr. Veh. v. Evans
THE STATE OF NEVADA, DEPARTMENT OF MOTOR VEHICLES AND PUBLIC
SAFETY, Appellants, v. LARRY EVANS, Respondents.
No. 27947
January 22, 1998 952 P.2d 958
Appeal from an order of the district court granting respondent's petition for judicial
review and reinstating respondent's driving privileges. Eighth Judicial District Court, Clark
County; Donald M. Mosely, Judge.
Driver petitioned for review of revocation of driving privileges following arrest for
driving under influence of alcohol. The district court reversed, and Department of Motor
Vehicles (DMV) appealed. The supreme court held that: (1) supreme court had jurisdiction to
review decision of district court on judicial review of administrative proceeding, and (2)
hearsay statement was admissible, and supported revocation.
Reversed and remanded with instructions.
Frankie Sue Del Papa, Attorney General, and Bridget A. Branigan, Deputy Attorney
General, Carson City, for Appellant.
John G. Watkins, Las Vegas, for Respondent.
1. Administrative Law and Procedure.
State supreme court has jurisdiction to review decisions of district courts on judicial review of administrative proceedings.
Const. art. 6, 6; NRS 233B.150.
2. Automobiles.
License revocation hearing is civil proceeding, not criminal.
3. Automobiles.
In administrative hearing for revocation of driving privileges, hearing officer properly relied on assisting officer's hearsay
statement that defendant was driving vehicle, according to his partner who made traffic stop, to support finding that officer had
reasonable grounds to believe driver had been driving while under influence of alcohol.
driver had been driving while under influence of alcohol. U.S. Const. amend. 6; NRS 51.075(1), 233B.123(1).
4. Automobiles.
Driver, who was permitted in license revocation hearing to confront and cross-examine arresting officer on reasonableness of
officer's belief, based on hearsay evidence by officer's partner, that driver had been driving, was not deprived of right to confront and
cross-examine opposing witness. NRS 233B.123(4).
5. Automobiles.
At administrative hearing for revocation of driving privileges, Department of Motor Vehicles (DMV) was not required to prove
that driver was in fact driving or in actual physical control of vehicle, only that officer directing him to be tested had reasonable
grounds to believe that driver had been doing so while under influence of alcohol. NRS 484.387(2).
6. Automobiles.
Validity of driver's arrest is not issue in administrative license revocation proceeding. NRS 484.387(2).
OPINION
Per Curiam:
On November 28, 1994, Las Vegas Metropolitan Police Officer Scott Lang arrested respondent Larry Evans (Evans) for
driving under the influence of intoxicating liquor, then advised Evans of the implied consent law and asked him to submit to a blood or
breath test. After Evans refused to be tested, Officer Lang served him with notice of revocation of his driving privileges. Evans requested an
administrative hearing.
At the hearing on February 13, 1995, Officer Lang testified, over a hearsay objection, that he responded to the location where his
partner, Officer Merrill Sage, had stopped a vehicle driven by Evans in an erratic manner.
1
Officer Lang testified he
smelled alcohol on Evans' breath, and noticed his speech was slurred and his eyes were
bloodshot. When Evans failed a horizontal gaze nystagmus test and refused to take any other
field sobriety tests, Officer Lang arrested him. Officer Lang testified he advised Evans of the
implied consent law by reading it from a standardized form, and that Evans refused to take
any test. Evans did not testify at the hearing.
By written decision, the hearing officer overruled Evans' hearsay objection, citing
NRS 51.075(1)
2
and State of Nevada, Department of Motor Vehicles v. Kiffe,
__________

1
Evans' attorney objected to admission of the hearsay statement and its use to show that Evans was driving.
The hearing officer noted the objection for the record, reserved ruling on it, and allowed the police officer to
continue.

2
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
Department of Motor Vehicles v. Kiffe, 101 Nev. 729, 709 P.2d 1017 (1985); denied Evans'
motion to dismiss based on various constitutional challenges; and upheld the license
revocation. In support of revocation, the hearing officer found (1) Officer Lang had
reasonable grounds to believe Evans was driving or in actual physical control of a vehicle
while under the influence of intoxicating liquor; (2) Officer Lang asked Evans to take an
evidentiary test and warned him that a failure to submit would result in revocation of his
driving privilege; and (3) Evans failed to submit to any test.
Evans petitioned for judicial review. The district court granted the petition, and
determined the hearing officer erred in admitting hearsay evidence that Evans was driving.
According to the district court, this evidence deprived Evans of his constitutional right to
confront and cross-examine an adverse witness on an important fact. Consequently, the
district court reversed the license revocation and ordered that Evans' license be reinstated.
The Department of Motor Vehicles (DMV) appeals.
[Headnote 1]
The DMV contends Officer Lang's hearsay statement that Evans was driving,
according to Officer Sage, was admissible under Kiffe. Evans, on the other hand, contends
that Franco v. State of Nevada, 109 Nev. 1229, 866 P.2d 247 (1993), a criminal case,
repudiates the rationale of Kiffe, and that hearsay can no longer be admitted under the general
hearsay exception to prove that a DUI suspect was driving.
3

[Headnote 2]
A license revocation hearing is a civil proceeding, not a criminal prosecution. Beavers
v. State, Dep't of Mtr. Vehicles, 109 Nev. 435, 438, 851 P.2d 432, 434 (1993). The hearing
was limited to two issues: (1) whether Officer Lang, at the time he directed Evans to submit
to an evidentiary test, had reasonable grounds to believe that Evans had been driving or in
actual physical control of a vehicle while under the influence of alcohol,
__________
assurances of accuracy not likely to be enhanced by calling the declarant as a witness, even though he is
available.

3
Preliminarily, Evans challenges our jurisdiction over this appeal. He argues district courts have final
appellate jurisdiction in cases arising in inferior tribunals, including administrative agencies, under article VI,
section 6, of the Nevada Constitution. The contention is without merit. NRS 233B.150; State, Dep't Mtr. Veh. v.
Bremer, 113 Nev. 805, 942 P.2d 145 (1997). Because Bremer was decided after the briefs were filed in this
case, we decline the DMV's request that we sanction Evans' attorney for raising this issue; however, we
admonish Evans' attorney that a continued practice of raising this issue will not be well received in the future.
and (2) whether Evans failed to submit to a test. See id.; NRS 484.383(1); former NRS
484.387(2).
4

[Headnote 3]
Kiffe answers in the affirmative the question whether the hearsay statement at issue in
this case was admissible. In Kiffe, as in this case, the officer who arrested the driver (Kiffe)
on a DUI charge and requested that he submit to an evidentiary test did not actually see Kiffe
in the car; when the officer arrived at the scene to assist, Kiffe was already outside of the car.
Kiffe, 101 Nev. at 730, 709 P.2d at 1018. The hearing officer admitted the assisting officer's
hearsay statement that, according to the officer who made the traffic stop, Kiffe had been
driving in an erratic manner. Relying upon the hearsay, the hearing officer found the assisting
officer had reasonable grounds to believe that Kiffe was driving while under the influence of
alcohol. Id. at 731, 709 P.2d at 1019.
In Kiffe, the district court granted a petition for judicial review on the ground that the
hearsay evidence, though admissible, was insufficient to sustain the hearing officer's findings
of fact. Id. We reversed the order of the district court and reinstated the hearing officer's
decision. In doing so, we confirmed that the hearsay evidence was admissible under the
general hearsay exception, NRS 51.075(1). We further confirmed that the hearsay was
expressly admissible in the administrative revocation proceeding under NRS 233B.123(1)
5
because, under the circumstances, the evidence consisting of the first officer's statement to the
second officer was of a type commonly relied upon by reasonable and prudent persons in the
conduct of their affairs. Since substantial evidence, including the hearsay statement,
supported the hearing officer's determination that Kiffe's license should be revoked, we
concluded the district court erred by substituting its judgment for that of the hearing officer.
Id. at 732-33, 709 P.2d at 1019-20.
Here, the district court ruled the hearsay evidence that Evans was driving was not
admissible. The court reasoned that: (1) a person appearing before an administrative body
has a due process right to confront and cross-examine adverse witnesses on material
facts;
__________

4
At the time of these proceedings, former NRS 484.387(2) provided:
The scope of the hearing must be limited to the issues of whether the person failed to submit to a test
or, at the time of the test, had 0.10 percent or more by weight of alcohol in his blood or a detectable
amount of a controlled substance in his system. Upon an affirmative finding on any of these issues, the
department shall affirm the order of revocation. Otherwise, the order of revocation must be rescinded.

5
NRS 233B.123(1) provides, in pertinent part, that [e]vidence may be admitted, except where precluded by
statute, if it is of a type commonly relied upon by reasonable and prudent persons in the conduct of their affairs.
person appearing before an administrative body has a due process right to confront and
cross-examine adverse witnesses on material facts; (2) the issue of driving or being in actual
physical control of a vehicle is an important fact at a DMV driver's license revocation
hearing; and (3) following Franco, 109 Nev. at 1240, 866 P.2d at 254, hearsay can no longer
be admitted under the general exception to the hearsay rule, NRS 51.075(1), when a party has
a right of confrontation.
The district court's analysis is fundamentally flawed in two respects. First, Franco, a
criminal case, did not overrule Kiffe, either expressly or by implication. Franco, 109 Nev. at
1236-40, 866 P.2d at 252-54, recognizes the long-standing rule that otherwise admissible
hearsay may need to be excluded to preserve a criminal defendant's constitutional right of
confrontation.
6
This is not a criminal case, however, and Franco does not address the
admissibility of hearsay in an administrative proceeding.
[Headnote 4]
At the revocation hearing, Evans had a right to confront and cross-examine opposing
witnesses on any matter relevant to the issues. NRS 233B.123(4). As noted, the issues were
limited to determining whether Officer Lang had reasonable grounds for directing Evans to
submit to a test and whether Evans failed to do so. Evans was permitted to cross-examine
Officer Lang on any matter relevant to these issues, including the reasonableness of the
officer's belief that Evans was driving.
[Headnotes 5, 6]
Second, the DMV was not required to prove that Evans was in fact driving or in actual
physical control of a vehicle, only that the officer directing him to be tested had reasonable
grounds to believe that Evans had been doing so while under the influence of alcohol. See
Beavers, 109 Nev. at 438-39, 851 P.2d at 434; NRS 484.383(1). Though we declined in Kiffe
to clarify precisely what the DMV must prove in a revocation proceeding, we now do so. As
we explained in State, Department of Motor Vehicles and Public Safety v. Frangul, 110 Nev.
46, 49, 867 P.2d 397, 399 (1994), a criminal arrest and prosecution for DUI is wholly
independent of the DMV license revocation process. Here, the hearing officer properly relied
upon the hearsay evidence in finding that Officer Lang had reasonable grounds to believe
Evans was driving.
__________

6
The Confrontation Clause of the Sixth Amendment, made applicable to the states through the Fourteenth
Amendment, provides: In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him. U.S. Const. amend. VI; see Idaho v. Wright, 497 U.S. 805, 813 (1990).
finding that Officer Lang had reasonable grounds to believe Evans was driving.
7

The hearing officer's determination that Evans' license should be revoked is supported
by substantial evidence in the record; consequently, the district court erred by excluding the
hearsay evidence and substituting its judgment for that of the hearing officer on factual issues.
See NRS 233B.135; Kiffe, 101 Nev. at 733, 709 P.2d at 1020.
Accordingly, we reverse the order of the district court and remand with instructions to
reinstate the revocation of respondent's driving privileges.
____________
114 Nev. 46, 46 (1998) County of Clark v. Doumani
COUNTY OF CLARK, NEVADA, JAY BINGHAM, PAUL J. CHRISTENSEN, KAREN
HAYES, YVONNE ATKINSON GATES, DON SCHLESINGER, THALIA
DONDERO, BRUCE WOODBURY, County Commissioners, Appellants, v. FRED
M. DOUMANI, SR., CINDY DOUMANI, FRED M. DOUMANI, JR., and RONALD
M. DOUMANI, Respondents.
No. 26126
January 22, 1998 952 P.2d 13
Appeal from an order of the district court granting respondents' petition for a writ of
mandamus and ordering appellant Clark County to grant respondents' rezoning request.
Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Developer filed complaint and petition for writ of mandamus seeking judicial relief
from denial of rezoning application. The district court granted writ and ordered county to
grant application. County appealed. The supreme court held: (1) on matter of first impression,
limitation period for appeal from decision of local board only when notice of final decision is
filed, overruling, to extent inconsistent, League to Save Lake Tahoe v. Tahoe Regional
Planning Agency, 93 Nev. 270, 563 P.2d 582 (1977); (2) filing of notice of the final action
is accomplished when someone or some entity provides separate, written notice of final
action"
__________

7
Evans asserts NRS 484.383(1) is unconstitutional if reasonable grounds is interpreted to mean anything
less than probable cause. The validity of Evans' arrest is not an issue in an administrative license revocation
proceeding, however, and it is not an issue in this appeal. See Beavers, 109 Nev. at 438-39, 851 P.2d at 434;
NRS 484.387(2).
action to secretary or clerk of governing body, commission or board; (3) writ petition was
timely brought; and (4) trial court did not abuse its discretion in determining that rezoning
application should have been granted.
Affirmed.
Stewart L. Bell, District Attorney, Johnnie B. Rawlinson, Chief Deputy District
Attorney, Clark County, for Appellants.
Nitz, Walton & Hammer, Las Vegas, for Respondents.
Limitation period does not begin to run when final decision is rendered under statute requiring that proceeding for judicial relief
from decision of local board must be commenced within 25 days after the date of filing of notice of the final action; instead,
limitation period begins to run only when notice of final decision is filed, overruling League to Save Lake Tahoe v. Tahoe Regional
Planning Agency, 93 Nev. 270, 563 P.2d 582 (1977). NRS 278.0235.
Filing of notice of the final action under statute providing for judicial review or relief from decision of governing body,
commission or board is accomplished when someone or some entity provides separate, written notice of final action to secretary or
clerk of governing body, commission or board. NRS 278.0235.
Notice filed with clerk or secretary of governing body, commission or board should also be forwarded to applicant and should
include date on which the notice was filed with clerk in order to give effect to statute of limitations for obtaining judicial review or
relief from decision of governing body, commission or board. NRS 278.0235.
4. Mandamus.
Complaint and petition for writ of mandamus that sought judicial review of denial of rezoning application was timely filed
under statute requiring that such actions be commenced within 25 days after date of filing of notice of final action where no written
notice was ever filed with secretary or clerk of board to commence running of limitations period. NRS 278.0235.
5. Mandamus.
Writ of mandamus is available to compel the performance of act which law requires as duty resulting from office, trust or
station, or to control an arbitrary or capricious exercise of discretion. NRS 34.160.
6. Mandamus.
District court's grant or denial of writ of mandamus petition is reviewed under abuse of discretion standard.
7. Mandamus.
All appeals from district court's grant or denial of writ of mandamus petition should be reviewed under abuse of discretion
standard, regardless of whether district court takes additional evidence.
8. Zoning and Planning.
Grant or denial of rezoning request is discretionary act.
If discretionary act of local zoning body is supported by substantial evidence, there is no abuse of discretion.
Presumption of validity attaches to local zoning enactments and amendments.
Trial court did not err in determining that zoning board abused its discretion in denying rezoning request that was in
conformance with master plan where evidence presented in support and in opposition to rezoning and proposed development was
roughly equal.
OPINION
Per Curiam:
In 1985, respondents bought approximately 9.34 acres of real property in Clark County. On November 19, 1991, a master plan
for developing that portion of Clark County was adopted by the Clark County Board of Commissioners (the Board). Under the master
plan, the planned use for respondents' property was designated R-2 (Medium Density Residential District), which permits construction of
up to eighteen dwelling units per gross acre. Currently, respondents' property is zoned R-E (Rural Estates Residential District). R-E zoning
limits development to two dwelling units per gross acre and minimum lot sizes of 20,000 square feet per family dwelling. Clark County
Code 29.10.050. In early 1993, respondents applied to the Board for a zone change from R-E to R-2 and submitted a plan to build twenty
four-plex townhouses on the property, a total of eighty units with a density of approximately 8.56 dwelling units per gross acre.
Respondents also submitted applications for a conditional use permit and variances necessary to accommodate the proposed plan. At that
time, the property to the north of respondents' parcel contained an apartment complex with a density of approximately eighteen units per
acre, and the property to the east contained an apartment complex with a density of approximately fourteen units per acre. The property to
the south of respondents' parcel contained single family residences at a density of four units per acre, and the property to the west was
zoned R-E.
On July 7, 1993, respondents' petition was heard by the Board. At the hearing, the Board's zoning staff recommended approval of the
project, with the exception of three of the variance requests, noting that the application was for less than half of the density allowed under
the master plan. The zoning staff pointed out, however, that the high school and middle schools in the area were already over capacity and
that most of the property in the area has been developed under R-E zoning as rural estate homes. The Town Board recommended
denial of the application based on traffic and neighborhood protests.
Town Board recommended denial of the application based on traffic and neighborhood
protests. The Board received fifteen letters and a petition containing 106 signatures opposing
the project, as well as a petition containing 93 signatures of nearby residents in support of the
project.
Five homeowners testified at the hearing that they opposed the project because it
would decrease their home values and because they enjoy the current rural atmosphere.
Respondents testified that the project was in conformity with the use of the surrounding
properties. At the conclusion of the hearing, County Commissioner Bruce Woodbury stated
that he opposed the application because he felt that the proposed use would be incompatible
with the surrounding neighborhood and that single-family residences would be the only
appropriate use for the property. At the conclusion of Woodbury's statements, the Board
voted unanimously to deny all of respondents' applications for the proposed project.
Respondents' representative received written notice of the Board's decision by letter dated
July 16, 1993. On August 9, 1993, respondents filed a complaint and petition for a writ of
mandamus to obtain judicial review of the Board's denial of rezoning, the conditional use
permit, and the variances necessary for the development of the project.
On January 20, 1994, appellants filed a motion to dismiss the complaint and petition
for a writ, contending that respondents' action was barred by the twenty-five day statute of
limitations set forth in NRS 278.0235. Appellants asserted that the Board's final decision was
made on July 7, 1993, the date of the hearing; thus, respondents' August 9, 1993 complaint
and petition, filed 33 days later, was untimely. Respondents opposed the motion, contending
that the complaint and petition was timely filed within 25 days of the written notice of the
decision mailed to respondents' representative on July 16, 1993. On March 3, 1994, the
district court entered an order denying appellants' motion to dismiss, concluding that the
application of the statute of limitations for actions brought under NRS 278.0235 is ambiguous
or unclear, but that no evidence had been presented to show that the statutory period ran
before respondents' complaint and petition was filed.
1

Respondents filed an amended complaint and application for a writ of mandamus on
March 23, 1994, and a petition for the issuance of a peremptory writ of mandamus on April
25, 1994.
__________

1
NRS 278.0235 applies to an action or proceeding . . . commenced for the purpose of seeking judicial relief
or review from a final agency decision. Such language appears to include petitions for writs of mandamus as
well as complaints arising from agency decisions. See NRS 34.300 (provisions of NRS relative to civil actions
are applicable to and constitute the rules of practice in mandamus proceedings).
issuance of a peremptory writ of mandamus on April 25, 1994. Respondents asserted that the
Board's denial of respondents' applications for the project was unsupported by substantial
evidence in the record, and thus constituted an abuse of discretion.
On May 23, 1994, the district court conducted a hearing on respondents' petition.
Subsequently, on June 21, 1994, the district court issued an order granting respondents'
petition for a writ of mandamus. The district court found that the zone change and conditional
use permit are in complete harmony with applicable provisions of the master plan, as
approved and adopted by the Board on November 19, 1991. The district court further found
that some of the opposition to the project was based on the misunderstanding that the project
would include 320 units, rather than 80 units.
The district court concluded that the master plan establishes a standard which is entitled to
deference and carries a presumption of applicability and that no evidence had been presented
to show that the project would threaten the health, safety, morals or general welfare of the
county's residents. The district court further concluded that the Board's denial of the zone
change and conditional use permit (1) was unsupported by substantial evidence and resulted
in an unreasonable, arbitrary and capricious deprivation of a legitimate use of respondents'
property; (2) was an abuse of discretion because it failed to give the master plan the deference
and presumption of applicability to which it was entitled; (3) had no substantial relationship
to the public health, safety, morals and/or general welfare; (4) was inconsistent, given the
zoning and uses that exist on land to the north and east; (5) was an unnecessary and
unreasonable interference with respondents' private business and lawful occupations; and (6)
and was an attempt by the Board to implement an inappropriate, de facto amendment to the
master plan.
Accordingly, the district court issued a peremptory writ of mandamus requiring
appellants to approve respondents' applications for rezoning and a conditional use permit, and
remanding the application for variances to the Board for reconsideration in light of the district
court's decision. This appeal followed.
Whether respondents' action was timely filed pursuant to NRS 278.0235
Appellants contend that respondents' complaint and petition challenging the Board's
decision was untimely filed pursuant to NRS 278.0235 because it was filed thirty-three days
after the July 7, 1993 hearing. Appellants contend that this court's interpretation of an
analogous statute in League to Save Lake Tahoe v. Tahoe Regional Planning Agency, 93
Nev. 270, 563 P.2d 582 {1977), indicates that judicial review must be sought within 25
days of the hearing.
(1977), indicates that judicial review must be sought within 25 days of the hearing.
NRS 278.0235 provides in pertinent part:
No action or proceeding may be commenced for the purpose of seeking judicial relief
or review from or with respect to any final action, decision or order of any governing
body, commission or board . . . unless the action or proceeding is commenced within 25
days after the date of filing of notice of the final action, decision or order with the clerk
or secretary of the governing body, commission or board.
This court has not previously considered what constitutes notice of a board's decision for
purposes of triggering the twenty-five day statute of limitations under NRS 278.0235. In
League to Save Lake Tahoe, this court analyzed what constitutes a final action under
former NRS 278.027 (providing for judicial review of grants or denials of special use permits
or variances). Former NRS 278.027 provided that judicial relief with respect to a final action
of any governing body must be commenced within 25 days from the date of the filing of
notice of such final action. This court stated that [i]f agency review . . . does not occur, then
the action of [the county] is the final action' and judicial review, if desired, must be sought
within 25 days thereafter. Id. at 274, 563 P.2d at 584. This statement suggests that final
action and notice may be concurrent, but that issue was not squarely before the court.
[Headnote 1]
Under the statute applicable in this case and the statute applicable in League to Save
Lake Tahoe, the legislature chose to specify that the limitations period runs from the date that
notice of the final action is filed, rather than from the action itself. This suggests that
something more than the decision itself is required; otherwise, such language is superfluous.
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). We therefore conclude that the
limitation period does not begin to run when a final decision is rendered. Rather, the
limitation period begins to run only when notice of the final decision is filed. To the extent
that League to Save Lake Tahoe can be read as inconsistent with this conclusion, it is
overruled.
Alternatively, appellants contend that the Board's decision was filed with the clerk on the
date of the hearing pursuant to NRS 278.0235 because a deputy clerk was present to record
and note the Board's decision. In other words, appellants assert that statutory notice was filed
with the clerk on the date of the hearing.
tory notice was filed with the clerk on the date of the hearing. We disagree with appellants'
position.
On appeal, questions of statutory construction are considered independently, and no
deference is given to the district court's conclusion. See, e.g., Grand Hotel Gift Shop v.
Granite St. Ins., 108 Nev. 811, 815, 839 P.2d 599, 602 (1992) (questions of law are reviewed
de novo). The rules 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, 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) (quoting In
re Walter's Estate, 60 Nev. 172, 183-84, 104 P.2d 968, 973 (1940)).
[Headnote 2]
Giving the words of the statute their plain meaning, the mere presence of the Board's
clerk at the hearing for the purpose of recording the Board's decision does not constitute filing
of notice of the decision with the clerk. Rather, NRS 278.0235 contemplates that something
more must be done. We conclude that filing of notice of the final action under NRS
278.0235 is accomplished when someone or some entity provides separate, written notice of
the final action to the secretary or clerk of the governing body, commission or board.
[Headnotes 3, 4]
Further, although the statute does not expressly require that notice be given to the
applicant, to give effect to the statute of limitations the applicant must be informed that notice
of the final action was filed with the clerk or secretary. Thus, any notice filed with the clerk or
secretary should also be forwarded to the applicant and should include the date on which the
notice was filed with the clerk or secretary. Because the record discloses no filing of written
notice of the final action with the Board's secretary in this matter, it appears that the
limitations period never began to run. Accordingly, the district court did not err in concluding
that respondents' action and proceeding were timely filed under NRS 278.0235.
Whether the Board's decision was supported by substantial evidence in the record
Appellants next contend that the Board's zoning decision is entitled to a presumption
of validity, and that the Board's decision is supported by substantial evidence in the record.
is supported by substantial evidence in the record. Appellants contend that the existence of a
master plan does not divest the Board of its discretion to determine whether a proposed
development is appropriate for a given area.
[Headnotes 5-7]
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). We review the district court's grant or denial of a writ
petition under an abuse of discretion standard.
2
See City of Reno v. Harris, 111 Nev. 672,
895 P.2d 663 (1995); Perry v. State Dep't of Corrections, 694 So. 2d 24 (Ala. Civ. App.
1997); Hicks v. Gravett, 849 S.W.2d 946 (Ark. 1993); Wallace v. Dept. of Fish, Wildlife &
Parks, 889 P.2d 817 (Mont. 1995); Joshua C. v. Western Hgts. Ind. Sch. Dist., 898 P.2d 1324
(Okla. Ct. App. 1995).
[Headnotes 8-10]
The grant or denial of a rezoning request is a discretionary act. See McKenzie v.
Shelly, 77 Nev. 237, 362 P.2d 268 (1961) (stating that under the police power, zoning is a
matter within sound legislative discretion and such legislative action must be upheld if the
facts do not show that the bounds of that discretion have been exceeded). If a discretionary
act is supported by substantial evidence, there is no abuse of discretion. Enterprise Citizens v.
Clark Co. Comm'rs, 112 Nev. 649, 918 P.2d 305 (1996). Further, a presumption of validity
attaches to local zoning enactments and amendments. See McKenzie v. Shelly, 77 Nev. 237,
362 P.2d 268 (1961).
In Enterprise Citizens this court stated that
NRS 278.250 governs many aspects of planning and zoning and provides not only for
the adoption of master plans, but also for zoning in accordance with an adopted master
plan. The master plan of a community is a standard that commands deference and a
presumption of applicability, but should not be viewed as a "legislative
straightjacket from which no leave can be taken.
__________

2
Previously, we stated that we would review a district court decision granting or denying a writ petition for
an abuse of discretion only if the district court has taken additional evidence from that heard by the commission
or council. See City of Reno v. Harris, 111 Nev. 672, 895 P.2d 663 (1995). Otherwise, we would focus on the
commission or council's decision and examine it for an abuse of discretion. See Harris, 111 Nev. at 677, 895
P.2d at 666. We see no reason, however, to make a distinction in the standard of review based on whether the
district court has taken additional evidence. Since the district court has discretion to grant or deny a writ petition,
all appeals from a district court grant or denial of a writ petition will be reviewed under an abuse of discretion
standard.
should not be viewed as a legislative straightjacket from which no leave can be taken.
Enterprise Citizens, 112 Nev. at 659, 918 P.2d at 311. Thus, although the Board's decision is
entitled to a presumption of validity, the master plan is also entitled to deference.
[Headnote 11]
The primary evidence presented at the hearing in opposition to the project consisted of
fifteen letters of protest, a petition containing 106 signatures, testimony of five area
homeowners, and Commissioner Woodbury's statement that the land was more suitable for
single family homes. Additionally, the Town Board recommended denial of the request based
on traffic and neighborhood protests, and it was noted that the middle school and high school
in the area are well over capacity. Evidence presented supporting the project included
testimony that the project was in conformance with the approved master plan, the Board
zoning staff's approval of the project, a petition containing 93 signatures supporting the
project, and respondents' own testimony.
It is undisputed that respondents were seeking approval of a zoning density that was not
only in compliance with the master plan adopted by the Board in 1991, but was well below
that already approved in the master plan. Further, the number of area residents opposing or
supporting the proposed development was roughly equal. Finally, the surrounding properties
on two sides of the proposed development were zoned and developed at a higher density,
while the surrounding properties on the other two sides were zoned and being developed at a
lower density.
We conclude that because the evidence presented in support of and in opposition to
the proposed development was roughly equal, the district court did not abuse its discretion in
determining that the Board abused its discretion by failing to give deference to the master
plan and denying the rezoning request.
Accordingly, we affirm the district court's order granting respondents' petition.
____________
114 Nev. 55, 55 (1998) Ortega v. Reyna
ANNETTE ORTEGA, Appellant, v. TROOPER DANIEL REYNA, Individually and in His
Official Capacity, Respondent.
No. 27592
January 22, 1998 953 P.2d 18
Appeal from an order of the district court granting summary judgment. Eighth Judicial
District Court, Clark County; Don P. Chairez, Judge.
Motorist brought federal civil rights and state law claims against state trooper who
arrested her when she did not sign citation for traffic offense. The district court entered
summary judgment for trooper, and motorist appealed. The supreme court, Shearing, J., held
that: (1) state trooper was immune from liability in his official capacity; (2) state trooper had
arguable probable cause to arrest motorist, entitling him to qualified immunity from federal
civil rights claims; and (3) officer's decision to stop motorist and arrest her when she did not
sign citation was discretionary act that entitled him to immunity from suit on state law causes
of action.
Affirmed.
Springer, C. J., and Rose, J., dissented.
Potter Law Offices, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, and Laurel A. Duffy, Deputy Attorney
General, Carson City, for Respondent.
1. Civil Rights.
Highway Patrol trooper, acting in his official capacity, is not person under federal civil rights statute and therefore may not be
sued in his official capacity in state court. 42 U.S.C. 1983.
2. Civil Rights.
Police officers who are sued under civil rights statute for false arrest have qualified immunity. 42 U.S.C. 1983.
3. Civil Rights.
Pertinent inquiry in determining whether an officer is entitled to qualified immunity for Fourth Amendment violation is whether
reasonable officer could have believed his conduct lawful under clearly established principles of law governing that conduct. U.S.
Const. amend. 4; 42 U.S.C. 1983.
4. Civil Rights.
Allegation of malice is not sufficient to defeat qualified immunity for Fourth Amendment violation if police officer acted in
objectively reasonable manner. U.S. Const. amend. 4; 42 U.S.C. 1983.
5. Civil Rights.
State trooper was entitled to qualified immunity from civil rights liability for false arrest of motorist who did not sign traffic
citation. Trooper advised motorist that she would be arrested if she did not sign citation
citation and, even though motorist never actually refused to sign citation, she stated that trooper should take her to jail, such that
trooper reasonably believed that she had refused to sign and he had probable cause to arrest her. U.S. Const. amend. 4; 42 U.S.C.
1983.
6. Civil Rights.
For purposes of determining officer's entitlement to qualified immunity from civil rights liability for false arrest, officer had
arguable probable cause to arrest motorist who did not sign traffic citation under statute giving officer discretion to arrest motorists
stopped for traffic violations in lieu of issuing citation. NRS 484.795.
7. Arrest.
Trooper was obligated by statute to take motorist before magistrate if she refused to sign traffic citation or if she demanded
immediate appearance before magistrate. NRS 484.793.
8. Civil Rights.
Trooper had arguable probable cause to arrest motorist under statute, so as to be entitled to qualified immunity from civil rights
liability for false arrest, where he reasonably believed either that motorist had refused to sign traffic citation or that she had demanded
an immediate appearance before magistrate; when informed that officer would arrest her if she didn't sign citation, motorist stated that
trooper should take her to jail. U.S. Const. amend. 4; 42 U.S.C. 1983; NRS 484.793.
9. States.
Officer's decision to arrest motorist whom he believed had refused to sign citation for traffic offense was discretionary act for
which he was entitled to immunity from suit on state law claims. NRS 41.032.
OPINION
[Headnote 1]
Appellant Annette Ortega filed a complaint against respondent Daniel Reyna individually, and in his official capacity as a
Nevada Highway Patrol trooper, to recover for injuries sustained after a traffic stop. Appellant's complaint alleged causes of action for
unlawful arrest and detention in violation of 42 U.S.C. 1983.
1
Appellant also raised state law claims of false
arrest, false imprisonment, intentional infliction of emotional distress, malicious prosecution,
and negligent infliction of emotional distress.
The trooper filed a motion for summary judgment, relying on the doctrine of qualified
immunity with respect to appellant's section 19S3 claim,
__________

1
Respondent, acting in his official capacity, is not a person under 42 U.S.C. 1983 and therefore may not
be sued in his official capacity in state court under the federal civil rights statutes. See Northern Nev. Ass'n
Injured Workers v. SIIS, 107 Nev. 108, 114, 807 P.2d 728, 732 (1991) (citing Will v. Michigan Department of
State Police, 491 U.S. 58, 71 (1989)). Will does not prohibit claims against officials acting in an individual
capacity, however. Id. at 115, 807 P.2d at 732.
section 1983 claim, and on the exception to the waiver of state sovereign immunity pursuant
to NRS 41.032 with respect to appellant's state law claims. The district court granted the
trooper's motion for summary judgment, concluding that there was no dispute as to the fact
that the trooper arrested appellant because she refused to sign the citation. We conclude that
the district court properly granted summary judgment in respondent's favor and affirm.
FACTS
On July 5, 1992, at approximately 11:00 p.m., Trooper Reyna stopped a car driven by
appellant. The trooper's version of what happened after the stop differs from appellant's.
According to the trooper's affidavit, he stopped appellant for making a left hand turn where
there was a no left turn sign. Appellant, in her complaint, contends that there was no sign
prohibiting a left hand turn at the intersection.
2
According to the trooper, he informed
appellant that he was going to give her a ticket for making a left hand turn and explained the
citation to her. Appellant does not contradict this statement. The trooper states that he told
appellant that her signature on the citation was not an admission of guilt. According to
appellant's affidavits, however, the trooper never told her that signing the citation was not an
admission of guilt. Appellant states that she questioned the trooper about whether signing the
citation was an admission of guilt. The trooper states that appellant refused to sign the
citation; appellant states that she never refused to sign.
According to the trooper, he then advised appellant that if she did not sign the citation,
he would arrest her and take her to jail, to which appellant responded, Go ahead and take me
to jail. Appellant does not dispute that the trooper told her that he would arrest her if she did
not sign the citation, and does not deny responding in the manner that the trooper alleges.
3
The trooper arrested appellant, handcuffed her, and transported her to the Las Vegas jail
where she was booked for violating NRS 484.335, making a left turn where there was a no
left turn sign. Appellant states that after she was arrested, she pleaded with the trooper to
allow her to sign the citation, but the trooper would not permit her to sign, and told her that
once she was arrested he could not "unarrest" her.
__________

2
Appellant does not claim a violation of her constitutional rights arising from the stop. Rather, appellant
confines her arguments to the constitutionality of the subsequent arrest.

3
With respect to the trooper's statement in his affidavit that appellant challenged him to take her to jail,
appellant only states in her opening brief that her alleged statement is hardly believable.
could not unarrest her. Appellant states that she never saw the citation, the trooper never
issued her the citation, and she never had an opportunity to sign it. Appellant's husband, who
was in the car with her at the time of the stop, corroborates appellant's account of what took
place.
DISCUSSION
We review de novo the district court's order granting summary judgment in
respondent's favor. Day v. Zubel, 112 Nev. 972, 977, 922 P.2d 536, 539 (1996). 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 genuine issues of material fact. NRCP
56(c); Butler v. Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663 (1985). Properly
supported factual allegations and all reasonable inferences of the party opposing summary
judgment must be accepted as true. However, conclusory statements along with general
allegations do not create an issue of material fact. Michaels v. Sudeck, 107 Nev. 332, 334,
810 P.2d 1212, 1213 (1991) (citation omitted). Further, [i]f the facts set forth in support of a
motion for summary judgment are not controverted by the opposing party, then those facts are
presumed to be true. Tamsen v. Weber, 802 P.2d 1063, 1067 (Ariz. Ct. App. 1990). Thus,
we must accept appellant's properly supported allegations and make all reasonable inferences
in her favor in determining whether respondent is entitled to judgment as a matter of law.
However, where appellant has not controverted the trooper's account of what happened, we
have taken his facts as undisputed.
Section 1983 claim
To state a cause of action under 42 U.S.C. 1983, appellant must show that (1) the
trooper acted under color of state law, and (2) the trooper deprived her of rights secured by
the United States Constitution or federal law.
4
Cummings v. Charter Hospital, 111 Nev. 639,
647, 896 P.2d 1137, 1142 (1995); Boulder City v. Cinnamon Hills Assocs., 110 Nev. 238,
245, 871 P.2d 320, 324 (1994). The parties do not dispute that the trooper was acting under
color of state law when he arrested appellant;
__________

4
42 U.S.C. 1983 provides in 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 for redress.
under color of state law when he arrested appellant; rather, the parties focus on whether the
trooper deprived appellant of her constitutional rights. Appellant contends that her arrest was
in violation of the Fourth Amendment to the United States Constitution, under which the
right to be free from an unreasonable seizure and the use of excessive force is clearly
established. Appellant argues that the trooper arrested her because she questioned his
authority, and adds that the trooper violated NRS 484.795 in arresting her. Appellant
contends that a genuine issue of material fact exists as to whether the trooper told her that her
signature on the citation was not an admission of guilt and that if she did not sign the citation
he would arrest her. Respondent, on the other hand, contends that appellant failed to show a
deprivation of a clearly established federal right.
In granting summary judgment in favor of respondent, the district court found that (1)
it was undisputed that the trooper arrested appellant because she refused to sign the citation,
and (2) appellant's argument that she refused to sign the citation because she was not
informed that her signature was not an admission of guilt is unfounded because the statement
printed below the signature line gave her that information. The court did not discuss its
findings in the context of qualified immunity, and did not explicitly determine that the trooper
was immune from suit as to either the federal or the state claims. We assume that the court
impliedly concluded that the trooper was immune from suit as to both the state and federal
claims.
[Headnotes 2-4]
Police officers who are sued under 42 U.S.C. 1983 for false arrest have qualified
immunity. Malley v. Briggs, 475 U.S. 335, 340 (1986). Under the qualified immunity
doctrine, government officials performing discretionary functions . . . are shielded from
liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known. Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). The pertinent inquiry in determining whether an officer
is entitled to qualified immunity for a Fourth Amendment violation is whether a reasonable
officer could have believed his conduct lawful under the clearly established principles of law
governing that conduct. Alexander v. County of Los Angeles, 64 F.3d 1315, 1319 (9th Cir.
1995). An allegation of malice is not sufficient to defeat immunity if the officer acted in an
objectively reasonable manner. Hansen v. Black, 885 F.2d 642, 644 (9th Cir. 1989).
In determining whether the law is clearly established, the operation of this standard .
. . depends substantially upon the level of generality at which the relevant legal rule' is to be
identified.
identified. Anderson v. Creighton, 483 U.S. 635, 639 (1987). The right which the official is
alleged to have violated must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right. Id. at 640. The issue is the objective
(albeit fact-specific) question whether a reasonable officer could have believed [appellant's]
warrantless [arrest] to be lawful, in light of clearly established law and the information the . . .
officer[] possessed. Id. at 641. Stated another way, we look not at whether there was an
arrest without probable cause, but rather whether the trooper reasonably could have believed
that his conduct was lawful in light of clearly established law and the totality of the
circumstances. Alexander, 64 F.3d at 1319. Under this approach, we conclude that the trooper
is entitled to qualified immunity.
[Headnote 5]
Accepting as true appellant's properly supported allegations, as well as the trooper's
uncontroverted facts, the trooper stopped appellant because he believed that she had made a
left turn at an intersection where there was a no left turn sign. The trooper told appellant
that he was going to give her a ticket and explained the citation to her. The trooper did not tell
appellant that signing the citation was not an admission of guilt, and appellant questioned the
trooper about this. The trooper advised appellant that if she did not sign the citation, he would
arrest her and take her to jail. Appellant responded that the trooper should take her to jail,
whereupon the trooper did so. Although we accept as true appellant's assertion that she never
actually refused to sign the citation, we conclude that the trooper reasonably believed that
appellant had refused to sign and that he had arguable probable cause to arrest her.
[Headnote 6]
Appellant contends, however, that the trooper violated NRS 484.795 in arresting her
because that statute sets forth specific situations where a trooper must take a person before a
magistrate, and appellant did not fit into any of these categories. Thus, appellant seems to
argue that the trooper did not have arguable probable cause to arrest her under this statute.
We disagree. NRS 484.795 provides in full:
Whenever any person is halted by a peace officer for any violation of this chapter and is
not required to be taken before a magistrate, the person may, in the discretion of the
peace officer, either be given a traffic citation, or be taken without unnecessary delay
before the proper magistrate. He must be taken before the magistrate in any of the
following cases:
1. When the person does not furnish satisfactory evidence of identity or when the
peace officer has reasonable and probable grounds to believe the person will disregard a
written promise to appear in court;
2. When the person is charged with a violation of NRS 484.701, relating to the
refusal of a driver of a vehicle to submit the vehicle to an inspection and test;
3. When the person is charged with a violation of NRS 484.755, relating to the failure
or refusal of a driver of a vehicle to submit the vehicle and load to a weighing or to
remove excess weight therefrom; or
4. When the person is charged with a violation of NRS 484.379, unless he is
incapacitated and is being treated for injuries at the time the peace officer would
otherwise be taking him before the magistrate.
This statute gives an officer discretion to arrest persons stopped for traffic violations in lieu of
giving them a citation. Consequently, under the circumstances presented here, the trooper had
arguable probable cause to arrest appellant pursuant to this statute.
[Headnotes 7, 8]
Further, the trooper had authority to arrest appellant pursuant to NRS 484.793. NRS
484.793 provides, in full:
Whenever any person is halted by a peace officer for any violation of this chapter not
amounting to a gross misdemeanor or felony, he shall be taken without unnecessary
delay before the proper magistrate, as specified in NRS 484.803, in either of the
following cases:
1. When the person demands an immediate appearance before a magistrate; or
2. In any other event when the person is issued a traffic citation by an authorized
person and refuses to give his written promise to appear in court as provided in NRS
484.799.
Even if we assume that appellant did not challenge the trooper to take her to jail, our
conclusion would remain the same. The trooper was obligated to take appellant before a
magistrate if she refused to sign the citation or if she demanded an immediate appearance
before a magistrate. In this case, the trooper reasonably believed that one of these events had
occurred. Therefore, the trooper had arguable probable cause to arrest appellant under NRS
484.793. Accordingly, we conclude that the trooper is entitled to qualified immunity, and that
the district court properly entered summary judgment in his favor with respect to this claim.
State law claims
[Headnote 9]
With respect to appellant's state law claims, we conclude that the trooper is immune
from suit here as well. State immunity is a defense to claims made under state law, not a
defense to an action under section 1983.
5
The state waives its immunity under NRS 41.031,
but retains immunity under NRS 41.032 for officials exercising discretion.
6
A discretionary
act is one which requires exercise of personal deliberation, decision and judgment.
Travelers Hotel v. City of Reno, 103 Nev. 343, 345-46, 741 P.2d 1353, 1354 (1987). The
record shows that the trooper used his judgment in stopping appellant, in concluding that
appellant refused to sign the traffic citation, and in taking appellant to jail after arresting her.
See Maturi v. Las Vegas Metro. Police Dep't, 110 Nev. 307, 871 P.2d 932 (1994) (arresting
officers' decision to handcuff behind the prisoner's back rather than in the front is
discretionary and affords officers immunity). Accordingly, we conclude that the trooper is
entitled to immunity with respect to the state law claims against him, and that the district
court properly entered summary judgment in his favor.
CONCLUSION
We conclude that the district court properly entered summary judgment in
respondent's favor with respect to the federal and state law claims. Accordingly, we affirm the
order of the district court.
__________

5
Martinez v. California, 444 U.S. 277, 284 n.8 (1980) (states may not interpose state immunity doctrines to
limit or defeat liability in 1983 actions); accord Felder v. Casey, 487 U.S. 131, 139 (1988) ([A] state law that
immunizes government conduct otherwise subject to suit under 1983 is preempted, even where the federal civil
rights litigation takes place in state court, because the application of the state immunity law would thwart the
congressional remedy, which of course already provides certain immunities for state officials. (citation
omitted)).

6
NRS 41.032 provides, in part, as follows:
[N]o action may be brought . . . against an immune contractor or an officer or employee of the state or
any of its agencies or political subdivisions which is:
. . .
2. Based upon the exercise or performance or the failure to exercise or perform a discretionary
function or duty on the part of the state or any of its agencies or political subdivisions or of any officer,
employee or immune contractor of any of these, whether or not the discretion involved is abused.
Springer, C. J., with whom Rose, J., agrees, dissenting:
Trooper Reyna is not immune from section 1983 liability if a reasonably competent
officer in the same circumstances and possessing the same knowledge as the trooper would
have concluded that probable cause to arrest appellant pursuant to NRS 484.793 did not exist.
See Anderson v. Creighton, 483 U.S. 635, 641 (1987). Viewing the evidence in the light most
favorable to appellant, as we are compelled to do in reviewing a summary judgment, we see
the following facts: appellant was not issued a citation, appellant did not refuse to sign a
citation, and appellant never saw a citation. Appellant's husband, who was in the car with
appellant at the time of the traffic stop, also stated that appellant was not issued a citation,
that she did not refuse to sign, and that she never saw a citation. NRS 484.793 grants a peace
officer authority to arrest a person who is issued a traffic citation and refuses to give a written
promise to appear in court. See NRS 484.793. If appellant was never issued a traffic citation
and did not refuse to give a written promise to appear, then probable cause to arrest her
pursuant to this statute did not exist. Thus, a reasonable trooper would not have concluded
that probable cause existed to arrest appellant under NRS 484.793. Therefore, appellant has
presented specific facts sufficient to create a genuine issue of material fact concerning the
trooper's conduct and the circumstances surrounding her arrest. For this reason, I would
reverse the order of summary judgment and remand to the district court for further
proceedings.
____________
114 Nev. 63, 63 (1998) Business Computer Rentals v. State Treas.
BUSINESS COMPUTER RENTALS, a Nevada Corporation, Petitioners, v. STATE
TREASURER, ROBERT L. SEALE, Respondents.
No. 30426
January 22, 1998 953 P.2d 13
Original petition for a writ of mandamus.
Lessor brought original petition seeking writ of mandamus directing State Treasurer
to make payments under computer lease purchase agreement. The supreme court held that
lease purchase agreement did not constitute creation of public debt within state constitutional
prohibition.
Petition granted.
Frank W. Daykin, Carson City, for Petitioner.
Frankie Sue Del Papa, Attorney General, and Randal R. Munn, Senior Deputy
Attorney General, Carson City, for Respondent.
1. Mandamus.
Although mandamus is generally not appropriate in face of effective alternative remedies, extraordinary relief may be granted
where circumstances reveal urgency or strong necessity.
2. Courts.
Where important issue of law needs clarification and public policy is served by supreme court's invocation of its original
jurisdiction, supreme court's consideration of petition for extraordinary relief may be justified.
3. Mandamus.
Consideration of petition for writ of mandamus raising issue of whether purchase lease agreement was within public debt
limitation of state constitution was warranted, even though petitioner had alternative avenues of relief, where petition raised pressing
issues involving state constitution and public policy of state. Const. art. 9, 3.
4. States.
Lease purchase agreement for computer did not create public debt within state constitutional limitation where future payments
under agreement were contingent upon funds being appropriated by legislature and agreement automatically terminated, and lessor was
entitled to repossess equipment, if legislature failed to appropriate sufficient funds; no indebtedness was immediately created for
aggregate amount required over life of contract. Const. art. 9, 3.
5. Mandamus.
Writ of mandamus is available to control arbitrary or capricious exercise of discretion.
OPINION
Per Curiam:
This original petition seeks a writ of mandamus directing the State Treasurer to make payments under a computer lease purchase
agreement. For the reasons discussed herein, we grant the petition.
On May 1, 1997, respondent, the State Treasurer, entered into a written lease purchase agreement with petitioner, Business Computer
Rentals (BCR), for a Gateway computer. The agreement contains a schedule of base payments, with the first payment due on May 6,
1997. Although the State Treasurer wishes to proceed with the lease agreement, he has refused to make the first payment. His refusal to pay
is based upon advice from the Attorney General's Office that the lease purchase agreement could create a public debt in violation of the
Nevada Constitution. As a result of the State Treasurer's refusal to pay, BCR has filed the instant writ petition.
The primary issue presented in this petition is whether the lease purchase agreement
constitutes public debt and therefore falls within the ambit of article 9, section 3 of the
Nevada Constitution. This provision states, in relevant part, as follows:
State indebtedness: Limitations and exceptions. The state may contract public debts;
but such debts shall never, in the aggregate, exclusive of interest, exceed the sum of
two percent of the assessed valuation of the state . . . except for the purpose of
defraying extraordinary expenses, as hereinafter mentioned. Every such debt shall be
authorized by law for some purpose or purposes, to be distinctly specified therein; and
every such law shall provide for levying an annual tax sufficient to pay the interest
semiannually, and the principal within twenty years from the passage of such law, and
shall specially appropriate the proceeds of said taxes to the payment of said principal
and interest; and such appropriation shall not be repealed nor the taxes postponed or
diminished until the principal and interest of said debts shall have been wholly paid.
Every contract of indebtedness entered into or assumed by or on behalf of the state,
when all its debts and liabilities amount to said sum before mentioned, shall be void
and of no effect, except in cases of money borrowed to repel invasion, suppress
insurrection, defend the state in time of war, or if hostilities be threatened, provide for
the public defense.
1

The lease agreement at issue here provides a schedule of base payments for the
computertwo payments of $646.59 in 1997, two such payments in 1998, and two such
payments in 1999. Several clauses in the agreement are pertinent to the issue at hand. First,
section 2.1(b) states that [n]either the execution and delivery of this Agreement or any
Property Schedule or the consummation of the transactions contemplated hereby or thereby . .
. conflicts with or results in a violation of any provision of law governing the Governmental
Representative or the State. Section 2.1(e) states as follows:
The State has never defaulted under any bond, note, warrant, debt obligation,
agreement, or under any contract similar to this Agreement.
__________

1
As explained in Constitutionality of Chapter 280, Oregon Laws 1975, 554 P.2d 126, 128-29 (Or. 1976),
constitutional debt limitations were enacted primarily as a response to heavy borrowing by many states prior to
1840. These states financed internal and banking improvements and, after the depression of 1837, many
defaulted on their obligations. States entering the union after 1840 (including Nevada) invariably included debt
limitations in their constitutions. Such control over debt creation precluded carelessly imposed tax liabilities. See
Robert Bowmar, The Anachronism Called Debt Limitation, 52 Iowa L. Rev. 863, 873 (1967).
warrant, debt obligation, agreement, or under any contract similar to this Agreement.
The Governmental Representative anticipates having sufficient moneys to pay, and that
will be available and used for payment of, regardless whether moneys are hereafter
budgeted therefor, an amount equal to that portion of the Base Payments set forth in
each Property Schedule when the same becomes due for the remainder of the current
Fiscal Year of the State.
Section 3.2 governs the term of the agreement and states that it shall terminate upon the
earliest to occur of any of the following events: (a) the Government Representative's exercise
of the prepayment option; (b) [a]n Event of Default by the Governmental Representative or
the State under Article XII of this Agreement; (c) the full payment of all base payments and
all other amounts required to be paid under the agreement; or (d) [t]he termination of a Loan
by the Governing Body in accordance with Section 3.3 of this Agreement. Section 3.3
concerns the legislature's nonappropriation of funds and states, in part, as follows:
Nonappropriation. Any Loan shall terminate upon the occurrence of an Event of
Nonappropriation
2
with respect thereto on the last day of the Fiscal Year preceding the
Fiscal Year to which such Event of Nonappropriation relates. The Governmental
Representative shall give notice to [BCR] of such Event of Nonappropriation and the
Fiscal Year to which it relates as quickly as is practical . . . . In the event of termination
of a Loan as provided in this Section, the Governmental Representative shall comply
with the instructions received from the Corporation in accordance with Section 12.7
within ten (10) days after the termination of such Loan Term.
Section 3.5 clarifies that upon the loan's termination for nonappropriation, the
government is no longer responsible for base payments:
Upon termination of a Loan as provided in Section 3.3, neither the Governmental
Representative nor the State shall be responsible for the payment of Base Payments
relating thereto coming due in succeeding Fiscal Years,
__________

2
Event of Nonappropriation is defined in Article 1 as the failure of the [state legislature] to appropriate
money for any Fiscal Year sufficient to pay the Base Payments payable during such Fiscal Year with respect to
such Property Group and to pay all other amounts required to be paid to meet all obligations of the
Governmental Representative. Section 12.7 provides that upon the termination of a loan before all base
payments are made, the government representative must return the property, in good repair, working order and
condition, as directed by BCR.
be responsible for the payment of Base Payments relating thereto coming due in
succeeding Fiscal Years, but if the Governmental Representative has not delivered
possession of the related Property Group to [BCR] . . . the termination shall
nevertheless be effective, but, subject to the availability of appropriated funds, the
Governmental Representative shall be responsible for the payment of the portion of the
Base Payments that would have thereafter come due during the period which the
Governmental Representative continues to use the Property Group and for any other
loss suffered by [BCR] as a result of the Governmental Representative's failure to take
such actions as required.
[Headnotes 1-3]
As a preliminary matter, we note that although mandamus is generally not appropriate
in the face of effective alternative remedies, extraordinary relief may be granted where the
circumstances reveal urgency or a strong necessity. Jeep Corp. v. District Court, 98 Nev. 440,
652 P.2d 1183 (1982). Additionally, 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. See Ashokan v. State, Dep't of Ins., 109
Nev. 662, 667, 856 P.2d 244, 247 (1993). This petition raises pressing issues involving the
Nevada Constitution and the public policy of this state. Thus, although BCR could have
pursued alternative avenues of relief, we conclude that our consideration of this petition is
warranted.
We previously considered the Nevada Constitution's public debt limitation in State ex rel.
Nevada Building Authority v. Hancock, 86 Nev. 310, 468 P.2d 333 (1970). Hancock
addressed the constitutionality of a statutory financing scheme which used legislative
appropriations to pay rent on state buildings, where the rent was used to pay off bonds sold to
finance the buildings' construction. Specifically, the legislature created the Nevada Building
Authority and directed the Authority to build facilities for state use. The Authority then
declared, by resolution, its intention to construct buildings and athletic facilities on the
University of Nevada campuses. The Authority's resolution explained that bonds would be
issued to pay for the construction, and that payment on these bonds would be made solely
from the Authority's income, which would be derived from fees and rent for the use of the
buildings and facilities. The state would pay these fees and rent, since it would use the
constructed facilities. Additionally, the resolution provided that the bonds would not
"constitute an obligation of the State of Nevada.
constitute an obligation of the State of Nevada. Id. at 312, 468 P.2d at 335.
3

We determined that this scheme created public debt in contravention of the Nevada
Constitution. First, this court acknowledged that the contemplated bonds were not general
obligation bonds to which the state had pledged its taxing power but instead were revenue
bonds payable entirely from rent and fees generated by the buildings and facilities.
Additionally, we noted that the rent payable from the state could be derived from legislative
appropriations made each biennium, and that the legislature could pledge itself to make future
appropriations for rent. This court concluded that even though this language seemed to give
the legislature discretion with respect to future appropriations, [w]ithout question the
legislature will appropriate the needed funds. If it did not do so, the contemplated public
construction for state agency use could not proceed. Id. at 314, 468 P.2d at 336. Further, this
court determined that the Nevada Building Authority was in effect a state agency and was
therefore not an entity separate from the state. Id.
In concluding that the scheme violated the Nevada Constitution's debt limitation
provision, we rejected the recognized exceptions to the constitutional proscription.
4
Specifically, we determined that
realism demands that the indebtedness [for rent and fees] is immediately created for the
aggregate amount required by the period of the pledge. Were the State to pledge its
taxing power as security for the bonds payable in the future, such a pledge would fall
squarely within art. 9, 3. Surely, a pledge to make future appropriations for rent out of
tax revenues must be similarly treated. A present debt is created by such a legislative
pledge. To view the matter otherwise would exalt form over substance and impair the
integrity of our constitutional government.
__________

3
At the time Hancock was decided, the constitutional limitation on public debt was one percent of the state's
assessed value. The available, unused debt amount was $1,369,277, and the project contemplated by the
legislature was estimated to cost $5,600,000. This amount obviously would have exceeded the available debt
limit. Hancock, 86 Nev. at 312, 468 P.2d at 335.

4
These exceptions are the special fund exception, where revenues are derived from a nongovernmental
source, the earned installment doctrine, where executory contracts exist, and the current revenue doctrine,
where expenses are payable only out of current revenue. Hancock, 86 Nev. at 315-16, 468 P.2d at 337-38; see
State of Nevada v. Parkinson, 5 Nev. 17 (1869) (concluding that expenses payable from current revenue are not
public debt under the constitution).
. . . [S]uccessive biennial appropriations for rent until the bonds issued . . . are fully
retired must be considered in the same light as a legislative pledge to make future
appropriations for the same purpose. It is inconceivable that the legislature would
default in either instance since the good faith of Nevada would not allow it.
Id. at 316-17, 468 P.2d at 337-38. Thus, even though the scheme was set up so that bonds
were sold by the Nevada Building Authority, the Authority was deemed to be, in effect, the
state. Additionally, even though rent was payable from current appropriations, and the
legislature ostensibly had discretion whether to appropriate funds in the future, we concluded
that the legislature did not actually have such discretion and that the scheme implicated future
state revenue.
[Headnote 4]
Here, both BCR and the State Treasurer contend that the contractual arrangement
presented does not implicate future revenue and therefore falls outside the scope of article 9,
section 3. In particular, they both assert that the present situation is distinguishable from
Hancock because of the lease purchase agreement's nonappropriation clause. According to
them, since an expense payable from current revenue is not debt, and the agreement
specifically provides that it terminates if the legislature makes no appropriation for a given
fiscal period, the payments necessarily come from current revenue and therefore do not
constitute public debt. They also point out that unlike the situation in Hancock, where the
legislature retained control over the desired outcome, here, the State Treasurer cannot control
the legislative appropriation process and cannot commit future revenues to payment. In other
words, in the present case, the legislature has not pledged any state revenue; instead, the
executive branch has contracted for the installment expenditure of currently appropriated
funds.
We agree with BCR and the State Treasurer that the lease's nonappropriation provisions
bring it outside the scope of Nevada Constitution article 9, section 3. The agreement's subject
matter is fungible equipment, susceptible to repossession. Further, the contract clearly
provides that payments are contingent on funds being appropriated by the legislature. The
agreement automatically terminates if the legislature fails to appropriate sufficient funds for
the payments, and in such a situation, BCR is entitled to repossess the equipment. Under the
current revenue doctrine, no constitutionally proscribed public debt is created. Unlike the
situation in Hancock, realism does not demand that indebtedness . . . is immediately created
for the aggregate amount required by the period of the pledge."
required by the period of the pledge. Hancock, 86 Nev. at 316, 468 P.2d at 337. Here, the
legislature is not compelled to appropriate money in the future.
5

Other states faced with an issue similar to that before us have determined that lease
purchase agreements do not constitute public debt within the purview of constitutional
restrictions. For instance, in Edgerly v. Honeywell Information Systems, Inc., 377 A.2d 104
(Me. 1977), the court considered whether an installment contract between the state and a
computer company violated the state's constitution. The court recognized that a contract
which obligated the state to pay money over a period of years to purchase property created a
liability and that one legislature could not obligate succeeding legislatures to make
appropriations. Id. at 107. In determining that no constitutional problem existed, the court
focused on a contract provision that the state could return the computer equipment and no
longer be liable for payments if future legislatures failed to make necessary appropriations.
According to the court, this chicken out provision prevented the contract from creating an
obligation for future legislatures and therefore, the contract did not fall within the scope of the
constitution's debt limitation. Id. at 108.
Similarly, in State ex rel. Kane v. Goldschmidt, 783 P.2d 988 (Or. 1989), the Supreme
Court of Oregon determined that a state law with provisions for certain financing agreements,
including lease purchase agreements, did not violate the constitutional prohibition of public
debt. The statute at issue required that the financing agreements be made solely from
available funds and provided that [i]n no circumstance shall the state be obligated to pay
amounts due from any source other than available funds. Id. at 989. Further, the statute
authorized the lender to repossess the property in the event that available funds were
insufficient to make the payments. Id.
The court recognized that both the enabling legislation and the loan agreement
provided that if the legislature appropriated insufficient funds to continue payments, then the
state's obligation to make payments would terminate: The state's promise of repayment is
conditioned on the willingness of future legislative assemblies to appropriate the funds. The
state does not promise that future legislatures will appropriate any funds. The lenders take the
risk of nonpayment. Id. at 994-95. Further, the court determined that the fact that the
legislature may feel compelled to make payments in a future biennium out of the fiscal
concern to protect its credit rating [did not] convert the state's 'obligation' into a legal one
subject to [constitutional restrictions].
__________

5
We also recognize that governmental agencies often need flexibility in acquiring property, and lease
purchase agreements and financing arrangements provide this flexibility.
protect its credit rating [did not] convert the state's obligation' into a legal one subject to
[constitutional restrictions]. Id. at 995. Thus, the court concluded that the statute and
proposed agreements authorized by the legislature did not constitute public debt. Id.; see also
Reuven Bisk, State and Municipal Lease-Purchase Agreements: A Reassessment, 7 Harv. J.L.
& Pub. Pol'y 521, 550 (1984) (concluding that nonappropriation clauses provide an effective
tool for encouraging lease-purchasing while meeting debt limitation safeguards).
[Headnote 5]
We conclude that petitioner has demonstrated that a writ of mandamus is warranted.
Such a writ 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). Based upon the lease agreement's nonappropriation clause and provisions for
repossession of the leased equipment, the Nevada Constitution's limitation on public debt is
not implicated. Accordingly, as long as the contract is otherwise enforceable, the State
Treasurer has an obligation to make the required payments under the lease agreement. We
therefore grant the petition and direct the clerk of this court to issue a writ of mandamus
directing the State Treasurer to make any base payments due under the lease agreement.
____________
114 Nev. 71, 71 (1998) O'Brien v. State Bar of Nevada
JOHN O'BRIEN, Petitioner, v. STATE BAR OF NEVADA, Respondent.
No. 29748
January 22, 1998 952 P.2d 952
Original petition for writ of mandamus or prohibition.
Unsuccessful candidate sought writ of mandamus or prohibition directing Board of
Governors of State Bar to vacate appointment of attorney to Commission on Judicial
Selection and to order new selection process based upon alleged fraud committed upon
Board. The supreme court, Shearing, J., held that: (1) Board's decision not to rescind selection
after learning that process might have been tainted by false information about unsuccessful
candidate mooted petition, even if new selection process was not conducted; (2) successful
candidate's prior support of judge's campaign through campaign donations did not preclude
judge, as member of Board, from participating in non-judicial decision regarding candidate's
appointment to Commission;
regarding candidate's appointment to Commission; and (3) process that led to selection of
candidate was not so unfair as to warrant supreme court's intervention into affairs specifically
entrusted to Board by state constitution.
Petition denied.
Rose and Young, JJ., dissented.
Donald J. Campbell & Associates, Las Vegas, for Petitioner.
Rob W. Bare, Bar Counsel and Wayne Blevins, Executive Director, Las Vegas, for
Respondent.
1. Courts.
Supreme court, under its supervisory authority over state bar, had power to fashion appropriate remedy even if writ did not fall
within traditional scope of petition for writ of mandamus or prohibition.
2. Judges.
Action by Board of Governors of state bar in electing not to rescind its vote selecting one of two candidates for appointment to
Judicial Selection Commission, after learning that selection process may have been tainted by false information regarding one
candidate, mooted petition for relief by unsuccessful candidate, even though board did not engage in new selection process.
3. Judges.
Member of Board of Governors of state bar who was also a sitting district judge was not prohibited by any conflict of interest
from participating in selection of appointee to Judicial Selection Commission.
4. Judges.
Attorney's prior support of judge's campaign through campaign donations does not preclude the judge from participating in
nonjudicial decision regarding attorney, such as appointment of attorney to commission.
5. Judges.
Process that led to selection of candidate for appointment to Judicial Selection Commission was not so unfair, despite comment
by member of Board of Governors of state bar that could have been construed as falsely indicating that other candidate was subject of
disciplinary proceedings, as to warrant supreme court's intervention into affairs specifically entrusted to Board of state constitution.
Const. art. 6, 20(3)(b), (4)(b).
OPINION
Petitioner John O'Brien petitions this court for a writ of mandamus or prohibition directing the Board of Governors of the State
Bar of Nevada (the Board) to vacate the appointment of attorney Laura Wightman FitzSimmons to the Nevada
Commission on Judicial Selection {"the Commission"),
attorney Laura Wightman FitzSimmons to the Nevada Commission on Judicial Selection
(the Commission), compelling State Bar President-Elect Robert Dickerson to disclose to
the Board of Governors the basis of false information that he presented to the Board, and
directing the Board to engage in a new selection process for the appointment of a member to
the Commission.
Having considered the petition on file herein, together with the additional pleadings
submitted by Mr. O'Brien, we conclude that our intervention is not warranted at this time. For
the reasons herein expressed, we deny the petition. See NRAP 21(b) (this court, in its
discretion, may summarily dismiss a petition for an extraordinary writ without ordering the
respondent or the real party in interest to file an answer to the petition).
[Headnote 1]
Initially, we note, as Mr. O'Brien concedes, that this petition does not seek relief
within the traditional scope of a petition for a writ of mandamus or prohibition. Nevertheless,
this court has inherent supervisory authority over the State Bar of Nevada, and a strong
interest in assuring that not only bar counsel, but all members of the State Bar of Nevada, and
all its functionaries, perform their duties properly. Waters v. Barr, 103 Nev. 694, 696, 747
P.2d 900, 901 (1987); see also SCR 76(1) (The state bar is under the exclusive jurisdiction
and control of the supreme court . . . .). Thus, if this court were so inclined, it would have the
power to fashion an appropriate remedy in this case. We are not presently concerned with
whether this court has the power to intervene in matters relating to the state bar. Instead, we
are only concerned with whether Mr. O'Brien has demonstrated that this court's intervention
is warranted. As previously stated, we conclude that he has not.
FACTS
On December 11, 1996, the Board met to consider the applicants for appointment to
the Commission. Eleven Board members, a quorum, were present. See SCR 87(5) (a majority
of the Board members constitutes a quorum for the transaction of any business). Two
applicants, the incumbent, Ms. FitzSimmons, and Mr. O'Brien, were nominated for
appointment. During the discussion, Mr. Dickerson stated to all present that someone had told
him that Mr. O'Brien had a serious disciplinary complaint pending against him. Subsequently,
Ms. FitzSimmons was reappointed to the Commission by a vote of six to five. Mr. Dickerson
voted for Ms. FitzSimmons.
The accusation of Mr. Dickerson, that a serious ethical complaint was pending
against Mr. O'Brien,
plaint was pending against Mr. O'Brien, could not have been further from the truth.
1
Mr.
O'Brien has been an active member of the State Bar of Nevada since 1969; no disciplinary
complaint has ever been filed against him. Indeed, Mr. O'Brien served for seven years as a
member of the Board of Governors of the State Bar of Nevada, and for one year as president
of the state bar. He has also served as a U.S. Magistrate and as a member of the Nevada
Commission on Judicial Discipline. In short, Mr. O'Brien's record as an attorney and public
servant is beyond reproach.
Believing that the process by which he had been denied appointment to the
Commission was unfair, Mr. O'Brien filed this writ petition. In direct response to the petition,
the Board held a meeting on January 2, 1997. Thirteen of the Board's fifteen members
participated in that meeting, either directly or by telephone.
2
The first matter on the agenda
for consideration by the Board was to consider [a] motion to rescind [the] previous vote of
the Board of Governors on December 11, 1996, in the appointment of a representative . . . to
the Commission on Judicial Selection.
At the meeting, Mr. Dickerson informed the members at great length what he remembered
of the earlier meeting. Other members of the Board and the state bar were also afforded an
opportunity to express their views on what had happened, and whether the process by which
Ms. FitzSimmons was reappointed as a member of the Commission was fair. Both Mr.
O'Brien and Ms. FitzSimmons made statements to the Board members at this meeting. At the
close of discussion, the Board voted on whether to reconsider its appointment of Ms.
FitzSimmons to the Commission. The Board voted seven to six not to reconsider the
appointment.
__________

1
Mr. Dickerson does not concede that he accused Mr. O'Brien of having a serious disciplinary complaint
pending against him. According to Mr. Dickerson, he stated as follows: Interestingly, to show you how
important this appointment apparently is to some people, I even had someone suggest that John O'Brien may be
the subject of a pending or recently completed disciplinary case with the state bar. I personally do not believe it,
and I am confident it is not true. Other members of the Board apparently remember the comment differently. In
any event, the exact statement is not germane to our decision. It is sufficient for purposes of this opinion that Mr.
Dickerson made a comment that conveyed the message to the others present that a disciplinary complaint might
have been pending against Mr. O'Brien.

2
A fourteenth member attended the meeting, but had to leave before a vote was taken. A fifteenth member
also participated in the meeting, but abstained from voting.
DISCUSSION
[Headnote 2]
In his petition before this court, Mr. O'Brien raises one claim only: he asserts that the
appointment of Ms. FitzSimmons to the Commission was accomplished by a fraud upon the
Board. Mr. O'Brien does not suggest that Mr. Dickerson perpetrated a fraud. Instead, he
expressly argues that Mr. Dickerson was the target of a fraud that was perpetrated by
someone who was determined to see Ms. FitzSimmons appointed. Based solely on this
alleged fraud, Mr. O'Brien seeks the intervention of this court.
The Board was fully informed of the facts at its subsequent meeting, but nevertheless
decided not to rescind the prior appointment.
3
Mr. O'Brien has never asserted that he is
entitled to be appointed by the Board; he seeks in this petition a writ compelling the Board to
engage in a new selection process after having been properly informed of the facts.
On January 31, 1997, we entered an order recognizing that since the Board had
already fully considered this matter after having been informed of the facts, it appeared that
the petition was moot. Accordingly, we ordered Mr. O'Brien to show cause why this petition
should not be dismissed. In response, Mr. O'Brien argues that his petition is not moot because
the Board did not engage in a new selection process. Instead, it voted not to rescind its prior
appointment of Ms. FitzSimmons. This is largely a semantic distinction. Although the Board
did not conduct a new selection meeting, it was informed of the facts and qualifications of the
only two nominated candidates. The Board voted not to rescind its prior action, knowing full
well that this meant that its appointment of Ms. FitzSimmons would stand. Whether the
Board's decision was based on its perception that Ms. FitzSimmons was the person it desired
to appoint or its view that the appointment process was not unfair, is irrelevant. The point is,
__________

3
The Board was not informed of who allegedly made the comment that inspired Mr. Dickerson's unfortunate
comment. Nevertheless, this fact is not particularly relevant. The issues before the Board were whether the
comment had any basis in fact, and whether the comment influenced the vote against Mr. O'Brien. Ms.
FitzSimmons addressed the Board and stated [i]f any one of you who voted for me were motivated to do so in
any degree by the statement of Mr. Dickerson concerning Mr. O'Brien, please speak up now and say so. The
members of the Board were silent. Moreover, as noted above, the majority of the Board voted not to rescind Ms.
FitzSimmons appointment. It can therefore be inferred that Mr. Dickerson's comment did not affect the vote of
those members of the Board who voted for Ms. FitzSimmons. Ms. FitzSimmons further told the Board that she
was not in any way involved in any fraud as alleged by Mr. O'Brien, and a majority of the Board apparently
found her statement credible.
is, the Board acted with full knowledge, and appointed a member to the Commission, as it
had the authority to do. No right of Mr. O'Brien has been abridged by the Board's action.
[Headnote 3]
In his response to our order to show cause, Mr. O'Brien has raised two issues not
previously raised. First, he argues that District Judge Steven E. Jones should not have
participated in the voting because the Nevada Constitution does not envision that a district
judge acting as a duly elected member of the Board of Governors of the State Bar might
select a member of the Judicial Selection Commission. Mr. O'Brien suggests that there may
be a conflict of interest if a judge participates in the selection of a member of the Commission
who could quite conceivably be later asked to pass on the merits of that very judge in
Commission proceedings.
[Headnote 4]
It is conceivable that a situation could arise where the Commission would be required
to pass on the merits of a sitting judge who is also a member of the Boardfor example, if
the Commission voted on whether to nominate that sitting judge/Board member for
consideration to fill another judicial vacancy. See Nev. Const. art. 6, 20. Although such a
situation could present a potential conflict of interest on the part of a Commission member
selected, no such situation is presented here. Further, the remote possibility of such a situation
arising does not prevent a duly elected member of the Board, who is also a district judge,
from participating in Board appointment decisions. Additionally, we note that such a
potential conflict does not arise simply because of a Board member's position as a sitting
judge, but could occur with respect to any member of the Board seeking judicial appointment.
In short, we do not believe that any member of the Board who might be considered at some
point for a nomination to fill a judicial vacancy should be disqualified from participating in
the selection of Commission members.
4

__________

4
The dissenting Justices have suggested that Judge Jones should not have participated in the Board's vote
because Ms. FitzSimmons made donations to Judge Jones's election campaign, creating a conflict of interest for
Judge Jones. Although this issue was raised before the Board, this issue was not raised in this court by Mr.
O'Brien. We think it inappropriate to determine an issue that Mr. O'Brien has expressly elected not to raise
before this court. Nevertheless, we are compelled to respond to the dissenting opinion. We have previously
determined that an attorney's prior participation in a justice's campaign, through public endorsement and support
of the justice or by serving as a campaign co-chairman in the justice's election, does not require the justice's
recusal from a case in which that attorney is involved. See State, Dep't of Transp. v. Barsy, 113 Nev. 709, 941
P.2d 969 (1997); Ainsworth v.
[Headnote 5]
Second, Mr. O'Brien argues that Mr. Dickerson should not have been allowed to
participate in the vote on the issue of whether to rescind the Board's appointment of Ms.
FitzSimmons, and should not be allowed to vote in any new selection process that might be
ordered by this court. Mr. O'Brien argues that Mr. Dickerson has demonstrated his bias
against Mr. O'Brien by his conduct in attempting to minimize the impact of his comments and
in refusing to disclose the source of his false information. Mr. O'Brien argues further that Mr.
Dickerson has a conflict of interest.
The pleadings before this court do not demonstrate that Mr. O'Brien was not selected
because of a conflict of interest or bias on Mr. Dickerson's part. Further, although the process
that led to the non-appointment of Mr. O'Brien to the Commission may not have been perfect,
we are not convinced that it was so unfair as to warrant this court's intervention into the
affairs specifically entrusted by the Nevada Constitution to the Board of Governors of the
State Bar. See Nev. Const. art. 6, 20(3)(b) & (4)(b). Accordingly, we deny this petition.
Springer, C. J., concurs.
Maupin, J., concurring:
Although the majority correctly articulates the doctrine governing these matters, I am
compelled to write separately.
The record indicates a dispute over the nature of comments made about Mr. O'Brien
during the meeting of the Board of Governors of the State Bar at which membership on the
Nevada Commission on Judicial Selection was first at issue. Regardless of the substance of
the discussions, the mere mention of discipline proceedings, whether meant as rhetorical or
not, had the potential effect of compromising Mr. O'Brien's chances of being selected. If,
however, the allegation was in any way seriously considered, any board member could have
then and there examined Mr. O'Brien's State Bar Association file to confirm or refute the
allegation. Given that the board ultimately reconsidered the matter with full knowledge of
the true facts,
__________
Combined Ins. Co., 105 Nev. 237, 774 P.2d 1003 (1989), cert. denied, 493 U.S. 958 (1989). It follows that an
attorney's prior support of a judge's campaign through campaign donations does not preclude the judge from
participating in a non-judicial decision regarding the attorney, such as the appointment of the attorney to a
commission.
Further, under the Nevada Constitution, the Board of Governors of the State Bar of Nevada has implied
discretion to determine whether a Board member should be disqualified from voting in the selection of a
commission member. See Nev. Const. art. 6, 20. In this case, the Board, apparently, in its discretion, permitted
Judge Jones to vote.
matter with full knowledge of the true facts, that Mr. O'Brien has never been the subject of
discipline proceedings, it appears that such a review was unnecessary. Thus, because
selection of attorney members of the Commission is entrusted to the Board of Governors of
the State Bar by the Nevada Constitution, and because the Board did have all of the true facts
at hand when the matter was ultimately decided, we must defer to its final decision.
It is unfortunate that the possibility of discipline proceedings concerning Mr. O'Brien
ever became an issue, or even a non-issue, in the board's deliberations. Regardless of the
outcome of the vote, and regardless of the number of times the board revisits the issue, the
process and both of these applicants for the position were unnecessarily compromised.
In writing separately, I wish to stress again that Mr. O'Brien is one of the most
respected members of our profession here in Nevada. The observations of the majority bear
repeating:
[T]hat a serious ethical complaint was pending against Mr. O'Brien . . . could not have
been further from the truth. [Footnote omitted.] Mr. O'Brien has been an active member
of the State Bar of Nevada since 1969; no disciplinary complaint has ever been filed
against him. Indeed, Mr. O'Brien served for seven years as a member of the Board of
Governors of the State Bar of Nevada, and for one year as president of the state bar. He
has also served as a U.S. Magistrate and as a member of the Nevada Commission on
Judicial Discipline. In short, Mr. O'Brien's record as an attorney and public servant is
beyond reproach.
(Emphasis added.)
Rose, J., with whom Young, J., joins, dissenting:
I would order those members of the Board of Governors who voted for FitzSimmons
to file an answer to address the issue of whether two Board members voted with conflicts of
interest, thereby nullifying the vote and requiring a re-election. Since the majority is not so
inclined, I can only comment on the facts thus far presented.
As the majority recognizes, this court has exclusive jurisdiction and control over the State
Bar of Nevada and the power to fashion an appropriate remedy if illegality or unfairness is
noted in the State Bar's activities. It appears that two of the Board members had serious
conflicts of interest when they voted for O'Brien's opponent in the initial vote and then on
reconsideration. Without those two tainted votes, the result would have been in O'Brien's
favor. Rather than deny the petition outright based on the refusal to exercise our plenary
discretion, I would use the power vested with this court to further inquire into what
appears to be a fundamentally unfair election to one of the judiciary's most important
commissions.
power vested with this court to further inquire into what appears to be a fundamentally unfair
election to one of the judiciary's most important commissions.
Numerous people in attendance at the Board of Governor's meeting heard Dickerson
state that O'Brien had a serious attorney discipline matter pending against him. While later
denied and explained by Dickerson, the fact remains that the very person who apparently
slandered O'Brien provided the one vote margin for O'Brien's opponent. It seems obvious that
the very person slandering an individual should not then participate in a vote when the person
slandered is a candidate.
Judge Steve Jones voted to select FitzSimmons and then voted against a rehearing. Each
vote prevailed by a one vote margin. Judge Jones had a clear conflict of interest and should
have abstained. FitzSimmons donated $10,000 to Judge Jones' campaign for the Nevada
Supreme Court last year, and her husband gave him another $10,000. In addition,
FitzSimmons' law partner, Kermitt Waters, and his wife gave $95,000 to Judge Jones'
campaign individually and through businesses they controlled. This is a grand total of more
than $100,000 in campaign donations given to Judge Jones in the past year by FitzSimmons
and her law partner.
This court has held that, as a general proposition, contributions by an attorney or a
party to a judge's campaign do not disqualify the judge when the party or the attorney appear
before the judge. In re Petition to Recall Dunleavy, 104 Nev. 784, 769 P.2d 1271 (1988).
However, when the contribution is very large or greatly disproportionate to the contributions
made by a similar class of contributors, then an appearance of impropriety should be
recognized. Lawyers' contributions to judicial campaigns generally range from small
contributions up to several thousand dollars. However, few are made by lawyers above the
$5,000 level. A judge is compelled to run for office by the Nevada Constitution, and raising
money to finance a campaign is an integral part of that process. Every judicial candidate I
have known was thankful for all contributions made by lawyers, large or small. However,
there does come a point when the amount of money contributed creates an appearance of
impropriety, especially when the judge is ruling or voting on an issue critical to the lawyer
contributor, as Judge Jones did in this case.
The contributions made by FitzSimmons, her partner, and their businesses to Judge Jones'
campaign for election to the Nevada Supreme Court in 1996 totaled at least $115,000 and
was more than one-fourth of the total money Judge Jones raised for that campaign. This
amount would be considered an enormous contribution by any person or business, but
especially when received from two lawyers.
from two lawyers. Unless the Board members who voted for Judge Jones could persuade me
otherwise, this certainly appears to present an obvious conflict of interest that should have
prevented Judge Jones from voting in a contested election where FitzSimmons was a
candidate. Judge Jones was asked not to participate in the vote for reconsideration because of
this obvious conflict; he refused, and his vote was critical to preserving FitzSimmons'
electoral victory.
My opinion that this matter should be pursued is based, in part, on the function of the
Commission to which each candidate sought election. The Nevada Judicial Selection
Commission was created by the Nevada Constitution to select the best candidates for judicial
vacancies and recommend them to our Governor. The judge who is appointed is vested with
enormous authority that affects the citizens of this state in a variety of ways, including, in
some cases, the very decision of life or death.
Given the paramount importance of this Commission, we should all insist that its
membership selection and operation be done by the letter of the law and be above reproach.
We insist that a judge be fair and impartial and not participate in a case where doing so would
present the appearance of impropriety and thus a conflict of interest. Why should the standard
for the Commission who selects our judges be any less?
The petitioner has shown that members of the Board of Governors voted when they
had apparent conflicts of interest, thus denying him the election. Recognizing that the
slanderous remarks made about O'Brien were false is certainly appropriate but clearly an
inadequate remedy. O'Brien asks only that a re-election be held and that those Board
members with conflicts of interest not participate in it. He may win or lose, but we would be
assured that the Commission's membership is not tainted by an improper election process.
Fairness demands no less.
____________
114 Nev. 81, 81 (1998) Matter of Parental Rights as to Daniels
In the Matter of the Parental Rights as to LEANDRE LAMAR DANIELS, DEANDRE
LAMAR DANIELS, ANDREA RENAY KIDWELL, ALLEN MICHAEL
KIDWELL, and CHRISTOPHER LANIER KIDWELL, ANDRE KIDWELL and
PAMELA RENAY DANIELS, Appellants, v. DEPARTMENT OF HUMAN
RESOURCES, DIVISION OF CHILD AND FAMILY SERVICES, Respondent.
No. 28704
January 22, 1998 953 P.2d 1
Appeal from district court order terminating parental rights. Eighth Judicial District
Court, Clark County; Gerald W. Hardcastle, Judge.
The district court terminated parental rights to five children, and parents appealed.
The supreme court, Shearing, J., held that: (1) father was not constitutionally entitled to
appointment of counsel when children were initially removed from his custody; (2) agency's
efforts to reunite father with children comported with father's due process rights; and (3) clear
and convincing evidence supported termination of both parents' rights on grounds of
abandonment and failure of parental adjustment.
Affirmed.
Pamela Renay Daniels, Las Vegas, In Proper Person.
Rovacchi, Kent & Cordes, Las Vegas, for Appellant Kidwell.
Frankie Sue Del Papa, Attorney General, and Linda C. Anderson, Deputy Attorney
General, Carson City, for Respondent.
1. Infants.
Appointment of counsel lies within discretion of juvenile court in parental termination proceedings. NRS 432B.420.
2. Constitutional Law.
Temporary custody of child does not rise to same level as permanent removal, and thus, court need not employ the same
procedural due process safeguards that are applicable to parental right termination proceedings. U.S. Const. amend. 14.
3. Constitutional Law; Infants.
Putative father was not constitutionally entitled to discretionary appointment of counsel when children were temporarily
removed from his custody with expected reunion upon his completion of parental case plan. There was no indication that attorney's
assistance would have aided father in satisfying requirements of his case plan or that assistance was necessary
to clear up father's purported confusion as to whether his rights had been terminated.
aided father in satisfying requirements of his case plan or that assistance was necessary to clear up father's purported confusion as to
whether his rights had been terminated. U.S. Const. amend. 14; NRS 432B.420.
4. Constitutional Law; Infants.
Child services agency made reasonable efforts to reunite children with their father consonant with father's due process rights and
statutory requirements, where agency worked for over two years despite father's repeated failure to make progress on his case plan and
statutory mandate that agency commence termination proceedings within six months of his noncompliance. 42 U.S.C. 520-628,
670-679; NRS 128.109.
5. Infants.
Termination of parental rights requires finding of parental unsuitability (jurisdictional grounds) and that severing parental ties
would be in child's best interest (dispositional grounds). NRS 128.105.
6. Infants.
Clear and convincing evidence supported findings that putative father abandoned children and failed to make parental
adjustments necessary to correct circumstances that led to children's removal from his custody. Father failed to cut off his relationship
with children's drug-addicted mother, failed to pay support, and failed to communicate with children. NRS 128.105.
7. Infants.
Clear and convincing evidence in parental termination proceedings supported findings that mother failed to make parental
adjustments and abandoned children. Mother failed to pay support or communicate with children or with social service agencies, and
made no progress on her case plan. NRS 128.105.
8. Infants.
Clear and convincing evidence established that permanently severing parental relationship was in best interests of children
whose developmental and behavioral problems improved in foster care while parents made no efforts to communicate with them or to
learn how to deal with their special needs. NRS 128.105.
OPINION
Appellant Andre Rene Kidwell contends that the district court violated his procedural due process rights.
1
We conclude
that the assignments of error are without merit and therefore affirm.
__________

1
Although Pamela Renay Daniels filed her notice of appeal, she took no steps toward advancing this matter.
Daniels' attorney, with the district court's permission, withdrew as counsel for Daniels after she failed to
communicate or assist him. Daniels also failed to comply with an order issued by this court directing her to seek
alternative counsel, instructing that failure to comply would result in her appeal being submitted upon the record
without briefing or oral argument.
In any event, based upon our review of the record, the disposition below is justified; therefore, our decision
applies to her and Mr. Kidwell.
FACTS
Pamela Renay Daniels (Daniels) and Andre Rene Kidwell (Kidwell) contest the
termination of parental rights of five of Daniels' eleven children. The five children who are
the subject of these proceedings include two sets of twins. The twins, Leandre and Deandre,
were born January 22, 1988. Unmarried at the time of the twins' conception, Daniels listed
either Robert McDaniel or Robert Jones as their father. Neither putative father appeared at
any proceedings.
The remaining three children who are the subject of this appeal are claimed by the putative
father, Kidwell. However, Kidwell has never established paternity or listed his name on their
birth certificates. Andrea Kidwell was born February 7, 1989, and the second set of twins,
Allen and Christopher Kidwell, were born December 7, 1989.
Child Protective Services (CPS) had received nine referrals on Daniels' children;
however, most of the supporting allegations were either untrue or unconfirmed. CPS
substantiated improper supervision and physical and medical neglect in September of 1988.
On March 2, 1992, Douglas Wasden, an officer with CPS, received a final referral after North
Las Vegas police officers discovered five unattended children in Kidwell's filthy and unkempt
apartment. Despite the police entry and search of the apartment, Kidwell slept undisturbed.
The house had very little furniture and it appeared that the children had no food. Kidwell
explained that he was in the process of moving from one apartment to another.
Ten children who ranged in age from three to twelve resided in the apartment. Apparently
one of Daniels' children lived elsewhere. The mother's whereabouts were unknown; therefore,
the officers immediately removed the five children who were present and also the remaining
five (not at issue herein) who were attending school. Neither parent appeared at the protective
custody hearing held the following day, nor did either parent contact CPS regarding their
children.
A petition was filed alleging improper supervision of the children and that neither
parent attempted to resume custody of the children. Both parents attended the hearing held
before the juvenile court on March 11, 1993, and admitted to improper supervision. On
March 15, 1993, Andrea, Allen, and Christopher were released to Kidwell.
CPS sent a letter to Daniels requesting her prompt response concerning the disposition of
her children. Daniels failed to respond and made no effort to communicate with CPS while
Leandre and Deandre remained under the agency's care. Leandre and Deandre and the
remaining five children were then placed into the custody of the Division of Child and
Family Service {"DCFS")
into the custody of the Division of Child and Family Service (DCFS) after CPS determined
that Daniels no longer had an interest in caring for her children and alternative placements
were not available.
Relevant facts pertaining to Kidwell
Kidwell signed a parental treatment agreement drafted by CPS which required
Kidwell to provide his children with proper care, participate in the Parent Education Program,
and submit to periodic monitoring by the agency. The record reflects that Kidwell was
informed that the parenting classes were without cost and that additional free counseling was
available.
Despite an understanding with CPS that Kidwell was to avoid living with Daniels,
Kidwell ignored this admonition and continued the cohabitation.
Kidwell's custody of Andrea, Christopher and Allen was short-lived. At trial, Kidwell
testified that he gave Daniels the rent money, but unbeknownst to Kidwell, Daniels allegedly
spent it on drugs. They were evicted on May 19, 1993. Kidwell was homeless and unable to
care properly for his children. The inability of the protective services' officer to place the
children with their paternal grandmother hastened the children's placement with DCFS on
June 24, 1993.
Kidwell acceded to the DCFS case plan which required him to: (1) maintain adequate and
stable housing; (2) secure stable employment; (3) seek counseling; (4) pay child support in
the amount of $300.00 per month; (5) obtain safe child care and utilize community resources;
and (6) avoid contact with Daniels during her drug use.
The DCFS social worker instructed Kidwell to sever his ties with Daniels. According
to DCFS, Kidwell was jeopardizing the children's welfare by fueling Daniels' drug habit with
money that he received from Aid to Dependent Children (ADC). Kidwell, however, was
unwilling to sever the relationship and claimed that he planned to marry Daniels shortly.
Kidwell had sporadic contact with DCFS during the two-and-a-half-year period that
followed. The DCFS social worker testified that her inability to contact Kidwell and Daniels
posed a formidable problem. For example, the social worker testified that Kidwell's mother
was her best contact because Kidwell was frequently changing jobs and residences. Kidwell
visited his children on only one occasion during the two-and-a-half-year period, and despite
his caseworker's efforts to arrange another visit, Kidwell failed to confirm the arrangement.
Kidwell, however, testified that he saw his children approximately six or seven times
between June of 1993 and February of 1996.
1996. Other than Kidwell's testimony, there is no record of these additional visits. One
verified visit occurred at DCFS and the others were allegedly at Child Haven. During his
visits, Kidwell testified that the children were hateful towards him and said they had other
parents. Kidwell testified that he thought his rights were terminated; therefore, he did not stay
in touch with the children.
Kathleen Petit (Petit), a DCFS social worker assigned to the case in January 1995,
testified at trial that Kidwell failed to make any progress on his case plan. Kidwell was
unemployed, without a permanent residence, and living with his mother. Petit suggested to
Kidwell that he enroll in a parental training class as a show of good faith. Petit instructed
Kidwell to call her the following day and she would arrange a visit with his children. Petit
had no further contact with Kidwell. Moreover, Kidwell failed to pay any child support,
establish paternity, or comply with the DCFS case plan.
Kidwell married a woman other than Daniels in October 1995. Notwithstanding his recent
one-month marriage, he tried to reconcile with Daniels following her release from prison. At
the time of trial, Kidwell lived with his newlywed and mother-in-law, and relied on their
incomes because he was unemployed. Kidwell stated that he earned only $2,600.00 in the
previous year.
Relevant facts pertaining to the children
When DCFS gained custody of Leandre and Deandre on April 21, 1993, the DCFS
caseworker testified that the twins had numerous behavioral problems. The girls exhibited
significant anger and violence and possessed atypical sexual knowledge. Another social
worker employed by Specialized Alternative for Family and Youth of America (SAFY), an
agency specializing in placing children in therapeutic foster homes, who was assigned to
Leandre and Deandre, testified at trial that the girls had uncontrollable behavior and required
structured therapeutic foster care. DCFS immediately placed the girls in counseling and
attended to their special educational needs. The girls generally responded well following their
placement in a structured setting and stable home environment. The SAFY social worker
testified that these two girls were adoptable.
Allen and Christopher also exhibited behavioral and developmental problems. The
caseworker testified that the boys were extremely violent with each other. Prior to gaining
custody of the boys, DCFS observed bruises and scars on the boys that were attributed to the
twins hitting each other with bats. Further, Allen and Christopher smeared feces on the wall
and urinated inappropriately.
Allen and Christopher were deemed fire starters and were subsequently referred to
SAFY in November 1995. SAFY also determined that the twins had developmental and
behavioral problems which required an environment that was more structured than a typical
foster home. When the boys were initially referred to SAFY they were approximately four
years old, yet engaged in such dysfunctional behavior as finger sucking and baby talk.
After a year of therapy at Child Behavioral Services and the combined efforts of the boys'
foster parents, the caseworker testified that Allen and Christopher progressed significantly.
For example, their vocabulary increased tremendously, their personal hygiene rose to an
acceptable level, and they were able to interact with each other without constant battling.
According to the SAFY caseworker, the children received superb foster care. Moreover, both
boys were attending regular school.
Given their significant improvement in several areas, the caseworker concluded that
the boys were ready for adoption. The caseworker acknowledged, however, that the twins'
mixed race could complicate their chances for adoption.
The DCFS social worker initially assigned to Andrea, age four, testified that she lagged
developmentally behind all of the other children. She was unable to differentiate between
colors, shapes and numbers, and her speech was barely intelligible. Further, she would urinate
in the corner rather than in the bathroom. DCFS addressed her special needs and noticed an
immediate turnaround after placing her in preschool. The DCFS caseworker testified that
Andrea blossomed while in foster care. She also testified that there were numerous factors
that could frustrate the children's adoptions. These included the children's mixed racial
composition, age, and learning and emotional disabilities.
Relevant facts pertaining to Daniels
DCFS filed an unsigned case plan for Daniels in July 1993, because the agency could
not locate her. Essentially, the plan mirrored Kidwell's case plan. Juvenile court had
established that Daniels was using drugs; therefore, in addition to maintaining stable housing,
employment, and attending parenting classes, Daniels was required to submit to random
urinalysis for six months and pay $200.00 per month in child support.
Daniels testified that she abused cocaine, and while pregnant with Allen and Christopher,
she was convicted of possession of cocaine in August of 1989 and sentenced in November of
1993. After receiving a suspended sentence and probation, Daniels was rearrested two months
later and convicted in August of 1994 for attempted possession. She spent the next seventeen
months in prison.
Upon her release from prison, Daniels was assigned to Kathleen Petit, the DCFS
social worker. Daniels had neither a permanent address nor gainful employment. During the
twelve-month period that the caseworker was assigned to Daniels and to the Kidwell
children, Daniels never provided DCFS with a phone number or permanent address.
Petit, however, made earnest attempts to locate Daniels. For example, Petit engaged the
assistance of a parent locator service and contacted family members. Petit testified that,
during the year prior to Daniels' release from prison, Daniels sent only one letter to the
children. Moreover, Daniels failed to pay any child support. After her release, Petit testified
that Daniels failed to make any progress on her case plan. According to Petit, the children had
only a bare recollection of their mother.
Petit concluded that reunification of the children with either parent was unlikely
because the children have special needs which neither parent has addressed.
DISCUSSION
Whether the Eighth Judicial District Court or DCFS violated Daniels' and Kidwell's
procedural due process rights in terminating their parental rights
1. Kidwell's due process rights were not violated by failing to appoint counsel during
the underlying juvenile proceedings
Kidwell contends that the district court violated his procedural due process rights
when the juvenile court failed to appoint counsel after his children were removed.
Specifically, Kidwell alleges that competent counsel could have provided guidance and
clarified his confusion during the juvenile court's review of his DCFS case plan. Kidwell
asserts that counsel could have facilitated a reunification with his children. Kidwell further
argues that DCFS failed to make a reasonable effort to reunify his family.
The United States Supreme Court has firmly established the parent-child relationship
as a fundamental liberty interest. Santosky v. Kramer, 455 U.S. 745, 753 (1982); see also
Quilloin v. Walcott, 434 U.S. 246, 255 (1978). Thus, when a state initiates a parental
termination proceeding, it terminates the parent's fundamental liberty interest and does not
merely infringe on the interest. Lassiter v. Department of Social Services, 452 U.S. 18, 27
(1981). If the State prevails, it will have worked a unique kind of deprivation . . . . A parent's
interest in the accuracy and justice of the decision to terminate his or her parental status is,
therefore, a commanding one. Id. (Footnote omitted.)
Matthews v. Eldridge, 424 U.S. 319, 335 (1976), sets forth a three-part balancing
test for identifying the existence of procedural due process deficiencies when a
fundamental interest is at stake.
three-part balancing test for identifying the existence of procedural due process deficiencies
when a fundamental interest is at stake. First, the court must consider the effect of the official
action on the private interest. Second, the reviewing court must assess the risk of erroneous
deprivation through the procedures used and the value of adding additional procedures. Third,
the court must weigh the government's interestthe function involved and any additional
burdens imposed in implementing additional procedures.
Recently, we addressed due process issues in their relation to terminations of parental
rights. See generally Matter of Parental Rights as to Weinper, 112 Nev. 710, 918 P.2d 325
(1996). In Weinper, we examined the due process procedures exercised by other states in
termination proceedings and noted that parents are entitled to: (1) a clear and definite
statement of the allegations of the petition; (2) notice of the hearing and the opportunity to be
heard or defend; and (3) the right to counsel. Id. at 713, 918 P.2d at 328.
We are now asked to address the procedural due process requirements afforded
parents at an earlier juncture, specifically, when children are removed from the parents' care
and custody on a temporary basis.
DCFS argues that the juvenile court proceedings upon removal of the children differ
from a termination action. Termination proceedings are governed by NRS 432B.420, which
provides, in pertinent part:
1. A parent or other person responsible for the child's welfare who is alleged to have
abused or neglected a child may be represented by an attorney at all stages of any
proceeding under NRS 432B.410 to 432B.590, inclusive.
. . . [I]f the person is indigent, the court may appoint an attorney to represent him. The
court may, if it finds it appropriate, appoint an attorney to represent the child.
(Emphasis added.)
[Headnote 1]
Thus, the appointment of counsel lies within the discretion of the juvenile court.
In the formal proceedings to terminate Kidwell's parental rights, the district court
addressed all three due process concerns under Weinper.
2
Again, Kidwell does not assert that
he was denied any of these procedural due process concerns at the termination hearing.
__________

2
(1) a clear and definite statement of the allegations of the petition; (2) notice of the hearing and the
opportunity to be heard or defend; and (3) the right to counsel.
Weinper v. Nevada State Department of Human Resources, Division of Family Services, 112 Nev. 710, 918
P.2d 325 (1996).
denied any of these procedural due process concerns at the termination hearing. He contests
the constitutionality of due process procedures afforded him during the underlying removal
proceedings.
Immediately following the removal of their children, a measure considered temporary
until Kidwell could stabilize his living environment, both parents admitted to improper
supervision at a hearing held before the juvenile court. Kidwell also had ample familiarity
with his case plan and yet failed to make any significant progress. Thus, Kidwell and Daniels
were afforded and received clear and definite notice of the allegations which led to the
removal of their children.
Kidwell fails to present any evidence that he did not have a clear understanding of what
was expected of him during the periodic six-month juvenile court reviews. The initial court
review of foster placement reflected that neither parent paid child support or made any
reunification efforts. As of March 8, 1994, a Report for Periodic Review reflected that
Kidwell had exercised visitation on only one occasion, was unemployed, and had no
permanent residence.
Central to Kidwell's argument is his alleged confusion of when his parental rights
were terminated. He claims that he failed to exercise visitation because he believed his
parental rights had been terminated as of December of 1994. This was confirmed by his
caseworker. In reality, Kidwell had apparently misinterpreted the court's order terminating
parental rights as to Leandre and Deandre,
3
Daniels' other children. It is significant that one
year later the court still considered the possibility of reunifying Kidwell with his children and
thus viewed the agency's care and custody of the children as temporary.
There is some confusion as to whether Kidwell requested counsel during the underlying
juvenile proceedings. DCFS alleges that Kidwell never requested counsel and directs us to the
juvenile court records as support for this assertion. Kidwell argues that the exhibits of the
juvenile proceedings do not contain transcripts of the actual proceedings; therefore, DCFS
cannot make this allegation with certainty. Certainly, counsel would have been appointed for
Kidwell had he so requested. Thus, the third procedural due process concern addressed in
Weinper (the right to counsel) was satisfied.
__________

3
There is some confusion as to when the hearing regarding these two children occurred. Neither appellants'
or respondent's briefs specify an exact date. The decision issued by the juvenile court refers to a judicial review
held on March 8, 1994, wherein the court approved the recommendation to proceed with the termination of
parental rights as to Daniels but directed DCFS to continue working with Kidwell with the expectation of
reunifying Kidwell with his children.
right to counsel) was satisfied. The issue remains whether appointment of counsel at an
earlier juncture was constitutionally mandated.
Kidwell argues his confusion could easily have been allayed had the court appointed
him counsel to guide him through the juvenile proceedings.
[Headnote 2]
We conclude that counsel was appointed at the critical hearing where Kidwell faced
termination of his parental rights. In Lassiter v. Department of Soc. Serv. of Durham City,
452 U.S. 19 (1981), the United States Supreme Court held that the Constitution does not
require the appointment of counsel for indigent parents in termination of parental rights
proceedings. We conclude that temporary custody of a child does not rise to the same level as
permanent removal; therefore, the court need not employ the same procedural safeguards.
Thus, we conclude that Kidwell's procedural due process rights were not violated. As
previously mentioned, DCFS initially intended to remove Kidwell's children temporarily. In
fact, DCFS released the children to Kidwell in less than one week. Further, Kidwell's case
plan provides additional evidence that DCFS' goal was a reunification with his children. The
expected length of the separation was dependent on Kidwell's satisfaction of the case plan.
The initial court review on September 7, 1993, approximately four months after
Kidwell was evicted from his apartment and lost custody of his children, reveals that neither
parent made any reunification efforts, nor was any child support paid. The report also reflects
that despite Kidwell's knowledge of Daniels' drug problem, he persisted in associating with
her. Kidwell's case plan was straightforwardhe simply failed to make any progress towards
satisfying its goals. While DCFS recommended that the court proceed with termination
proceedings for Leandre and Deandre in March of 1994, it was only six months later that the
recommendation was made with respect to Kidwell's children. The only material fact in
dispute arose following the juvenile court proceeding which recommended terminating
Daniels' parental rights.
[Headnote 3]
We conclude that the foregoing facts taken together did not compel the discretionary
appointment of counsel for Kidwell at an earlier stage of the proceedings. Kidwell could have
simply asked his caseworker, or the judge for that matter, whether his parental rights were
terminated. Instead, the record is replete with accounts of Kidwell's failure to communicate
with his caseworkers throughout the entire process or make any progress on his case plan.
workers throughout the entire process or make any progress on his case plan. There is no
indication that an attorney's assistance would have aided Kidwell in satisfying the
requirements of his case plansecuring adequate and stable housing, paying child support,
utilizing community resources, and most importantly, avoiding contact with Daniels.
2. DCFS made reasonable reunification efforts
[Headnote 4]
The touchstone of Kidwell's argument rests with his assertion that DCFS failed to
follow proper procedures as set forth under federal statutes and the State of Nevada's Division
of Child and Family Services Substitute Care Manual (Manual). Kidwell avers that DCFS
failed to follow the procedures promulgated under the provisions of the Adoption Assistance
and Child Welfare Act of 1980, 42 U.S.C. 620-28, 670-79. Kidwell argues that DCFS
failed to: make a reasonable effort to reunify the family; conduct regularly scheduled
evaluations of case plan progress; and provide a host of community services.
Kidwell's assertions are without merit. Despite Kidwell's repeated failure to make any
progress on his case plan, DCFS worked with Kidwell for over two years despite a statutory
mandate to commence termination proceedings six months from his noncompliance. See NRS
128.109.
4

DCFS caseworkers freely admitted that they had a heavy caseload that stressed the
system. Nevertheless, the agency kept adequate records and drafted a case plan for Kidwell
pursuant to the DCFS Manual. In the interim, DCFS tried to place all of the children at issue
with relatives.
After it was evident that Kidwell could not provide for his own children, DCFS placed
Allen, Christopher, and Andrea in foster care and addressed their special educational and
behavioral needs. The same attention was devoted to Leandre and Deandre. DCFS followed
with a case plan for both parents, yet neither parent made acceptable progress.
We conclude that Kidwell's attempt to shift his personal accountability and
responsibility to DCFS is meritless, and therefore, unavailing.
__________

4
NRS 128.109 provides in pertinent part:
(b) If the parent or parents fail to comply substantially with the terms and conditions of a plan to
reunite the family within 6 months after the date on which the child was placed or the plan was
commenced, whichever occurs later, that failure to comply is evidence of failure of parental adjustment
as set forth in paragraph (d) of subsection 2 of NRS 128.105.
Whether the district court established jurisdictional and dispositional grounds by clear and
convincing evidence to justify termination
As grounds for termination of parental rights the district court found by clear and
convincing evidence that the parents' conduct demonstrated abandonment and failure of
parental adjustment. NRS 128.102 defines abandonment of a child as any parental conduct
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.
Failure of parental adjustment occurs when a parent or parents are unable or
unwilling within a reasonable time to correct substantially the circumstances, conduct
or conditions which led to the placement of their child outside of their home,
notwithstanding reasonable and appropriate efforts made by the state or a private person
or agency to return the child to his home.
NRS 128.0126.
[Headnote 5]
A termination of parental rights requires a finding of parental unsuitability
(jurisdictional grounds) and that severing the parental ties would be in the child's best interest
(dispositional grounds). Champagne v. Welfare Division, 100 Nev. 640, 647, 691 P.2d 849,
854 (1984).
NRS 128.105
5
enumerates the grounds for terminating parental rights. The legislature has
amended the statue by adding language which requires the court to consider primarily
"whether the best interests of the child would be served by the termination."
__________

5
NRS 128.105 states in pertinent part:
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 . . . .
which requires the court to consider primarily whether the best interests of the child would
be served by the termination.
While Champagne elevated the standard of proof to at least clear and convincing
evidence for establishing both jurisdictional and dispositional grounds, we have,
nevertheless, approvingly followed several pre-Champagne cases for defining parental
abandonment. Id. at 648, 691 P.2d at 854.
1. Jurisdictional grounds
[Headnote 6]
In Pyborn v. Quathamer, 96 Nev. 145, 147, 605 P.2d 1147, 1148 (1980), we upheld a
district court finding of abandonment where the father made no attempts to communicate
with his son for a period of ten months, coupled with token efforts, to pay support for the
child. Here, Kidwell's time frame for non-support and communication was over two years.
Additional evidence of abandonment includes lack of support, failure to communicate, and
failure to send gifts. Sernaker v. Ehrlich, 86 Nev. 277, 468 P.2d 5 (1970). This court noted
that Sernaker was $11,000 in arrears for wife and child support but stated that [n]onsupport
is not synonymous with the abandonment but it is a factor in determining whether a parent
has abandoned his child. Id. at 280, 468 P.2d at 7 (1970). Kidwell did not amass arrearages
totalling $11,000; however, Kidwell failed to pay any child support, establish paternity, or
comply with the DCFS case plan.
In Carson v. Lowe, 76 Nev. 446, 357 P.2d 591 (1960), this court upheld the district
court's termination of the father's parental rights. Over a three-year period, the father failed to
support his child and made meager efforts to communicate with the child. Id. at 449, 357 P.2d
at 593.
In Drury v. Lang, 105 Nev. 430, 776 P.2d 843 (1989), a post-Champagne case, we
interpreted NRS 128.105
6
as requiring a substantial abandonment and something more than
a parent's failure to communicate with her children for a period of six months. Id. at 433, 776
P.2d at 844.
Kidwell's conduct was egregious. Contrary to DCFS' instructions, Kidwell relentlessly
associated with Daniels while in the throes of her drug addiction, thereby placing his
children's welfare in serious jeopardy. Even more astonishing was his intent to marry Daniels
after only one month of marriage to another woman. Moreover, Kidwell made no efforts to
attend free parenting classes or make any noteworthy attempts at reunification.
__________

6
See n.5.
[Headnote 7]
There is ample evidence in the record establishing Daniels' failure of parental
adjustment and intentions to abandon her children. Daniels admitted to improper supervision
at a hearing held before the juvenile court. Daniels made no effort to communicate with CPS
or DCFS. During her seventeen months in prison she sent the children one letter. Upon
release, Daniels never provided DCFS with a phone number or permanent address. As with
Kidwell, Daniels failed to pay court-ordered child support and made no progress on her case
plan.
We conclude that the jurisdictional grounds of abandonment and failure of parental
adjustment were established by clear and convincing evidence for Kidwell and Daniels.
2. Dispositional grounds
[Headnote 8]
The proper inquiry under the dispositional prong is simply: If under no reasonable
circumstances the child's best interest can be served by sustaining the parental tie, the
dispositional grounds for termination exist. Champagne, 100 Nev. at 652, 691 P.2d at 858.
Kidwell contends that DCFS' documentation of the children following their removal from
the home is inadequate; therefore, the record is not an accurate reflection of the children's
developmental and behavioral problems. Kidwell specifically points to a gap in
documentation between the time the children were placed in custody and the time they were
placed in the therapeutic home. Kidwell suggests that the children's behavioral problems
emerged after the children's removal because [t]here is no documentation from therapists
revealing that the children acted out in the manners described prior to being in the custody
and control of Respondent.
Once DCFS gained custody, the agency immediately addressed the children's special
needs. Soon thereafter, DCFS provided a stable and structured home environment. Despite
Kidwell's claims that the children's dysfunctional behavior occurred after their removal from
his care and custody, a DCFS caseworker observed bruises on Allen and Christopher which
were attributed to the boys hitting each other with bats.
Once DCFS placed the boys in therapeutic foster homes and provided a year of therapy at
Child Behavioral Services, the boys made significant progress. Such efforts made it possible
for them to attend school and enhanced their chances for adoption.
When DCFS initially gained custody of Andrea, she was unmanageable, her sanitary
habits were deficient and she was unable to differentiate between colors, shapes and
numbers.
unable to differentiate between colors, shapes and numbers. Thereafter, Andrea blossomed
while in foster care.
Admittedly, the children's mixed racial composition, age, and learning and emotional
disabilities are factors that could impede their chances for adoption. The juvenile court duly
noted this concern by stating [i]t would be regrettable if the children were to remain in foster
care simply because an adoptive home could not be obtained.
Petit, the DCFS caseworker assigned to this family, concluded that reunification with
either parent was unlikely and that keeping the children in limbo for over two years was
excessive. Clearly, neither parent has demonstrated that they are capable of providing a stable
and nurturing environment for these children.
DCFS' shortcomings are minimal in comparison to the deficient efforts displayed by
both parents. The record clearly portrays dysfunctional parents ill equipped to deal with their
children's special needs. For the foregoing reasons, we conclude that the district court
established jurisdictional and dispositional grounds by clear and convincing evidence,
justifying termination of parental rights. Accordingly, we conclude that permanently severing
the parental relationship is in the children's best interest.
We also conclude that the due process concerns are without merit.
Based on the foregoing analysis, we affirm the decision of the district court to
terminate the parental rights of Andre Kidwell as to Andrea, Allen and Christopher, and
terminate the parental rights of Pamela Renay Daniels as to all five minor children: Leandre,
Deandre, Andrea, Allen and Christopher.
7

Rose and Young, JJ., concur.
The State has permanently deprived these parents of five of their eleven children
because they are (to use the language of the trial court) destitute. Today, we see five more
children being swept away by the State's child-devouring juggernaut because, as put in the
majority opinion, the parents could not provide for [their] own children.
The parents' destitution and poverty are not, of course, put forth as the grounds for
depriving these five children of their natural parents. The official grounds for termination
of the parental relationship are abandonment and failure of parental adjustment.
Abandonment and failure of parental adjustment have become the standard rubric for taking
poor children away from their parents.
__________

7
The Honorable A. William Maupin, Justice, did not participate in the decision of this matter.
from their parents.
1
When we examine these grounds as jurisdictional grounds in this case,
we can see that the children lost their parents primarily because their parents were destitute.
If we look at the official ground of abandonment for example, it is easy to see that
in this case (as in most cases where abandonment is relied on to terminate the rights of
parents) there is not even a hint of the parents' having any intention to abandon or relinquish
all parental rights to five of their children. The evidence in this case shows only an inability
to support their children, not an unwillingness. The parents' lack of support, which is at the
root of the abandonment charges, is based upon their inability and failure to make child
support payments to the State. (For example, Mr. Kidwell was required to pay $300.00 per
month in support when welfare agents knew that he was only earning $200.00 per month.)
This case is yet another example of the State's growing inclination to seek termination
of parental rights for reasons of poverty.
2
The pattern is familiar:
3
Hungry children, dirty
children, unkempt children,
__________

1
There is mention in the majority opinion of drug abuse on the part of one of the parents. This failing is not,
however, relied on by either the trial judge or the attorney for the State as a ground for termination; and, again,
the termination is based on a supposed abandonment and failure to adjust, which, I maintain, are in most of
these kinds of cases, simply euphemistic terms for disabling poverty and destitution.

2
For Reasons of Poverty, written by University of Nevada, Las Vegas professor Leroy Pelton, Ph.D., should
be required reading for jurists who are wont to take children away from their parents because they are poor.
Referring to a 1990 White House Conference report on poor and dependent children, which recommended that
the home should not be broken up for reasons of poverty, Dr. Pelton presents a most valuable social science
study of the overriding role of poverty in child-removal and termination proceedings. The author establishes that
poverty is the most predominant characteristic of parents whose children are removed from the home. Dr.
Pelton concludes that the cause of removal of children from their homes and of foster care placement is often
that the natural parents, frequently due to poverty, do not have the resources to off-set the impact of situational
or personal problems, which themselves are often caused by poverty, and the agencies have failed to provide the
needed supports. Noting that it is largely poor children that populate the foster care system, Dr. Pelton
provides us with the following salient quotation from a paper by Bernice Boehm:
It is more than half a century since the tenet was first annunciated that no child should be separated from
his family by reasons of poverty alone. It is unforgivable that in more than half a century this basic
principle, to which there is such strong commitment, has not been implemented. . . .
During much of child-welfare history, poverty alone was taken as being sufficient reason to remove children
from their homes. Once it was accepted that children should not be removed from their homes because of
poverty alone, Dr. Pelton explains that it was incumbent upon the child removers to make separate findings'
of the unfitness and immorality of impoverished
unkempt children, and improperly attended children come to the attention of welfare officials.
The children are, without the parents' having the benefit of legal counsel, temporarily
removed from their homes. The poor parents are forced into submitting to some kind of
plan devised by welfare officials. Frequently, the poverty-stricken parents are not able to
cope with the State's demands; and legal proceedings are instituted to deprive the poor
parents of their children permanently, and, more importantly, to deprive the poor children of
their parents.
As I see the operation of the welfare system in this state, when child-rearing problems
arise as a result of poverty, the problem is rarely addressed by attending to the poverty but,
rather, by assigning blame to the parents and then permanently depriving the children of their
natural parents. The poor parents in these kinds of cases are invariably found to have
psychological or moral problems that must be "treated."
__________
parents [and] [in] more recent times the parents are not perceived as immoral, but as psychologically defective in
some way. . . . The behavioral effects of poverty would now call forth the attribution of motives and personality
characteristics indicative of psychological deficiencies. Thus, the reasons would be couched in modern
benevolent language of psychology, but the results would be the same: The victims of poverty would be blamed,
and the children would be removed. Pelton at 107-108.
In Nevada, poverty, as such, is, of course, not a ground for termination of parental rights, but the behavioral
effects of poverty are. Welfare officials ordered these parents, in effect, not to be poor anymore. As pointed out
in the majority opinion, they were ordered to stop living in squalor and, rather, to maintain adequate and stable
housing. They were ordered to get some money and secure stable employment and, as always, to seek
counselling. Most importantly, the State ordered these destitute parents to pay to the State child support in the
amount of $300.00 per month. (Kidwell, according to the majority, earned a little over $200.00 per month.)
The parents' inability (and thus their failure) to pay this amount was taken by the State as evidencing
abandonment of the children and as grounds for terminating parental rights.
I commend Dr. Pelton's book to any one who does not yet understand that most of the terminations of parental
rights ordered by Nevada's courts are based on poverty-by-another-name, namely (as in this case),
abandonment, lack of support, failure to communicate, and failure to send gifts and failure of parental
adjustment.

3
Cooley v. State, Dep't Hum. Res., 113 Nev. 1191, 946 P.2d 155 (1997) (Springer, J., dissenting) (poverty
and temporary immaturity of teenage mother); Matter of the Parental Rights of Gonzales, 113 Nev. 324, 933
P.2d 198 (1997) (Springer, J., dissenting) (parent temporarily indisposed and unable to attend to parental
duties); Matter of Parental Rights as to Bow, 113 Nev. 131, 930 P.2d 1128 (1997) (Springer, J., dissenting)
(abject poverty); Matter of Parental Rights as to Deck, 113 Nev. 124, 930 P.2d 760 (1997) (Springer, J.,
dissenting) (schizophrenic parent); Bush v. State, Dep't Hum. Res., 112 Nev. 1298, 929 P.2d 940 (1996)
(Springer, J., dissenting) (mentally deficient parents); Matter of Parental Rights as to Weinper, 112 Nev. 710,
918 P.2d 325 (1996) (Springer, J., dissenting) (fraudulently presenting duplicate of prior welfare report in lieu of
current status report and not informing court of events during review period denies parent opportunity to comply
with reunification plan).
kinds of cases are invariably found to have psychological or moral problems that must be
treated. The children are removed from the home in order to give the parents an opportunity
to reform, that is to say, to adjust and reunify with their children. The parents are almost
always required to submit to demeaning, and often totally unproductive, counselling,
parent training, and family therapy. The result is almost always the same. The parents
remain poor; their poverty cannot be counselled away; parents, forcefully separated from
their children, become estranged from their children, who are placed in a federally-subsidized
foster home with new parents; and, finally, the State moves to terminate the parental rights
of the poor natural parents.
As with so many of our past termination cases involving poverty and disability, my
principal concern in this case is employing poverty as jurisdictional grounds, depriving
poor children of their parents by reason of poverty. There are, however, other reasons why
the judgment of the trial court should be reversed. The first of these reasons is the failure of
dispositional grounds; the second is the failure to provide these destitute parents with legal
counsel to defend themselves and their children at the critical stage in these proceedings,
namely, the judicial removal of these children from their parents' homes.
The majority correctly defines dispositional grounds. Under Nevada law, parental rights
cannot be terminated unless it is convincingly proved that the children's best interest cannot,
under any reasonable circumstances, be served by sustaining the parental ties. In this case, it
is not that the interests of the children cannot be served by maintaining the parental ties, it is
quite clear that the children's best interest cannot possibly be served by permanently depriving
them of their parents. These children are homeless and parentless. Some are biracial, some
are emotionally disturbed; and, according to welfare officials, prospects for a future adoption
for any of these children are somewhere between impossible and problematic. They have
no place to go. Before our judicial system took its Herodian action in this case by depriving
these children of their parents, the five children at least had parents, even if they were poor.
Now they have no parents at all. This is a case of termination for termination's sake. There is
no rhyme or reason to it. This court is even more clearly wrong in approving the dispositional
grounds than it is in approving the ill-disguised jurisdictional ground, for reasons of
poverty.
With regard to the parents' not having counsel at the crucial time that the district court
removed the children from the home, again, it is obvious that poverty is at the root of the
problem.
These parents did not have an attorney because they were destitute.
4
At oral argument of
this appeal the parents' counsel represented to the court that, in his opinion, termination
would not have been effected in this case if the parents had had counsel at the time the
children were removed from their home. My review of the record persuades me that counsel
was correct in making this representation. The trial judge had this to say about the parents'
having the advice of counsel in these kinds of proceedings:
My honest opinion is that persons that are destitute under the statute probably should
be required or should be allowed to have private attorneys. It is not presently the law in
the State of Nevada. The law in Nevada is that destitute parents may be entitled to
attorneys, the Court may appoint attorneys for them in 432(B) proceedings. I agree with
you, that I think the idea would be to have them appointed to all parents in 432(B)
cases. . . . I do think that perhaps it might have made a difference as to the father
[Appellant Kidwell]. It is not yet required by due process, at least from my
understanding of what due process isor what due process requirements are . . . . It's
not compelled, it's not required and we don't do it.
(Emphasis added.)
I must say that it is also my honest opinion that counsel should be appointed for all
parents in 432(B) proceedings, where parents are threatened with having their children
removed from the home. Once the children are removed from the home, the chances of losing
the children permanently is greatly increased.
The appellant cites widespread authority for the proposition that parents should have
counsel in proceedings in which their children are being temporarily taken away. In holding
that a right to counsel in these situations was constitutionally required, the Washington
Supreme Court in In the Matter of the Welfare of H. Luscier, 524 P.2d 906 (1974), quoted
from the Columbia Law Review, thus:
[S]ince there is not evidence indicating that the average respondent who can retain
counsel is better or less neglectful than one who cannot, the conclusion seems
inescapable that a significant number of cases against unrepresented parents result in
findings of neglect solely because of the absence of counsel. In other words, assuming a
basic faith in the adversary system as a method of bringing the truth to light,
__________

4
In England, Justice is open to all, like the Ritz Hotel. Lord Justice Sir James Mathew.
sary system as a method of bringing the truth to light, a significant number of neglect
findings (followed in many cases by a taking of the child from his parents) against
unrepresented indigents are probably erroneous. It would be hard to think of a system of
law which works more to the oppression of the poor than the denial of appointed
counsel to indigents in neglect proceedings.
Note, Child Neglect: Due Process of the Parent, 70 Colum. L. Rev. 465, 476 (1970).
In Brown v. Guy, 476 F. Supp. 771 (D. Nev. 1979), the Nevada District Court held
that due process requires appointed counsel when there is a reasonable probability of
termination of parental rights or of prolonged separation from a child. Almost all of the cases
that come before us are based on NRS 432B proceedings which are geared toward ultimate
parental termination. Because of this and because of the inherent imbalance of experience
and expertise between the parent and the state, I would adopt a per se rule that would
provide counsel in all cases in which the state seeks removal of a child from its home.
It is clear to me that Brown required counsel to be appointed in the present case at the time
the children were removed from the home; and I think that this alone calls for a reversal of
the termination decree. The majority should have reversed the judgment of the trial court
while adopting the per se rule that I have mentioned.
5
I dissent on this ground and because
there is no showing by clear and convincing evidence of either jurisdictional grounds or
dispositional grounds for terminating this family.
____________
114 Nev. 100, 100 (1998) Geary v. State
MELVIN JOSEPH GEARY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24277
January 22, 1998 952 P.2d 431
Petitions for rehearing in an appeal from a judgment of conviction of first degree
murder and a sentence of death. Second Judicial District Court, Washoe County; Mills Lane,
Judge.
Following jury trial before the district court, defendant was convicted of first-degree
murder and sentenced to death.
__________

5
Appellant cites in his opening brief the case of Davis v. Page, 640 F.2d 599 (5th Cir. 1981). The case was a
class action suit by litigants denied representation in child deprivation cases. The class challenged the
constitutionality of child dependency proceedings against indigent parents who were not provided with counsel.
Perhaps this is what is needed in Nevada to slow down the wholesale termination industry.
114 Nev. 100, 101 (1998) Geary v. State
convicted of first-degree murder and sentenced to death. The supreme court, 110 Nev. 261,
871 P.2d 927 (1994), affirmed, but on rehearing, 112 Nev. 1434, 930 P.2d 719 (1996),
vacated death sentence and remanded for new penalty hearing. State and defendant both
petitioned for rehearing. The supreme court held that: (1) jury was adequately instructed that
death sentence was not mandatory upon finding that aggravating circumstances outweighed
mitigating factors; (2) jury was adequately instructed that finding of each aggravating
circumstance had to be unanimous; and (3) jury should be specifically instructed on these
issues in future death penalty cases in accordance with instruction supplied by the supreme
court.
State's petition granted in part, denied in part; appellant's petition denied.
Springer, C. J., dissented in part.
Steven G. McGuire, State Public Defender, James P. Logan, Chief Appellate Deputy
Public Defender, and Timothy P. O'Toole, Appellate Deputy Public Defender, Carson City,
for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District
Attorney, David Wayment, Deputy District Attorney, and Terrence P. McCarthy, Deputy
District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Jury was adequately instructed that death sentence was not mandatory upon finding that aggravating circumstances outweighed
mitigating factors where, although one instruction potentially suggested that death sentence was mandatory, another instruction that
employed word may clearly conveyed that death sentence was never mandatory even after finding that aggravating circumstances
outweighed mitigating factors. NRS 175.554(3).
2. Criminal Law.
Jury in death penalty case was adequately instructed that finding of each aggravating circumstance had to be unanimous, even if
instruction was not explicit, where reasonable jury would have properly understood phrase we, the jury on verdict form to require
unanimous finding of aggravating circumstances.
3. Criminal Law.
In sentencing phase of all future capital cases, jury should be specifically instructed, in accordance with instruction supplied by
supreme court, that aggravating circumstances must be found unanimously and beyond reasonable doubt, that finding of mitigating
circumstances need not be unanimous, and that imposition of death penalty is not mandatory even when jury finds that aggravating
circumstances outweigh mitigating.
114 Nev. 100, 102 (1998) Geary v. State
OPINION ON REHEARING
Per Curiam:
In July 1992, Geary confessed to murdering his roommate Edward Theodore Colvin
by stabbing him with a boning knife. Subsequently, the jury found Geary guilty of first degree
murder.
At the penalty hearing, the prosecutor presented evidence to support three aggravating
factors: (1) the murder was committed by a person under sentence of imprisonment, NRS
200.033(1); (2) the murder was committed by a person who was previously convicted of
another murder or a felony involving the use or threat of violence to the person of another,
NRS 200.033(2); and (3) the murder was committed upon one or more persons at random and
without apparent motive, NRS 200.033(9). Geary committed the present murder while on
parole from a prior conviction for murder.
Also at the penalty hearing, Geary presented extensive evidence in mitigation,
including testimony of the former dean of the National Judicial College, several prison
wardens, several prison counselors, and employers who had hired Geary while he was in
prison. The jury found the existence of all three aggravators and returned a verdict imposing a
sentence of death.
Geary appealed his conviction and sentence. This court affirmed the judgment of
conviction. Geary v. State, 110 Nev. 261, 871 P.2d 927 (1994). In its opinion, this court
discussed the issues Geary raised in his appeal and reviewed sua sponte the propriety of some
of the penalty phase jury instructions. This court discerned no error in those instructions. Id.
at 267-69, 871 P.2d at 931-32.
On July 13, 1994, Geary moved for leave to file a petition for rehearing, finding fault
with several of the penalty phase instructions. On September 29, 1994, this court filed its
order granting rehearing.
Thereafter, the parties provided full briefing. On December 20, 1996, this court filed its
opinion on rehearing affirming Geary's conviction, but vacating his death sentence and
remanding for a new penalty hearing due to numerous errors in the penalty phase jury
instructions. Geary v. State, 112 Nev. 1434, 930 P.2d 719 (1996) (Geary II).
On January 7, 1997, the state filed its current petition for rehearing, contending that
this court misapprehended or overlooked material matters with respect to vacating the death
sentence. On February 4, 1997, Geary filed his instant petition for rehearing, contending that
this court misapprehended or overlooked material matters with respect to affirming his
conviction.
114 Nev. 100, 103 (1998) Geary v. State
NRAP 40(c)(2) authorizes rehearing [w]hen it appears that the court has overlooked
or misapprehended a material matter in the record or otherwise, or . . . [i]n such other
circumstances as will promote substantial justice. Additionally, when petitioning for
rehearing, the parties may not reargue the same issues, nor can they raise a new point not
raised earlier. NRAP 40(c)(1). We conclude that we mistakenly resolved two issues in Geary
II and now wish to clarify the law in those matters. We deny rehearing on all remaining issues
brought by the state or Geary.
The district court properly instructed the jury that the death sentence is not mandatory
[Headnote 1]
Penalty phase jury instruction 3 read:
The defendant in the case has been found guilty of murder in the first degree.
Under the law of this State, you must now determine the sentence to be imposed
upon the defendant. First degree murder is punishable by death only if the jury finds
one or more aggravating circumstances have been proved beyond a reasonable doubt
and the jury further finds that any mitigating circumstances do not outweigh the
aggravating circumstances.
Otherwise, murder in the first degree is punishable by imprisonment in the state
prison for life with or without the possibility of parole.
In Geary II, this court concluded the above instruction may have misled the jury into
believing that it was required to automatically impose the death sentence if it found that the
aggravating circumstances outweighed any mitigating circumstances.
In its petition for rehearing, the state contends that the jury was indeed properly instructed
that imposing the death sentence was not mandatory even after such a finding. The state
points to other instructions in support of its argument. We conclude that we overlooked the
existence of another instruction which clearly conveys to the jury that the death sentence is
never mandatory.
Penalty phase jury instruction 8 stated, The jury may impose a sentence of death only
if it finds beyond a reasonable doubt that there is at least one aggravating circumstance and
further finds that there are no mitigating circumstances which outweigh the aggravating
circumstance(s). (Emphasis added.) This court has twice held that an instruction similar to
this instruction adequately informed the jury that a sentence of death is not required. Bennett
v. State, 111 Nev. 1099, 1109, 901 P.2d 676, 683 (1995); Riley v. State, 107 Nev. 205, 217,
808 P.2d 551, 558 (1991) (holding the instruction was proper because reasonable jurors
would understand "may" as a "permissive word that does not mandate a particular
action").
114 Nev. 100, 104 (1998) Geary v. State
jurors would understand may as a permissive word that does not mandate a particular
action). Furthermore, the instruction was virtually identical to the relevant statutory language
on this issue. See NRS 175.554(3).
After a review of the penalty phase jury instructions as a whole and relevant caselaw,
we now hold that the jury was adequately instructed.
The jury properly understood that a finding of each aggravating circumstance must be
unanimous
[Headnote 2]
In the prior opinion on rehearing in this case, this court noted that [a] properly
instructed jury is imperative in the capital sentencing process. Geary II, 112 Nev. at 1449,
930 P.2d at 729 (citing Walton v. Arizona, 497 U.S. 639, 653 (1990)). Therefore, because the
jury was not explicitly instructed that its finding of each aggravator must be unanimous, this
court held, Failure to so instruct the jury results in a failure to adequately guide the jury in its
sentencing determination, and mandates a new penalty hearing. Id. After reconsidering this
issue, we conclude that the jury was adequately instructed.
In its petition for rehearing, the state contends that this court overlooked two other
penalty phase jury instructions. Instruction 13 provided:
If the jury returns a verdict setting the penalty at death, the jury shall render a written
verdict signed by the foreperson. The verdict shall designate the aggravating
circumstance(s) which is/are found beyond a reasonable doubt, and shall state that any
mitigating circumstances do not outweigh the aggravating circumstance(s).
Instruction 14 read:
When all twelve (12) of you have agreed upon the verdict setting sentence, the
Foreperson should sign and date the same and request the Bailiff to return you to court.
In Jimenez v. State, 112 Nev. 610, 918 P.2d 687 (1996), the jury was instructed in a
substantially similar manner. This court considered these instructions sufficient to inform the
jury that each aggravating circumstance had to be unanimously found by evidence beyond a
reasonable doubt. Id. at 624, 918 P.2d at 696 (emphasis added).
Additionally, the verdict form in Geary's penalty phase required [w]e, the jury to
designate which aggravating circumstances it found. We conclude that after having been
instructed that its verdict must be unanimous, a reasonable jury would properly understand
that the phrase "[w]e, the jury" required a unanimous finding of the aggravating
circumstances.
114 Nev. 100, 105 (1998) Geary v. State
properly understand that the phrase [w]e, the jury required a unanimous finding of the
aggravating circumstances.
Jury instruction to be given at all subsequent penalty hearings where the death sentence is an
option
[Headnote 3]
To forestall future uncertainty on the issues considered above, we provide the district
courts with the following instruction to be given in the sentencing phases of all capital cases.
The jury must find the existence of each aggravating circumstance, if any,
unanimously and beyond a reasonable doubt.
The jurors need not find mitigating circumstances unanimously. In determining the
appropriate sentence, each juror must consider and weigh any mitigating circumstance
or circumstances which that juror finds.
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.
We conclude that while we mistakenly determined the above two issues in our prior
opinion on rehearing, the other errors in the penalty phase still mandate that the death
sentence be vacated. Therefore, with respect to the remaining challenges in the state's petition
for rehearing, we deny the petition. Further, we have reviewed Geary's contentions in his
petition for rehearing and conclude that we did not overlook or misapprehend any material
matter. See NRAP 40(c). Accordingly, Geary's petition is denied.
1, 2

Springer, C. J., concurring and dissenting:
I concur in the majority's vacating the death sentence but disagree with the opinion in
other respects.
__________

1
We deny both the state's request to take judicial notice of the Pardons Board's records and Geary's motion to
strike portions of the state's petition for rehearing.

2
The Honorable A. William Maupin, Justice, did not participate in this decision on rehearing.
114 Nev. 100, 106 (1998) Geary v. State
In my opinion, the jury instructions do not adequately convey to the jury the necessary
understanding that the death penalty is not mandatory under any circumstances and that the
findings of aggravating circumstances must be by unanimous verdict. For the jury to have
been able to understand what the trial court was trying to convey, the jury would have to have
patched together and reconciled a number of individual portions of various instructions.
Juries cannot be expected to do this; and, moreover, a capital case defendant should not be
faced with this kind of uncertainty.
I agree that the proposed jury instruction set out in the majority opinion, which is offered
in order to forestall future uncertainty on the issues, eliminates much of the uncertainty and
lack of clarity in instructing the jury that resulted in prejudicial error in this case. (My
emphasis.) It is this very uncertainty, however, that causes me to part company with the
majority and which persuades me that we should not deny Mr. Geary's petition for rehearing
on these issues.
____________
114 Nev. 106, 106 (1998) Calambro v. State
ALVARO CALAMBRO, Appellant, v. THE STATE OF NEVADA, Respondents.
No. 29121
January 22, 1998 952 P.2d 946
Appeal from a judgment of conviction entered pursuant to a guilty plea of first degree
murder and a sentence of death. Second Judicial District Court, Washoe County; Peter I.
Breen, Nancy A. Becker, Archie E. Blake, Judges.
Defendant was convicted of first-degree murder pursuant to his plea of guilty and
sentenced to death following hearing before the district court. Defendant appealed. The
supreme court, Young, J., held that: (1) felonies in another state committed in crime spree
following murder that resulted in convictions before defendant's murder trial could be
considered aggravating circumstances in determining penalty; (2) evidence supported
aggravators of depravity of mind and mutilation, murder during commission of robbery,
random and motiveless murder, and (3) evidence supported determination that aggravators
outweighed single mitigating factor.
Affirmed.
Michael R. Specchio, Public Defender and John Reese Petty, Chief Deputy Public
Defender, Washoe County, for Appellant.
Attorney and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
1. Homicide.
Felonies in another state committed in crime spree following murder that resulted in convictions before defendant's murder trial
could be considered aggravating circumstances in determining penalty. NRS 200.033(2).
2. Homicide.
Evidence was sufficient to support finding of aggravating circumstance that murder involved depravity of mind and mutilation,
where defendant repeatedly smashed victim's skull with hammer, then stabbed skull with pry bar, and attempted to divide skull into
two pieces. NRS 200.033(8).
3. Criminal Law.
Findings that murder was committed during course of robbery and that murder was random and without apparent motive were
not legally inconsistent, and both aggravating circumstances could thus be considered, where robbery was completed by time that
defendant began killing. NRS 200.033(4), (9).
4. Homicide.
Aggravator that murder was without apparent motive did not unconstitutionally shift burden to defendant of proving motive in
order to disprove death eligibility in violation of his right against self-incrimination, as state at all times retained burden of proving
aggravator beyond reasonable doubt. U.S. Const. amend. 5; NRS 200.033(9).
5. Homicide.
Random and motiveless aggravating circumstance was properly applied to defendant who had no prior relationship with victim,
even though his accomplice had motive to kill victim, where decision to kill appeared to be defendant's own and was spontaneous.
NRS 200.033(9).
6. Homicide.
Evidence in death penalty case was sufficient to support three-judge panel's determination that aggravating circumstances of
prior felonies, random and motiveless killing, commission of murder during course of robbery, and depravity of mind and mutilation
outweighed single mitigating circumstance of defendant's lack of prior record. NRS 177.055(2).
OPINION
By the Court, Young, J.:
The underlying facts of this case are set forth in appellant's prior appeal, Calambro v. State, 111 Nev. 1015, 900 P.2d 340 (1995)
(Calambro I).
1

__________

1
Calambro I addressed appellant's competence to waive his right to appeal the death sentence imposed for
killing Peggy Crawford at the Reno U-Haul store in 1994. This appeal involves appellant's second death
sentence for the killing of Keith Christopher the same night. The state proposes that this court
On January 3, 1994, appellant Alvaro Calambro and Duc Cong Huyhn robbed a Reno
U-Haul store and murdered employees Peggy Crawford and Keith Christopher. Appellant and
Duc then robbed a Reno gun store and fled to California, where they eventually led police on
a high-speed chase down Interstate 5 and through downtown Los Angeles. The chase ended at
the Los Angeles Hall of Records where appellant and Duc took a security guard hostage and
held off police for nine hours. After they surrendered, appellant and Duc confessed to all the
events, including the murders.
Appellant and Duc were convicted of twenty-eight felonies in California arising out of
these events. They were then extradited to Reno to stand trial for the U-Haul murders.
Appellant pleaded guilty to the murder of Crawford and was sentenced to death by a
three-judge panel. At his sentencing hearing for the Crawford murder, appellant entered a
guilty plea to the murder of Christopher. This court affirmed appellant's conviction and death
sentence for the Crawford murder in Calambro I. A second three-judge panel thereafter
sentenced appellant to receive the death penalty for the murder of Christopher. This appeal
followed.
At the sentencing proceeding, the state alleged that six statutory aggravating
circumstances supported the imposition of the death penalty:
1. Pursuant to NRS 200.033(2), the twenty-eight California felony convictions
constituted previous felony convictions involving the use or threat of violence.
2. Pursuant to 200.033(4), the murders were committed during the course of a
robbery.
3. Pursuant to NRS 200.033(9), the murders were committed at random and without
apparent motive.
4. Pursuant to NRS 200.033(3), the murders created a risk of harm to other persons.
5. Pursuant to NRS 200.033(8), the murders involved torture, depravity of mind and
mutilation.
6. Pursuant to NRS 200.033(5), the murders were committed to avoid lawful arrest.
Appellant asserted a continuing objection to all of the state's alleged aggravating
circumstances. In accordance with NRS 200.035, appellant also proposed that three factors
mitigated against imposition of the death penalty: (1) his youth; (2) his lack of a prior
criminal record;
__________
consider as relevant, and even dispositive, the facts and analysis in Calambro I. We note, however, that the
victim in this appeal is different, and different witnesses testified before a different sentencing panel. Although
both appeals arose from the same underlying facts, we conclude that this appeal warrants our independent
review.
of a prior criminal record; and (3) that he had acted under the domination and dominion of
Duc.
On July 11, 1996, the three-judge sentencing panel entered a written judgment of
conviction and sentence of death. The panel found that the evidence established the following
aggravating sentencing factors:
(1) sixteen aggravating circumstances under NRS 200.033(2) arising out of the
twenty-eight California felony convictions;
2

(2) an aggravating circumstance under NRS 200.033(4) because the murder was
committed during the course of a robbery;
(3) an aggravating circumstance under NRS 200.033(8) because the murder involved
depravity of mind and mutilation of the victim; and
(4) an aggravating circumstance under NRS 200.033(9) because the murder was
committed at random and without apparent motive.
The panel found only one mitigating circumstance, i.e., appellant's lack of criminal
history prior to the commission of the murder.
3
Lastly, the panel found that the aggravating
factors outweighed any mitigating evidence. Accordingly, the panel sentenced appellant to
receive the death penalty.
On appeal, appellant contends that the panel improperly found statutory aggravating
circumstances arising out of the California felony convictions. He further contends that the
panel improperly found that the murder involved depravity of mind and mutilation, and that
the murder was committed at random and without apparent motive. Appellant raises no other
issues on appeal.
THE CALIFORNIA FELONY CONVICTIONS
[Headnote 1]
Appellant contends the panel erred because the plain language of NRS 200.033(2)
requires that a felony conviction must exist prior to the commission of the murder,
__________

2
The panel announced from the bench that because of the similarity of the acts underlying the twenty-eight
felony convictions, it treated the convictions as only 16 separate aggravating circumstances for purposes of
weighing aggravating circumstances against mitigating circumstances.

3
In announcing its decision from the bench, the panel expressly found appellant's lack of criminal history to
be a mitigating circumstance pursuant to NRS 200.035(7), rather than NRS 200.035(1). Murder of the first
degree may be mitigated under NRS 200.035(1) if [t]he defendant has no significant history of prior criminal
activity. Under NRS 200.035(7), first degree murder may be mitigated by [a]ny other mitigating
circumstance.
prior to the commission of the murder, not merely prior to the sentencing for the murder.
Appellant emphasizes that he did not commit the felonies prior to committing the murder at
issue in this case. Appellant's contention is without merit.
NRS 200.033(2) permits an aggravating circumstance to be found when [t]he murder
was committed by a person who was previously convicted . . . of a felony involving the use or
threat of violence to the person of another. Interpreting this provision, this court has held:
The statute was never intended to operate on the vagaries of conviction sequences.
Instead, the focal point is the time of sentencing. The sentencing panel is entitled to
consider all relevant aspects of the defendant's criminal background prior to rendering
sentence. The fact that Gallego murdered two victims after killing the two victims in
the instant case is not relevant to the dictates of the statute. The clear language of the
statute required only that Gallego stood convicted of the California murders at the time
of the introduction of that evidence in the penalty phase of the present proceeding. It
would be both absurd and counterproductive for this court to construe the plain
language of the statute so as to exclude convictions of murders or crimes of violence
occurring after the primary offense but before the penalty phase of a defendant's trial.
This we refuse to do.
Gallego v. State, 101 Nev. 782, 792-93, 711 P.2d 856, 863-64 (1985), cert. denied, 479 U.S.
871 (1986), rev'd on other grounds, Gallego v. McDaniel, 124 F.3d 1065 (9th Cir. 1997).
4
We decline appellant's invitation to revisit our holding in Gallego, and for the reasons stated
in Gallego, we conclude that the panel properly found appellant's California convictions to be
aggravating circumstances under NRS 200.033(2).
DEPRAVITY OF MIND AND MUTILATION
[Headnote 2]
Appellant next contends that the sentencing panel improperly found that the murder
involved depravity of mind and mutilation.
__________

4
The Ninth Circuit Court of Appeals concluded that a jury instruction given during the penalty phase of the
trial which indicated that the Pardons Board had authority to commute a sentence of life without the possibility
of parole to life with the possibility of parole was incorrect in view of Gallego's California death sentence. See
NRS 213.1099(4) (prisoner whose sentence has been commuted from death or life without may not be paroled if
under detainer to answer for a crime in another jurisdiction). Accordingly, the Ninth Circuit reversed that portion
of the United States District Court's decision denying Gallego's federal petition for a writ of habeas corpus and
remanded with instructions that the district court issue the writ unless the State of Nevada proceeds to resentence
Gallego.
found that the murder involved depravity of mind and mutilation.
5
Appellant argues that the
evidence does not support a finding that he acted with intent to cause pain and suffering for
revenge, persuasion, or for a sadistic purpose. See, e.g., Robins v. State, 106 Nev. 611,
627-28 n.4, 798 P.2d 558, 569 (1990) (approving jury instruction providing that essential
elements of murder by torture are that acts causing death must involve a high probability of
death and must have been committed with intent to cause cruel pain and suffering for the
purpose of revenge, persuasion or any sadistic purpose), cert. denied, 499 U.S. 970 (1991);
see also Domingues v. State, 112 Nev. 683, 702 n.6, 917 P.2d 1364, 1377 n.6 (1996)
([t]orture involves a calculated intent to inflict pain for revenge, extortion, persuasion or for
any sadistic purpose), cert. denied, 519 U.S. 968, 117 S. Ct. 396 (1997).
We note, however, that the sentencing panel in this case found depravity of mind and
mutilation, not depravity of mind and torture. In Robins, we construed NRS 200.033(8) to
require torture, mutilation or other serious and depraved physical abuse beyond the act of
killing itself, as a qualifying requirement to an aggravating circumstance based in part upon
depravity of mind. Robins, 106 Nev. at 629, 798 P.2d at 570 (emphasis added). Moreover, to
the extent that appellant contends that there was no evidence of mutilation beyond the act of
killing itself, we note that the record demonstrates abundant evidence supporting the
aggravating sentencing factor of depravity of mind and mutilation beyond the act of killing
itself.
More specifically, the evidence shows that appellant hog-tied the victim, bound his ankles
to his wrists behind his back, gagged him by wrapping the lower half of his face in duct tape
and smashed his head in blow by blow with a hammer. Appellant checked the victim
repeatedly after each blow to see if he was still alive. The victim struggled hard against
appellant, sustaining injuries to his wrists, hands, and legs as well as his face. With a
two-handed motion, appellant began stabbing at the victim's skull with a pry bar. After
driving the bar through the skull, appellant attempted to separate the victim's skull in half.
Medical evidence revealed that the victim's skull had been broken apart by appellant's blows.
Blood and pieces of brain matter were found on the walls and even the ceiling around the
murder site.
Thus, substantial evidence supports the panel's finding that the murder involved
depravity of mind and mutilation.
__________

5
The 1995 legislature amended NRS 200.033(8) by removing the term depravity of mind. 1995 Nev. Stat.
ch. 467 at 1490-91. The amendment does not apply to murders committed before October 1, 1995, and thus,
does not apply in this case. As it applies to appellant, NRS 200.033(8) provided that an aggravating sentencing
factor may be found if [t]he murder involved torture, depravity of mind or the mutilation of the victim.
murder involved depravity of mind and mutilation. See, e.g., Browne v. State, 113 Nev. 305,
933 P.2d 187 (1997) (blunt trauma which destroys the brain sufficient to support finding of
mutilation); Wesley v. State, 112 Nev. 503, 916 P.2d 793 (1996) (depravity shown where the
victim's skull was chipped by the stabbing); Parker v. State, 109 Nev. 383, 849 P.2d 1062
(1993) (sufficient evidence of mutilation and depravity of mind where defendant repeatedly
smashed the victim's head with a rock, stabbed her once, post-mortem, and wrapped cords
around her neck). Appellant's contention is without merit.
MURDER AT RANDOM AND WITHOUT
APPARENT MOTIVE
[Headnote 3]
Appellant next contends that the panel's findings that the murder was committed
during the course of a robbery and that it was random and without apparent motive are
mutually inconsistent. This court has held, however, that [a] killing may properly be found
to be random and without apparent motive if the robbery could have been completed without
killing the victim. Paine v. State, 107 Nev. 998, 999, 823 P.2d 281, 282 (1991). See also
Bennett v. State, 106 Nev. 135, 143, 787 P.2d 797, 802 (1990), cert. denied, 498 U.S. 925
(1990); Lane v. State, 110 Nev. 1156, 1167, 881 P.2d 1358, 1366 (1994), cert. dismissed, 514
U.S. 1058, 115 S. Ct. 1444 (1995). Here, the robbery was completed by the time appellant
began killing. There was no legal inconsistency in the panel's finding both aggravating
sentencing factors.
[Headnote 4]
Appellant also argues that the terms random and without apparent motive are
ambiguous. He asserts that the terms do not provide clear and objective standards and
specific and detailed guidance to the sentencer. Therefore, appellant argues, the terms do
not sufficiently narrow the class of persons eligible for the death penalty. See Godfrey v.
Georgia, 446 U.S. 420, 428 (1980). This court has considered this issue and concluded that
the aggravator is constitutional under the relevant United States Supreme Court case law.
Greene v. State, 113 Nev. 157, 172-73, 931 P.2d 54, 63-64 (1997) (rehearing pending); see
also Deutscher v. State, 95 Nev. 669, 676, 601 P.2d 407, 412 (1979), vacated on other
grounds, Angelone v. Deutscher, 500 U.S. 901 (1991) (holding that Nevada's death penalty
statutes withstand constitutional scrutiny); Ybarra v. State, 100 Nev. 167, 174-75, 679 P.2d
792, 801-02 (1984).
In addition, appellant argues that the without apparent motive" element
unconstitutionally shifts the burden to the defendant of proving a motive in order to
disprove a death-eligibility element which the state is required to prove.
motive element unconstitutionally shifts the burden to the defendant of proving a motive in
order to disprove a death-eligibility element which the state is required to prove. Therefore,
appellant contends, the element violates the defendant's Fifth Amendment rights against
self-incrimination. We disagree. The burden of proof was not unconstitutionally shifted in
this case; the state at all times retained the burden of proving the aggravator beyond a
reasonable doubt. Moreover, we have held that this sentencing aggravator does not offend the
Fifth Amendment. See, e.g., Greene, 113 Nev. at 172-73, 931 P.2d at 63-64; see also Colwell
v. State, 112 Nev. 807, 919 P.2d 403, 407-08 (1996) (holding that Nevada's death penalty
statute is essentially identical to the Georgia and Florida death penalty statutes upheld as
facially constitutional by the United States Supreme Court).
We further note that the panel's finding of the random and motiveless aggravator is
consistent with previous holdings of this court. In Paine, for example, Paine and his partner
entered a cab. Upon arriving at their destination, Paine suddenly shot the cab driver twice in
the head, and then robbed the victim of $45.00 and a wristwatch. This court concluded that
the sentencing panel did not err in finding that Paine acted randomly and without apparent
motive because there was sufficient evidence to conclude that the killing was not necessary to
complete the robbery. Paine, 107 Nev. at 999-1000, 823 P.2d at 281. In Bennett, the
defendant entered a mini-mart shop and without warning or reason, shot the clerk in the head.
Bennett, 106 Nev. at 137-38, 787 P.2d at 798. In Moran v. State, 103 Nev. 138, 143, 734 P.2d
712, 714 (1987), the defendant testified that he had no idea why he shot the victims.
[Headnote 5]
In this case, although appellant knew that Duc blamed Crawford for losing his job,
appellant had no prior relationship with Christopher. Appellant had no reason to care about
Christopher or to be angry with him, and he did not take any of the robbery money.
Appellant's decision to kill appears to have been his own, and was spontaneous and for no
specific reason. Moreover, Christopher did not interfere with the robbery. Cf. Geary v. State,
112 Nev. 1434, 930 P.2d 719 (1996) (random and without apparent motive instruction held to
be improper due to evidence that the killing was directed at a specific individual for a reason
such as anger, jealousy or money) (reh'g granted on other grounds, Geary v. State, 114 Nev.
100, 952 P.2d 431 (1998). Accordingly, we conclude that the sentencing panel properly
applied the random and motiveless aggravating sentencing factor, and we decline to revisit
our prior holdings on these issues.
[Headnote 6]
NRS 177.055(2) requires this court to review the sentence on the record and to
consider:
(a) Any errors enumerated by way of appeal;
(b) Whether the evidence supports the finding of an aggravating circumstance or
circumstances;
(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.
See Parker v. State, 109 Nev. 383, 392, 849 P.2d 1062, 1068 (1993). Our review of the record
reveals sufficient evidence to support all of the panel's findings of aggravating circumstances.
The panel accepted only one mitigating factor: that appellant had no criminal record prior to
the commission of the murder. We conclude that the panel did not err in balancing the
aggravating circumstances with the mitigating evidence and in finding that the former
outweighed the latter.
We further conclude that the sentence was not imposed under the influence of
passion, prejudice or any arbitrary factors, and that the sentence of death is not excessive
considering both the crime and the appellant. Accordingly, we affirm the judgment of
conviction and sentence.
Shearing and Maupin, JJ., concur.
I concur in the result reached by the majority but write separately to comment on the
mutilation aspect of the opinion. I do this because in many of the cases decided by the court,
murder involving mutilation of the victims has incorrectly become murder accompanied
by great damage to the victim's body. Thus, where two stab wounds may not be mutilation,
ten wounds probably would be, because of the damage done to the body by so many wounds.
A pistol shot to the head probably would not be seen as mutilation, whereas, a shotgun blast
to the head probably would. I pointed out in my dissent in Browne v. State, 113 Nev. 305,
933 P.2d 187 (1997) (Springer, J., dissenting), that the essence of the mutilation aggravator is
not disfigurement alone resulting from the killing act itself but, rather, the murderer's intent to
mutilate (maim) in addition to intending to kill his victim.
This is a real mutilation case. The testimony is that Calambro plunged a pry bar
through . . . the skull and attempted to separate Keith Christopher's skull, the halves of the
skull. Thus, in the present case,
in the present case, the jury was certainly entitled to conclude that Calambro had a specific
intent' to mutilate. Browne, 113 Nev. at 322, 933 P.2d at 197 (Springer, J., dissenting)
(quoting Domingues v. State, 112 Nev. 683, 696, 917 P.2d 1364, 1377 (1996)). The present
case is an example of true mutilation and clearly distinguishable from the Browne case, in
which the appellant inflicted a number of blows to the head in the process of killing his
victim.
I note that Calambro inflicted a number of blows to his victim's head with a hammer.
As put in the majority opinion, while assaulting his victim, Calambro checked the victim
repeatedly after each blow to see if he was still alive. The majority opinion appears to view
the extensive head injuries resulting from the hammer blows as mutilation. I do not. That
Calambro kept checking to see if his victim was dead tells me that he was killing, not
mutilating. Much different is Calambro's separating the skull of his victim into two parts.
These acts show me that Calambro had in addition to having the intention to kill, . . . the
added specific intention to mutilate and [did] in fact mutilate the murder victim. Browne,
113 Nev. at 322, 933 P.2d at 198 (Springer, J., dissenting).
In addition, for the reasons discussed in Nika v. State, 113 Nev. 1424, 951 P.2d 1047
(1997) (Springer, J., dissenting), I disagree with the majority that the evidence supports a
finding that the murder was at random and without apparent motive. This case is an even
stronger example of the misapplication of this aggravating circumstance. First, there was
nothing random or indiscriminate about this killing. Calambro confessed to the police that, on
the night of the murders, he anticipated killing Christopher before he (Calambro) entered the
U-Haul facility. Thus, contrary to the majority's assertions, the killing was not random but
planned.
Second, there are at least two apparent motives for the killing. The majority believes that
there were no apparent motives for the murders because Calambro had no reason to . . . be
angry with Christopher and because Calambro did not take any of the robbery money.
Clearly, robbery was at least one apparent motive for the killing, whether it was Calambro
or Duc who physically took the money.
1
Another apparent motive is revenge. Duc had
been fired as a U-Haul employee after an altercation with Crawford. It is reasonable to
conclude that Calambro was angry with Christopher because Christopher was a U-Haul
employee or because he was working alongside Crawford, and that Calambro killed
Christopher to avenge Duc's being fired.
__________

1
It is difficult for me to understand how the majority can uphold robbery as an aggravating circumstance and
at the same time say that robbery was not a motive.
Crawford, and that Calambro killed Christopher to avenge Duc's being fired.
No evidence exists that this killing was either at random or without apparent motive,
much less both. Therefore, I would hold that the finding of this aggravating circumstance is
invalid.
Given the nature of this murder and the clear presence of at least two aggravating
circumstances, I would affirm the death penalty judgment because the remaining aggravating
circumstances, previous felony convictions and murder committed during the course of a
robbery, so clearly outweigh the mitigating circumstances in this case. See Leslie v. State, 114
Nev. 8, 952 P.2d 966 (1998) (Springer, J., concurring).
I concur in affirming the first degree murder conviction and the imposition of the
death penalty. However, I have serious doubts whether the legislature intended the random
and without apparent motive aggravator to be applicable to the facts of these vicious killings
and whether this aggravator was proven beyond a reasonable doubt. These cold-blooded
murders were committed in the course of a robbery and the random and without apparent
motive aggravator should not be used as a catchall phrase to back up other more specific
aggravators. Notwithstanding, the additional aggravators found are based on abundant
evidence and clearly support the punishment assessed. Accordingly, the death penalty was
properly imposed, even without considering the random and without apparent motive
aggravator.
____________
114 Nev. 116, 116 (1998) Phenix v. State
RAYMOND GENE PHENIX, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 27267
February 26, 1998 954 P.2d 739
Appeal from a judgment of conviction pursuant to a jury verdict of first-degree
murder with a deadly weapon. Eighth Judicial District Court, Clark County; Joseph S.
Pavlikowski, Judge.
The Supreme court held that: (1) evidence was insufficient to support jury's finding on
aggravated circumstance of torture; but (2) error in instructing jury on aggravating
circumstance was harmless.
Affirmed.
Lee Elizabeth McMahon, Las Vegas, for Appellant.
Attorney, and James Tufteland, Chief Deputy District Attorney, and David Roger, Deputy
District Attorney, Clark County, for Respondent.
1. Homicide.
Evidence in first-degree murder prosecution was insufficient to support aggravating circumstance of torture; although evidence
indicated several stab wounds to the victim's torso, and possibile stun-gun wounds on her face, no witness could testify as to a pattern
or continuum of sadistic violence by defendant. NRS 200.033(8).
2. Criminal Law.
Trial error is not presumed to have prejudiced defendant.
3. Criminal Law.
Defendant claiming trial error has burden to show substantial prejudice. NRS 178.598.
4. Homicide.
Defendant not sentenced to death cannot, on appeal, claim that he has suffered any prejudice as result of jury instructions on
aggravating circumstances. Instructions relate only to determination of whether to impose death penalty, and bear no relevance to other
decisions regarding sentencing.
5. Homicide.
Any error in instructing jury on aggravating circumstance of torture was harmless in first-degree murder prosecution, where
defendant was not sentenced to death.
OPINION
Per Curiam:
[Headnote 1]
On November 15, 1991, the dead body of Doreen Phenix (Doreen) was found in her car in the parking lot of the Las Vegas
casino where she worked. According to a Clark County medical examiner, Doreen died as a result of stab wounds, one to each breast and
one to the abdomen. The medical examiner testified that the wounds were consistent with knife wounds. The medical examiner also
determined that the abdominal wound was triangular in shape, suggesting that Doreen's killer either inserted a knife and twisted it before
removing it from her body or inserted a knife into the same area more than once.
Doreen's body also evidenced physical signs of a struggle. The medical examiner observed several cuts on Doreen's face, hands, wrists
and forearms, one of which severed the tendon to her thumb. The medical examiner characterized these as defensive wounds; that is,
wounds which are received in the course of fending off an attack. Doreen's face also had small brown lesions which the medical examiner
stated could have been caused by a stun-gun that Doreen kept in her car.
On June 29, 1992, appellant Raymond Gene Phenix (Phenix), Doreen's husband,
was charged with Doreen's murder. According to the State, Phenix killed his wife because he
believed she had been unfaithful. In addition, he stood to gain the proceeds of her life
insurance policies.
Phenix's first trial for first-degree murder ended in a mistrial. Eventually, another jury
was seated, and a second trial proceeded. At the conclusion of the guilt phase of the trial, the
jury found Phenix guilty of first-degree murder with the use of a deadly weapon. During the
penalty phase of the trial, the jury returned a special verdict indicating that the aggravating
circumstance of torture, depravity of mind or mutilation had been proven beyond a reasonable
doubt. The jury ultimately determined that Phenix should be sentenced to life in prison
without the possibility of parole. Subsequently, the district court sentenced Phenix to life in
prison without the possibility of parole for the murder of Doreen, and a consecutive life
sentence for the use of a deadly weapon.
At the conclusion of the penalty phase of the trial, the district court instructed the jury that
murder in the first degree could be aggravated if they found that the murder involved torture,
depravity of mind or mutilation of the victim. Phenix alleges on appeal that there was
insufficient evidence to support the NRS 200.033(8) aggravating circumstance for torture,
mutilation or depravity of mind.
1
We agree.
After reviewing the record, we conclude that the evidence in this case does not
support the instruction for torture. Unlike in Rippo v. State, 113 Nev. 1239, 946 P.2d 1017
(1997), no witness could testify as to a pattern or continuum of sadistic violence by Phenix.
The use of the stun-gun alone, even according to Rippo, would not support the finding of
torture. Therefore, the instruction for torture was unwarranted.
As explained in the district court's Instruction No. 10, in order to find depravity of mind
a jury must also find evidence of torture or mutilation. Since our conclusion is that the State
failed to show torture or mutilation, the finding of depravity of mind as an aggravator was not
supported. See Beets v. State, 107 Nev. 957, 821 P.2d 1044 (1991), cert. denied, 506 U.S.
838 (1992) (holding that there existed no factual predicate for depravity of mind because
there was no evidence of torture beyond the killing).
__________

1
At the time of trial, NRS 200.033 stated in relevant part:
The only circumstances by which murder of the first degree may be aggravated are:
. . . .
8. The murder involved torture, depravity of mind or the mutilation of the victim.
[Headnotes 2, 3]
However, we conclude that instructing the jury on this aggravating circumstance was
harmless error. This court must decide whether jury instructions substantially prejudiced the
proceedings or whether they led to only harmless error. According to NRS 178.598, any error
which does not affect the substantial rights of the appellant shall be disregarded. Additionally,
it must affirmatively appear that error resulted in the miscarriage of justice or actually
prejudiced the appellant. There is no presumption in favor of defendants. State v. Williams,
47 Nev. 279, 220 P. 555 (1923). In fact, the burden is on the appellant to show substantial
prejudice. Sanders v. State, 96 Nev. 341, 609 P.2d 324 (1980).
We conclude that Phenix suffered no prejudice as a result of the torture or depravity of
mind instruction. The Nevada statutes which establish a system of weighing aggravating and
mitigating circumstances were, in part, enacted to prevent juries from arbitrarily and
capriciously imposing death sentences. See Ybarra v. State, 100 Nev. 167, 679 P.2d 797
(1984) (holding that system of balancing aggravating and mitigating circumstances is
constitutional). This statutory scheme ensures that juries arrive at decisions for death only
after careful and thoughtful consideration.
[Headnotes 4, 5]
We hold that a defendant not sentenced to death cannot, on appeal, claim that he has
suffered any prejudice as a result of jury instructions on aggravating circumstances. Those
instructions relate only to the determination of whether to impose the death penalty. They
bear no relevance to other decisions regarding sentencing. Therefore, any error committed in
instructing the jury on aggravating circumstances was necessarily harmless.
Phenix has also argued: (1) that the district court erred in overruling his motions to deny
the State's use of peremptory challenges; (2) that the district court erred in allowing the
hearsay testimony of Yew Chen; and (3) that the prosecutor engaged in misconduct. We have
considered these arguments on appeal and find that they lack merit. Accordingly, we affirm
Phenix's conviction and sentence.
____________
114 Nev. 120, 120 (1998) Cook v. State
GREGORY JOHN COOK, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 28111
February 26, 1998 953 P.2d 712
Appeal from a judgment of conviction entered pursuant to a jury verdict of one count
of sexual assault. Second Judicial District Court, Washoe County; Connie J. Steinheimer,
Judge.
Defendant was convicted upon jury verdict in the district court of sexual assault.
Defendant appealed. The supreme court held that state's loss of evidence violated defendant's
due process rights and required reversal.
Reversed.
Thomas L. Stockard, Reno, for Appellant.
Attorney, and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for
Respondent.
1. Criminal Law.
Conviction may be reversed when state loses evidence if defendant is prejudiced by loss or state acted in bad faith in losing it.
2. Criminal Law.
To establish prejudice from state's loss of evidence, so as to warrant reversal of conviction, defendant must show that it could be
reasonably anticipated that evidence would have been exculpatory and material to defense.
State's loss of alleged rape victim's initial statement to police, written report taken during defendant's initial interview, victim's
sweater, and photographs of crime scene and bruise on defendant's arm violated defendant's due process rights and required reversal of
sexual assault conviction. U.S. Const. amend. 14; NRS 200.366.
OPINION
Per Curiam:
Appellant Gregory Cook (Cook) was charged with three counts of sexual assault for the alleged rape of his former domestic
partner. At the conclusion of his first trial, a jury acquitted Cook of the first two counts of sexual assault, but the jury was unable to reach a
verdict with respect to the third count. Thereafter, Cook was tried a second and third time on the remaining count of sexual assault. In each
trial, a jury was unable to reach a verdict, and a mistrial was declared. At the conclusion of his fourth trial, a jury found Cook guilty of one
count of sexual assault, and he was subsequently sentenced to thirty years in the Nevada State Prison.
114 Nev. 120, 121 (1998) Cook v. State
was subsequently sentenced to thirty years in the Nevada State Prison.
On appeal, Cook argues that his conviction should be reversed because the State's loss
of material and potentially exculpatory evidence prejudiced his defense.
1
We agree.
FACTS
Cook and the victim began dating in April 1992 and began living together in
December 1992. From August 1993 until January 1994, the couple's relationship was
acrimonious. In January 1994, the victim decided to permanently end her relationship with
Cook. In accordance with her desires, Cook agreed to remove his personal possessions from
her home on February 3, 1994.
On the evening of February 2, 1994, Cook telephoned the victim from his temporary
residence in Sacramento, California, and informed her that he would arrive at her house in
Reno at approximately 11:00 a.m. the next day. The victim informed Cook that she would
leave the house unlocked because she would be at work. The events which transpired in the
victim's home on the afternoon of February 3, 1994, were greatly disputed by Cook and the
victim at trial.
According to Cook's trial testimony, the following events occurred. He arrived at the
victim's home at approximately 8:00 a.m. on the morning of February 3, 1994, and began
loading his possessions into a pickup truck. The victim arrived at the scene as he was loading
the last of his belongings into the truck. At some point the victim asked him to come into her
bedroom to help her remove an electrical cord that was stuck underneath the bed. While in
the bedroom, the victim made sexual advances towards him and indicated that she wanted to
engage in fellatio upon him.
Cook testified that, while he initially refused the victim's advances, he eventually
acquiesced. During the time frame within which she performed consensual fellatio upon him,
the victim removed her black sweater and bra. After fellating him, the victim asked him to
perform cunnilingus upon her. His refusal stimulated an argument. A brief scuffle ensued
during which the victim grabbed his right arm from behind and twisted it. As he pulled his
arm back, his elbow inadvertently struck the victim's nose, causing it to bleed.
__________

1
In addition to this argument, Cook also asserts that his four trials for the same offense violated the
prohibition against double jeopardy embodied within the Fifth Amendment to the United States Constitution and
Article 1, 8 of the Nevada Constitution. Additionally, Cook argues that the district court erred in admitting
evidence of Cook's alleged prior and subsequent bad acts. Because we hold that Cook's conviction warrants
reversal solely due to the State's loss of material and potentially exculpatory evidence, we do not reach the
substance of Cook's two remaining arguments.
114 Nev. 120, 122 (1998) Cook v. State
pulled his arm back, his elbow inadvertently struck the victim's nose, causing it to bleed.
Seeing that her nose was bleeding, Cook retrieved a wet towel from the bathroom
counter, handed it to the victim, and told her to lie down on the bedroom floor. The
bloodstain on the bedroom carpet was circular in shape and approximately eight inches in
diameter. After the victim regained her composure, he made a telephone call to his friend in
Sacramento and then gave the victim his forwarding address. At approximately 1:00 p.m., he
and the victim left the scene in separate cars.
In contrast to Cook's claim that their sexual encounter was consensual, the victim testified
at trial that Cook had violently forced her to engage in fellatio. The victim testified that when
she arrived at her home at approximately noon on February 3, 1994, Cook appeared angry and
agitated. After briefly arguing about the ownership of some minor household effects, she
went into the kitchen to prepare lunch. While standing next to her microwave oven, Cook
came over to her, grabbed her, shoved her into the dining room, and then punched her in the
stomach.
The victim testified that following this blow, she struggled with Cook, but he
managed to drag her down the hallway and into her master bedroom. Once in the bedroom,
Cook shoved her onto the bed and, as he came towards her, she kicked him twice in the groin
and then ran for the door in an attempt to escape. Cook managed to grab her, whereupon she
fell to the floor and then noticed that her nose was bleeding. Cook then dragged her to the
vanity area of her master bedroom, leaving a trail of blood on the carpet.
The victim testified that after Cook attempted to clean the blood trail, he ripped off her
pants and underwear, tearing her pants. Cook then performed cunnilingus on her against her
will. After approximately fifteen seconds, Cook then shoved her back onto the bed, forced her
to take off her sweater and bra, and then forced her to engage in fellatio upon him. After
several minutes, she asked Cook if she could get a drink of water from the bathroom in the
master bedroom. When she returned, she ran for the bedroom door, but Cook managed to
grab her. Because the door was between her and Cook, she slammed the door on Cook's arm,
but he maintained his grip and dragged her back into the bedroom. Once back in the bedroom,
Cook forced her again to engage in fellatio against her will.
The victim testified that after this incident, she put on the same black sweater that she
was wearing that morning but she got dressed in a different pair of pants because her other
pair were ripped as a result of the struggle with Cook. Additionally, she did not put her
necklace back on because it was broken during the struggle. After Cook gave her his
forwarding address, the two departed the house together,
114 Nev. 120, 123 (1998) Cook v. State
departed the house together, and she returned to her place of employment.
After returning to work, the victim informed her supervisor that she had been sexually
assaulted. Later that day, she met Officer Benedetti (Benedetti) of the Sparks Police
Department at her home. Based on his observations of the victim's home, Benedetti testified
that he was unable to find any obvious signs of struggle. Benedetti did observe one spot of
blood located approximately ten feet from the end of the bed in the master bedroom and some
scratches on the bedroom door. Although he took numerous photographs of the scratch marks
and the blood spot, these photos were lost by the Sparks Police Department. Additionally,
Benedetti placed a ruler next to the blood spot on the carpet so that the photographs would
accurately depict the size and shape of the spot. However, all such photos of the blood spot
and the ruler were also lost by the police department.
Along with the photos of the blood spot, Benedetti took several photographs of the
victim's master bedroom, but these photos were also lost by the police department.
Additionally, Benedetti took the victim's black sweater into evidence in order to perform
blood and hair analysis. Benedetti testified that he did not notice any obvious signs of blood
on the sweater, nor did it appear ripped or torn. However, as with the photographs, the
victim's sweater was also lost by the Sparks Police Department. In addition to losing most of
the evidence gathered in the investigation of this crime, the Sparks Police Department never
viewed or secured the pants that the victim stated were ripped from her person.
On the evening of February 3, 1994, Cook was interviewed by Detective Torres (Det.
Torres) of the Sparks Police Department. Prior to conducting the interview, Benedetti told
Det. Torres that the victim had allegedly scratched, bit, and kicked Cook in the testicles
during the struggle. Approximately twenty minutes into the interview, Det. Torres noticed
that the tape recorder was not working, and thus no recording of Cook's initial interview was
made.
At the conclusion of the interview, Det. Torres asked Cook to take off his shirt so that he
could photograph Cook's upper body. Det. Torres testified that Cook had a circular bruise,
comparable to the size of a silver dollar, on his right bicep just above the elbow. Det. Torres
testified that this was the only injury that he observed on Cook's upper body. As with the
other items of evidence, the photograph of Cook's circular bruise on his right arm was lost by
the Sparks Police Department.
While Det. Torres knew that the victim had allegedly kicked and scratched Cook in
the testicles during their struggle, Det. Torres did not ask Cook to disrobe from the waist
down because Cook did not exhibit any signs that he was suffering from an injury to his
groin area.
114 Nev. 120, 124 (1998) Cook v. State
Cook did not exhibit any signs that he was suffering from an injury to his groin area. Further,
while Det. Torres made a written report concerning his initial interview with Cook, Det.
Torres subsequently lost this report. Det. Torres testified that he drafted a second report,
based on his notes taken during the interview, approximately three and one-half months after
Cook's initial interview.
At the conclusion of the interview with Det. Torres, Cook was placed under arrest.
Cook went to trial on three counts of sexual assault in violation of NRS 200.366. The first
jury acquitted him of two of the counts but could not reach a verdict on the third. Two more
jury trials on the one remaining count ended in hung juries, and he was convicted of the one
remaining count at the conclusion of the fourth jury trial.
DISCUSSION
The loss of material and potentially exculpatory evidence by a law enforcement
agency can deprive a defendant of the opportunity to corroborate his or her testimony, thereby
severely prejudicing the defense. The State recognized the critical nature of the lost evidence
as indicated by the remarks of the prosecutor during closing argument.
2
There is little doubt
that the lost evidence was both relevant and material.
Cook argues that much of the lost evidence was exculpatory as well and points to
specific items of lost evidence that would have aided his defense:
1. The photographs depicting the condition of the victim's bedroom: Because the
victim described a violent struggle which culminated in her bedroom, Cook argues that
photos taken by the police, which demonstrated that the condition of her bedroom was
inconsistent with the type of struggle which she described, would have bolstered his argument
that such a struggle did not take place.
2. The photographs depicting the blood spot on the carpet: While the victim and Benedetti
testified that the blood spot on the carpet had striations through it due to the victim being
dragged across the floor, Cook testified that the blood spot was circular in shape,
approximately eight inches in length, and confined to one area of the carpet.
__________

2
During closing argument, the State argued:
You will be determining justice in this case by your verdict. Some of you may actually be wishing that
you could do another type of justice in this case, that you could sign another type of verdict other than Mr.
Greg Cook's guilt in this matter, one that says the Sparks Police Department is guilty of serious misconduct
and overwhelming embarrassing human errors in this matter. Let me be the first to suggest that this is
absolutely true and correct. Let me be the first to tell you that heads will roll at Sparks Police Department
over their conduct in this case.
114 Nev. 120, 125 (1998) Cook v. State
shape, approximately eight inches in length, and confined to one area of the carpet. Cook
argues that these photographs would have proven that he did not violently attack the victim
and drag her several feet across the carpeted floor.
3. The photographs depicting the bruise on Cook's arm: Cook argues that the loss of
such photos deprived him of the opportunity to rebut or impeach the victim's testimony that
the bruise on his arm was caused by her act of slamming a door on his arm during her
purported escape attempt.
4. Det. Torres' written report taken during Cook's initial interview on February 3, 1994:
Cook argues that the contemporaneous report of his voluntary statement, given by Cook
before he was aware of any of the victim's specific allegations, could have been used to
corroborate Cook's trial testimony.
5. The victim's initial statement to the police: Cook argues that the victim's initial
statement may have been inconsistent with portions of her trial testimony as evidenced by the
fact that her initial statement led police to charge Cook with only one count of fellatio, and
not two.
3
However, because this report was lost by the Sparks Police Department, Cook
argues that he was denied the opportunity to show inconsistencies between the victim's initial
statement and her trial testimony.
6. The victim's sweater: Cook argues that the victim's sweater was the critical piece of
evidence that was lost by the Sparks Police Department. The victim testified that she was
wearing the sweater when the violent struggle with Cook occurred and that some of her blood
may have dripped onto her sweater. Cook testified that the victim's nose began to bleed after
the fellatio, when she was not wearing her sweater. Accordingly, Cook argues that the
sweater was both material and exculpatory evidence because it would have supported his
testimony.
[Headnotes 1, 2]
A conviction may be reversed when the state loses evidence if the defendant is
prejudiced by the loss or the state acted in bad faith in losing it.
4
Sparks v. State, 104 Nev.
316, 319, 759 P.2d 180, 182 (1988). To establish prejudice, the defendant must show that it
could be reasonably anticipated that the evidence would have been exculpatory and material
to the defense. Boggs v. State, 95 Nev. 911, 913, 604 P.2d 107, 108 (1979).
In State v. Havas, 95 Nev. 706, 707, 601 P.2d 1197, 1197 (1979), the pants and
undergarments of an alleged rape victim were lost by the police and were thus unavailable for
inspection by the defense.
__________

3
Cook was not charged with a second count of fellatio until after the victim testified at a preliminary hearing
held on March 18, 1994.

4
Cook's prior counsel stipulated during trial that the State did not lose or destroy the evidence in bad faith.
114 Nev. 120, 126 (1998) Cook v. State
by the defense.
5
Although the alleged victim testified during a preliminary examination that
her clothes were not torn during the alleged rape, the defendant wanted to inspect the items to
demonstrate lack of force. Id. at 708, 710, 601 P.2d at 1198, 1199. In response, the State
argued that the garments were not material because a showing of physical force was not
necessary to complete the act of forcible rape. Id. at 708, 601 P.2d at 1198.
While indicating that the defendant bore the burden of showing that the lost evidence
was material and exculpatory, we determined that the evidence was indeed material to the
guilt or innocence of the defendant and thus the prosecution should have preserved the
evidence in question. Id. In affirming the dismissal of forcible rape charges against the
defendant, we concluded:
The crime of rape is rarely perpetrated in the presence of witnesses other than the
defendant and the victim and great reliance must be placed on the testimony of the
victim, and, if given, the defendant. Thus, the presence or absence of other evidence
which would support or refute the testimony of the involved parties has the potential for
great significance.
Id.
[Headnote 3]
Based on our decisions in Sparks, Boggs, and Havas, we conclude that the evidence
which was lost by the Sparks Police Department unduly prejudiced Cook's case. From our
review of the record, Cook has made the requisite showing of prejudice by demonstrating that
the lost items of evidentiary value could have been reasonably anticipated to be both material
and exculpatory. Due to the State's negligent loss of evidence, Cook's ability to defend
himself was severely undermined. Accordingly, the State's failure to preserve such evidence
violated Cook's right of due process and mandates reversal of his conviction and sentence.
6

__________

5
In Deere v. State, 100 Nev. 565, 688 P.2d 322 (1984), we overruled State v. Havas, 95 Nev. 706, 601 P.2d
1197 (1979), to the extent that the Havas holding formulated a per se rule that a rape victim's undergarments
were always material and potentially exculpatory evidence. Rather, in Deere, we reiterated that [t]he materiality
and potentially exculpatory character of lost or destroyed evidence must be determined on an ad hoc basis on the
facts of each particular case. Deere, 100 Nev. at 566-67, 688 P.2d at 323.

6
We do not suggest that the Sparks Police Department had a duty to collect evidence. Rather, we base our
holding that Cook's defense was unduly prejudiced solely on the evidence that was gathered and then
subsequently lost by the Sparks Police Department.
114 Nev. 120, 127 (1998) Cook v. State
CONCLUSION
After carefully reviewing the appellant's arguments, we conclude that Cook has
established prejudice by showing that the lost items of evidentiary value could have been
reasonably anticipated to be both exculpatory and material. The State's mishandling and loss
of evidence severely prejudiced Cook's defense. Accordingly, we reverse Cook's conviction
and dismiss this case.
____________
114 Nev. 127, 127 (1998) Guerin v. Guerin
HAROLD D. GUERIN, Appellant, v.TRACY O. GUERIN, Respondent.
No. 27042
TRACY O. HILL and THE HILL FAMILY TRUST, Petitioners, v. THE EIGHTH
JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, In and for the County
of Clark, THE HONORABLE FRANCES-ANN FINE, District Judge, Family Court
Division, and GARY D. LANG, Receiver, Respondents, and HAROLD D. GUERIN,
THOMAS M. GUERIN and TERAN ANN DAVIS, Real Parties in Interest.
No. 28354
TRACY O. GUERIN, Now by Marriage TRACY O. HILL, Appellant, v. HAROLD D.
GUERIN, Respondent.
No. 29297
February 26, 1998 953 P.2d 716
Appeal from a district court order denying appellant Harold D. Guerin's motion to
vacate a decree of divorce under NRCP 60(b)(3) (Docket No. 27042). Petition for writ of
prohibition and mandamus to prevent, inter alia, the district court and a receiver from
enforcing an order involving assets held by petitioner Hill Family Trust (Docket No. 28354).
Appeal from district court orders enjoining appellant Tracy Guerin and respondent Harold D.
Guerin from disposing of assets formerly held in the Guerin Family Trust (Docket No.
29297). Eighth Judicial District Court, Clark County, Frances-Ann Fine, Judge.
After default judgment was entered in divorce action, husband moved to vacate, and
the district court denied motion. Husband appealed. Separately, wife appealed from order
enjoining husband and wife from disposing assets which had formerly been held in family
trust.
band and wife from disposing assets which had formerly been held in family trust.
Additionally, wife petitioned for writ of prohibition and writ of mandamus to prevent district
court and receiver from enforcing order involving assets held by trust controlled by wife's
family. After matters were consolidated, the supreme court held that: (1) issues of validity of
injunction, order finding wife in contempt for violating injunction, and validity of receiver
who had been appointed, were appealable and would not be considered on writ application;
(2) failure to join trust controlled by wife's family as party was fatal to judgment requiring
assets in trust to be transferred to receiver; (3) default judgment was void due to lack of
proper notice to husband; and (4) court had authority to enter injunction, so that order finding
wife in contempt for violating order containing injunction was proper.
Reversed and remanded with instructions (Docket No. 27042); petition granted
in part (Docket No. 28354); and affirmed (Docket No. 29297).
[Rehearing denied April 13, 1998]
Law Offices of Daniel Marks and Adam Levine, Las Vegas, for Harold D. Guerin,
Thomas M. Guerin, and Teran Ann Davis.
Beckley, Singleton, Jemison & List, and Daniel F. Polsenberg, Susan Centeno, and
Elizabeth N. Farley, Las Vegas; Patrick C. Clary, Las Vegas, for Tracy O. Guerin now Tracy
O. Hill.
Jack G. Perry, Las Vegas, for The Hill Family Trust.
1. Mandamus.
Whether petition for writ of mandamus will be entertained lies within sound discretion of court.
2. Mandamus; Prohibition.
Issues of validity of injunction precluding former wife from disposing of assets formerly held in family trust, order finding wife
in contempt for violating injunction, and validity of receiver who had been appointed, were appealable and thus were not appropriately
considered in petition for writ of mandamus and prohibition.
3. Mandamus; Prohibition.
Review of issue of whether district court had erroneously exercised jurisdiction over trust into which former wife had allegedly
deposited assets which formerly belonged to marital family trust was properly conducted by way of petition for writ of prohibition and
mandamus.
4. Divorce.
Failure to join trust controlled by former wife's family, to which former wife had allegedly transferred assets from marital trust,
as party in proceedings arising from divorce rendered, was fatal to court judgment requiring assets formerly belonging to family trust to
be transferred from wife's trust to receiver. NRCP 19(a).
5. Divorce.
Default judgment entered in divorce action was rendered void when attorney for husband, who had received only 24 hours'
notice of hearing on application for judgment, made special appearance at prove-up hearing in which he protested lack of three-day
notice required prior to entry of default. NRCP 55(b)(2).
6. Judgment.
When defendant has made appearance in action, failure to give notice prescribed by rule governing motions for default renders
subsequent default judgment void. NRCP 55(b)(2).
7. Judgment.
For purposes of rule requiring that notice be given prior to entry of default judgment, formal appearance in case is not necessary.
NRCP 55(b)(2).
8. Injunction.
District court which had entered divorce judgment did not abuse its discretion in entering injunction prohibiting former wife
from disposing of assets which had formerly been contained in marital trust, in light of evidence presented by husband that wife was
hiding assets.
9. Divorce.
Trial court did not abuse its discretion in holding former wife in contempt based on her failure to comply with divorce court
order requiring her to deposit contested marital assets with receiver.
OPINION
Per Curiam:
This court consolidated three cases due to the similarity of the underlying facts and circumstances.
On February 16, 1993, Tracy O. Guerin (Tracy) filed a complaint for divorce in Clark County District Court after more than fifteen
years of marriage to Harold D. Guerin (Harold). Harold did not defend the action. On July 29, 1993, the Clark County Clerk of Court
entered a default against Harold. At the September 1, 1993 prove-up hearing, Tracy testified regarding the assets held by the parties,
basically asking for an equal division of assets, including the assets in the Guerin Family Trust. The district court entered a default decree
of divorce which awarded Tracy over $1.3 million in assets. Harold received more than $1.4 million in assets.
On October 7, 1994, Harold filed a complaint against Tracy in Clark County District Court (district court action) alleging
fraud, negligent misrepresentation, breach of fiduciary duty as trustee, and breach of fiduciary duty based on the divorce action. Harold
alleged that during their marriage, he and Tracy had created the Guerin Family Trust, composed of two separate subtrusts; subtrust I
contained the parties' community property, and subtrust II contained their separate property. Harold alleged that he was the sole
contributor to subtrust II and thus all property placed therein was his separate property.
alleged that he was the sole contributor to subtrust II and thus all property placed therein was
his separate property. Harold's causes of action were based on the allegation that Tracy's
failure to make the family court aware of these alleged facts resulted in an unfair property
division.
On November 29, 1994, Harold filed a motion in family court to set aside the divorce
decree as void. On March 8, 1995, the district court entered an order denying Harold's motion
to set aside the divorce decree and, upon stipulation of the parties, consolidating the district
court action with the family court divorce proceeding (consolidated actions). Harold
appeals the denial of his motion to set aside the divorce decree.
On July 10, 1995, Harold filed a motion for a preliminary injunction enjoining Tracy from
disposing of assets formerly held in the Guerin Family Trust. In this motion, Harold alleged
that Tracy concealed and disposed of the former subtrust II assets. The district court granted
Harold's motion, imposed a preliminary injunction, and appointed a receiver to manage the
former trust assets pending a final resolution of the consolidated actions. Tracy then filed
motions to remove the injunction and the receiver; the district court denied both of these
motions. Tracy has appealed from the order denying her motions.
In early 1996, Harold alleged that Tracy was violating the district court injunction by
depositing former subtrust II assets in the Hill Family Trust and by refusing to turn over
assets to the receiver. On April 8, 1996, the district court issued a bench warrant for Tracy's
arrest for contempt and ordered the transfer of certain assets from the Hill Family Trust (a
trust created by Tracy and her new husband, Charles Hill (Hill)) to the receiver. Tracy filed
a notice of appeal challenging this contempt order.
On April 10, 1996, Tracy and the Hill Family Trust filed a petition for writ of prohibition
and mandamus with this court seeking to: (1) prohibit the district court from enforcing the
injunction and subsequent orders precluding Tracy from disposing of assets formerly held in
the Guerin Family Trust; (2) prevent the district court from holding Tracy in contempt; (3)
prohibit the receiver from exercising unlawful and excessive powers; (4) remove the receiver;
and (5) prohibit the district court from exercising jurisdiction over assets of the Hill Family
Trust and directing that the Hill Family Trust turn over assets of that trust to the receiver.
On April 15, 1996, Harold amended his complaint in the district court action, joining
Charles Hill and the Hill Family Trust as party defendants.
On April 17, 1996, this court issued an order staying all proceedings in the consolidated
actions and directing the district court to take no action to enforce any of its existing
orders pending further order of this court.
proceedings in the consolidated actions and directing the district court to take no action to
enforce any of its existing orders pending further order of this court. On April 24, 1996, this
court ordered that the family court's injunction and orders concerning the properties remain in
effect. Our order also enjoined the parties from disposing of or transferring out of the country
any property that might be the subject of the consolidated actions.
DISCUSSION
Docket No. 28354 (Petition for Writ of Prohibition and Mandamus)
A writ of prohibition may issue to arrest proceedings of a district court exercising its
judicial functions when those proceedings are in excess of the jurisdiction of that court. NRS
34.320. Such a writ may issue only when there is no plain, speedy, and adequate remedy at
law. NRS 34.330.
[Headnote 1]
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; Round Hill Gen. Imp. Dist. v. Newman, 97
Nev. 601, 603-04, 637 P.2d 534, 536 (1981). A writ of mandamus shall only issue when there
is no plain, speedy, and adequate remedy in the ordinary course of law. NRS 34.170. Whether
a writ petition will be entertained lies within the sound discretion of this court. State ex rel.
Dep't Transp. v. Thompson, 99 Nev. 358, 360, 662 P.2d 1338, 1339 (1983).
[Headnote 2]
Tracy and the Hill Family Trust have raised four issues in this writ petition. These
issues, as well as petitioners' associated arguments, are repeated in the briefs filed in the
appeal in Docket No. 29297. We conclude that three of these issues, specifically those
challenging the validity of the injunction, the contempt order, and the receiver, are appealable
and thus not appropriately considered in a writ petition. See NRAP 3A(b)(2) (providing that
orders refusing to vacate an order appointing a receiver and refusing to dissolve an injunction
are independently appealable); Awad v. Wright, 106 Nev. 407, 794 P.2d 713 (1990) (hearing
on direct appeal or challenge to district court order holding in contempt a party in divorce
action). Accordingly, we decline to entertain the writ petition as to these three issues. See
Thompson, 99 Nev. at 360, 662 P.2d at 1339.
[Headnote 3]
We conclude, however, that review of the fourth issue, whether the district court
erroneously exercised jurisdiction over the Hill Family Trust, is properly conducted by way
of writ proceedings.
the district court erroneously exercised jurisdiction over the Hill Family Trust, is properly
conducted by way of writ proceedings. See Gladys Baker Olsen Fam. Trust v. Olsen, 109
Nev. 838, 858 P.2d 385 (1993). Thus, we elect to entertain the writ petition on this issue
alone.
Tracy contends that the district court lacked jurisdiction over the Hill Family Trust at
the time it ordered the transfer of assets from the Hill Family Trust to the receiver.
Consequently, Tracy argues that the transfer order was invalid under Olsen Family Trust v.
District Court, 110 Nev. 548, 874 P.2d 778 (1994) (Olsen II).
In Olsen II, Olsen's wife obtained a divorce decree, but was unsuccessful in satisfying the
judgment against him. Id. at 549, 874 P.2d at 779. Several years later, a trust, established by
Olsen's mother, purchased a home and permitted Olsen to live there rent free. Olsen also
borrowed funds from the trust to purchase a car. Olsen's ex-wife then sought a writ of
execution against the home and car to satisfy the outstanding judgment against Olsen. The
district court issued an order which, inter alia, permitted Olsen's ex-wife to execute a lien
against the home and car, both legally owned by the trust. Id. at 551, 874 P.2d at 780.
This court reversed the order of the district court on the basis that Olsen's ex-wife's
failure to join the trust as a party was fatal to the action. Id. at 554, 874 P.2d at 782. We
explained that all persons or entities materially interested in the subject matter of a lawsuit
must be made parties so that the court may issue a decree sufficient to bind them all. Id. at
553, 874 P.2d at 781. Joinder . . . rather than knowledge of a lawsuit and an opportunity to
intervene, is the method by which potential parties are subjected to the jurisdiction of the
court . . . . Id. Accordingly, we held that district court orders affecting the rights of an
indispensable person or entity, who has not been properly joined, are rendered void as to that
nonparty. Id. at 554, 784 P.2d at 782.
[Headnote 4]
Here, on April 8, 1996, the district court ordered Tracy O. Hill and/or the Hill Family
Trust to transfer certain assets formerly belonging to the Guerin Family Trust to the receiver.
Since Tracy was a party to the consolidated actions, the district court clearly possessed proper
authority to order Tracy to turn over assets to the receiver. However, the Hill Family Trust did
not become a named party to the actions until April 15, 1996. Because the Hill Family Trust
was not a party prior to the issuance of the April 8 order, we conclude that the district court
order is void under Olsen II insofar as it affects the rights of the Hill Family Trust.
Accordingly, we direct the clerk of this court to issue a writ of prohibition precluding the
district court from enforcing its order of April S, 1996, to the extent that it affects the Hill
Family Trust.
to issue a writ of prohibition precluding the district court from enforcing its order of April 8,
1996, to the extent that it affects the Hill Family Trust. See id.; see also NRCP 19(a).
1

Direct appeal from order refusing to set aside divorce decree (Docket No. 27042)
Harold contends that the district court erred in refusing to set aside the property
division contained in the divorce decree under NRCP 60(b).
2
We agree.
[Headnotes 5-7]
NRCP 55(b)(2) provides that a party seeking a judgment by default must give the
opposing party or his representative written notice at least three days before the hearing on
the application for judgment. Tracy gave Harold and his attorney only twenty-four hour's
notice. Harold's attorney entered a special appearance at the prove-up hearing protesting the
lack of sufficient notice, but the district court proceeded with the hearing and entered the
judgment sought by Tracy. When a defendant has made an appearance in an action, the failure
to give the notice prescribed by NRCP 55(b)(2) renders a subsequent default judgment void.
Gazin v. Hoy, 102 Nev. 621, 624, 730 P.2d 436, 438 (1986). For purposes of NRCP
55(b)(2)'s notice requirement, a formal appearance in the case is not necessary. Id. Although
Tracy clearly knew that a local attorney represented Harold, she failed to send him notice at
least three days before the hearing, as required.
Accordingly, we reverse the order of the district court which refused to set aside the decree
of divorce, and we remand this matter to the district court with instructions to grant Harold's
motion. We decline to address the remaining issues raised by Harold in his appeal.
3

__________

1
NRCP 19(a) provides, in pertinent part:
A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction
over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete
relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of
the action and is so situated that the disposition of the action in his absence may (i) as a practical matter
impair or impede his ability to protect that interest
. . . .

2
NRCP 60(b) provides, in relevant part:
On motion and upon such terms as are just, the court may relieve a party or his legal representative from
a final judgment, order, or proceeding for the following reasons: . . . (3) the judgment is void . . . .

3
We also deny the motion Harold filed with this court requesting an order to show cause why Tracy should
not be held in contempt for violating this court's injunction. Because the district court injunction remained in
force
We also vacate in their entirety our prior stay orders, but note that the district court's
injunction remains in full force until the district court determines that it is unnecessary.
Direct appeal from orders imposing an injunction, appointing a receiver, and holding Tracy
in contempt (Docket No. 29297)
Tracy contends that the district court lacked the proper authority to hold her in
contempt of court because the injunction precluding the parties from disposing of assets
formerly contained in the Guerin Family Trust was improper.
[Headnote 8]
In light of the evidence Harold presented that Tracy was hiding assets and our
determination that the district court erred in refusing to set aside the decree of divorce, we
conclude that the district court did not abuse its discretion in issuing an injunction. See
generally Franklin v. Bartsas Realty, 95 Nev. 559, 562, 598 P.2d 1147, 1149 (1979) (holding
that preliminary injunctions are reviewed for an abuse of discretion and will not be disturbed
when supported by substantial evidence).
[Headnote 9]
On April 3, 1996, the district court held Tracy in contempt of court for failure to abide
by a previous order. The previous order required Tracy, pursuant to the injunction, to deposit
$54,000.00 in contested marital assets with the receiver and deposit $5,721.23 for the
payment of receiver's fees and costs. On April 9, 1996, after Tracy failed to purge her
contempt by depositing those assets with the receiver, the district court issued a bench
warrant for Tracy's arrest. Because Tracy clearly did not comply with the district court's
orders, we conclude that the district court's decision to hold Tracy in contempt did not
constitute an abuse of discretion. See Noble v. Noble, 86 Nev. 459, 463, 470 P.2d 430, 432
(1970) (holding that courts have inherent power to protect and defend their decrees by way of
contempt proceedings); EDCR 7.60(b)(5). We conclude that Tracy's remaining contentions
lack merit.
CONCLUSION
We reverse the judgment in Case No. 27042 and remand the case to the district court
for further proceedings consistent with this opinion. We grant the petition in Case No. 28354
to the extent that the district court's orders affected the Hill Family Trust. We affirm the
orders of the district court in Case No. 29297.
__________
during the pendency of this action, the district court should determine on remand whether Tracy's actions after
we issued our stay orders violated the district court injunction.
____________
114 Nev. 135, 135 (1998) Sahara Hotel & Casino v. Holden
SAHARA HOTEL & CASINO, Appellant, v. PATRICIA HOLDEN, Respondent.
No. 28395
February 26, 1998 953 P.2d 268
Appeal from an order of the district court reversing an administrative agency decision.
Eighth Judicial District Court, Clark County; Stephen Huffaker, Judge.
Claimant sought workers' compensation benefits from her self-insured employer, and
after her death, her non-dependant heirs pursued her claim. The Department of
Administration rejected the claim. Heirs appealed. The district court reversed. Employer
appealed. The supreme court held that: (1) workers' compensation statutes do not authorize
payment of benefits to non-dependent persons, and (2) laches did not bar employers' denial of
claim.
Vacated.
Moran & Associates and Jill M. Lynne, Las Vegas, for Appellant.
Michael Paul Wood, Las Vegas, for Respondent.
1. Workers' Compensation.
Workers' compensation statutes, which define compensation as the money which is payable to an employee or to his
dependents, do not authorize payment of workers' compensation benefits to non-dependent persons, including non-dependent heirs of
a deceased claimant. NRS 616A.090.
Workers' compensation laws were enacted as humanitarian measure designed to protect injured persons and those dependent
upon deceased worker's income.
Laches did not prevent self-insured employer from denying workers' compensation benefits to claimant's heirs, as any delay was
result of legitimate and good faith dispute over claimant's entitlement to benefits in light of her debilitating non-industrial ailments.
OPINION
Per Curiam:
In this workers' compensation case, Patricia Holden developed a debilitating condition in her left hand as a result of her
employment at the Sahara Hotel and Casino (the Sahara). Ms. Holden also suffered from a number of other serious ailments, not
attributable to her employment, which eventually led to her residence in a nursing home. The Sahara, a self-insured employer, paid Ms.
Holden some workers' compensation benefits, but rejected her claim for retroactive temporary
total disability benefits and offered her an apportioned permanent partial disability benefit.
Ms. Holden appealed to the State Industrial Insurance System (SIIS). During the course of
litigating her claims before the Department of Administration (the Department) hearing
officer, Ms. Holden died as a result of her non-industrial-related ailments. Although Ms.
Holden left no dependents, her heirs
1
continued to litigate her claims in her name.
The Department, which was unaware of Ms. Holden's death, rejected her contested
claims on their merits, and Ms. Holden's heirs appealed to the district court for judicial
review. The Sahara filed a motion to dismiss on the ground that Ms. Holden's non-dependent
heirs have no legal basis to succeed to her workers' compensation claim and that her claim is
therefore moot. The district court rejected the motion to dismiss and reversed the decision of
the Department, thereby, in effect, ordering the payment of workers' compensation benefits to
Ms. Holden's non-dependent heirs. The Sahara contends that this was error. We agree.
[Headnotes 1, 2]
The workers' compensation laws were enacted as a humanitarian measure designed to
protect injured persons and those dependent upon a deceased worker's income. See generally,
Industrial Commission v. Peck, 69 Nev. 1, 10-11, 239 P.2d 244, 248 (1952). In fact, the word
compensation is defined in the workers' compensation statutes as the money which is
payable to an employee or to his dependents. NRS 616A.090. (Emphasis added.)
2
In light
of the recognized purpose of the workers' compensation scheme stated above, and the absence
of any express language creating a right of survivorship in favor of non-dependent heirs, we
see no reason to deviate from a literal construction of the definition of compensation
provided by the legislature. Authorization for the payment of workers' compensation benefits
to non-dependent persons must come from the legislature and not from this court.
3

__________

1
The late Ms. Holden's claim is apparently being pursued by her adult sons, none of whom claims to have
been financially dependent upon Ms. Holden at the time of her industrial injury.

2
See also NRS 616C.205 which provides, in pertinent part:
In the case of the death of an injured employee covered by this chapter from causes independent from the
injury for which compensation is payable, any compensation due the employee which was awarded or
accrued but for which a check was not issued or delivered at the date of death of the employee is payable
to his dependents. . . .

3
Nevada's policy of denying workers' compensation benefits to non-dependent heirs is consistent with that in
other jurisdictions. See, e.g., Riley
[Headnote 3]
Because there is no longer an authorized beneficiary to whom Ms. Holden's workers'
compensation benefits may be paid, we vacate the order of the district court.
4

____________
114 Nev. 137, 137 (1998) Argier v. Nevada Power Co.
DAVID ARGIER, TOM ARGIER, NEVCAN DEVELOPMENT, LTD., and CANEV
DEVELOPMENT, LTD., Appellants, v. NEVADA POWER COMPANY, a Nevada
Corporation, Respondent.
No. 28528
February 26, 1998 952 P.2d 1390
Appeal from a district court order dismissing an action for just compensation. Eighth
Judicial District Court, Clark County; Joseph T. Bonaventure, Judge.
Landowners filed an action for determination of just compensation for a utility
easement, but they sold the land before compensation was awarded. The district court
dismissed the action. Landowners appealed. The supreme court held that landowners, rather
than the purchaser of the land, were entitled to a condemnation award, as the right to receive
compensation vested when the utility company entered the property before it was sold.
Kermitt L. Waters, and James Leavitt, Las Vegas, for Appellants.
Steven F. Smith, Las Vegas, for Respondent.
__________
v. National Mills Inc., 873 P.2d 214, 217-219 (Kan. Ct. App. 1994); Trice v. Tektronix, Inc., 801 P.2d 896 (Or.
Ct. App. 1990) (It is a legitimate state objective to see that an injured worker and heirs dependent upon the
worker for their support and maintenance will not become burdens upon the public, but no such objective exists
as to the heirs who were not dependent upon the worker.).

4
Holden's heirs contend that the doctrine of laches prevents the Sahara from denying benefits to Ms. Holden's
heirs. See Building & Constr. Trades v. Public Works, 108 Nev. 605, 836 P.2d 633 (1992) (Laches is an
equitable doctrine which may be invoked when inexcusable delay by a party works to the disadvantage of the
other, causing a change of circumstances which would make the grant of relief to the delaying party
inequitable.). Specifically, the heirs accuse the Sahara of bad faith in delaying the payment of benefits to a point
in time beyond the life of its insured. We conclude that any delay was the result of a legitimate and good faith
dispute over Ms. Holden's entitlement to benefits in light of her debilitating non-industrial ailments.
Accordingly, this is simply not a case where equitable intervention is warranted.
1. Eminent Domain.
Vendor of property, rather than purchaser, was entitled to condemnation award, where vendor sold the property before receiving
just compensation for a utility easement and before the trial court determined the value of the easement, but after the utility company
installed power lines along the easement pursuant to trial court's order granting immediate occupancy, as vendor's right to receive
compensation vested when utility company entered the property. U.S. Const. amend. 5.
2. Eminent Domain.
If parcel of land from which taking is made changes hands after taking has occurred but before compensation has been paid,
right to receive compensation does not run with the land, but remains personal claim of person who was owner at time of taking, or his
representatives. U.S. Const. amend. 5.
3. Eminent Domain.
Where there is entry into possession by condemning authority prior to formal commendation proceedings, taking which occurs
at entry must be considered the taking for all purposes. U.S. Const. amend. 5.
4. Eminent Domain.
It is generally presumed that right to just compensation remains with vendor of land unless contract of sale specifically provides
to the contrary. U.S. Const. amend. 5.
5. Eminent Domain.
Vesting of right to receive just compensation occurs when condemning agency enters into possession of landowner's property.
OPINION
Per Curiam:
Respondent, Nevada Power Company (NPC), filed a complaint for an easement across land owned by appellants, David
Argier, Tom Argier, Nevcan Development, Ltd., and Canev Development, Ltd. (the Argiers). Pursuant to a district court order granting
immediate occupancy, Nevada Power Company installed power lines along the easement. Due to a dispute as to the value of the easement,
Nevada Power Company filed an action to determine the value of the property. Prior to receiving compensation, and prior to the trial to
determine the value of the easement, the Argiers sold the property at issue to Clark County. Nevada Power subsequently filed a motion to
dismiss, claiming that the conveyance of the property to the county terminated its duty to pay the Argiers just compensation for the
easement. The district court granted this motion. The Argiers appeal the district court's dismissal.
[Headnotes 1, 2]
The only issue this court must decide is whether the Argiers' conveyance of their land to Clark County extinguished their right to
just compensation. According to treatises discussing the subject and cases from other jurisdictions, just compensation
should be paid to the person who owns the property at the time of the taking.
ject and cases from other jurisdictions, just compensation should be paid to the person who
owns the property at the time of the taking. For example, 3 Julius Sackman, Nichols on
Eminent Domain 5.01[5][d] (1997) states:
It is well settled that when there is a taking of property by eminent domain in
compliance with law, it is the owner of the property at the time of the taking who is
entitled to compensation. Consequently, if the parcel of land from which the taking is
made changes hands after the taking has occurred but before the compensation has been
paid, the right to receive the compensation does not run with the land, but remains a
personal claim of the person who was the owner at the time of the taking, or his
representatives.
(emphasis added); accord Danforth v. United States, 308 U.S. 271 (1960); United States v.
Dow, 357 U.S. 17 (1958); Toles v. United States, 371 F.2d 784 (10th Cir. 1967); City of Los
Angeles v. Ricards, 515 P.2d 585 (Ca. 1973); Majestic Heights Co. v. Board of County
Comm'rs., 476 P.2d 745 (Colo. 1970); Enke v. City of Greenly, 504 P.2d 1112 (Colo. Ct.
App. 1972); City of Albuquerque v. Chapman, 419 P.2d 460 (N.M. 1966).
Given this general rule, the issue we must determine is when the taking occurs. NPC
argues that the taking does not occur until the government or agency receives title in a final
order of condemnation. The Argiers argue that the taking occurs at the point of physical
occupation of the subject property.
This issue is addressed in 3 Julius Sackman, Nichols on Eminent Domain 5.02[3]
(1997):
If a parcel of land is sold after a portion of it has been taken or after it has been
injuriously affected by the construction of some authorized public work, the right to
compensation, constitutional or statutory, does not run with the land but remains a
personal claim in the hands of the vendor, unless it has been assigned by special
assignment or by a provision in the deed . . . . Conversely, if the land is sold after
condemnation proceedings have been instituted but before the punctum temporis
1
of
the taking, the purchaser, and not the vendor, is entitled to the compensation.
(Emphasis added.) A similar statement of this general rule is found in 29A C.J.S. Eminent
Domain 194 (1992). This section provides:
__________

1
Punctum temporis is defined as A point of time; an indivisible period of time; the shortest space of time; an
instant. Black's Law Dictionary (4th ed. 1951). Nichols also states that the punctum temporis is the time at
which the right of the public to the land and the right of the owner to the compensation become vested. 3 Julius
Sackman, Nichols on Eminent Domain at 5.01[4].
Damages for the taking of land or for the injury to the land not taken belong to the one
who owns the land at the time of the taking or injury, and they do not pass to a
subsequent grantee of the land except by a provision to that effect in the deed or by
separate assignment.
Id. (emphasis added).
In United States v. Dow, 357 U.S. 17 (1958), the Supreme Court addressed this issue
on very similar facts. There, the government had obtained a judgment of immediate
possession for an easement and subsequently laid a pipe-line across the owner's property.
Prior to the government paying just compensation for the easement, the owner sold the
property to Dow. As in the instant case, the government deposited a compensation award with
the court and a dispute arose as to who was entitled to the compensationDow or the
original owner. The Court held that when the government enters into possession of property
prior to acquiring title, it is the former event which constitutes the taking. Dow, 357 U.S. at
22. Therefore, the person who owned the subject land at the time the government took
possession was entitled to compensation. Id.
In Brooks Investment Co. v. City of Bloomington, 232 N.W.2d 911 (Minn. 1975), the
Minnesota Supreme Court dealt with a similar issue. The city had taken an easement over
property which the owner sold prior to receiving just compensation. As in the instant matter,
the issue for the court was whether the original landowner or the purchaser was entitled to the
compensation award.
2
The court stated that where the government takes possession of
property so as to deprive the original owner of possession prior to the sale, the original owner
is entitled to the compensation award. Id. at 918.
The court explained the rationale for this general rule. When the government
interferes with a person's possession of his/her property, the owner loses an interest in that
property. The award of just compensation is a substitute for that lost interest in the property.
When the owner sells what remains of her property, she does not also sell the right to
compensation. If she did, the original owner would suffer a loss and the purchaser would
receive a windfall. Id. Nearly every jurisdiction which has considered this issue has agreed
with Brooks. See, e.g., Toles v. United States, 371 F.2d 784 (10th Cir. 1987); Enke v. City of
Greenley, 504 P.2d 1112 (Colo. 1972); Majestic Heights Co. v. Board of County Comm'rs.,
__________

2
NPC argues that the Brooks case is inapplicable to the present situation because it was an inverse
condemnation action and this is a direct condemnation action. However, this court has held that the same rules
that govern direct condemnation actions apply in inverse condemnation actions as well. County of Clark v.
Alper, 100 Nev. 382, 685 P.2d 943 (1984).
Board of County Comm'rs., 476 P.2d 745 (Colo. 1970); City of Albuquerque v. Chapman,
419 P.2d 460 (N.M. 1960).
[Headnote 3]
General principles of constitutional law also support the conclusion that NPC effected
a taking once it entered upon the land. In Nollan v. California Coastal Commission, 483 U.S.
825 (1987), the Supreme Court addressed the issue of what constitutes a taking. There, the
Court explained that where governmental action has caused a permanent physical occupation
of the land, the Court has consistently found a taking to the extent of the occupation. Id. at
831 (citing Loretto v. Teleprompter Manhattan CATV Corp., 485 U.S. 419, 443 (1982)).
Furthermore in Yee v. City of Escondido, 503 U.S. 519, 527 (1991), the Court stated that the
government effects a taking when it requires the landowner to submit to the physical
occupation of her land. Thus, where there is an entry into possession by the condemning
authority prior to formal commendation proceedings, the taking which occurs at the entry
must be considered the taking for all purposes. Brooks, 232 N.W.2d at 919.
[Headnote 4]
NPC argues that in order to preserve their right to just compensation, the Argiers were
required to reserve that right in their deed or contract of sale to the county. Sources discussing
the issue of whether one must reserve the right to compensation in a deed or contract of sale
state otherwise. It is generally presumed that the right to compensation remains with the
vendor of the land unless the contract of sale specifically provides to the contrary. See 29A
C.J.S. Eminent Domain 194 (1992) (citing City of St. Louis v. Moehlenhoff, 322 S.W.2d
155 (1959) and Roberts v. Northern Pac. R. Co., 158 U.S. 1 (1895)); 3 Julius Sackman,
Nichols on Eminent Domain 5.21 (1997). Accordingly, we conclude that the Argiers were
not required to reserve the right to any compensation award in their deed or contract of sale.
NPC next argues that the Argiers are not entitled to just compensation because the Argiers'
right to compensation did not vest prior to their sale to the county. Citing again to Nichols,
NPC argues that the right to compensation does not vest until a compensation award is
confirmed and a judgment of condemnation is finally entered.
[Headnote 5]
We hold that equity mandates vesting occurs when the condemning agency enters into
possession of the landowner's property. To find that no taking occurred, even though the
condemning agency was in possession of the land, would be to circumvent the constitutional
standards for what constitutes a taking.
circumvent the constitutional standards for what constitutes a taking.
We therefore hold that the Argiers' right to compensation vested when NPC entered
their property. Since this vesting occurred prior to the sale to the county, the Argiers are
entitled to that compensation.
Accordingly, we reverse the order of the district court and remand this case for further
proceedings consistent with this opinion.
____________
114 Nev. 142, 142 (1998) Sereika v. State
GREGORY BEN SEREIKA, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 28826
February 26, 1998 955 P.2d 175
Appeal from a judgment of conviction pursuant to a jury verdict of one count of
driving under the influence of intoxicating liquor. First Judicial District Court, Carson City;
Michael R. Griffin, Judge.
The supreme court held that statute allowing conviction for DUI, based on finding of
blood alcohol level of .10 or higher within two hours after driving, was not unconstitutionally
vague or overbroad.
Affirmed.
William G. Rogers, Carson City, for Appellant.
Frankie Sue Del Papa, Attorney General; Noel S. Waters, District Attorney and John
C. Eck, Deputy District Attorney, Carson City, for Respondent.
1. Criminal Law.
Supreme court would consider motorist's argument that statute allowing conviction for driving under the influence of
intoxicating liquor (DUI), based on finding of blood alcohol level of .10 or higher within two hours after driving, was
unconstitutionally vague and overbroad, though motorist did not object to jury instruction which included the statutory provision, as it
would have been futile for motorist to object to instruction that merely recited the requirements for conviction under the statute. NRS
484.379(1)(c).
2. Criminal Law.
Supreme court may consider constitutional challenges on appeal despite appellant's failure to make timely objections at trial.
3. Criminal Law.
Test for vagueness is whether terms of statute are so vague that people of common intelligence must necessarily guess as to their
meaning.
4. Automobiles; Constitutional Law.
Statute allowing conviction for driving under the influence of intoxicating liquor (DUI), based on finding of blood alcohol level
of .10 or higher within two hours after driving, was not unconstitutionally vague, though motorist contended that ordinary persons were
unable to anticipate their blood alcohol level two hours after driving, as motorist provided no evidence that such forecasting was any
more difficult than knowing if blood alcohol level had crossed the .10 threshold at time of driving. NRS 484.379(1)(c).
5. Automobiles.
of .10 or higher within two hours after driving, was not unconstitutionally overbroad, as it did not use defendant's blood alcohol level at
time of testing to infer or presume blood level at time of driving, which would violate requirement that State prove every element of
offense beyond a reasonable doubt, but instead simply made it per se unlawful to have blood alcohol level of .10 or more within two
hours after driving. NRS 484.379(1)(c).
Under rational basis review for due process or equal protection challenges to statutes, courts are not limited to consideration of
justifications actually asserted by legislature. U.S. Const. amend. 14.
of .10 or higher within two hours after driving, was not unconstitutionally overbroad, as it had rational basis, for due process and equal
protection purposes, of preventing people from driving after ingesting any substance that would render them incapable of driving safely
at any time in the following several hours, and it was contrary to public policy to promote rising blood alcohol defense and
concomitant practice of rushing to one's car immediately after ingesting alcohol so as to get home before alcohol was fully absorbed.
U.S. Const. amend. 14; NRS 484.379(1)(c).
Supreme court would not address motorist's argument that statute allowing conviction for driving under the influence of
intoxicating liquor (DUI), based on finding of blood alcohol level of .10 or higher within two hours after driving, was
unconstitutionally overbroad because it might be enforced against people whose blood alcohol level exceeded .10 only because of
alcohol they ingested after driving. Motorist provided no evidence that statute had ever been enforced in such manner or that it was
likely to be enforced in such manner in the future, it had not been enforced in such manner against motorist, and legislature provided
affirmative defense for such situations. NRS 484.379(1)(c), (3).
Motorist lacked standing to argue that statute allowing conviction for driving under the influence of intoxicating liquor (DUI),
based on finding of blood alcohol level of .10 or higher within two hours after driving, was unconstitutionally overbroad because it
might be enforced against people whose blood alcohol level exceeded .10 only because of alcohol they ingested after driving, as statute
had not been enforced in such manner against motorist. NRS 484.379(1)(c).
OPINION
Per Curiam:
Gregory Ben Sereika was convicted of driving under the influence of intoxicating
liquor pursuant to NRS 484.379(1)(c), which prohibits blood alcohol levels of .10 or more
within two hours after driving a motor vehicle.
1
Sereika appeals his conviction, arguing that
NRS 484.379(1)(c) is unconstitutionally vague and overbroad. We conclude that his
arguments lack merit, and affirm the conviction.
Sereika drove his motorcycle to the Carson Nugget on the night of June 2, 1995, where he
consumed four alcoholic drinks. Sereika was involved in an accident on his way home, failed
a series of field sobriety tests shortly thereafter, and was arrested for driving under the
influence of intoxicating liquor. Sereika was given two breath tests at the police station, and
his blood alcohol level was measured at .15 and .16, respectively.
Sereika stood trial for driving under the influence of intoxicating liquor in violation of
NRS 484.379. The State's DUI expert conceded on cross-examination that alcohol in the
stomach is usually absorbed into the system within a half-hour to an hour period following
ingestion. Sereika did not object to the jury instruction on the requirements for conviction
under NRS 484.379. The jury returned a guilty verdict; however, it based its verdict solely on
the theory that Sereika had a blood alcohol level of .10 or higher within two hours after
driving a vehicle, which is a sufficient basis for conviction under NRS 484.379(1)(c). A
judgment of conviction was entered on May 28, 1996, from which Sereika now appeals.
[Headnotes 1, 2]
Sereika challenges the provision of NRS 484.379 that allows conviction based on a
finding that the defendant's blood alcohol level was .10 or higher within two hours after
driving a vehicle, arguing that the provision is unconstitutionally vague and overbroad. The
State urges this court to deny Sereika's appeal because he did not object to the jury instruction
on NRS 484.379, which included the challenged provision. This court may consider
constitutional challenges on appeal despite an appellant's failure to make timely objections at
trial, and has often elected to consider such appeals. See, e.g., Geary v. State, 112 Nev. 1434,
930 P.2d 719 (1996); Lord v. State, 107 Nev. 28, 806 P.2d 548 (1991); Jones v. State, 101
Nev. 573, 707 P.2d 1128 (1985); McCullough v. State,
__________

1
Blood alcohol level is expressed as the percentage of blood weight attributable to alcohol.
v. State, 99 Nev. 72, 657 P.2d 1157 (1983); Dias v. State, 95 Nev. 710, 601 P.2d 706 (1979).
Consideration of Sereika's appeal comports with precedent, as [w]e have previously
recognized the futility of objecting to an instruction whose validity has been consistently
upheld. Jones, 101 Nev. at 576, 707 P.2d at 1130. The reasoning in Jones stems from our
earlier reliance on federal authority to excuse failure to request jury instructions which, at
the time of . . . trial, would have been inconsistent with the law as it then existed. St. Pierre
v. State, 96 Nev. 887, 892, 620 P.2d 1240, 1243 (1980) (quoting United States v. Wanger,
426 F.2d 1360 (9th Cir. 1970)). We conclude that this reasoning is directly applicable in the
instant case, as it would have been futile for Sereika to object to an instruction that merely
recited the requirements for conviction under the applicable statute.
Sereika's challenge to NRS 484.379(1)(c) relates to the textual provisions of the statute
rather than to the manner in which it has been enforced, limiting the issue before us to
whether the statute is facially unconstitutional due to vagueness or overbreadth. We will only
consider the specific arguments raised by Sereika, as statutes are presumed to be valid, and
the burden is on the challenger to make a clear showing of their unconstitutionality. Childs
v. State, 107 Nev. 584, 587, 816 P.2d 1079, 1081 (1991). To meet this burden, there must be
a clear showing of invalidity. Sheriff v. Martin, 99 Nev. 336, 340, 662 P.2d 634, 637
(1983). When ambiguities arise, statutes should be construed, if reasonably possible, so as to
be in harmony with the Constitution. Glusman v. State, 98 Nev. 412, 419, 651 P.2d 639, 644
(1982).
Vagueness
[Headnote 3]
We have articulated a clear standard for vagueness challenges. The test for vagueness
is whether the terms of the statute are so vague that people of common intelligence must
necessarily guess as to [their] meaning. Cunningham v. State, 109 Nev. 569, 570, 855 P.2d
125, 125 (1993). This rule comports with the federal standard that a statute is
unconstitutionally vague if it fails to give a person of ordinary intelligence fair notice that his
contemplated conduct is forbidden by the statute. United States v. Harriss, 347 U.S. 612,
617 (1954).
[Headnote 4]
We conclude that NRS 484.379(1)(c) is not unconstitutionally vague. The challenged
section provides that it is unlawful for any person who [i]s found by measurement within 2
hours after driving or being in actual physical control of a vehicle to have 0.10 or more by
weight of alcohol in his blood[] to drive or be in actual physical control of a vehicle on a
highway or on premises to which the public has access.
[i]s found by measurement within 2 hours after driving or being in actual physical
control of a vehicle to have 0.10 or more by weight of alcohol in his blood[] to drive or
be in actual physical control of a vehicle on a highway or on premises to which the
public has access.
This statutory language is very specific, and Sereika does not suggest any alternative
interpretations as evidence of vagueness. Sereika contends that ordinary persons will be
unable to anticipate their blood alcohol level two hours after driving; however, he provides no
evidence that such forecasting is any more difficult than knowing if their blood alcohol level
has crossed the .10 threshold at the time of driving. Sereika's conclusory assertion that the
clear language of NRS 484.379(1)(c) is vague is not sufficient to meet the burden for a
constitutional challenge.
Overbreadth
[Headnote 5]
Sereika's overbreadth challenge is based on two distinct arguments; however, each
argument concerns circumstances under which a defendant could be guilty under the law
without having driven with a blood alcohol level at or exceeding .10. The first such
circumstance involves what Sereika refers to as the rising blood alcohol defense. This
defense employs the argument that, although the defendant exceeded the legal blood alcohol
limit at the time of the test, the alcohol was still in the defendant's stomach at the time of the
alleged infraction. The second circumstance arises when the defendant does not ingest the
alcohol until after driving, but reaches the prohibited level of blood alcohol within the critical
two-hour period.
Sereika's rising blood alcohol defense is clearly his strongest basis for asserting that NRS
484.379(1)(c) is overinclusive. However, his argument fails to address the effects of recent
amendments to NRS 484.379(1) following the Ninth Circuit Court of Appeal's opinion in
McLean v. Moran, 963 F.2d 1306 (9th Cir. 1992). In McLean, the Ninth Circuit addressed an
overbreadth challenge to NRS 484.379(1)
2
and NRS 484.381(1)
3
as they were formulated
at that time.
__________

2
At the time of McLean's appeal, NRS 484.379(1) read:
It is unlawful for any person who:
(a) Is under the influence of intoxicating liquor; or
(b) Has 0.10 percent or more by weight of alcohol in his blood, to drive or be in actual physical
control of a vehicle on a highway or on premises to which the public has access.

3
At the time of McLean's appeal, NRS 484.381(1) read:
In any criminal prosecution for a violation of NRS 484.379 or 484.3705 in which it is alleged that the
defendant was driving or in actual physical control of a vehicle while he had 0.10 percent or more
formulated at that time. NRS 484.379(1)(c) was not then in effect; however, NRS 484.381(1)
created a presumption that the defendant's blood alcohol level at the time of driving was the
same as at the time of testing. The McLean court found that the district court treated the
presumption as mandatory and conclusive, and that it was, therefore, unconstitutional as
applied. Id. at 1310. The court concluded that McLean's constitutional right to have the State
prove every element of the crime beyond a reasonable doubt was violated by the conclusive
presumption applied by the judge. Id.
In response to McLean, the Nevada Legislature amended its statutory scheme to
remove the contested presumption, repealing NRS 484.381 and adopting NRS 484.379(1)(c).
4
Although the effect of the new scheme is similar, the legal implications are very different.
Instead of using the defendant's blood alcohol level at the time of testing to infer the level at
the time of driving, NRS 484.379(1)(c) simply makes it per se unlawful to have a blood
alcohol level of .10 or more within two hours after driving. Because this change removed the
presumption of an element that the State would otherwise be required to prove, it remedied
the defect condemned in McLean.
Sereika misapprehends the critical issues involved in his appeal. His principle contention
is that the statute sweeps unnecessarily broadly into activity which has not been declared
unlawful in this state, that is, operating a motor vehicle with a blood alcohol level below .10
percent. This logic is predicated on the misconception that the prohibition against a blood
alcohol level of .10 or more within two hours after driving is based on an inference that
the defendant must have had a blood alcohol level of .10 or more at the time of driving.
__________
by weight of alcohol in his blood, the amount of alcohol shown by a chemical analysis of his blood,
urine, breath or other bodily substance is presumed to be no less than the amount present at the time of
the alleged violation.
(Emphasis added.)

4
Sereika's only case supporting his contention that NRS 484.379(1)(c) is overbroad originated in
Pennsylvania: Commonwealth v. Barud, 681 A.2d 162 (Pa. 1996). In Barud, the Pennsylvania Supreme Court
struck down a statutory provision closely analogous to NRS 484.379(1)(c), although the statute in Barud
prohibited a blood alcohol level of .10 or more within three hours after having driven. Sereika's arguments in
this appeal closely mirror the Barud court's rationale. We disapprove of the Barud court's failure to consider any
conceivable rational basis for the statute other than to create a conclusive presumption that the defendant had a
blood alcohol level of .10 or more at the time of driving. Rational basis review requires an additional measure of
speculation regarding legislative purpose, as discussed infra. The legislative trend evidenced by other states'
enactments also bears consideration. Many other states, including Alaska, Delaware, Florida, and North Dakota,
have enacted and upheld provisions similar to NRS 484.379(1)(c). See Erickson v. Municipality of Anchorage,
662 P.2d 963 (Alaska Ct. App. 1983); State v. Rucker, 297 A.2d 400 (Del. Super. Ct. 1972); Haas v. State, 597
So. 2d 770 (Fla. 1992); Wolf v. ND Highway Com'r, 458 N.W.2d 327 (N.D. 1990).
level of .10 or more within two hours after driving is based on an inference that the defendant
must have had a blood alcohol level of .10 or more at the time of driving. Because such an
inference would presumably be faulty in cases where the defendant had ingested but not yet
absorbed the alcohol at the time of driving, Sereika contends that the statute is overbroad.
Indeed, Sereika would be correct under the rule of McLean if the statutory scheme at issue
had not been amended pursuant to that ruling.
5

Because the new statutory scheme does not utilize a presumption to impose liability,
Sereika's argument misses the present constitutional issue. Under the current scheme, a
defendant's blood alcohol level at the time of driving is simply irrelevant to his violation of
NRS 484.379(1)(c). Accordingly, the critical question is not the possible overbreadth of a
presumption that anyone with a blood alcohol level of .10 or more within two hours after
driving also had a similar level at the time of driving. Rather, the issue is whether the United
States and Nevada Constitutions prevent direct legislative prohibition of a blood alcohol level
of .10 or more within two hours after driving.
Although Sereika does not invoke any specific constitutional provisions to support his
overbreadth claim, challenges to statutes enacted pursuant to the legislature's general
economic and social welfare regulatory powers generally fall under the framework of
substantive due process or equal protection. See 2 Ronald D. Rotunda & John E. Nowak,
Treatise on Constitutional Law: Substance and Procedure 15.4, at 389-412 (2d ed. 1992).
Because Sereika does not claim to have suffered any impingement of a fundamental right or
to have been subjected to any suspect classification or invidious discrimination, the statute at
issue is not subject to the heightened forms of scrutiny developed for such circumstances. The
United States Supreme Court has held that [u]nless a statute provokes strict judicial
scrutiny' because it interferes with a fundamental right' or discriminates against a suspect
class,' it will ordinarily survive an equal protection attack so long as the challenged
classification is rationally related to a legitimate governmental purpose. Kadrmas v.
Dickenson Pub. Sch., 487 U.S. 450, 457-58 (1988) (citations omitted).
__________

5
Our concurring colleague also posits an element of presumption in the current statutory scheme, as he
opines that subsection (c) of this statute alone can [not] be relied upon to establish guilt beyond a reasonable
doubt. In fact, as explained below, such reliance would involve the unnecessary and improper conclusive
presumption that violation of subsection (c) demonstrates intoxication at the time of driving. Under the current
statutory scheme, the State need only prove, beyond a reasonable doubt, that subsection (c) was violated.
Violation of subsection (c) is a crime; a defendant may be convicted under that provision without the State
having to use the violation of subsection (c) as evidence that the defendant violated some other statutory
provision.
Similarly, the Court has held that a due process challenge requires only minimum scrutiny in
the absence of a suspect classification or impingement on fundamental rights. Bowen v.
Gillard, 483 U.S. 587 (1987). Nevada cases are in accord, as we held that where no
fundamental right' or suspect classification' is implicated, this court scrutiniz[es] the
challenged legislation for foundational support containing an ingredient of rational basis.'
Barrett v. Baird, 111 Nev. 1496, 1509, 908 P.2d 689, 698 (1995) (quoting Allen v. State Pub.
Emp. Ret. Bd., 100 Nev. 130, 136, 676 P.2d 792, 795-96 (1984)).
The scrutiny involved is indeed minimal, as the due process clause can be thought to
interpose a bar only if the statute manifests a patently arbitrary classification, utterly lacking
in rational justification. Flemming v. Nestor, 363 U.S. 603, 611 (1960). The day is gone
when this court uses the Due Process Clause of the Fourteenth Amendment to strike down
state laws . . . because they may be unwise, improvident, or out of harmony with a particular
school of thought. Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 488 (1955).
[Headnote 6]
Under rational basis review, courts are not limited to consideration of the
justifications actually asserted by the legislature. Instead, the United States Supreme Court
has upheld statutes when it has been able to infer any conceivable rational basis for their
enactment. See, e.g., Williamson, 348 U.S. 483. This court has also determined that [i]t is
well settled under rational basis scrutiny that the reviewing court may hypothesize the
legislative purpose behind legislative action. Boulder City v. Cinnamon Hills Assocs., 110
Nev. 238, 249, 871 P.2d 320, 327 (1994). If any state of facts may reasonably be conceived
to justify [the legislation], a statut[e] . . . will not be set aside. State v. District Court, 101
Nev. 658, 662, 708 P.2d 1022, 1025 (1985). Accordingly, the issue is limited to whether the
Nevada Legislature could possibly have had any rational basis for prohibiting persons from
having a blood alcohol level of .10 or more within two hours after driving.
[Headnote 7]
We conclude that there is at least one conceivable rational basis for the enactment of
NRS 484.379(1)(c), completely separable from the presumption condemned in McLean.
Traffic safety is clearly an important state interest. Craig v. Boren, 429 U.S. 190 (1976).
Accordingly, the State has a legitimate interest in preventing people from driving after
ingesting any substance that will render them incapable of driving safely at any time in the
following several hours. When people step behind the wheel of a car, they have no certain
knowledge of the time that will be required to reach their destination.
required to reach their destination. Although they may have an idea of the time usually
involved, they lack the clairvoyance necessary to forecast delays due to any number of
common occurrences.
We also conclude that promotion of the rising blood alcohol defense, and the
concomitant practice of rushing to one's car immediately after ingesting alcohol so as to get
home before the alcohol is fully absorbed, is contrary to good public policy. Because drivers
have little control over the traffic conditions and delays to which they are subject, the state
has a legitimate interest in prohibiting people from driving at the onset of inevitably
impending intoxication. We find that NRS 484.379(1)(c) is rationally related to this
legitimate state interest, and is, therefore, not overbroad with respect to the rising blood
alcohol defense.
[Headnote 8]
Sereika's second overbreadth argument is that a person might not ingest the alcohol
until after driving, but would still reach the prohibited level of blood alcohol within the
critical two-hour period. Under such circumstances, the person would be in violation of NRS
484.379(1)(c) without ever having taken the type of risk contemplated by the legislature.
Although we can conceive of no rational basis for enforcement of NRS 484.379(1)(c) in such
a situation, we decline to address the constitutionality of such enforcement for the following
reasons.
Sereika provides no evidence that NRS 484.379(1)(c) has ever been enforced in the
manner he suggests, or that it is likely to be so enforced in the future. This court has declared
that statutory interpretation should avoid absurd or unreasonable results. General Motors v.
Jackson, 111 Nev. 1026, 1029, 900 P.2d 345, 348 (1995); Las Vegas Sun v. District Court,
104 Nev. 508, 511, 761 P.2d 849, 851 (1988); Sheriff v. Smith, 91 Nev. 729, 733, 542 P.2d
440, 443 (1975). Indeed, the legislature has signaled its intent to avoid such an absurd
interpretation by enacting NRS 484.379(3), which creates an affirmative defense for
defendants who have consumed alcohol after driving but before the blood alcohol test.
6
Given the general presumption that statutes will be interpreted in compliance with the
Constitution, we decline to strike down an otherwise valid statute based on the
unsubstantiated possibility of unconstitutional enforcement.
__________

6
NRS 484.379(3) provides that [i]f consumption is proven by a preponderance of the evidence, it is an
affirmative defense under paragraph (c) of subsection 1 that the defendant consumed a sufficient quantity of
alcohol after driving or being in actual physical control of the vehicle, and before his blood was tested, to cause
the alcohol in his blood to equal or exceed 0.10 percent.
[Headnote 9]
Even if NRS 484.379(1)(c) had ever been enforced against someone who did not
drink until after driving, Sereika lacks standing to bring the issue before this court. A person
to whom a statute may constitutionally be applied will not be heard to challenge that statute
on the ground that it may conceivably be applied unconstitutionally to others, in other
situations not before the [c]ourt. Broadrick v. Oklahoma, 413 U.S. 601, 610-11 (1973)
(footnote omitted). Sereika does not contend that he consumed any alcohol during the period
between his accident and the blood alcohol test, so the statute has not been applied against
him in the manner hypothesized in his argument. Sereika also fails to invoke any specific
exception to the established principles of standing. Accordingly, we conclude that he lacks
standing to raise the present issue.
After considering each of Sereika's arguments, we conclude that NRS 484.379(1)(c) is
neither vague nor overbroad, and affirm the judgment of the district court.
Sereika's conviction for driving under the influence of alcohol is based solely on NRS
484.379(1)(c), having a blood alcohol content of .10 or more within two hours after driving
or being in actual physical control of a vehicle. The jury rejected the other two grounds
available under NRS 484.379(1) upon which a person may be found guilty of being under the
influence of intoxicating liquor while driving. I do not believe that subsection (c) of this
statute alone can be relied upon to establish guilt beyond a reasonable doubt. However, I find
sufficient evidence in the record to establish that Sereika was legally intoxicated when
operating his motorcycle pursuant to NRS 484.379(1)(b).
The evidence presented at trial established that at approximately 1:00 a.m. a compact car
ran into the rear of Sereika's motorcycle, tossing Sereika ten to fifteen feet forward onto the
asphalt. One witness testified that Sereika appeared shaken immediately after the collision,
but he did not smell any alcohol on Sereika's breath. The person whose car ran into Sereika
stated that he was disheveled and walking with a limp. The first officer at the scene testified
that she smelled alcohol on Sereika's breath and that he flunked three tests administered to
determine whether he displayed indications of intoxication. Sereika told the investigating
officer that he had three or four beers one-half hour earlier and had eaten a steak dinner an
hour prior to the accident.
Sereika was taken to the Carson City jail and given two breath tests, one at 2:25 a.m.
and the second one a minute later. He registered a .16 and .15 respectively on these tests. A
criminalist testified that the intoxilyzer was properly calibrated and that the tests using the
machine would have been valid.
tests using the machine would have been valid. On cross-examination, Sereika's attorney
elicited from the criminalist that the average person will metabolize or burn off alcohol at the
rate of .015 to .02 percent per hour, that alcohol is absorbed into the blood stream within
one-half hour to one hour after drinking it, depending on whether it was consumed on an
empty or full stomach, and that a 200 pound grown male adult like Sereika would have to
consume seven to nine beers within two hours to reach a level of .15. Other than the statutory
section under which he was convicted, the criminalist's testimony was the only evidence to
show what blood alcohol content Sereika would have had at the time of the accident.
Two views have emerged from courts when faced with accepting a blood alcohol test
result as presumptive or conclusive evidence of driving under the influence when no other
expert testimony is presented to ascertain the driver's blood alcohol content when the vehicle
was operated. In Miller v. State, 597 So. 2d 767, 769-70 (Fla. 1991), the Florida Supreme
Court stated:
The weight of authority is exemplified by State v. Kubik, 235 Neb. 612, 456 N.W.2d
487 (1990). In Kubik, the Nebraska Supreme Court held that the numerical
blood-alcohol content was admissible evidence if obtained within a reasonable time
after the defendant was stopped, even if the state cannot provide a scientific basis for
extrapolating the blood-alcohol content back to the time when the defendant was
operating a vehicle. The Kubik Court determined that the inability of the state to relate
back was a question of credibility or the weight of the evidence, not admissibility, and
that evidence of blood-alcohol content thus was admissible provided an unreasonable
amount of time had not elapsed until the test was taken.
The other line of cases is exemplified by Desmond v. Superior Court, 161 Ariz. 522,
779 P.2d 1261 (1989). In that case, the Arizona Supreme Court held that the inability to
relate back a defendant's blood-alcohol content rendered the numerical reading of the
test inadmissible because of its potential unreliability. However, the state still would be
entitled to introduce evidence showing that, at the time the test was taken, the defendant
tested positive for alcohol, provided the trial court gave a cautionary instruction. This
instruction must inform the jury that the evidence of the presence of blood alcohol is
admitted for the limited purpose of showing that the defendant had alcohol in the blood
at the time the test was taken and that such evidence standing alone is not sufficient to
show either that the defendant was impaired or had an unlawful blood-alcohol level at
the time a vehicle was being operated.
impaired or had an unlawful blood-alcohol level at the time a vehicle was being
operated.
I prefer the line of authority espoused by the Desmond case and the requirement that
additional evidence should be presented to show that the accused was intoxicated when he or
she was operating the vehicle as well as when the blood or breath test was taken. As the
concurrence in the Miller case noted, the state should be required to prove each element of
the crime beyond a reasonable doubt, and this includes the fact that the accused was
intoxicated when driving a vehicle:
While I concur with the majority's analysis as far as it goes, I do so subject to the
reservations expressed in my partial dissent in Haas v. State, 597 So. 2d 770 (Fla.
1992) (Kogan, J., concurring in part, dissenting in part). I agree that tests conducted on
a blood sample taken within a reasonable time are admissible evidence, under the terms
noted by the majority. However, I also find that the State remains subject to the
requirement of proving beyond a reasonable doubt every element of the offense. U.S.
Const. Amend. XIV; art. I, 9, Fla. Const.
Miller, 597 So. 2d at 770 (Kogan, J., concurring).
One federal court has expressed concern with a statute that presumes or directs that a
person is guilty of driving while intoxicated based solely on a test taken some time thereafter.
In McLean v. Moran, 963 F.2d 1306 (9th Cir. 1992), the Ninth Circuit Court of Appeals had
difficulty with the application of Nevada's law that presumed a person guilty of drunk driving
if that person had a .10 or more blood alcohol content when tested after the accident. The
court found that while the presumption may be valid if treated as a rebuttable presumption, it
had been improperly applied as a conclusive presumption by the justice of the peace and,
therefore, was unconstitutional. McLean argued, as did Sereika in the case at bar, that a blood
alcohol level measured some time after a driver's arrest may be higher than if the test had
been conducted immediately upon arrest and that the correlation between a person's blood
alcohol level when driving and a blood alcohol test taken thereafter may fail the beyond a
reasonable doubt standard necessary to convict in a criminal case. The court concluded:
Absent the statutory presumption, the testimony of the police criminalist and the
evidence regarding McLean's conduct at the time of her arrest may have failed to
establish beyond a reasonable doubt that the [blood alcohol concentration] at the time
of driving was at least 0.10%. Thus, McLean's constitutional right to have the State
prove every element of the crime beyond a reasonable doubt was violated by the
conclusive presumption applied by the judge.
McLean's constitutional right to have the State prove every element of the crime beyond
a reasonable doubt was violated by the conclusive presumption applied by the judge.
Accordingly, McLean is entitled to habeas relief.
Although we decline to address the facial constitutionality of the statute, we note that,
on its face, the type of presumption 484.381(1) establishes is subject to varying
interpretations. The statute may establish a mandatory conclusive or rebuttable
presumption and thus raise serious constitutional questions, because the statute does not
indicate that the factfinder is free to reject the presumption.
Id. at 1310-11.
The Nevada legislature responded to the McLean decision by eliminating the
presumption of intoxication and replaced it with a law stating that a person is guilty of drunk
driving if he or she has a blood alcohol content of .10 or more within two hours of driving a
vehicle. To cure any problem that a presumption of intoxication presented in light of the
McLean case, the legislature replaced it with a directive; and it seems that such corrective
action is going from the frying pan into the fire. The real cure to the problem is to require that
some additional evidence be required to show the correlation between the blood alcohol test
taken hours after driving and the blood alcohol content when the accused was driving.
While no expert testimony was elicited to establish directly what Sereika's blood alcohol
content would have been at the time of the collision, the criminalist's testimony provided
sufficient information about the time it takes to absorb and metabolize alcohol to show that
Sereika was intoxicated when driving pursuant to either NRS 484.379(1)(a) or (b). Therefore,
this conviction is supported by credible evidence and does not rest solely on NRS
484.379(1)(c). Accordingly, I concur in the majority's decision affirming the conviction.
____________
114 Nev. 154, 154 (1998) Alamo Rent-A-Car v. State Farm
ALAMO RENT-A-CAR, INC., Appellant, v. STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY and VALLEY FORGE INSURANCE COMPANY, (CNA
GROUP), Respondents.
No. 28806
Feburary 26, 1998 953 P.2d 1074
Appeal from a partial summary judgment in respondents' favor. Eighth Judicial
District Court, Clark County; A. William Maupin, Judge.
Personal automobile insurers of renters brought subrogation suits against self-insred
short-term car rental agency after paying liability claims arising from renters' negligence
while operating rental cars. Subrogation suits were consolidated with rental agency's
declaratory judgment action, which sought determination that personal insurers' coverage was
primary. The district court prorated loss between agency and personal insurers. Rental agency
appealed. The supreme court held that personal automobile insurers' coverage for renters was
primary over that provided by self-insured car rental company.
Fitzgibbons & Anderson, Las Vegas, for Appellant.
Pearson & Patton and John P. Skalak, Las Vegas, for Respondent State Farm.
Schofield & Grant, Las Vegas, for Respondent Valley Forge.
Kerr & Associates, Las Vegas, for Amicus Curiae Malco Enterprises.
1. Insurance.
Self-insured car rental agency fell outside reach of rule applying to insurers that mutually repugnant other insurance clauses are
null and void, and thus existence of mutually repugnant excess clauses in rental contracts and personal insurance policies did not
require that losses be prorated. NRS 482.295, 485.380(1), (2).
2. Insurance.
It is better policy to make personal automobile insurer for renters the primary insurer over short-term rental agency which is not
in business of underwriting insurance for individual renters.
3. Insurance.
Personal automobile insurers' coverage for renters was primary over that provided by self-insured car rental company, under
contracts with renters specifically providing that its self-insurance would provide secondary coverage only. NRS 482.295, 485.380(1),
(2).
OPINION
Per Curiam:
This is an appeal from several consolidated cases raising identical issues. Respondents State Farm Mutual Automobile Insurance
Company (State Farm) and Valley Forge Insurance Company, (CNA Group) (Valley Forge) provide automobile insurance for four
individuals (hereinafter renters) who each rented vehicles from appellant Alamo Rent-A-Car (Alamo). The State Farm and Valley Forge
policies provide that their coverage of a rental vehicle is secondary to other applicable coverage.
coverage of a rental vehicle is secondary to other applicable coverage. Alamo's rental contract
with each of the renters provides that its coverage is secondary to the renters' personal
automobile liability coverage. Each of these renters was subsequently involved in an accident
caused by the renters' negligence while driving a vehicle rented from Alamo. State Farm and
Valley Forge settled the claims against their insuredsthe rentersand brought subrogation
actions against Alamo. The district court held that Alamo and State Farm/Valley Forge were
required to pro-rate the loss according to the respective amounts of coverage they provided to
the renters/insureds. Alamo appeals.
FACTS
This case raises a coverage dispute between a self-insured short-term car rental agency
and the automobile liability insurers covering four renters of vehicles from that agency. State
Farm insured three of the renters
1
and Valley Forge insured the fourth.
2
Each of these
insureds rented vehicles
3
from Alamo and were subsequently involved in accidents caused
by their negligence while driving an Alamo rental car. State Farm settled the claims against
its three insureds and then brought three subrogation actions against Alamo.
__________

1
The policy issued to State Farm's three insureds provides:
If . . . a non-owned car . . . has other vehicle liability coverage on it, then this coverage is excess.

2
The policy issued to Valley Forge's insured provides:
If there is other applicable liability insurance we will pay only our share of the loss. Our share is the
proportion that our limit of liability bears to the total of all applicable limits. However, any insurance we
provide for a vehicle you do not own shall be excess over any other collectible insurance.

3
The rental contract signed by each of the insureds provides:
LIABILITY INSURANCE: Unless contrary to state law or otherwise provided by this agreement. If
there is no other valid and collectible insurance, whether primary, excess or contingent, available to the
renter . . . sufficient to meet minimum financial responsibility law requirements, then, . . . Alamo shall
provide protection against liability for bodily injury, death or property damage to others up to the
minimum financial responsibility limits required by applicable law. Such protection shall be provided
through either an insurance policy or a certificate of self-insurance . . . . [The renter] agree[s] that any
amount over this minimum will be covered by [the renter] or by [the renter's] liability policy and [the
renter] indemnify [Alamo] for any losses that exceed the minimum limits.
The Alamo rental contract further provides:
[The renter] AND [Alamo] REJECT UNINSURED MOTORIST COVERAGE TO THE EXTENT
PERMITTED BY LAW. Any other coverage or benefits . . . are provided only if (A) Required by state
law and (B) There is no other valid and collectible insurance available . . . .
(emphasis added).
actions against Alamo. Valley Forge did the same with respect to its insured party.
4

Alamo then filed a complaint for declaratory judgment asking the court to declare that
each renter's personal automobile liability policy with State Farm or Valley Forge is primary
for any loss incurred due to a motor vehicle accident when the renter is driving a car rented by
Alamo. In the alternative, Alamo asked the court to pro-rate according to the amount of
coverage available between the insurer of the renter/driver and the coverage available through
the self-insurance certificate of Alamo. The four subrogation actions and the declaratory
action were consolidated and all of the parties filed motions for summary judgment.
In its Order and Summary Judgment, the district court concluded that the other
insurance' clause in both the Alamo rental contract and the policies of State Farm and Valley
Forge Insurance Companies are mutually repugnant and therefore void. The lower court
ruled that all available coverages must be pro-rated based on the personal injury liability
limits. Alamo appeals, asserting that the district court erred in ordering pro-ration of all
available coverage and concluding that Alamo's other insurance clause is void.
DISCUSSION
There is nothing in Nevada's statutory scheme governing short-term vehicle lessors
that establishes priority of coverage between a rental agency and the renter's own automobile
liability insurer. Pursuant to NRS 482.295, and NRS 485.380
5
Alamo qualified as a
self-insurer. In Co-operators Ins. v. Allstate Rent-A-Car, 107 Nev. 17, 19, 804 P.2d 1050,
1051 (1991), we noted that NRS 482.295, requiring rental car companies to insure their
vehicles, is silent as to whether a car rental company's insurance is primary or secondary
coverage. In Co-operators Ins., the driver of a rental car negligently caused an accident and
the issue before this court was whether the rental agency's self-insurance policy, or the
driver's personal policy was primarily liable. 107 Nev. at 18, 804 P.2d at 1051. To resolve the
issue, this court reasoned:
__________

4
The three claims against State Farm's insureds were settled in the amounts of $12,000, $9300, and $1200.
Valley Forge settled the claim against its insured in the amount of $7500.

5
During the times at issue, NRS 482.295 provided:
The department [of motor vehicles] shall not register a vehicle intended to be leased by a short-term
lessor until the owner demonstrates to the department his financial ability to respond to damages by:
1. Providing proof of financial responsibility as that term is defined in NRS 485.105; or
Absent legislative directive, we must look to the individual policies in question.
Where one policy explicitly defines its liability, and the other does not, the policy with
the more specific language controls.
Id at 19-20, 804 P.2d at 1052. In that case, the rental contract expressly provided that the
driver/renter's personal insurance would be primary. Id. at 20, 804 P.2d at 1052. Unlike the
instant case, the driver's personal insurance policy did not have a comparable clause stating
that its coverage on a rental vehicle would merely be excess. Id. Thus, the case at bar raises a
novel issue.
In Travelers Insurance Co. v. Lopez, 93 Nev. 463, 468, 567 P.2d 471, 474 (1977), we
adopted the reasoning of Lamb-Weston, Inc. v. Oregon Auto. Ins. Co., 341 P.2d 110 (Or.
1959), the Lamb-Weston rule, concluding that where the other insurance clause in one
policy conflicted with a similar clause in another policy, the clause was null and void. The
Travelers court expanded:
If, however, both clauses were held to apply, the situation could arise where both
companies disclaimed liability, relying on the provisions of the other insurance
clause, thus resulting in inevitable unnecessary litigation. Circularity was one of the
major concerns of the . . . Lamb-Weston court[].
93 Nev. at 468, 567 P.2d at 474. Travelers cited Werley v. United Services Auto. Ass'n, 498
P.2d 112, 117, 119 (Alaska 1972), wherein that court adopted the rule that mutually
repugnant escape, excess, or pro-rata clauses would be disregarded and losses would be
pro-rated according to the limits of both policies. Id.
In a subsequent case, Yosemite Ins. v. State Farm Mut., 98 Nev. 460, 653 P.2d 149
(1982), a garage liability insurer attempted to lower its limits from 100/300 to 15/30 with
regard to loss arising from an accident which occurred while a garage patron was test-driving
a vehicle owned by the garage. The garage insurance policy language provided that:
__________
2. Qualifying as a self-insurer pursuant to NRS 485.380.
Alamo received its certificate of self-insurance, pursuant to NRS 485.380(1)-(2) (1993), which states:
1. Any person in whose name more than 10 motor vehicles are registered in the State of Nevada may
qualify as a self-insurer by obtaining a certificate of self-insurance issued by the [driver's license] division
as provided in subsection 2.
2. The division may, upon the application of such a person, issue a certificate of self-insurance when
it is satisfied that he possesses and will continue to possess the ability to pay judgments obtained against
him.
[G]arage customers are not insureds . . . except in accordance with the following
additional provisions:
. . . .
3. If there is no other valid and collectible insurance, whether primary, excess or
contingent, available to the garage customer, this insurance shall apply but the amount
of damages . . . payable under this policy shall not exceed the applicable financial
responsibility limit.
Id. at 462 n.2, 653 P.2d at 149-50 n.2. Quoting Travelers, we concluded that an insurance
company could not seek to defer or limit its liability' on the basis of the availability of other
insurance. Yosemite, 98 Nev. at 463, 653 P.2d at 150.
[Headnote 1]
We conclude that Alamo falls outside the reach of the Lamb-Weston rule because it is
a rental agency rather than an insurance company.
6
Although a self-insurer provides an
insurance function,
7
there is no statutory language that prohibits Alamo from contracting
with renters for a position of secondary coverage. A rental agency offers primary insurance
only when the renter agrees to purchase an extra protection plan.
8
See Budget Rent A Car
Systems v. Taylor, 626 So. 2d 976, 978 (Fla. Ct. App. 1993) (concluding that a self-insured
car rental agency's liability to its renter was not that of an insurance company, and reasoning
that, providing compliance [with the financial responsibility law] through self-insurance is
not the same as issuing a motor vehicle liability policy.) See also USF&G v. Hanover Ins.
Co., 632 N.E.2d 402 (Mass. 1994).
__________

6
Thus, although Travelers Insurance Co. v. Lopez, 93 Nev. 463, 567 P.2d 471 (1977), cited a case which
held that escape, pro-rata, or excess clauses could be deemed mutually repugnant such that coverage should be
pro-rated, we conclude that this holding does not apply to car rental agencies which are not in the general
business of selling insurance.

7
NAC 485.060(3) provides that the application to become self-insured must
contain a statement that the applicant realizes that in self-insuring, he is performing an insurance function
and expressly agrees, as a condition to granting of a certificate of self-insurance, to abide by the statutes
of this state concerning unfair practices in settling claims and any regulations adopted thereunder the
commissioner of insurance.

8
In Hartz v. Mitchell, 107 Nev. 893, 822 P.2d 667 (1991), we distinguished rental agencies from insurance
companies. In Hartz, this court stated that rental agencies do not fall within Nevada's statutory definition of an
insurance agent and, therefore, are not required to offer UM/UIM coverage in their contracts. Id. at 896, 822
P.2d at 669. In addressing that issue, we reasoned:
Impliedly, the legislature recognized that automobile rental agencies offer their customers the opportunity
to acquire such coverage as the rental agency itself has, as a supplement to the customers' own
insurance. Automobile rental agencies thus constitute, in effect, intermediaries
between their rental customers and the latters' own insurers.
Nevada has a strong public policy interest in assuring that individuals who are
injured in motor vehicle accidents have a source of indemnification. Our financial
responsibility law reflects Nevada's interest in providing at least minimum levels of financial
protection to accident victims. Hartz v. Mitchell, 107 Nev. 893, 896, 822 P.2d 667, 669
(1991). This law does not mandate that the short-term lessor is primarily liable where the
renter has its own insurance. In the instant case, Nevada's public policy of providing
minimum levels of coverage to injured persons is always satisfiedthe renter's insurance will
provide coverage and, in the absence of such coverage, Alamo will step in and compensate
the victim up to the minimum limits.
[Heqdnote 2]
We conclude it is better policy to make an insurance company the primary insurer
over a rental agency which is not in the business of underwriting insurance for individual
drivers. The nature of a car rental agency's businessrenting cars to strangers for short
periods of timeis not conducive to a finding that it is in the insurance business; unlike a
full-time insurance company, Alamo does not review renters' driving histories, nor (in the
absence of the renter's purchase of extra protection) does Alamo collect a premium from its
insureds. The rental agency does not have the ability to raise a single negligent driver's
premiums to cover its losses, but would be forced to raise rental rates across the board for all
future renters.
Based on the law and policy concerns, we conclude that State Farm and Valley Forge
assumed primary liability as opposed to Alamo.
CONCLUSION
[Headnote 3]
We conclude that State Farm and Valley Forge are primarily liable for coverage.
Because the damages did not exceed the renters' levels of insurance coverage, we conclude
that Alamo incurred no liability pursuant to the rental agreement. Therefore, we reverse the
district court's holding which pro-rated coverage between Alamo and State Farm. We remand
this case to the district court with instructions to issue an order consistent with this opinion.
9

__________
ance. Automobile rental agencies thus constitute, in effect, intermediaries between their rental customers
and the latters' own insurers.
Id. at 897, 822 P.2d at 669-70 (footnote omitted).

9
____________
114 Nev. 161, 161 (1998) State v. Hancock
THE STATE OF NEVADA, Appellant, v. DANIEL VICTOR HANCOCK, RICHARD
PAUL BOYER, CHARLES E. DIXON, and FRANK G. HINE, Respondents.
No. 28230
February 26, 1998 955 P.2d 183
Appeal from an order of the district court dismissing an indictment. Eighth Judicial
District Court, Clark County; Joseph S. Pavlikowski, Judge.
Four defendants indicted in connection with gold recovery investment offering filed
petitions for writs of habeas corpus and motions to dismiss. The district court denied State's
motion to amend the indictment and dismissed the cases. State appealed. The supreme court,
Rose, J., held that: (1) trial court did not abuse its discretion in dismissing the cases, as the
indictments were not clear, definite, and concise, and (2) trial court did not abuse its
discretion in denying State's motion to amend.
Affirmed.
Shearing and Maupin, JJ., dissented.
Frankie Sue Del Papa, Attorney General, and Grenville Thomas Pridham, Deputy
Attorney General, Carson City, for Appellant.
Lee Elizabeth McMahon, Las Vegas, for Respondent Daniel Victor Hancock.
Morgan D. Harris, Public Defender, and Sharon G. Dickinson, Deputy Public
Defender, Las Vegas, for Respondent Richard Paul Boyer.
Steven G. McGuire, State Public Defender, and Nancy M. Lemcke, Deputy Public
Defender, Carson City, for Respondent Frank G. Hine.
Andrew S. Myers, Las Vegas, for Respondent Charles E. Dixon.
1. Indictment and Information.
Indictment, standing alone, must contain: (1) each and every element of the crime charged, and (2) facts showing how defendant
allegedly committed each element of the crime charged. NRS 173.075.
Trial court did not abuse its discretion in dismissing, without prejudice, indictment of four defendants for racketeering in
connection with gold recovery investment offering, though indictment listed 25 untrue statements and omissions and stated that
defendants either directly or indirectly" made "one or more" of the statements or omissions, as indictment was
not clear, definite, and concise; it did not clearly specify which portion of the racketeering statute
defendants conspired to violate, did not specify which defendant made which untrue statements or
material omissions to which victims, and State had been repeatedly told its charging documents were
defective or vague.
or indirectly made one or more of the statements or omissions, as indictment was not clear, definite, and concise; it did not clearly
specify which portion of the racketeering statute defendants conspired to violate, did not specify which defendant made which untrue
statements or material omissions to which victims, and State had been repeatedly told its charging documents were defective or vague.
NRS 173.075, 207.400.
Age enhancement was inappropriately tacked onto racketeering and securities fraud counts of indictment of defendants in
connection with gold recovery investment offering; age enhancement did not apply to racketeering, and at time of alleged criminal
activity in 1991 and 1992, age enhancement did not apply to securities fraud offenses. NRS 90.570(2), 193.167, 207.400.
Trial court did not abuse its discretion in dismissing without prejudice, on grounds of lack of specificity, indictment of four
defendants for theft in connection with gold recovery investment offering, though arguably indictment could be read as alleging theft
by material misrepresentation, and State had been repeatedly told its charging documents were defective or vague. NRS 173.075,
205.0832(3).
Trial court did not abuse its discretion in denying State's motion to amend indictment to set forth alternatively pleaded crimes in
separate counts, as amended indictment contained 16 counts whereas original indictment contained only ten, and thus, if motion had
been granted, defendants would have been denied due process because it could not be said that grand jury found probable cause on
each and every amended count. U.S. Const. amend. 14; NRS 173.075(2), 173.095(1).
OPINION
By the Court, Rose, J.:
On March 3, 1994, a criminal complaint was filed charging the respondents with racketeering and securities fraud. An
indictment was filed on February 9, 1995. Respondents moved to dismiss the indictment on a number of grounds. The district court granted
the motion to dismiss, stating that the indictment was not pled with specificity. The State contends that the indictment was pled with
sufficient specificity to put the respondents on notice of the charges pending against them. The State further contends that because the
filing of an amended indictment would not have caused the respondents any prejudice, the district court abused its discretion in denying the
State's motion to amend. We conclude that the district court did not abuse its discretion and properly dismissed the indictment.
FACTS
On March 3, 1994, Daniel Victor Hancock (Hancock), Richard Paul Boyer (Boyer), Charles E. Dixon (Dixon), and Frank G.
Hine {Hine), collectively "respondents," were charged, via criminal complaints, with racketeering and securities
fraud.
Frank G. Hine (Hine), collectively respondents, were charged, via criminal complaints,
with racketeering and securities fraud. The State alleges that the respondents engaged in a
racketeering conspiracy and committed securities fraud by offering to sell and/or selling
securities and either directly or indirectly, making untrue statements or omitting to state
material facts in connection with the offer or sale. The State maintains that the respondents
solicited investments for the Barracuda Gold Project to recover fifty tons of gold bars from
federal lands near Ely.
The respondents allegedly told Eleanor Desiano (Desiano), Rosita Kanes (Kanes), and
Calvin Williams (Williams) that they had discovered $400,000,000 worth of gold and needed
funds to retrieve and store it. According to the State, the respondents told potential investors
that the gold had been moved to Florida and dumped in international waters to be recovered
as tax-exempt sunken treasure. Desiano allegedly invested $130,000 in the gold project and
Williams invested $25,000. The State contends that the respondents failed to produce any
gold or repay the investors their funds.
Following a preliminary hearing, the magistrate dismissed the charges against Dixon, but
Hancock, Boyer, and Hine were bound over to the district court. At this time the magistrate
informed the State that although he was binding over three of the respondents, the complaint
appeared defective. On September 29, 1994, the State filed a criminal information against the
remaining three defendants. On November 10, 1994, the district court dismissed the
information against Hancock, Boyer, and Hine on the grounds that it was vague and
ambiguous.
The State did not appeal the dismissal of the information but took the case against all
four defendants to the grand jury; the grand jury returned a true bill against Hancock, Hine,
Boyer, and Dixon, and the State filed an indictment on February 10, 1995. The
seventeen-page indictment charged Boyer, Dixon, Hancock, and Hine with the following:
Two counts of racketeering, five counts of securities fraud, or in the alternative, attempted
theft, and three counts of securities fraud, or in the alternative, theft.
The four respondents subsequently filed petitions for writs of habeas corpus and motions
to dismiss the cases against them. They asserted that (1) the indictment was not clear and
concise; (2) the State had improperly included two different crimes within single counts of
the indictment; and (3) the State had failed to present exculpatory evidence to the grand jury.
In response, the State acknowledged that it had erred in pleading alternative offenses in a
single count and moved to amend the indictment.
The State's sixteen-page proposed amended indictment deleted the racketeering
charges and set forth the alternative counts of theft and attempted theft in separate counts;
the amended indictment listed a total of sixteen counts in addition to forfeiture.
theft and attempted theft in separate counts; the amended indictment listed a total of sixteen
counts in addition to forfeiture. The language of the amended indictment was virtually
identical to, and we conclude no more specific than, that which was contained in the original.
The district court denied the State's motion to amend, but told the State that it could renew its
motion following resolution of the respondents' habeas petitions.
On August 11, 1995, the State filed its opposition to the respondents' motions to
dismiss and a counter-motion to amend the indictment. On October 25, 1995, following oral
argument, the district court dismissed the indictment without prejudice, stating that the
document lacked specificity. The State appeals from this order.
DISCUSSION
The original indictment failed to put respondents on notice of the charges
[Headnote 1]
The respondents assert that the district court properly dismissed the indictment
because it was confusing and duplicitous. NRS 173.075 provides, in part: The indictment . .
. must be a plain, concise and definite written statement of the essential facts constituting the
offense charged. An indictment, standing alone, must contain: (1) each and every element of
the crime charged and (2) the facts showing how the defendant allegedly committed each
element of the crime charged. United States v. Hooker, 841 F.2d 1225, 1230 (4th Cir. 1988).
As stated by this court:
Considering the language of Fed. R. Crim. P. 7(c), from which NRS 173.075 is
derived, the United States Supreme Court has also held an indictment is deficient
unless it sufficiently apprises the defendant of what he must be prepared to meet.
Russell v. United States, 369 U.S. 749, 763 (1962).
. . . .
Whether at common law or under statute, the accusation must include a
characterization of the crime and such description of the particular act alleged to have
been committed by the accused as will enable him properly to defend against the
accusation, and the description of the offense must be sufficiently full and complete to
accord to the accused his constitutional right to due process of law. 4 R. Anderson,
Wharton's Criminal Law and Procedure, 1760, at 553 (1957).
Simpson v. District Court, 88 Nev. 654, 659-660, 503 P.2d 1225, 1229-30 (1972).
[Headnote 2]
The indictment lists 25 untrue statements and omissions in Count I, and states
that the respondents either directly or indirectly made one or more of these statements or
omissions. Other counts state similar indefinite charges, apparently referring to the same list
in Count I. The State asserts that [p]aragraphs 1 through 29 of the indictment set forth a
definite statement of the essential facts which constitute the defendants' crimes.
1
We have
reviewed the language of the indictment and agree with the respondents' assertion that the
indictment lumps Hine, Hancock, Boyer, and Dixon together, making it very difficult to
decipher who is alleged to have done what.
Moreover, each count is defective. Count I alleges a racketeering conspiracy and cites
NRS 207.400(1)(h). However, NRS 207.400(1)(h) is simply a catch-all provision which
provides that it is unlawful to conspire to violate any of the provisions of NRS 207.400, i.e.,
(1)(a) through (g). The indictment fails to assert which provisions of NRS 207.400 the
respondents conspired to violate.
A close reading of this count indicates that the State may be alleging a violation of
207.400(1)(c), which provides:
1. It is unlawful for a person:
. . . .
(c) Who is employed by or associated with any enterprise to conduct or
participate, directly or indirectly, in:
(1) The affairs of the enterprise through racketeering activity; or
(2) Racketeering activity through the affairs of the enterprise.
Specifically, Count I alleges that [e]ach defendant agreed to conduct and participate
in the conduct of the affairs of the enterprise [the Barracuda Gold Project and other listed
entities] and each defendant agreed to the commission of at least two . . . racketeering acts.
As racketeering acts,
2
the State asserts in Count I that the respondents violated NRS 205.380
(obtaining money under false pretenses) and/or NRS 90.570(2) (committing securities fraud
by making untrue statements or omitting statements of material fact in connection with the
offer to sell a security) by defrauding (or attempting to defraud) Desiano, Kanes, and
Williams into investing in the gold scheme.
__________

1
The State erroneously cites to and quotes from the original criminal complaint which was presented with
numbered paragraphs. The indictment contains no numbered paragraphs; however, we reviewed similar
language contained in the indictment in lieu of those portions quoted by the State from the complaint.

2
Pursuant to NRS 207.390, racketeering activity means engaging in at least two crimes related to
racketeering which are listed at NRS 207.360.
Kanes, and Williams into investing in the gold scheme. We conclude that Count I is not clear,
definite and concise as it does not clearly specify which portion of NRS 207.400 the
respondents conspired to violate and it does not specify which respondent made which untrue
statements or material omissions to which victims.
[Headnote 3]
Count II is more specific than Count I in that it specifically cites NRS 207.400(1)(c);
however, it is still unspecific as to which defendants engaged in which type of criminal
activities. Furthermore, the age enhancement pursuant to NRS 193.167 was inappropriately
tacked on to Counts I and II.
3
NRS 193.167 does not apply to racketeering; moreover, at the
time of the alleged criminal activity (1991-92), the age enhancement did not apply to
securities fraud offenses.
4
To the extent that Counts III, IV and VIII assert an age
enhancement for securities fraud (as opposed to the alternate pleadings of theft or attempted
theft), we conclude that the age enhancement is improper.
[Headnote 4]
Counts III through X each allege violations of NRS 205.0832Actions which
constitute theft. However, NRS 205.0832 contains nine subsections, and the State fails to
specify which provision the respondents were alleged to have violated. Arguably, by carefully
reading the language of the counts, a specific provision can be identified. NRS 205.0832(3)
provides that a person commits theft if he: Obtains real or personal property . . . of another
person by a material misrepresentation with intent to deprive that person of the property . . . .
However, Counts III through X all generally state that the respondents committed theft, by
obtaining $250.00, or more, . . . from . . . Desiano by means of a material misrepresentation.
These counts lack specificity with regard to which defendant allegedly made which
misrepresentations.
Based on our review of Counts I through X, we conclude that the State's indictment was
neither plain, concise, nor definite. In addition, NRS 173.115 provides, in part: Two or more
offenses may be charged in the same indictment . . . in a separate count for each offense . . .
. (Emphasis added.) In Jenkins v. District Court,
__________

3
We note that Count II states that Desiano was 65 years of age or older; however, Count I fails to reference
this pertinent fact.

4
NRS 193.167(1) applies to crimes of assault, battery, kidnaping, robbery, sexual assault, embezzlement,
obtaining money under false pretenses, and taking money or property from the person of another. NRS
193.167(1)(a)-(g). A 1993 amendment to NRS 193.167 made age enhancement applicable to violations of NRS
Chapters 90 and 91 involving securities and commodities. See NRS 193.167(2).
Court, 109 Nev. 337, 339-40, 849 P.2d 1055, 1057 (1993), this court held that: Although a
charging document may set forth alternative means of committing a crime within a single
count, alternative offenses must be charged in separate counts.
Based upon our review of the indictment, we conclude that the district court did not
err in dismissing the case against the respondents without prejudice. The record shows that
the State has been repeatedly told that its charging documents were defective or vague, yet the
State made no significant effort to change the language it employed throughout the
proceedings of this case, starting with the original criminal complaint.
The district court did not abuse its discretion in denying the State's motion to amend the
indictment to set forth alternatively pleaded crimes in separate counts
Pursuant to NRS 173.095(1):
The court may permit an indictment . . . 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.
(Emphasis added.) The State concedes that in pleading single counts with alternative offenses
(securities fraud or attempted theft and theft) it failed to conform to Nevada law. See Jenkins,
109 Nev. at 339-40, 849 P.2d at 1057; NRS 173.075(2).
[Headnote 5]
Nevertheless, the State asserts that the district court erred in denying its motion to
amend the complaint. The district court concluded that because the respondents had already
filed petitions for writs of habeas corpus in response to the original indictment, they would be
prejudiced if the State was allowed to amend the indictment prior to the issuance of a
decision on those petitions. The district court also noted that the amended indictment
contained sixteen counts whereas the original contained only ten, and stated that the amended
indictment would probably have to be presented to the grand jury.
The State relies on Jenkins, for the proposition that a criminal information may be
amended so as to place alternately pleaded offenses in separate counts. 109 Nev. at 339, 849
P.2d at 1056. The State further cites jurisprudence in which this court held that a defendant
was not prejudiced by an amendment of an indictment correcting minor clerical errors.
Brimmage v. State, 93 Nev. 434, 567 P.2d 54 (1977) (holding that amendment to indictment
which changed January 2, 1974 to January 2, 1975, the taxicab model 1970 to 1973 and the
word nukes to miles did not materially alter indictment). See also DePasquale v. State, 106
Nev. S43, S03 P.2d 21S {1990) {deleting four words from the original indictment);
Armstrong v. State, 92 Nev. 675, 557 P.2d 272 {1976) {adding the name of a witness to
indictment).
106 Nev. 843, 803 P.2d 218 (1990) (deleting four words from the original indictment);
Armstrong v. State, 92 Nev. 675, 557 P.2d 272 (1976) (adding the name of a witness to
indictment).
Jenkins is distinguishable in that a criminal information, rather than an indictment by
the grand jury, was at issue. NRS 172.255(1) states that an indictment may be found only
upon the concurrence of 12 or more jurors. (Emphasis added.) In the instant case, the
proposed amendments were more than clerical and would have materially altered the criminal
indictment. We conclude that were the State to be granted leave to amend the indictment so
as to add previously alternately pleaded offenses as separate counts, the respondents would be
denied due process because it cannot be said that the grand jury found probable cause on each
and every amended count. Compare, United States v. Leichtnam, 948 F.2d 370, 376 (7th Cir.
1991) (recognizing that resubmission to the grand jury is not mandated where an indictment
is narrowed by an amendment withdrawing a count of a multi-count indictment). Given these
circumstances, we conclude that the district court did not err in denying the State's motion to
amend the indictment.
5

CONCLUSION
We conclude that the district court did not err in denying the State's motion to amend
the indictment and in dismissing the case against the respondents without prejudice on the
ground that the indictment was not properly pleaded.
Springer, C. J., and Young, J., concur.
Shearing, J., with whom Maupin, J., joins, dissenting:
I believe that the district court's decision not to permit the state to amend the information
constituted an abuse of discretion. The district court stated that its reason for this decision
was that such amendment would prejudice respondents, who had already filed petitions for
writs of habeas corpus based on the original indictment. The district court stated that if the
state had sought to cure the indictment's deficiencies before the hearing on respondents'
petitions for writ, respondents would not have been prejudiced. In fact, a timely amendment
would have rendered respondents' petitions moot, and conserved time and judicial resources.
Respondents also complain that the proposed amended indictment contains more
counts than the original indictment. In their petitions for writ, however, respondents assigned
error to the fact that each count in their indictment contained more than one charge.
__________

5
Because we affirm the district court's dismissal of the indictment we need not address respondents' alternate
argument that the State violated their rights by failing to present exculpatory evidence to the grand jury.
charge. The state sought to remedy this problem by ensuring that each count contained only
one charge. Consequently, the amended indictment necessarily contained more counts than
the original indictment. Respondents maintain that such amendment unfairly prejudiced them.
I do not agree that respondents should be able to succeed in asserting these inconsistent
positions. No new charges were added to the proposed amended indictment. Rather, some of
the original charges were separated into separate counts; other charges were eliminated.
Although the original indictment was defective in form, the allegations it contained
were sufficient to place respondents on notice of the charges against them. The proposed
amended indictment contained no additional or different offenses and would not have
prejudiced the substantial rights of the respondents. NRS 173.095(1). Therefore, the district
court should have granted the state's motion to file the amended indictment.
____________
114 Nev. 169, 169 (1998) Hill v. State
JAMES EARL HILL, Appellant v. THE STATE OF NEVADA, Respondent.
No. 28498
February 26. 1998 953 P.2d 1077
Appeal from an order of the district court denying a post-conviction petition in a death
penalty case. Eighth Judicial District Court, Clark County; Jeffrey D. Sobel, Judge.
After defendant's conviction of first-degree murder and death sentence was affirmed
on direct appeal by the supreme court, 102 Nev. 377, 724 P.2d 734 (1986), defendant
petitioned for post-conviction relief. The district court denied petition after conducting
evidentiary hearing, and defendant appealed. The supreme court held that: (1) counsel was
not ineffective in failing to pursue possibility that mildly retarded defendant was mentally
incompetent to proceed or insane at time of crime; (2) Bruton error did not occur as result of
trial references to accomplice's statement that did not reveal its contents; (3) imposition of
death penalty was not cruel and unusual punishment for mildly retarded defendant; and (4)
evidence was sufficient to support determination that defendant, rather than accomplice, was
actual perpetrator of murder and that both jury and three-judge panel that imposed death
penalty after jury deadlocked on penalty so found.
Affirmed.
[Rehearing denied May 20, 1998]
114 Nev. 169, 170 (1998) Hill v. State
Steven G. McGuire, State Public Defender, Timothy O'Toole, Deputy State Public
Defender, Kent Hart, Appellate Deputy State Public Defender, Carson City, for Appellant.
Attorney, James Tufteland, Chief Deputy District Attorney, and Christopher Laurent, Deputy
1. Criminal Law.
District court's findings of fact with respect to claims of ineffective assistance of counsel are entitled to deference upon appellate
review.
2. Criminal Law.
Defendant was not entitled to de novo review of district court order denying post-conviction relief even though judge who
conducted evidentiary hearing was not judge who signed order denying relief; original judge made oral ruling and findings of fact at
conclusion of proceedings, and written order accurately reflected original judge's findings.
3. Criminal Law.
Trial counsel was not ineffective in failing to investigate and pursue possibility that defendant was mentally incompetent to
stand trial or that defendant was insane at time of commission of murder. Although defendant was mildly mentally retarded, he was
able to grasp nature of proceedings and assist in defense, and both defense psychiatrist who testified during penalty phase of murder
trial and psychiatrists retained for post-conviction petition found no evidence of mental incompetence. U.S. Const. amend. 6.
4. Criminal Law.
Bruton error did not occur when police officer testified that defendant's accomplice gave statement to police and prosecutor
referred to fact of statement in closing argument where content of nontestifying accomplice's statements was never admitted into
evidence and jury could not have inferred that accomplice blamed defendant for sexual assault and murder. U.S. Const. amend. 6.
5. Criminal Law.
Trial counsel was not ineffective in failing to object when police officer testified that accomplice made statement regarding
crimes, where counsel prevented any reference to content of nontestifying accomplice's statement and jury could not have inferred from
evidence that accomplice blamed defendant for crimes. U.S. Const. amends. 5, 6.
6. Criminal Law; Homicide.
Imposition of death penalty on mildly mentally retarded defendant for brutal sexual assault and murder was not cruel and
unusual punishment. U.S. Const. amend. 8.
7. Criminal Law.
Trial and appellate counsel were not ineffective in failing to challenge imposition of death penalty on mildly retarded defendant
as cruel and unusual punishment. U.S. Const. amend. 6, 8.
8. Criminal Law.
Supreme court would review ineffective assistance of counsel claim that might invalidate petitioner's death sentence despite
petitioner's failure to allege cause and prejudice for not raising issue in post-conviction relief proceedings below. Issue of whether
finding was ever made that petitioner was actual perpetrator of murder raised claim of constitutional dimension and record provided
adequate basis for review.
114 Nev. 169, 171 (1998) Hill v. State
9. Homicide.
Record was sufficient to support determination that both jury, which was unable to reach decision on death penalty during
penalty phase, and three-judge panel, which imposed death penalty after jury deadlocked, determined defendant, as opposed to
accomplice, was actual perpetrator of murder and sexual assault of victim, and record was sufficient to support finding that defendant
was perpetrator.
10. Criminal Law.
Appellate counsel was not ineffective in failing to pursue claim that no determination was ever made that defendant was actual
perpetrator, as opposed to aider or abettor, of murder for which he received death penalty, where evidence was sufficient to support
conclusion that defendant committed crime and record reflected that such determination was in fact made. U.S. Const. amend. 6.
11. Criminal Law.
Post-conviction relief petitioner failed to show requisite prejudice to permit appellate review of claims not raised below where
claims were either belied by record or lacked legal support.
OPINION
Per Curiam:
On March 8, 1983, appellant James Earl Hill and his co-defendant, Brian Marshall, broke into the apartment occupied by Leroy
and Altonia Matthews. Hill committed a heinous act of sexual assault on Altonia by forcibly inserting a stick into her rectum. Meanwhile,
Marshall struggled with Leroy in the living room/kitchen area of the apartment. Two days later, Altonia died from her injuries.
After their arrest on March 13, 1983, Marshall and Hill made voluntary statements to the police, each blaming the other for the sexual
assault and murder of Altonia. Eventually, Marshall pleaded guilty to various charges, including first degree murder, and received, inter
alia, a sentence of life with the possibility of parole. Hill proceeded to trial, was found guilty, and was sentenced to death by a three-judge
panel after the jury deadlocked in the penalty phase. This court affirmed Hill's conviction on direct appeal. Hill v. State, 102 Nev. 377, 724
P.2d 734 (1986), cert. denied, 479 U.S. 1101 (1987). Subsequently, Hill filed a petition for post-conviction relief in the district court. The
district court denied the petition, and this appeal followed.
FACTS
On March 8, 1983, at 11:00 p.m., Hill and Marshall kicked in the front door to an apartment occupied by the Matthews. The
couple was in bed, and Altonia had already fallen asleep. She was fifty-six years old and confined to a wheelchair due to paralysis on her
left side resulting from a stroke.
After hearing the crash of the front door, Leroy ran to the bedroom doorway and saw two young men coming into
the apartment toward the bedroom.
114 Nev. 169, 172 (1998) Hill v. State
bedroom doorway and saw two young men coming into the apartment toward the bedroom.
Leroy slammed the bedroom door closed and pushed a dresser against it, attempting to
barricade himself and his wife inside. When Leroy discovered that he could not keep the
intruders out, he went to the bedroom window, removed a stick used to lock the window shut
(window stick), and placed the window stick on the bed. He opened the window and put his
head outside when he encountered Marshall, who had come around the building to meet
Leroy at the window. Marshall was carrying a sawed-off pool cue stick (cue stick);
however, Leroy mistook it for a gun. Marshall threatened to blow [Leroy's] head off if he
went out the window. Therefore, Leroy retreated back into his bedroom. Marshall apparently
went back inside to assist Hill in pushing the bedroom door open and overpowering Leroy's
barricade.
Once Hill and Marshall were inside the bedroom, Altonia awoke to the commotion.
She asked what was happening, and Hill hit her hard on her forehead with his fist,
exclaiming, Shut up, Bitch! At this time, Marshall demanded the television, jewelry, and
money. Leroy responded that he and his wife did not have any of those items.
Marshall then coaxed Leroy out of the bedroom and into the living room. Once Leroy
followed Marshall, he realized the item in Marshall's hand was not a gun as he had thought;
rather, it was the cue stick. Therefore, Leroy attempted to grab the cue stick from Marshall,
and the two struggled and fought over the cue stick until they eventually reached the kitchen,
located near the front door. Leroy would not let go of the cue stick, and Marshall hit him with
a fist. Leroy then tripped and fell on the floor. Marshall climbed on top of Leroy and started
choking him with the cue stick across his neck. Leroy later testified that Marshall never left
his presence throughout the entire ordeal. He further testified that he was positive Marshall
was the man with whom he struggled, not Hill. This is supported by the fact that Leroy
recognized Marshall and Hill from the neighborhood prior to March 8, 1983. Also, at trial,
other testimony was presented that Hill and Marshall looked nothing alike and could not
easily be mistaken for each other. Hill has a much darker complexion than Marshall and is
about five or six inches shorter than Marshall.
In the meantime, Hill was left in the bedroom with Altonia. Leroy heard his wife
screaming in great pain and yelling, Why are you doing that to me? Don't do that to me!
Later it was discovered that Hill had beat her up and sexually assaulted her by deeply and
repeatedly thrusting a stick, presumably the window stick, inside her anal opening with great
force. Eventually, Marshall yelled to Hill to leave the premises. Before leaving, Marshall
threatened Leroy that if he told the police, he was as good as dead.
114 Nev. 169, 173 (1998) Hill v. State
Marshall threatened Leroy that if he told the police, he was as good as dead. Marshall and
Hill then left the apartment.
Leroy went into the bedroom to discover his wife beaten up and bloody, lying on the
floor. He also saw the window stick lying on the bed. Leroy placed the window stick back in
the window. Leroy put Altonia in her wheelchair and moved her into the living room where
he carried her to the couch. He got cold towels and attempted to attend to her wounds. Leroy
then moved Altonia to the floor because she was in such pain; thereafter, she again requested
to be placed on the couch. Leroy testified that he did not realize how injured she was until she
told him that she thought she was dying. Because the couple did not own a phone, Leroy was
forced to leave his injured wife and run several blocks to his sister-in-law's house to call an
ambulance. Additionally, because Marshall lived nearby and Leroy feared another
confrontation, Leroy had to proceed a few blocks out of his way to get to the phone.
1
Afterward, the ambulance and the police arrived at the Matthews residence, and Altonia was
transported to the hospital.
On March 10, 1983, Altonia died from her injuries. Dr. James Clarke, the medical
examiner, performed an autopsy. He later testified at trial that Altonia's external injuries
included deep lacerations on her forehead penetrating all the way to the bone. She had severe
bruising, including a black eye, and several broken teeth. Altonia additionally suffered from
deep cuts to her perineum (the area between her vaginal and anal openings) so severe that
there existed only one common opening. Dr. Clarke testified that this injury resulted from a
sharp-ended stick, such as the window stick, being thrust inside her with great force at least
four or five times.
Dr. Clarke further testified as to Altonia's internal injuries. Before she died, Altonia
underwent surgery to repair her abdomen and remove her sigmoid colon (the part of the large
intestine that connects the colon with the rectum) because they were perforated by the same
object that tore her perineum. There was damage to her kidney and hemorrhaging in the
kidney area. Dr. Clarke informed the jury that the object used to assault Altonia was thrust
into her at least fourteen inches deep in order to reach the kidney from her anal opening.
Dr. Clarke testified that the cause of Altonia's death was peritonitis {inflammation of the
abdominal surfaces) and atelectasis {combination of the injuries and shock causing the
lungs to collapse) due to someone thrusting a long sharp object, likely the window stick,
into her rectum.
__________

1
Inexplicably, there was a four-hour delay between the time Marshall and Hill left the Matthews' apartment at
about 11:30 p.m. and the time when the ambulance was called at 3:30 a.m. Leroy testified that he delayed only
about fifteen to twenty minutes after the two men left. Given the duress he was under, Leroy likely delayed
longer than he thought he had, attempting to comfort his wife. Additionally, running to his sister-in-law's house
may have taken more time than he realized.
114 Nev. 169, 174 (1998) Hill v. State
peritonitis (inflammation of the abdominal surfaces) and atelectasis (combination of the
injuries and shock causing the lungs to collapse) due to someone thrusting a long sharp
object, likely the window stick, into her rectum.
On March 13, 1983, after police investigations led to Marshall and Hill as suspects,
Marshall was arrested. He made two voluntary statements to the police, apparently blaming
Hill for the sexual assault, while admitting his involvement in the other crimes committed on
the Matthews. Later that day, Hill was also arrested, and he, too, made voluntary statements
to the police admitting his involvement, but insisting that Marshall committed the sexual
assault on Altonia.
After a preliminary hearing, on April 27, 1983, an information was filed against both
defendants, charging them with various crimes arising from the March 8, 1983 incident.
These charges included: (1) one count of burglary with intent to commit a felony, (2) two
counts of attempted robbery with a deadly weapon, (3) two counts of battery with a deadly
weapon, one each on Altonia and Leroy, (4) one count of sexual assault with a deadly
weapon, and (5) one count of murder with a deadly weapon.
On April 28, 1983, the state filed a notice to seek the death penalty based on the
following aggravating circumstances: (1) the murder was committed during the commission
of a burglary, (2) the murder was committed during the commission of a robbery, (3) the
murder was committed during the commission of a sexual assault, and (4) the murder
involved torture. NRS 200.033(4), (8).
On May 27, 1983, Marshall pleaded guilty to burglary, two counts of attempted robbery
with a deadly weapon, battery with a deadly weapon committed on Leroy, and first degree
murder with a deadly weapon. Marshall received several prison sentences for these
convictions, including two life terms with the possibility of parole for first degree murder
with a deadly weapon.
The jury trial for Hill commenced on June 28, 1983. On July 6, 1983, a jury found
Hill guilty of burglary, attempted robbery with a deadly weapon, attempted robbery, battery
with a deadly weapon upon Altonia, sexual assault with a deadly weapon, and first degree
murder with a deadly weapon. It further found him not guilty of battery with a deadly weapon
upon Leroy.
On August 22, 1983, after the jury was unable to reach a verdict at the penalty phase, a
three-judge panel sentenced Hill to death for the first degree murder conviction. Hill was
additionally sentenced as follows: (1) ten years in prison for burglary, (2) seven and one-half
years in prison for attempted robbery plus a consecutive seven and one-half year term for the
deadly weapon enhancement,
114 Nev. 169, 175 (1998) Hill v. State
enhancement, (3) seven and one-half years in prison for attempted robbery, (4) ten years in
prison for battery with a deadly weapon, and (5) life in prison for sexual assault plus a
consecutive term of life for the deadly weapon enhancement. All sentences were run
consecutively.
This court affirmed Hill's convictions and sentences on appeal. Hill v. State, 102 Nev.
377, 724 P.2d 734 (1986), cert. denied, 479 U.S. 1101 (1987). On September 26, 1986, Hill
filed a timely petition for post-conviction relief, alleging ineffective assistance of both trial
and appellate counsel. On January 23, 1989, after the district court appointed counsel for Hill,
he filed a supplemental petition for post-conviction relief. On September 21, 1989, the district
court conducted an evidentiary hearing on Hill's petition. After arguments by counsel, on
November 22, 1989, the court ruled that it would deny the petition, concluding that counsel
for Hill had provided effective assistance. On August 9, 1991, the court filed its findings of
fact, conclusions of law, and an order denying the petition. The notice of appeal was filed on
August 13, 1991.
DISCUSSION
Standard of review
[Headnote 1]
Generally, a district court's findings of fact with respect to claims of ineffective
assistance of counsel are entitled to deference upon appellate review. Riley v. State, 110 Nev.
638, 647, 878 P.2d 272, 278 (1994), cert. denied, 514 U.S. 1052 (1995).
[Headnote 2]
In this case, Hill argues that we should instead utilize a de novo review of the district
court's order denying relief because a different judge conducted the evidentiary hearing than
the judge who signed the order denying Hill's post-conviction petition. We conclude that this
argument has no merit in the instant matter and review this case using a deferential standard.
Although it is true that a different judge signed the order than conducted the evidentiary
hearing, the judge at the hearing had already made his ruling and findings of fact at the
conclusion of those proceedings. He ordered the state to draft the order, and two years later
the order was signed, albeit by a different judge. After a review of the record, we conclude
that the written order accurately reflected the original judge's findings, conclusions, and order.
2

__________

2
Even if we elected to use a de novo standard as urged by Hill, we would nevertheless conclude that none of
his contentions has merit.
114 Nev. 169, 176 (1998) Hill v. State
I. Trial and appellate counsel provided Hill with effective assistance
To state a claim of ineffective assistance of counsel that is sufficient to invalidate a
judgment of conviction, petitioner must demonstrate that (1) counsel's performance fell below
an objective standard of reasonableness, and (2) counsel's errors were so severe that they
rendered the verdict unreliable. Lozada v. State, 110 Nev. 349, 353, 871 P.2d 944, 946 (1994)
(citing Strickland v. Washington, 466 U.S. 668 (1984)).
A. Investigation of Hill's mental competency and status
[Headnote 3]
Hill claims that his trial counsel was ineffective for failure to investigate and pursue
the possibility that Hill was mentally incompetent to stand trial or an insanity defense at trial
due to his traumatic childhood and mental retardation. We conclude this assertion is wholly
without merit.
The test to determine whether one is mentally competent to stand trial is whether that
person is not of sufficient mentality to be able to understand the nature of the criminal
charges against him, and because of that insufficiency, is not able to aid and assist his counsel
in the defense interposed upon the trial or against the pronouncement of the judgment
thereafter. NRS 178.400(2); see also Dusky v. United States, 362 U.S. 402, 402 (1960);
Melchor-Gloria v. State, 99 Nev. 174, 179-80, 660 P.2d 109, 113 (1983).
At the evidentiary hearing in this case, both Hill's trial attorneys testified that Hill did
not appear to be mentally incompetent, even though they were aware that his intelligence
quotient (IQ) was only 68, categorizing Hill as mildly mentally retarded. Hill's primary
counsel spoke with him on several occasions, and the attorney never felt the need to
investigate whether Hill was competent. He further testified that Hill assisted counsel during
the trial, and they spent much time discussing trial strategy without any problems
communicating. Hill's second counsel also testified at the hearing that Hill was able to grasp
what was going on and could appreciate the gravity of the murder charge.
Moreover, for the purposes of the petition for post-conviction relief, Hill's new counsel
consulted with two psychiatrists who examined Hill. Each doctor reported that both at the
time of the trial and the evidentiary hearing on the post-conviction petition, Hill had the
capacity to understand the nature of the proceedings and the penalty imposed. They opined
that Hill had the mental competence to assist counsel. Further, they concluded that Hill was
able to form a specific intent to take a life and suffered from no extreme emotional distress
which would suggest support for an insanity or diminished capacity defense.
114 Nev. 169, 177 (1998) Hill v. State
We further note that Hill's trial counsel retained a psychologist to examine Hill to
provide mitigating evidence at the penalty hearing. The psychologist did not report any
concern about Hill's ability to appreciate the nature of the proceedings.
Accordingly, Hill has presented no evidence whatsoever, other than a low IQ, that he was
either mentally incompetent to stand trial or that he met the standard for an insanity defense at
the time of the murder. Therefore, we conclude that Hill's trial counsel cannot be deemed
incompetent to have failed to pursue such avenues.
B. The state's reference in the guilt phase to Marshall's voluntary police statement
[Headnote 4]
After Marshall's arrest, he gave voluntary statements implicating Hill as the
perpetrator of the sexual assault and murder of Altonia. At trial, the prosecutor questioned the
police officer who took the statement. For foundational purposes, direct examination revealed
to the jury that Marshall made a statement; however, the content of that statement, namely
that Marshall blamed Hill for the sexual assault, was not disclosed. Further, at closing
arguments in the guilt phase, the prosecutor again made clear that Marshall had made a
statement, but that the content was not in evidence. Although prior to trial, Hill's counsel
ensured that Marshall's statement would not be admitted, they did not object when the
references to that statement were made. Hill now contends that his trial attorneys were
ineffective by allowing their client to be tried and sentenced on the basis of inadmissible,
patently prejudicial evidence, in violation of Bruton v. United States, 391 U.S. 123 (1968).
Hill alleges that the jury inferred that Marshall implicated Hill and, therefore, used this as
evidence of Hill's guilt. Further, citing Schrader v. State, 102 Nev. 64, 714 P.2d 1008 (1986),
Hill contends that the prosecutor's reference to matters not in evidence was improper and his
counsel was ineffective because no objection was lodged.
[Headnote 5]
We note again that the specific contents of Marshall's hearsay statements were never
admitted into evidence. This was due to the successful efforts of Hill's counsel to exclude
these potentially prejudicial accusations. Only the fact that Marshall made statements existed
was known to the jury. Therefore, we conclude that no Bruton violation occurred. Moreover,
a careful review of the record has failed to disclose any reference to Marshall's statement that
would lead the jury to believe that Marshall blamed Hill for the sexual assault and murder.
Accordingly, we conclude Hill's claim of ineffective assistance of counsel with respect to this
claim has no merit.
114 Nev. 169, 178 (1998) Hill v. State
C. Cruel and unusual punishment.
Hill alleges that his trial counsel was ineffective for failing to challenge the death
penalty on the ground that it is cruel and unusual punishment to execute mentally retarded
persons, in violation of the Eighth Amendment of the United States Constitution and Article
I, Section 6 of the Nevada Constitution. He further avers that his appellate counsel was
ineffective for failing to raise this issue on appeal.
Hill had an IQ of 60 as a child and a full scale IQ of 68 as an adult; therefore, he is
mildly mentally retarded. Furthermore, he is illiterate and functions at the mental age of an
eleven-year-old.
Hill acknowledges that the United States Supreme Court in Penry v. Lynaugh, 492
U.S. 302, 338-40 (1989), rejected the notion that executing a mentally retarded person
amounts to cruel and unusual punishment. Nevertheless, Hill asserts that due to the growing
trend of state legislatures prohibiting such executions, this court should adopt such a
standard. Hill has failed to provide any authority that proscribes imposing the death penalty
on mildly retarded persons based on constitutional grounds.
[Headnotes 6, 7]
Given the brutality of these crimes, Hill's ability to understand the nature of the
proceedings, and the fact that his statements to the police confirm his knowledge of the
difference between right and wrong, we conclude that the imposition of the death sentence in
this case does not offend any constitutional proscriptions against cruel and unusual
punishment. We defer to the sentencing body's determination that Hill deserves the death
penalty despite his low intelligence. Therefore, Hill's counsel was not ineffective for failure to
challenge the death penalty on this basis.
II. Hill was the actual perpetrator of the sexual assault and murder
Hill alleges that his appellate counsel was ineffective for failure to bring a petition for
rehearing after issuance of this court's decision on direct appeal. Specifically, Hill contends
that this court misapprehended or overlooked a material fact: neither the three-judge panel
nor the jury ever found that Hill was the actual perpetrator.
[Headnote 8]
This issue was not raised in Hill's petition for post-conviction relief, nor has he
alleged cause and prejudice for failure to raise it below. Generally, we decline to consider
such issues. Cf. Hewitt v. State, 113 Nev. 387, 936 P.2d 330 (1997); Emmons v. State, 107
Nev. 53, 807 P.2d 718 (1991). However, because this issue raises a claim of constitutional
dimension which, if true, might invalidate Hill's death sentence and "the record is
sufficiently developed to provide an adequate basis for review," we will address it.
114 Nev. 169, 179 (1998) Hill v. State
invalidate Hill's death sentence and the record is sufficiently developed to provide an
adequate basis for review, we will address it. Jones v. State, 101 Nev. 573, 580, 707 P.2d
1128, 1133 (1985). Nevertheless, we conclude Hill's argument has no merit.
Enmund v. Florida, 458 U.S. 782, 797 (1982), held that the Eighth Amendment is
violated by the imposition of the death penalty on a defendant who aided and abetted a felony
in the course of which a murder is committed by others but who does not himself kill,
attempt to kill, or intend that a killing take place or that lethal force will be employed.
3
Therefore, Hill argues that without a finding that he actually killed, attempted to kill, or
intended to kill Altonia or employ lethal force, he cannot receive the death penalty. This
claim is of no avail because after a careful review of the record, we conclude that the jury and
the three-judge panel each independently found that Hill was the actual perpetrator of the
sexual assault and murder and not an aider/abettor to Marshall.
[Headnote 9]
Initially, we conclude that the evidence submitted at trial was sufficient for a trier of
fact to find that Hill was the actual perpetrator. Leroy testified in no uncertain terms that he
struggled with Marshall in the living room/kitchen area and Marshall never left his sight.
Additionally, Leroy testified that Hill remained in the bedroom during this struggle. This is
corroborated by the testimony of Lavone Kelly, a neighbor of the Matthews and an
acquaintance of Marshall and Hill. She testified that during the incident, she had the
opportunity to be outside the kitchen window of the Matthews' apartment. Although she
could not see what was taking place, she heard a voice from inside, near where she was
listening, call to another person to leave the apartment. She further testified that she
recognized that voice to be Marshall's. Such testimony places Marshall, not Hill, in the living
room/kitchen area where Leroy testified the struggle with Marshall took place.
The only evidence presented that Marshall committed the atrocities on Altonia was Hill's
own self-serving voluntary statements to the police shortly after his arrest and the testimony
of Ray Turner, a convicted felon and fellow jail inmate of Marshall.
__________

3
Tison v. Arizona, 481 U.S. 137, 154 (1987), modified Enmund slightly, announcing that substantial
participation in a violent felony under circumstances likely to result in the loss of innocent human life may
justify the death penalty even absent an intent to kill.' If a defendant had the culpable mental state of reckless
indifference to human life and his participation in a felony was major, the death penalty is not prohibited as
disproportionate by the Eighth Amendment. Id. at 158; see also Allen v. State, 874 P.2d 60, 64 (Okla. Crim.
App. 1994).
114 Nev. 169, 180 (1998) Hill v. State
Ray Turner, a convicted felon and fellow jail inmate of Marshall. Turner testified that
Marshall told him that Marshall forced a stick into Altonia's anal opening, but that both
Marshall and Hill vaginally raped her. The trier of fact is entitled to determine the weight and
credibility to give the evidence. Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981).
Therefore, it is entirely reasonable for the jury and the three-judge panel to decide that Hill,
not Marshall, was the actual perpetrator, and we conclude that such was indeed the finding in
this case.
The jury returned a verdict finding Hill not guilty for the charge of battery with a
deadly weapon committed upon Leroy, while returning a verdict of guilty for sexual assault
on Altonia. Accordingly, it is evident that the jury believed the state's version of events,
specifically, that Hill was the actual perpetrator of the acts upon Altonia. Had the jury
believed that Hill was struggling with Leroy while Marshall committed the sexual assault, it
would not have returned the verdicts as it did.
Moreover, in the jury penalty phase, the jury was unable to agree on the appropriate
punishment for Hill. However, it returned the special verdict forms indicating it unanimously
found all four aggravating circumstances to exist, while finding that no mitigating
circumstances existed. Of particular noteworthiness was the unanimous finding of the
aggravator that Hill murdered Altonia while committing sexual assault. Therefore, we
conclude that the jury unanimously and beyond a reasonable doubt found that Hill actually
committed the sexual assault leading to Altonia's murder.
Next, although the three-judge panel took the jury's verdicts into consideration, it
nevertheless conducted an independent review of the evidence, concluding that Hill was the
actual perpetrator. The panel adopted the penalty phase jury instructions which did not allow
Hill to be sentenced to death without a finding that he was indeed the actual perpetrator. The
panel stated:
The issue has been raised whether or not the defendant was the actual perpetrator of
the crime of murder. This court finds as a matter of law, based upon a review of the
evidence, transcripts and verdicts of the crimes, verdicts of the jury, that there is
substantial evidence upon which the jury found beyond a reasonable doubt:
One, the defendant committed the crime of sexual assault with the use of a deadly
weapon;
Two, the defendant committed the crime of murder with the use of a deadly weapon.
This is further substantiated by the finding of the jury of not guilty to count four, battery
with use of a deadly weapon on Leroy Matthews.
(Emphasis added.)
114 Nev. 169, 181 (1998) Hill v. State
[Headnote 10]
Accordingly, because we conclude that Hill was determined to be the actual
perpetrator of the crimes, his rights under Enmund were not violated. Therefore, his appellate
counsel was not ineffective.
III. Issues not raised in Hill's petition for post-conviction relief
Hill asserted numerous issues on appeal which he failed to raise in his petition below.
Hill has failed to allege good cause for failing to raise these issues previously and has failed
to demonstrate prejudice because the claims are either belied by the record or lack legal
support.
[Headnote 11]
Specifically, Hill's claim that the reasonable doubt jury instruction was
unconstitutional lacks legal support. Wesley v. State, 112 Nev. 503, 916 P.2d 793 (1996),
cert. denied, 520 U.S. 1126, 117 S. Ct. 1268 (1997). Also, Hill's claim of error regarding the
jury instruction on executive clemency lacks legal support. Miller v. Warden, 112 Nev. 930,
921 P.2d 882 (1996).
The remainder of Hill's claims are presented under an allegation of ineffective assistance
of trial or appellate counsel. First, Hill alleges that his right to a probable cause hearing within
forty-eight hours of his arrest was violated. County of Riverside v. McLaughlin, 500 U.S. 44
(1991). Hill's contention is belied by the record, which shows that on March 14, 1983, the day
after Hill's arrest, a magistrate indicated probable cause was met.
Second, based on the controlling law in 1983, Hill's allegation that the information
provided inadequate notice of the charges against him lacks legal support. Theriault v. State,
92 Nev. 185, 191, 547 P.2d 668, 672 (1976), overruled by Alford v. State, 111 Nev. 1409,
1415 n.4, 906 P.2d 714, 717-18 n.4 (1995).
Third, Hill's claim of prosecutorial misconduct based on an alleged violation of
Caldwell v. Mississippi, 472 U.S. 320, 333 (1985), is belied by the record.
Fourth, Hill argues that the district court demonstrated an actual bias against Hill by:
(1) allowing a state witness to testify when the defense had only twenty-four hours notice of
that witness; (2) allowing the state to question a witness about a document that the defense
had not seen beforehand; (3) allegedly informing the jury that the defense was attempting to
mislead it; (4) allegedly demeaning a defense expert psychologist for not being a medical
doctor; and (5) disallowing the defense to present certain allegedly mitigating evidence
through the expert psychologist. The record belies Hill's allegation.
Fifth, Hill alleges that the jury instructions that aggravating circumstances must be found
unanimously, that mitigating factors need not be found unanimously, and that the death
penalty is never mandatory were insufficient.
114 Nev. 169, 182 (1998) Hill v. State
need not be found unanimously, and that the death penalty is never mandatory were
insufficient. This claim lacks legal support. Geary v. State, 114 Nev. 100, 952 P.2d 431
(1998); Jimenez v. State, 112 Nev. 610, 624, 918 P.2d 687, 695-96 (1996).
Finally, Hill's claim that the district court and the three-judge panel failed to consider
the mitigating evidence is belied by the record.
CONCLUSION
We conclude that none of the allegations Hill properly raised in this appeal have
merit. Further, we conclude that both the jury and the three-judge panel determined that Hill
was the actual perpetrator of Altonia's murder and that sufficient evidence exists for such a
determination. Finally, we reject those claims asserted for the first time in this appeal because
Hill has failed to demonstrate sufficient cause and prejudice. Accordingly, we affirm the
district court's order denying post-conviction relief.
____________
114 Nev. 182, 182 (1998) Hurd v. State
KENNETH N. HURD, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 29880
February 26, 1998 953 P.2d 270
Appeal from an order of the district court denying a post-conviction petition for a writ
of habeas corpus. Fifth Judicial District Court, Nye County; John P. Davis, Judge.
Defendant convicted of felony child abuse, and felony lewdness with a minor under
the age of fourteen, filed post-conviction petition for habeas corpus relief. The district court
denied his petition, and defendant appealed. The supreme court, Shearing, J., held that: (1)
record as whole showed that defendant understood the elements of charges and knowingly
and voluntarily pleaded guilty, and (2) defense counsel was not ineffective.
Affirmed.
Young, J., and Springer, C. J., dissented.
Robert E. Glennen, III, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Robert S. Beckett, District
Attorney and Kirk Vitto, Deputy District Attorney, Nye County, for Respondent.
114 Nev. 182, 183 (1998) Hurd v. State
1. Criminal Law.
Defendant, convicted of felony child abuse and felony lewdness with a minor under the age of 14 years, entered valid guilty plea
by admitting to factual basis in plea memorandum, which adequately explained elements of charges. Although defendant claimed that
he was never informed what level of intent state was required to prove with respect to each crime, record as whole showed that
defendant understood the elements of charges and knowingly and voluntarily pleaded guilty. NRS 174.035(2), 174.063.
2. Criminal Law.
Defendant must enter guilty plea with real notice of true nature of offense charged.
3. Criminal Law.
District court has wide latitude in fulfilling requirement that defendant entering guilty plea must have real notice of true nature
of offense charged.
4. Criminal Law.
Supreme court does not consider only technical sufficiency of plea canvass to determine if plea is valid; it reviews entire record
and looks to totality of facts and circumstances of case.
5. Criminal Law.
Claims asserted in petition for post-conviction relief must be supported with specific factual allegations which, if true, would
entitle petitioner to relief.
6. Criminal Law.
Petitioner for post-conviction relief is not entitled to evidentiary hearing if factual allegations, on which claims for relief are
based, are belied or repelled by record.
7. Criminal Law.
Trial counsel's failure to present reports of medical examinations of child victims before defendant entered guilty plea to felony
child abuse, and felony lewdness with a minor, was not ineffective assistance of counsel, where medical reports were not available at
time defendant entered plea, counsel used reports at sentencing hearing to argue for probation, examination results were consistent with
defendant's statements made before plea was entered, and it was irrelevant that medical records did not prove sexual penetration. U.S.
Const. amend. 6.
8. Criminal Law.
Defense counsel's failure to investigate defendant's three-year-old, and five-year-old daughters, who were allegedly sexually
abused by defendant, before allowing defendant to plead guilty to felony child abuse, and felony lewdness with a minor, was not
ineffective assistance of counsel, where defendant's wife corroborated defendant's admissions, and Division of Child and Family
Services had removed daughters from defendant's home. U.S. Const. amend. 6.
OPINION
This is an appeal from an order of the district court denying a post-conviction petition for a writ of habeas corpus.
114 Nev. 182, 184 (1998) Hurd v. State
On June 21, 1995, appellant, Kenneth N. Hurd (Hurd) was charged by way of
criminal complaint with two counts of felony sexual assault, each count alleging the sexual
assault of one of Hurd's daughters, ages five and three years. On July 13, 1995, with the
assistance of counsel, Hurd waived his right to a preliminary hearing, and was bound over for
trial.
On July 14, 1995, the state filed an information charging Hurd with two counts of felony
sexual assault. In count one of the information, the state alleged that Hurd willfully and
unlawfully, subject[ed] . . . [his five year old daughter] to sexual penetration . . . by placing
his penis in her vagina from the rear. The state alleged in count two that Hurd willfully and
unlawfully, subject[ed] . . . [his three year old daughter] to sexual penetration . . . by placing
his finders [sic] into her vagina while bathing her.
[Headnote 1]
On July 25, 1995, Hurd appeared with counsel and pleaded guilty, pursuant to plea
negotiations and a written plea memorandum, to one count each of felony child abuse and
felony lewdness with a minor under the age of fourteen, as charged in an amended
information. In count one, the state alleged that Hurd committed felony child abuse by
causing unjustifiable physical pain or mental suffering resulting in substantial bodily harm to
. . . [his five-year-old daughter], by touching her in a manner inappropriate for a father to
touch his five-year-old daughter. In count two, the state alleged that Hurd committed felony
lewdness with a minor under the age of fourteen years, when Hurd commit[ted] a lewd act
upon the body of . . . [his five-year-old daughter], by touching her exposed buttock with his
penis.
At the time of Hurd's plea, the following colloquy occurred:
THE COURT: Have you had an opportunity to go over [the counts on the amended
information] now, Mr. Kuehn?
MR. KUEHN [defense counsel]: We've reviewed the plea memorandum which we've
signed and filed. I'm not sure if it should be an amended, or something.
THE COURT: I'll add the word amended, because it does replace the one
MR. KUEHN: Mr. Hurd understands what we're going to be doing today and he's
ready to proceed.
THE COURT: How old are you?
DEFENDANT: Thirty-five.
THE COURT: What's the extent of your education?
DEFENDANT: Twelve years.
THE COURT: So, you can read and write the English language all right?
DEFENDANT: Yes.
114 Nev. 182, 185 (1998) Hurd v. State
THE COURT: Have you ever been treated for a mental disorder?
DEFENDANT: No.
THE COURT: Are you under the influence of alcohol or drugs today?
DEFENDANT: No.
THE COURT: There's an Amended Information which charges you with two counts.
One is child abuse, a felony, and Count II, lewdness with a minor under 14, a felony.
Have you had an adequate opportunity to review those with Mr. Kuehn now?
DEFENDANT: Yes.
THE COURT: Are you prepared to enter a plea to those charges?
DEFENDANT: Yes.
THE COURT: To the charge of child abuse, a felony, what is your plea?
DEFENDANT: Guilty.
THE COURT: To the charge of lewdness with a minor under the age of 14, what is
your plea?
DEFENDANT: Guilty.
THE COURT: I'm going to ask you a number of questions. If you'd like, you may sit
down and be comfortable.
Did you, in fact, today, sign this memorandum dated today called Guilty Plea
Memorandum? Did you sign that?
DEFENDANT: Yes.
THE COURT: And did you have adequate opportunity to go over that with Mr.
Kuehn before you signed it?
DEFENDANT: Yes.
. . .
THE COURT: Are you satisfied with the help that both Mr. Kuehn and Mr. Mills
have been able to give you?
DEFENDANT: Yes.
THE COURT: Are there any complaints about either lawyer?
DEFENDANT: No.
THE COURT: And you understand with regard to Count I, that you're exposing
yourself to up to 20 years in the Nevada State Prison, and with Count II, you're
exposing yourself to up to ten years in Nevada State Prison.
Do you understand that?
DEFENDANT: Yes.
THE COURT: And there could possibly be a fine with both of those. Has anyone
promised you you'd get probation?
DEFENDANT: No.
114 Nev. 182, 186 (1998) Hurd v. State
THE COURT: Has anyone threatened or coerced you in any manner whatsoever?
DEFENDANT: No.
THE COURT: You're aware that you have the right to a speedy trial on the original
charges. And the original charges were of a more serious nature than these charges and
as a result of these negotiations, your exposure has been reduced down from at least one
life sentence, as I recall, and I think perhaps two life sentences.
Now, you do have that right to a trial. If you did go to trial, the State would
obviously try to prove the initial charges. And you won't be going to trial and you won't
be given the opportunity to cross-examine the State's witnesses, you won't be given the
opportunity to have Mr. Kuehn or Mr. Mills subpoena witnesses in your behalf. And
when you plead guilty, you don't have the automatic right to appeal. About all you can
do is come in here and allege that your plea is not being voluntarily made, or that Mr.
Mills or Mr. Kuehn have been ineffective in helping you, but beyond that, there's not
too much you can do after today. If I were to sentence you illegally, you could appeal
that, or if you challenge the legality of some law, you could appeal that, or if the State
didn't scrupulously follow this guilty plea memorandum you've entered today, you can
appeal things like that, but normally, you don't have a right to appeal.
You're going to be a felon and as a felon there's going to be a number of problems that
face you till you get your civil rights restored. . . . If you did have to go to trial, you
don't have to take the stand and explain it. Your lawyer doesn't have to do anything.
The State has to prove these charges and they have to prove each element of the charge
beyond a reasonable doubt. And that's a heavy burden for them to meet. If they fail to
prove any part of the crime, for example, it took place in this county, then you would be
entitled to be acquitted of that charge.
So knowing your various rights, are you still desirous of pleading guilty?
DEFENDANT: Yes.
THE COURT: Are you pleading guilty because, in fact, there was an incident
involving a minor that could be construed to be an abusive incident, is that what
happened?
DEFENDANT: Yes.
THE COURT: Are you pleading guilty to the second charge because you did
something with regard to a minor that was under the age of 14, that could well be
construed to be a lewd act, is that true?
DEFENDANT: Yes.
114 Nev. 182, 187 (1998) Hurd v. State
THE COURT: Knowing all your various rights, do you still want to plead guilty?
DEFENDANT: Yes.
The district court accepted appellant's plea and subsequently sentenced him to a prison
term of eight years for child abuse and a concurrent term of five years for lewdness. Appellant
filed a post-conviction petition for a writ of habeas corpus on October 23, 1996, and on
December 13, 1996, the district court denied the petition without an evidentiary hearing.
Hurd contends on appeal that his guilty plea was invalid because it was entered without a
factual basis and without knowledge of the elements of the charged offenses. Specifically,
Hurd argues that he was never informed what level of intent the state was required to prove
with respect to each crime.
NRS 174.035 presently states, in part:
If a plea of guilty is made in a written plea agreement, the agreement must be in
substantially the form prescribed in NRS 174.063. If a plea of guilty or guilty but
mentally ill is made orally, the court shall not accept such a plea or a plea of nolo
contendere 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. In addition, the court shall not accept a plea of guilty but
mentally ill without complying with the provisions of NRS 174.041.
NRS 174.035(2).
1

[Headnotes 2-4]
A defendant must enter a guilty plea with real notice of the true nature of the offense
charged. Bryant v. State, 102 Nev. 268, 270, 721 P.2d 364, 366 (1986). The district court has
wide latitude in fulfilling this requirement. Id. at 271, 721 P.2d at 367. This court does not
consider only the technical sufficiency of a plea canvass to determine if a plea is valid; it
reviews the entire record and looks to the totality of the facts and circumstances of a case. Id.
We conclude that Hurd's plea was valid because Hurd admitted to a factual basis in the
plea memorandum, which adequately explained the elements of the charges
2
and the record
as a whole shows that Hurd understood the elements of the charges and knowingly and
voluntarily pleaded guilty.
__________

1
NRS 174.035 was amended in 1995, and its amendatory provisions apply to plea agreements entered into on
or after July 1, 1995. 1995 Nev. Stat., ch. 480, 6 at 1536. Appellant entered into his initial plea agreement on
July 13, 1995, and entered into an amended plea agreement on July 25, 1995, the date of his guilty plea.

2
The Amended Plea Memorandum states, in part:
I, KENNETH HURD; [o]n or about or before May 25, 1995; [d]id then and there, willfully and
unlawfully; [c]ause unjustifiable physical
114 Nev. 182, 188 (1998) Hurd v. State
shows that Hurd understood the elements of the charges and knowingly and voluntarily
pleaded guilty.
[Headnotes 5, 6]
Hurd further contends that his trial counsel was ineffective under Strickland v.
Washington, 466 U.S. 668 (1984). Claims asserted in a petition for post-conviction relief
must be supported with specific factual allegations which, if true, would entitle the petitioner
to relief. Hargrove v. State, 100 Nev. 498, 502, 686 P.2d 222, 225 (1984). A petitioner is not
entitled to an evidentiary hearing if the factual allegations are belied or repelled by the record.
Id. at 503, 686 P.2d at 225.
[Headnote 7]
Hurd alleges that his attorney was ineffective because he did not have the reports of a
medical examination of his two daughters before Hurd entered his guilty plea. The record
reflects that the medical reports were not available before Hurd entered his guilty plea, but
these reports were available before the sentencing hearing and were used by Hurds attorney to
argue for probation. Whether the medical reports were available before or after the actual plea
is irrelevant to the charge of ineffective assistance of counsel. According to all of Hurds
statements before his plea was entered, the information in the medical reports was not a
surprise to him. If Hurd truly believed that the information in the medical reports was relevant
to his plea, Hurd could have moved to withdraw his plea at the sentencing hearing. However,
because he pleaded guilty to child abuse and lewdness with a minor, not sexual assault, the
fact that the medical records did not prove sexual penetration is irrelevant.
[Headnote 8]
Hurd's other allegation regarding the ineffectiveness of his attorney is that the attorney
did not investigate the child victims. It is impossible to know what the testimony of Hurd's
daughters would have been.
__________
pain or mental suffering resulting in substantial bodily harm to my natural daughter, MEGAN HURD (5
years of age); [a]t the residence shared by myself and my daughter located at 1321 East Pluto in Pahrump
Township, Nye County, Nevada; [b]y touching her in a manner inappropriate for a father to touch his
five-year-old daughter; [a]nd did commit an act or acts of open and gross lewdness upon the body of
MEGAN HURD (5 years of age); [w]ith the intent of arousing, appealing to, or gratifying the lust or
passions or sexual desires of myself or said child; [a]t the residence shared by myself and my daughter
located at 1321 East Pluto in Pahrump Township, Nye County, Nevada; [b]y touching her exposed buttock
with his penis.
I understand the nature of the charges against me, and I understand that by pleading guilty, I admit the
facts which support all the above elements of the offenses to which I now agree to plead guilty.
114 Nev. 182, 189 (1998) Hurd v. State
would have been. However, in light of their young ages, it is questionable whether their
testimony would have been determinative. The record does reveal that Hurd and his attorney
had, in addition to the confession of Hurd, the admission of Hurd's wife that she knew Hurd
was molesting the children. Hurd's wife's statements alone were sufficient to corroborate
Hurd's numerous admissions. Also, although the records of the Division of Child and Family
Services hearing were not before the trial court or this court, and therefore the evidence
presented there cannot be considered, the fact that such a hearing took place which resulted in
the children's removal from Hurd's home is in the record.
3
The inference can certainly be
drawn that both Hurd and his attorney were aware of evidence of some kind of child abuse at
that hearing. To suggest now that Hurd's attorney knew of no evidence which would have
proved the charges of lewdness and child abuse, and therefore, should not have allowed his
client to plead guilty is disingenuous at best.
In view of all these facts, the advice of counsel to plead guilty to the lesser charges of
lewdness with a minor and child abuse was certainly appropriate within the Strickland
standard. The thrust of Hurd's attorney's argument at both the plea hearing and the sentencing
hearing was that Hurd had a psychological problem and that he was dealing with it
effectively. Hurd's counsel's advice to Hurd that he seek counseling and argue for probation,
certainly appears to meet the Strickland standard.
4

Therefore, we conclude that the claims alleged in Hurd's petition were either not supported
with specific factual allegations or they were repelled by the record. Accordingly, we affirm
the order of the district court denying Hurd's petition for writ of habeas corpus.
5

__________

3
Both parties refer to evidence allegedly presented at a Division of Child and Family Services (DCFS)
hearing, yet neither party provided this court with any record of that hearing. On March 26, 1997, Hurd filed a
motion to strike the state's fast track response for referring to evidence not included in the record on appeal,
primarily this alleged DCFS evidence. First, neither party should have referred to or appended such evidence to
its appellate brief if that evidence was not part of the record before the district court. See Smithart v. State, 86
Nev. 925, 930, 478 P.2d 576, 580 (1970). Second, this court did not consider the facts alleged by either party,
which had no foundation in the record on appeal. See Sparks v. State, 96 Nev. 26, 29, 604 P.2d 802, 804 (1980).
Given our disposition of this appeal, we deny as moot Hurd's motion to strike.

4
Hurd's remaining claims regarding the effectiveness of counsel also lack sufficient specificity to warrant an
evidentiary hearing.

5
We note that attorney Harold Kuehn represented appellant at the plea canvass. At all other times during the
proceedings below, appellant was represented by attorney Lamond R. Mills.
114 Nev. 182, 190 (1998) Hurd v. State
Rose and Maupin, JJ., concur.
Young, J., with whom Springer, C. J., joins, dissenting:
The record before this court in this case is troubling. It is inadequate to repel all of
Hurd's allegations of ineffective assistance of counsel. Even more troubling is that the
majority, instead of remanding for an evidentiary hearing to confirm or disprove these
allegations, has chosen to overlook the inadequate record, disregard the relevant standard of
review, and base its affirmance on inferences and unsupported allegations rather than
established facts.
The state declares in its brief to this court that it cannot provide a statement of the facts in
the traditional sense because no preliminary hearing, no trial, and no evidentiary hearing
were ever held in this case. It goes on to tell us that the only avenue available for it to
provide a statement of the facts is to allude to the police reports and Division of Child and
Family Services (DCFS) hearing which Hurd referred to in his statement of facts. With all
necessary apologies to this Court, the State offers the following recitation which contains no
citations, as there is nothing to cite to. The state then lays forth more than two pages of
allegations without identifying how they can be verified. Many of the allegations are based on
hearsay, and it is unclear which, if any, were known to Hurd's trial counsel or presented to the
district court.
The state complains that it has nothing to cite to, as if it is a victim of circumstance.
The state, however, is responsible for requesting necessary transcripts and appending
file-stamped copies of relevant papers to its brief to this court. NRAP 3C(d)(4) and (f)(2).
Apologies and allusions do not suffice for failing to meet this responsibility.
Thus, the state's brief is based largely on facts which are not in the record. This court
cannot consider facts outside the record, and facts in the briefs of counsel do not compensate
for deficiencies in the record. Jernigan v. Sheriff, 86 Nev. 387, 469 P.2d 64 (1970). The
majority cites this rule of law, notes that evidence allegedly presented at the DCFS hearing is
not in the record, and declares that such evidence cannot be considered. In the next breath,
the majority nevertheless decides that [t]he inference can certainly be drawn that both Hurd
and his attorney were aware of evidence of some kind of child abuse at that hearing. No, it
cannot. This court cannot consider facts outside the record. Even less can it rely on inferences
drawn from facts outside the record.
The majority refers to numerous admissions by Hurd and the admission of Hurd's
wife that she knew Hurd was molesting the children."
114 Nev. 182, 191 (1998) Hurd v. State
the children. These facts are also not in the record. Again, the state asserts in its brief that
Hurd and his wife made admissions, but it provides no basis to verify the assertion, and the
content and circumstances of the alleged admissions are not even clearly alleged.
Hurd alleges that his daughters never made any statements which incriminated him,
and the state admitted at the fast track hearing on this case that it knew of no such statements.
Hurd therefore argues that his trial attorney was ineffective in failing to investigate the
children before advising him to plead guilty. The majority dispenses with this argument by
proclaiming that in light of their young ages, it is questionable whether [the daughters']
testimony would have been determinative. Yes, this matter is questionableand such
questions require an evidentiary hearing in the district court, not speculation by this court.
Hurd also alleges that his trial attorney advised him to plead guilty before receiving
medical reports on Hurd's daughters. These reports showed no evidence of sexual assault. The
majority concludes that the fact that the medical records did not prove sexual penetration is
irrelevant because Hurd pleaded guilty to child abuse and lewdness with a minor, not
sexual assault. This reasoning is specious. It overlooks the fact that Hurd faced two counts
of sexual assault when he agreed to plead guilty to the lesser offenses; therefore, medical
reports which failed to support sexual assault would have been highly relevant to those plea
negotiations.
Relying on assertions unsupported by the record, speculation, and unsound reasoning,
the majority concludes that the advice of Hurd's counsel to plead guilty was appropriate.
The proper standard for this court's review is set forth in Hargrove v. State, 100 Nev. 498,
686 P.2d 222 (1984). A person seeking post-conviction relief must support any claims with
specific factual allegations that if true would entitle him or her to relief. Id. at 502, 686 P.2d
at 225. The person is not entitled to an evidentiary hearing if the factual allegations are belied
or repelled by the record. Id. at 503, 686 P.2d at 225.
Hurd has made two claims which are specific and not repelled by the record. Hurd
asserts that before he entered his guilty plea, his trial counsel failed to obtain medical reports
which showed that his daughters exhibited no physical evidence of sexual abuse. Hurd also
claims that his counsel failed to investigate his children, neither of whom made any
statements of wrongdoing on his part. If true, such failures may fall below an objective
standard of reasonable performance under Strickland v. Washington, 466 U.S. 668 (1984),
and may have prejudiced Hurd becausein the record before this courtthere is little
evidence that Hurd committed the offenses.
114 Nev. 182, 192 (1998) Hurd v. State
mitted the offenses. Absent such evidence, advice by counsel to plead guilty appears
unreasonable.
The state's slipshod work in drafting the charges set forth in the amended information
and plea memorandum and the district court's cursory canvass of Hurd regarding the factual
basis for the charges only reinforce the need to remand this case. The district court's denial of
Hurd's petition without a hearing and without explanation provides no basis for this court to
assume that Hurd's claims have been properly considered.
Therefore, we should remand this case to the district court for an evidentiary hearing
to determine whether Hurd's claims have any merit.
____________
114 Nev. 192, 192 (1998) Shydler v. Shydler
ALICIA MARGARITA SHYDLER, Appellant, v. THOMAS J. SHYDLER, Respondent.
No. 25444
February 26, 1998 954 P.2d 37
Appeal from the property distribution and alimony terms of a decree of divorce.
Eighth Judicial District Court, Clark County; Frances-Ann Fine, Judge.
Wife appealed from divorce decree entered by the district court dividing community
assets, but denying her spousal support. The supreme court, Shearing, J., held that: (1)
predivorce spousal support payments to wife were not partial substitute for alimony; (2)
postdivorce property equalization payments payable to wife did not serve as substitute for any
necessary spousal support; and (3) district court exceeded its authority in awarding husband's
collectibles to husband in trust for parties' son.
Affirmed in part, reversed in part and remanded.
Marshal S. Willick, Las Vegas, for Appellant.
Jolley, Urga, Wirth & Woodbury, Las Vegas, for Respondent.
1. Divorce.
Supreme court reviews district court decisions concerning divorce proceedings for abuse of discretion.
2. Divorce.
District court rulings, concerning divorce proceedings, which are supported by substantial evidence will not be disturbed on
appeal.
3. Divorce.
Court must award such alimony as appears just and equitable, having regard to conditions in which parties will be left by
divorce. NRS 125.150(1)(a).
4. Divorce.
Husband's predivorce spousal support payments to wife were not partial substitute for postdivorce alimony, where wife had to
use greater portion of predivorce support payments to pay then-current community expenses. NRS 125.150(1)(a).
5. Divorce.
Community property award made to a spouse serves to divide community property acquired during marriage to which recipient
spouse is entitled as matter of law, including community property in form of compensation for labor and skills of working spouse
performed during marriage. NRS 123.220-123.225, 125.150(1)(b).
6. Divorce.
Alimony is equitable award serving to meet postdivorce needs and rights of former spouse. NRS 125.150.
7. Divorce.
Two of primary purposes of alimony, at least in marriages of significant length, are to narrow any large gaps between
postdivorce earning capacities of parties, and to allow recipient spouse to live as nearly as fairly possible to station in life enjoyed
before divorce. NRS 125.150.
8. Divorce.
Individual circumstances of each case will determine appropriate amount and length of any alimony award. NRS 125.150.
9. Divorce.
Postdivorce property equalization payments payable to wife did not serve as substitute for any necessary spousal support, where
wife's circumstances required her to use her share of property for support, but husband's share was providing income to him NRS
125.150.
10. Divorce.
While district court is not required to award alimony so as to effectively equalize salaries, alimony award must nonetheless be
awarded when just and equitable, and be set at fair rate based on individual circumstances of parties. NRS 125.150.
11. Divorce.
In divorce action, equity favored award of spousal support, at least for period of rehabilitation, where husband's earning power
was significantly greater than wife's and wife's lifestyle would be more constrained after divorce than it was during marriage. NRS
125.150.
12. Divorce.
District court exceeded its authority, in divorce proceeding, by awarding husband's toy soldier and militaria collection,
lithographs and library, to husband in trust for parties' son. Division of collectibles did not directly affect financial support or welfare
of parties' children, as statutorily required before court has authority to provide for child support in form of a trust NRS 125.150(1)(b),
(4), (5), 125.510, 125B.180.
OPINION
Respondent Thomas J. Shydler (Tom) and Alicia Margarita Shydler (Margaret)
married on June 9, 1976. Tom was a recent college graduate and Margaret worked as an
insurance underwriter. After the wedding, Tom began working for Crestmont, a construction
company owned and operated by his father, Hal Shydler.
In 1979, Hal helped Tom set up his own construction-development company, Aztec
Enterprises (Aztec). By the late 1980s, Aztec began to earn a substantial profit. Aztec's
economic success continued through March 1992, when Tom and Margaret separated, and
June 1993, when the divorce decree was issued. During the marriage, Tom drew salaries,
bonuses, and distributions ranging from $60,000 to as much as $200,000 per year.
In early 1982, Margaret founded Alamo Insurance Company (Alamo) with a partner for
$62,500. Approximately three years later, Margaret and Tom purchased the partner's interest
in Alamo. Margaret received officer compensation of $57,000 in 1983, $33,000 in 1984,
and $24,000 in 1985. Alamo recorded losses during this period. From 1986 through 1991,
Alamo made profits of less than $21,000 per year and Margaret's individual compensation
declined substantially. In 1992 and early 1993, Aztec loaned over $60,000 to Alamo in an
attempt to keep Alamo afloat. Since the filing of the divorce complaint in early 1992, Alamo's
viability has steadily worsened.
The parties' marital troubles began many years prior to the filing of the divorce
complaint. Due to three DUI convictions, Tom's driver's license was revoked, requiring
Margaret to drive Tom to work for a period of ten months. Margaret claims that Tom's heavy
drinking and related problems caused her to neglect her insurance business.
According to Tom, Margaret was an addicted gambler who often spent several nights a
week gambling. Apparently, Margaret won substantial monies as a result of her gambling.
This included more than $60,000 between early 1992, the time of the filing of the divorce
complaint, and June 1993, when the final decree of divorce was entered.
According to Tom, he made a deal with Margaret concerning a piece of property (Lot
54) jointly purchased by the couple in 1987. Tom claims that Margaret quitclaimed her
interest in the property to Tom in exchange for her right to keep all her gambling winnings.
Margaret claims that her failure to properly execute the deed voided the transfer; therefore,
she alleges that she still owns her interest in Lot 54.
execute the deed voided the transfer; therefore, she alleges that she still owns her interest in
Lot 54.
Tom filed for divorce in March 1992. On April 13 and 14, 1992, the parties appeared
before domestic relations referee Terrance Marren (Referee Marren). A referee's note
issued May 28, 1992, recommended that Tom pay $500 per month per child in child support,
various living expenses for Margaret and the children, and $5,000 per month in temporary
spousal support. Tom objected to the payment as excessive in light of his take-home pay,
which was allegedly less than $9,000 per month. On June 10, 1992, District Court Judge
Joseph Bonaventure (Judge Bonaventure) affirmed Referee Marren's report. The parties
dispute whether Tom complied with any of these support awards.
In fall 1992, Tom filed motions to reconsider the temporary spousal support award, to
remove lis pendens burdening Aztec's accounts, and to regain possession of his personal
property, namely his toy soldier, library, and military artifact collections. These possessions
remained in the family residence occupied by Margaret and the couple's childrenwhose
custody had been previously awarded to Margaret. Before Referee Marren could make a final
recommendation on the matter, the case was reassigned to Judge Fine in the newly-created
family court. On April 16, 1993, Judge Fine modified the temporary support order, increasing
the temporary spousal support to $6,000.00 per month.
After hearing the evidence at trial, Judge Fine rendered an oral disposition in which
she made the relevant findings and conclusions of law, summarized as follows:
(1) The parties had mutually consented to transfer Lot 54 to Tom, as his sole and
separate property, in consideration of Margaret's gaming winnings.
(2) Tom's toy soldier, lithograph, and library collections were to be held in trust by
Tom for the couple's son Alex.
(3) The remaining community property was to be divided equally.
(4) Tom received all the stock, bank accounts, funds, and liabilities associated with
Aztec.
(5) Margaret received all of the community's real property and chattels, and $215,798
payable in monthly $5,000 installments for a period of 38 months.
(6) Margaret was to receive no spousal support in view of the pretrial spousal support
she received and the $5,000 per month she was to receive for her portion of the
community property.
This appeal followed the district court's written order.
DISCUSSION
Spousal support
Margaret argues that the district court abused its discretion by denying her spousal
support.
[Headnotes 1-3]
This court reviews district court decisions concerning divorce proceedings for an
abuse of discretion. Williams v. Waldman, 108 Nev. 466, 471, 836 P.2d 614, 617 (1992).
Rulings supported by substantial evidence will not be disturbed on appeal. Id., 836 P.2d at
617. However, a court must award such alimony as appears just and equitable,' having
regard to the conditions in which the parties will be left by the divorce. Sprenger v.
Sprenger, 110 Nev. 855, 859, 878 P.2d 284, 287 (1994); see NRS 125.150(1)(a). In Sprenger,
this court enumerated seven factors to be considered in determining the appropriate alimony
award:
(1) the wife's career prior to marriage; (2) the length of the marriage; (3) the husband's
education during the marriage; (4) the wife's marketability; (5) the wife's ability to
support herself; (6) whether the wife stayed home with the children; and (7) the wife's
award, besides child support and alimony.
Sprenger, 110 Nev. at 859, 878 P.2d at 287 (citing Fondi v. Fondi, 106 Nev. 856, 862-64, 802
P.2d 1264, 1267-69 (1990)).
In the case at bar, during the seventeen-year marriage, Tom obtained a general
contractor's license, built up a successful company that made a net profit of $793,141 in 1991,
and generally earned annual compensation in excess of $100,000. Thus, during that period,
Tom, like the husband in Sprenger, developed the business acumen which has provided him
with a thriving business and substantial assets. See Sprenger, 110 Nev. at 859, 878 P.2d at
287.
During the marriage, Margaret continued working in the insurance industry. She also
founded her own insurance company, Alamo. While her business was, by all accounts, less
successful as time passed, Margaret had the opportunity to develop marketable skills.
However, the record reveals that Tom's drinking problems may have interfered with
Margaret's work, particularly during a ten-month period of time when Tom could not legally
drive.
Despite her work experience, Margaret's potential post-divorce earning potential is
well below Tom's. An expert witness testified that the maximum salary Margaret could
expect to earn as an insurance adjuster is $59,000. Tom testified that he believed Margaret
could earn $25,000 at Alamo. A salary of $25,000 to $59,000 is clearly not at parity with
Tom's documented earnings of more than $100,000.
$59,000 is clearly not at parity with Tom's documented earnings of more than $100,000. See
Rutar v. Rutar, 108 Nev. 203, 827 P.2d 829 (1992). Moreover, expert testimony revealed that
Alamo would require at least six months to return to break-even status.
[Headnote 4]
In denying an award of spousal support, the district court focused on two sets of
payments flowing from Tom to Margaret: pre-divorce support payments and post-divorce
community property equalizing installment payments. With respect to the former, the district
court noted in its written findings that Margaret had received in excess of $165,000 (in
addition to child support) during the (pre-divorce) period of January, 1992, through June,
1993, with the result that she has in essence received 33 months of spousal support at a rate of
$5,000 per month.
The record indicates that the $165,000 in pre-divorce payments were mainly disbursed for
then-current community expenses. Thus, this award was not alimony rendered solely for the
benefit of Margaret. Payment of such interim support should not preclude a post-divorce
spousal support award, particularly where part or all of those interim payments are used to
make payments on community property.
With respect to the post-divorce property equalizing payments, the district court
noted:
[Margaret] will have sufficient funds with which to support herself, even pending the
financial recovery of Alamo Insurance Company and completion of counseling, through
payments to be made to her by [Tom] to equalize the division of community property
comprising of 36 payments of $5,000 per month plus one payment of $4,566, and will
also have access of [sic] other substantial assets awarded to her in that division of
community property.
In other words, the district court awarded Tom the portion of the community property which
was producing an annual income in excess of $100,000, while Margaret's share of the
community property was to be dissipated in the immediate future to provide for Margaret's
living expenses so that Tom would not have to pay spousal support. This is unfair.
[Headnote 5]
A community property award made to a spouse serves to divide community property
acquired during marriage to which the recipient spouse is entitled as a matter of law,
including community property in the form of compensation for labor and skills of a working
spouse performed during marriage. See NRS 123.220-.225; NRS 125.150{1){b); McNabney
v. McNabney, 105 Nev. 652, 660, 7S2 P.2d 1291, 1296 {19S9); Sly v. Sly, 100 Nev. 236,
240, 679 P.2d 1260, 1263 {19S4).
.225; NRS 125.150(1)(b); McNabney v. McNabney, 105 Nev. 652, 660, 782 P.2d 1291, 1296
(1989); Sly v. Sly, 100 Nev. 236, 240, 679 P.2d 1260, 1263 (1984).
[Headnotes 6-8]
Alimony is an equitable award serving to meet the post-divorce needs and rights of
the former spouse. Cf. Gardner v. Gardner, 110 Nev. 1053, 1057, 881 P.2d 645, 647 (1994);
NRS 125.150. It follows from our decisions in this area that two of the primary purposes of
alimony, at least in marriages of significant length, are to narrow any large gaps between the
post-divorce earning capacities of the parties, see Gardner, 110 Nev. at 1056-58, 881 P.2d at
647-48; Rutar, 108 Nev. at 206-08, 827 P.2d at 831-33, and to allow the recipient spouse to
live as nearly as fairly possible to the station in life [] enjoyed before the divorce. Sprenger,
110 Nev. at 860, 878 P.2d at 287-88 (quoting Heim v. Heim, 104 Nev. 604, 612-13, 763 P.2d
678, 683 (1988)). The individual circumstances of each case will determine the appropriate
amount and length of any alimony award. See Gardner, 110 Nev. at 1056-58, 881 P.2d at
647-48; Rutar, 108 Nev. at 206-08, 827 P.2d at 831-33.
[Headnote 9]
As property and alimony awards differ in purpose and effect, the post-divorce
property equalization payments payable to Margaret in this case do not serve as a substitute
for any necessary spousal support. Cf. Wolff v. Wolff, 112 Nev. 1355, 1359-60, 929 P.2d
916, 919 (1996). Although the amount of community property to be divided between the
parties may be considered in determining alimony, the district court's order in the instant case
compelled Margaret to utilize her community property share for support, while Tom's share
of the community property was actually providing a substantial income for his support. By
determining that the community property equalizing payments acted as a substitute for
alimony, Margaret received a lesser share of the community property than Tom. We conclude
that the district court improperly denied alimony on the grounds that Margaret had received a
property award.
The district court was wrong in finding that Tom's pre-divorce support and
post-divorce property equalizing payments obviated the need for any post-divorce spousal
support.
1

[Headnotes 10, 11]
In light of the disparate incomes of the parties and the lifestyle enjoyed by Margaret
prior to the divorce, we further conclude that the equities of this case favor an award of
spousal support, at least for a period of rehabilitation.
__________

1
We also find it troubling that the district court emphasized Margaret's apparent misuse of community funds
during the separation, but failed to adequately consider Tom's apparent misuse of community funds to support
another woman.
enjoyed by Margaret prior to the divorce, we further conclude that the equities of this case
favor an award of spousal support, at least for a period of rehabilitation. While our case law
does not require the district court to award alimony so as to effectively equalize salaries, an
alimony award must nonetheless be awarded when just and equitable, and be set at a fair rate
based on the individual circumstances of the parties. We remand this case to the district court
to determine a fair award of alimony.
Award of Tom's collectibles to Tom in trust for the parties' minor son
[Headnote 12]
In this case, the district court's findings of fact and conclusions of law stated, It is the
Court's intention to divide the community assets equally with the exception of the toy soldier
and militaria collection, lithographs and library, which shall be held by [Tom] in trust for the
parties' son, Alexander.
Margaret alleges that the court exceeded its authority by exempting this portion of the
community property from either division or offset, as required by NRS 125.150(1)(b).
2
She
also contends that the trust was established for an improper purpose under the statute, in that
it was not designated as being set apart for support of the parties' child.
Tom argues that courts generally have the authority to order that a part of the parties'
property be held in trust for the benefit of minor children, citing Bailey v. Bailey, 86 Nev.
483, 471 P.2d 220 (1970). He also contends that courts derive this authority from statutory
language granting them discretion in providing for the support of minor children and in
distributing the assets of the parties, citing NRS 125.150(4)-(5) and NRS 125B.180.
Bailey relies on NRS 125.140, now recodified as NRS 125.510, for the court's authority to
provide for child support in the form of a trust. 86 Nev. at 488, 471 P.2d at 223. In Paine v.
Paine, 71 Nev 262, 265, 287 P.2d 716, 717 (1955), this court considered that statute, stating:
While, under the statute, the court has discretion to act when the matter before it
concerns children, their interests or welfare, there is nothing upon which discretion may
properly operate when such subjects are in no way involved. To proceed to an exercise
of discretion in the absence of a basis for such exercise is error.
In the case at bar, the collections were not set aside for child support and, indeed, would not
have been appropriate for that purpose; therefore, Bailey and NRS 125.510 do not justify
the "trust" provision of the district court's order.
__________

2
NRS 125.150(1)(b) states, in relevant part: In granting a divorce, the court shall . . . make an equal
disposition of the community property of the parties. . . .
support and, indeed, would not have been appropriate for that purpose; therefore, Bailey and
NRS 125.510 do not justify the trust provision of the district court's order. The other
authority cited by Tom is equally inapplicable.
The division of collectibles in no way directly affects the financial support or welfare
of the parties' children. No statutes provide district courts with authority to order a portion of
community assets to be placed into a trust for a minor child, unless the trust is established for
the support of the child. Accordingly, we hold that the district court exceeded its authority in
placing the community property toy soldier and militaria collection, lithographs and library
into a trust for the parties' son. We reverse this aspect of the divorce decree and remand for
valuation of that personal property, with that amount to be divided equally between the
parties.
Other Issues
There was evidence in the record to support the district court's valuation of Aztec and
Alamo. However, on remand, we direct the district court to address the inconsistency between
its overall valuation of Aztec in the oral disposition ($807,000) and that specified in its
written findings of fact and conclusions of law ($744,505).
We also conclude that substantial evidence supports the district court's finding that Tom
and Margaret entered into a valid contract transmuting Lot 54 into Tom's separate property.
See Trident Construction v. West Electric, 105 Nev. 423, 427, 776 P.2d 1239, 1241 (1989);
see also Nyberg v. Kirby, 65 Nev. 42, 51, 188 P.2d 1006, 1010 (1948) (The consideration
may be any benefit conferred or any detriment suffered, . . . and the law will not enter into an
inquiry into its adequacy.).
CONCLUSION
Applying the Sprenger factors, we conclude that the district court abused its discretion
by denying alimony to Margaret. We remand this case to the district court to determine a fair
award. We also conclude that the district court erred by placing certain property into a trust
for the benefit of the parties' son. We remand this case to the district court for valuation of the
toy soldier and militaria collection, lithographs and library, with that amount to be divided
equally among the parties. We also direct the district court to address the inconsistency
between the valuation of Aztec in the oral disposition and in its written order.
We affirm the district court's order in all other respects.
Rose, Young, and Maupin, JJ., concur.
I would affirm the family court's decree.
Alimony
My first disagreement with the majority opinion is its sending the case back to the
trial court to determine a fair award of alimony. In my view, the trial court acted well
within its discretionary powers in deciding that the husband should not be required to make
post-divorce support payments. I think that the record supports this decision and that this
court should not be second-guessing the trial court.
There is evidence to support the conclusion that the wife has a number of professional and
occupational skills and that she has an earning capacity of around $60,000.00 per year. There
is a certain amount of conflict in the record as to the earning capacities of the parties; but as I
see it, there is no basis for this court's rejecting the trial court's findings and judgment and
concluding that there is such a large gap[] in earning capacities of the parties that alimony
is required as a matter of law.
The trial court made a specific finding that the wife would have sufficient funds
with which to support herself. There is no reason for this court to reject that finding; and I see
nothing in the record from which this court is obliged to conclude that the wife will be in
need of additional spousal support from her former husband.
I agree with the majority that [a]limony is an equitable award serving to meet the
post-marriage needs and rights of the former spouse; but a trial court is in a much better
position to examine and weigh the equities in these cases than is an appellate court.
Battle of the Toy Soldiers
My second disagreement with the majority opinion is that I do not believe it necessary
that we return this case to the trial court to renew the Battle of the Toy Soldiers between
Ms. Shydler and her son. There are a number of reasons why we should leave the trial court's
judgment alone. One reason is that the trial judge was entitled to believe Mr. Shydler's
testimony that there were only a few fragments left of the toys and that Ms. Shydler was
responsible for abusing and damaging hundreds of soldiers. The trial court could have
concluded that, under these circumstances, there was next to nothing left to fight over and
that Mr. Shydler should be awarded the surviving toy soldiers in trust for his son. The trial
court's judgment could be justified by recognizing that some of the toys belonged to the son
and that some of the toys were concededly the separate property of Mr. Shydler.
Whatever proportion of unbroken soldiers might be characterized as community property, I
do not know; but the trial court would have been justified in concluding that the community
property segment of the remaining fragments was of such little value that Ms. Shydler had
no appreciable claim to this property.
Finally, as I will discuss later in this dissent, awarding the toys to the father in trust for
the son was justified under NRS 125.150(4).
I have a difficult time understanding why this court would give serious attention to
Ms. Shydler's claim to her son's toys; but, since it does, I will discuss the matter further.
Mr. Shydler's Pretrial Memorandum states as one of four issues presented, the issue
of whether [Ms. Shydler] destroyed or concealed portions of the parties' toy soldier and
militaria collection during the pendency of this action. If, of course, Ms. Shydler had during
the pendency of this action actually destroyed or concealed this property, the trial court would
have had compelling reasons for awarding this property to Mr. Shydler. Although there is no
finding of malice or property destruction that would expressly support an unequal division of
community property based on compelling reasons, I do believe that there is sufficient
evidence in the record to justify an unequal division of whatever the community's interest in
the fragments might be. Further, as I have said, the toy soldiers that were left in Ms.
Shydler's custody during divorce proceedings were actually part community property, part
Mr. Shydler's separate property (collected since high school days) and part the son's property.
In awarding the toys to the father in trust for the son, the trial court was, to some extent,
awarding property that already belonged to the father and son. It surprises me that Ms.
Shydler would want to go back to court to engage in what looks to me like a rather petty and
demeaning fight with her son over toy soldiers.
When asked to testify as to what remained of the toy collection after it was left in Ms.
Shydler's custody, Mr. Shydler testified that there were only [a] few fragments. He testified
that the soldiers had been severely abused and damaged and that there were literally
hundreds of figures that had been broken and smashed and they were all piled and shoved in
behind in the corner of the desk.
Ms. Shydler denies smashing the soldiers and suggests that perhaps the kids [might]
have done some damageshe did not keep and eye on them. She may not have kept an
eye on them, but she does admit, while living in the parties' home during the divorce
proceedings, to putting up a sign on the garage that she was going to hold a toy soldier and
book sale. She testified that she did not actually intend to sell the toysoldiers and that the
intention behind the sign was only [t]o make Tom worry about it. This kind of malice
might work to her disadvantage when she goes back to the trial court to make her claim of
right to the "few fragments" that remain of her son's toy soldier collection.
when she goes back to the trial court to make her claim of right to the few fragments that
remain of her son's toy soldier collection.
Finally, I believe that the trial court's judgment is supported by NRS 125.150(4). This
statute would permit the court to set apart community property (assuming that there is some
community property interest in the soldiers) for the benefit of the child. Although the statute
speaks of support of the child, I do not think that it is stretching the statute too far to say
that making these toys available for the boy's use is a form of support. In any event, the court
did not abuse its discretion in doing what it did; and I would leave the family court decree in
place.
Grounds for denying alimony
Finally, I register my disapproval of the majority's taking certain remarks of the trial
judge out of context and concluding that the trial court denied alimony on the grounds that
Margaret had received a property award. No such grounds were stated by the trial judge. I
see this case as one more case in a series of cases in which this court seeks to
micro-manage the work of the family courts.
1

____________
114 Nev. 203, 203 (1998) Langman v. Nevada Administrators, Inc.
DALE LANGMAN, Appellant v. NEVADA ADMINISTRATORS, INC.; HORSESHOE
HOTEL AND CASINO; and STATE OF NEVADA DEPARTMENT OF
ADMINISTRATION, Respondents.
No. 28241
February 26, 1998 955 P.2d 188
Appeal from an order of the district court denying appellant's petition for judicial
review. Eighth Judicial District Court, Clark County; John S. McGroarty, Judge.
Claimant petitioned for judicial review of appeals officer's decision that he was not
entitled to reopen his workers' compensation claim. The district court denied petition and
affirmed. Claimant appealed. The supreme court held that: (1) applicable burden of proof for
reopening claim was that in effect at time of claimant's request to reopen, and (2) substantial
evidence supported appeals officer's finding that claimant failed to prove that his industrial
injury was primary cause of his subsequent injury.
Affirmed.
__________

1
See, e.g., McDermott v. McDermott, 113 Nev. 1134, 946 P.2d 177 (1997) (Springer, J., dissenting); Hopper
v. Hopper, 113 Nev. 1138, 946 P.2d 171 (1997) (Springer, J., dissenting).
Craig P. Kenny & Associates, Las Vegas, for Appellant.
Marquis & Aurbach and Dale A. Hayes, Las Vegas, for Respondents.
As general rule, supreme court's role in reviewing administrative decision is identical to that of district court: to review evidence
presented to agency in order to determine whether agency's decision was arbitrary or capricious and was thus abuse of agency's
discretion. NRS 233B.135.
2. Statutes.
Construction of statue is question of law, and independent appellant review of administrative ruling, rather than more deferential
standard of review, is appropriate.
Applicable burden of proof for reopening workers' compensation claim was that in effect at time of claimant's request to reopen,
rather than the less stringent burden of proof in effect on date of claimant's original industrial injury. NRS 616.545.
Substantial evidence supported appeals officer's finding, in denying claimant's request to reopen workers' compensation claim,
that claimant failed to prove that his original industrial back injury was primary cause of his subsequent back injury, though claimant's
treating physician concluded that claimant's industrial injury was primary cause of his later injury, and another doctor concluded that
there was definite relationship between claimant's two injuries; independent medical examiner concluded that claimant sustained
second, unrelated injury. NRS 616.545.
Administrative agency's decision based on credibility determination is not open to appellate review.
Supreme court, in reviewing administrative agency decision, will not substitute its judgment as to weight of evidence for that of
administrative agency; rather, central inquiry is whether there is substantial evidence in record to support agency's decision.
Substantial evidence is that which reasonable mind might accept as adequate to support conclusion.
OPINION
Per Curiam:
FACTS
On May 13, 1988, appellant injured his lower back in the course and scope of his employment at the Horseshoe
Hotel and Casino {"Horseshoe").
course and scope of his employment at the Horseshoe Hotel and Casino (Horseshoe). He
underwent surgery for posterior lumbar interbody fusion, total disc replacement, and
autogeneous graft on December 21, 1989.
Appellant's claim for workers' compensation was accepted, and appellant was referred
for a permanent partial disability (PPD) rating on March 7, 1990. Following an
examination, appellant received a 13.5% PPD rating for loss of range of motion and
significant disc disease. The examining physician did not note any indication that the lumbar
fusion or other parts of the 1989 surgery had been unsuccessful. On April 16, 1990, appellant
elected to receive a lump sum award of $23,238.87 based on his 13.5% PPD rating.
On July 14, 1994, appellant was working around his swimming pool when the pool filter
exploded, striking appellant in the chest. Appellant was sent flying ten to fifteen feet through
the air and landed on his back. He complained of pain in his lumbar spine, radiating down his
left leg, and underwent a second surgery for an instrumented fusion and an iliac crest bone
graft on August 8, 1994. Appellant's treating physician, Dr. Frances D'Ambrosio, concluded
that appellant's May 13, 1988 industrial injury was the primary cause of the subsequent injury
because his back had not properly fused after the first surgery.
On October 31, 1994, based on Dr. D'Ambrosio's diagnosis, appellant requested the
reopening of his claim. The third party administrator for the Horseshoe reopened the claim for
medical investigation only, and referred appellant to Dr. David Oliveri for an independent
medical examination on December 22, 1994. In his report, Dr. Oliveri made no reference to
the success or failure of the 1989 lumbar fusion. Instead, Dr. Oliveri found that the July 14,
1994 injury represents a new injury with a new disk herniation . . . that was not present at the
time of the original MRI scan in 1989. Dr. Oliveri stated that [a]ny increase in his level of
disability at this point is not industrially related and is, in my opinion, primarily related to the
non-work-related injury of 7/14/94. Accordingly, Dr. Oliveri concluded that [a]ll treatment
rendered for [appellant's] current complaints that have resulted since July of 1994 should be
rendered on a nonindustrial basis.
On December 2, 1994, the third party administrator denied the reopening of appellant's
claim; the denial was affirmed by the hearing officer on January 12, 1995, following a
hearing on the merits. The case came before the appeals officer on April 17, 1995, and the
evidence presented to the appeals officer included Drs. D'Ambrosio's and Oliveri's reports
and appellant's medical records.
records. The evidence also included a report from Dr. James Thomas, Jr., who conducted a
medical review of appellant's records on February 21, 1995, without examining appellant. In
his report, Dr. Thomas stated that in his opinion, appellant's 1989 lumbar fusion never
completely healed, leaving the spinal segment vulnerable to the second injury in 1994.
Accordingly, Dr. Thomas concluded that there was a definite relationship between
appellant's 1989 surgery and his need for surgery in 1994.
In a decision filed May 19, 1995, the appeals officer affirmed the denial of appellant's
request to reopen his claim. The appeals officer found that [t]he explosion of the pool filter
on July 14, 1994, and not the industrial accident on May 13, 1988, was the primary cause of
Claimant's new injury. The appeals officer further found that in light of the mechanics of the
July 14, 1994, accident, the pre-closure medical reports, and Dr. Oliveri's medical
investigation, Dr. D'Ambrosio's contention that the failed fusion and re-herniation at L5-S1
was primarily related to the industrial accident is not credible. Accordingly, the appeals
officer concluded that appellant had failed to meet his burden of proof that his physical
condition, subsequent to the July 14, 1994, non-industrial accident, primarily resulted from
the industrial injury of 1988, and that appellant was thus not entitled to reopen his claim
pursuant to NRS 616.545.
In an order filed January 9, 1996, the district court denied appellant's petition for judicial
review and affirmed the appeals officer's decision. The district court concluded that the
decision was supported by substantial evidence in the record and not affected by errors of
law. This appeal followed.
DISCUSSION
On appeal, appellant contends that the appeals officer erred by applying the wrong
statutory standard with respect to reopening his claim. Specifically, appellant maintains that
the appeals officer should have applied the statutory standard in effect at the time his first
industrial injury arose, not the statutory standard in effect when he sought to reopen his claim.
Standard of review
[Headnotes 1, 2]
As a general rule, this court's role in reviewing an administrative decision is identical
to that of the district court: to review the evidence presented to the agency in order to
determine whether the agency's decision was arbitrary or capricious and was thus an abuse of
the agency's discretion.
abuse of the agency's discretion. Titanium Metals Corp. v. Clark County, 99 Nev. 397, 399,
663 P.2d 355, 357 (1983); NRS 233B.135. Because this case concerns the construction of a
statute, however, independent review is necessary. The construction of a statute is a question
of law, and independent appellate review of an administrative ruling, rather than a more
deferential standard of review, is appropriate. Maxwell v. SIIS, 109 Nev. 327, 329, 849 P.2d
267, 269 (1993) (citing Nyberg v. Nev. Indus. Comm'n, 100 Nev. 322, 324, 683 P.2d 3, 4
(1984); American Int'l Vacations v. MacBride, 99 Nev. 324, 326, 661 P.2d 1301, 1302
(1983)).
Whether the applicable burden of proof for reopening a claim under former NRS 616.545
(now NRS 616C.390) is determined by the date of the original industrial injury or by the date
of the request to reopen the claim
[Headnote 3]
Appellant contends that the district court erred in affirming the appeals officer's
decision to deny the reopening of appellant's claim because the appeals officer's decision is
affected by an error of law. Specifically, appellant contends that the appeals officer applied
the burden of proof for reopening a claim under the post-1993 version of NRS 616.545,
instead of the less stringent version of NRS 616.545 in effect prior to the 1993 amendments.
1
According to appellant, when he accepted his lump sum payment for PPD in 1990, he did so
with the understanding that he would be able to reopen his claim in accordance with the
provisions of NRS 616.545 then in force. Thus, appellant maintains that the appeals officer
erred by applying the amended version of NRS 616.545 to his request to reopen his claim.
Prior to 1993, NRS 616.545 provided in pertinent part:
1. If a change of circumstances warrants an increase or rearrangement of
compensation during the life of an injured employee, application may be made therefor.
The application must be in writing and accompanied by the certificate of a physician . .
. showing a change of circumstances which would warrant an increase or rearrangement
of compensation . . . .
2. After a claim has been closed, the insurer . . . may authorize the reopening of the
claim . . . . The application must be accompanied by a written request for treatment
from the physician .
__________

1
For the sake of convenience, this opinion will refer to former NRS 616.545 (now codified as NRS
616C.390) as NRS 616.545.
the physician . . . certifying that the treatment is indicated by a change in circumstances
and is related to the industrial injury sustained by the claimant.
In 1993, NRS 616.545 was substantially amended as follows:
1. If an application to reopen a claim . . . 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;
(b) The primary cause of the change of circumstances is the injury for which the claim
was originally made; and
(c) The application is accompanied by the certificate of a physician . . . showing a
change of circumstances which would warrant an increase or rearrangement of
compensation.
(Emphasis added.)
Neither of these versions of NRS 616.545 indicates whether the controlling date for
application of the statute is the date of the original injury or the date of the request to reopen
the claim. In 1995, however, the legislature renumbered NRS 616.545 as NRS 616C.390 and
added the following provision:
10. The provisions of this section apply to any claim for which an application to
reopen the claim . . . is made pursuant to this section, regardless of the date of the
injury or accident to the claimant . . . .
(Emphasis added.)
This court has held that [w]here 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. Roberts v. State of
Nevada, 104 Nev. 33, 38, 752 P.2d 221, 224 (1988) (citing Sheriff v. Smith, 91 Nev. 729,
734, 542 P.2d 440, 443 (1975)). We conclude that the legislature's 1995 amendment of NRS
616.545 indicates that the version of NRS 616.545 in effect on the date of the request to
reopen should be applied.
2
Thus, the appeals officer applied the appropriate standard.
Although the parties focus on whether the 1993 version of NRS 616.545 should be applied
retroactively, we note that retroactive application is not the issue in this case. Appellant's
industrial injury occurred in 19SS; however, his subsequent injury, and the reopening of
his claim, did not occur until 1994, after the 1993 amendments had been enacted.
__________

2
See also Horne v. SIIS, 113 Nev. 532, 936 P.2d 839 (1997) (pre-1993 version of NRS 616.545 applied
when request to reopen claim was made before 1993 amendment took effect).
injury occurred in 1988; however, his subsequent injury, and the reopening of his claim, did
not occur until 1994, after the 1993 amendments had been enacted. Accordingly, the appeals
officer's application of NRS 616.545 as amended in 1993 did not constitute retroactive
application; such application did not take away or impair any vested right of appellant,
because he had no right to reopen his claim until after the July 14, 1994 accident took place.
See K-Mart Corporation v. SIIS, 101 Nev. 12, 21, 693 P.2d 562, 567 (1985) (statute operates
retroactively when it takes away or impairs vested rights acquired under existing laws).
Whether the appeals officer's decision is supported by substantial evidence
[Headnote 4]
Appellant also contends that the evidence presented at the hearing was sufficient to
require the reopening of his claim under the post-1993 requirements of NRS 616.545,
because Drs. D'Ambrosio and Thomas, two board certified orthopedic surgeons, found that
appellant's prior industrial accident was the primary cause of his later injury. Appellant
contends that the opinions of those doctors are more credible than that of Dr. Oliveri, a
physiatrist, who found that the later injury was unrelated to the original accident.
Accordingly, appellant asserts that the appeals officer was required to reopen his claim under
the post-1993 version of NRS 616.545.
[Headnote 5]
First, we note that appellant's contention concerning the physicians' findings is only
partly correct. Although Dr. D'Ambrosio specifically stated that, in his opinion, appellant's
1988 injury was a primary cause of his 1994 injury and surgery, Dr. Thomas did not; he stated
only that there was a definite relationship between the two. Additionally, the appeals officer
specifically found that Dr. D'Ambrosio's finding of primary cause was not credible, and that
Dr. Oliveri's determination that the 1994 accident caused a second, unrelated injury was
credible. An administrative agency's decision based on a credibility determination is not open
to appellate review.
3
Brocas v. Mirage Hotel & Casino, 109 Nev. 579, 585, 854 P.2d 862,
867 (1993) (citation omitted).
__________

3
We take judicial notice of the fact that a physiatrist is a licensed medical doctor who specializes in physical
medicine. Accordingly, we reject appellant's implications that a physiatrist is less medically qualified or
competent than an orthopedic surgeon, and that Dr. Oliveri's opinion is thus intrinsically less credible than that
of Drs. D'Ambrosio or Thomas.
[Headnotes 6, 7]
Additionally, we note that a considerable amount of conflicting evidence was
presented which could have supported a reopening of appellant's claim. However, it is well
recognized that this court, in reviewing an administrative agency decision, will not substitute
its judgment as to the weight of the evidence for that of the administrative agency. State,
Dep't of Mtr. Vehicles v. Becksted, 107 Nev. 456, 458, 813 P.2d 995, 996 (1991). The central
inquiry is whether there is substantial evidence in the record to support the agency's decision.
SIIS v. Christensen, 106 Nev. 85, 87-88, 787 P.2d 408, 409 (1990). Substantial evidence is
that which a reasonable mind might accept as adequate to support a conclusion.' State,
Emp. Security v. Hilton Hotels, 102 Nev. 606, 608, 729 P.2d 497, 498 (1986) (quoting
Richardson v. Perales, 402 U.S. 389 (1971)). Our review of the record reveals ample
evidence that a reasonable person would accept as adequately supporting the appeals officer's
conclusion. Accordingly, we conclude that the appeals officer did not err in determining that
appellant had not demonstrated that his industrial injury was the primary cause of his
subsequent injury.
CONCLUSION
For the foregoing reasons, we conclude that the appeals officer correctly applied the
applicable burden of proof for reopening an industrial injury claim, and that the appeals
officer's denial of appellant's request to reopen his claim is supported by substantial evidence
in the record. Accordingly, we affirm the order of the district court denying appellant's
petition for judicial review.
The majority opinion recognizes that when Mr. Langman accepted his lump sum payment
for PPD in 1990, he did so with the understanding that he would be able to reopen his claim
in accordance with the provisions of NRS 616.545 then in force, that is to say, reopen his
claim by presenting a physician's certificate showing a change of circumstances which
would warrant an increase or rearrangement of compensation. The majority opinion changes
the rules on Mr. Langman and requires that Mr. Langman sustain a much greater burden of
proof in order to reopen his claim. Mr. Langman rightly complains that he is being treated
unfairly by being required now to establish that his current problems were primarily caused
by his original, work-related injury and not by any other cause. The big change in the rules in
effect at the time Mr. Langman accepted his settlement, as compared to the rules now
enforced by this court, is that the new rules leave it open to the insurer to prevent a
claim-reopening and to bring in its own doctor to say that the "primary cause" of physical
complaints of a claimant seeking reopening of a claim is some factor other than the initial
industrial accident.
and to bring in its own doctor to say that the primary cause of physical complaints of a
claimant seeking reopening of a claim is some factor other than the initial industrial accident.
It is much easier for a self-insured employer to avoid reopening a claim under the
newly-imposed burden of proof faced by Mr. Langman; and the new procedure is vastly
different from the former procedure, under which a claimant merely had to present a
physician's certificate showing a change of circumstances that would warrant an increase or
rearrangement of compensation.
I see no reason why Mr. Langman should not be given the benefit of the simpler and
less burdensome procedural rules that were in effect when he accepted the settlement. I think
that the physician's certificate manner of proceeding was part of his agreement to accept the
lump sum settlement and that it is unfair and in violation of the contract to change the rules
and make reopening his claim more difficult for him than it was at the time of the settlement.
Even if it were the intention of the Legislature
1
to change the rules in the stated manner (as
claimed by the majority), Mr. Langman's procedural and substantive rights should not be
subject to being retroactively diminished.
If the appeals officer had applied the correct burden of proof in this case, there is no doubt
about the outcome of Mr. Langman's request to reopen his claim. He would simply have
presented his physician's certificate and gone ahead with his claim of eligibility to be
compensated for the consequences of his back not having been properly fused after his
industrial accident. This court's unconvincing and torturous rationalization of the insurer's
denial, based upon a prejudicial, ex post facto change in burden of proof, does not justify
denial of benefits to this injured worker.
As I have said, Mr. Langman would not have been denied his right to reopen his claim
had the rules not been changed; however, as I see this case, it is clear that Mr. Langman's
claim to reopen should not have been denied even under the new rules.
The facts of this case are quite simple. Mr. Langman was operated on for a work-related
back injury. The back surgery involved removal of a spinal disc and a bone graft of two of his
vertebrae. After the surgery, Mr. Langman fell and injured his back at the site where his
previous surgery had failed.
__________

1
The majority points out that NRS 616C.390(10) provides that the section applies to any application to
reopen regardless of the date of injury or accident . . . . It is not the date of injury that is important here; it is
the date of acceptance of the lump sum payment that matters. On the date that Mr. Langman accepted the lump
sum settlement, there was one set of rules in effect; but when he sought to reopen his claim, he was faced with
another set of rules. The Legislature's speaking to the date of injury or the date of accident does not affect Mr.
Langman's entitlement to have the same burden of proof for reopening as was in effect when he accepted a
settlement.
back at the site where his previous surgery had failed. He went to his doctor, Dr. Frances
D'Ambrosio, who saw immediately that the work-related surgery had not resulted in a proper
fusion of the two vertebrae and that it would be necessary to reoperate in order to correct the
defective fusion. Dr. D'Ambrosio concluded, as would be expected, that the primary cause of
Mr. Langman's back problems was not the intervening fall but, rather, the failed vertebral
fusion. The opinion of the treating physician, Dr. D'Ambrosio, was later confirmed by another
orthopedist, Dr. James Thomas, Jr., who examined the medical records and also concluded
that the original fusion had not been successful and had not completely healed. According to
Dr. Thomas, the segment of Mr. Langman's spine that had been operated remained
vulnerable, and there was a definite relationship between the work-related surgery and the
need for ameliorative surgery.
What makes this case so tragic, both to Mr. Langman and to these kinds of injured
workers as a class, is that, upon examining the facts of this case, it is very difficult to see
how, under any circumstances, Mr. Langman could have been properly denied his request to
reopen his claim. Mr. Langman injured his back on the job; he had unsuccessful surgery to
treat this injury; his vulnerable spinal fusion was aggravated by a subsequent trauma, but he
most certainly would not be suffering his present complaint had it not been for the unhealed,
work-related surgery. The primary cause of his present symptoms is, quite clearly, the
failed surgery that was necessitated by his work-related injury. Mr. Langman is entitled to
have his unsuccessful, work-related vertebral fusion surgically revised at the expense of the
self-insured Horseshoe.
One would think that this claim would have been routinely reopened, given the report of
Mr. Langman's treating physician, which clearly established not only the relationship of the
work-related surgery to Mr. Langman's present complaints, but expressly advised the insurer
that the surgery was the primary cause of the complaints. How then could such a rightful
claim possibly be defeated? The answer is simple: the insurer just hired its own physician,
who obligingly incanted the magic words prescribed by the new statute, namely, that
subsequent trauma and not the industrial accident on May 13, 1988, was the primary cause
of Claimant's new injury. (My emphasis.)
I wonder if I am the only one who sees the danger here. From now on, whenever a
claimant suffers a new, non-industrial injury which has any effect at all upon a work-related
condition, all the insurer has to do is bring in its own expert to say that the later injury is the
primary cause of the claimant's physical disabilities. This case is a perfect sample of the
dangers that concern me.
concern me. The Horseshoe doctor merely had to come in and say that the unhealed fusion, in
need of repair, was not primary (whatever that might mean). That statement alone put an
end to Mr. Langman's claim.
In the present case, the appeals officer concluded that it was only the Horseshoe
doctor who was credible and that, necessarily, Mr. Langman's treating physician and Dr.
Thomas were not credible. It is this entirely unsupported and arbitrary conclusion on the part
of the appeals officer that is being upheld by both the trial court and this court.
This court is not known for its leaning toward the interests of workers and against the
interests of employers, but the present case may be the most prejudicial to the interests of
injured workers that can be found in this court's entire catalogue of industrial accident cases.
It appears to me that all a self-insured employer has to do now is to have its doctor pronounce
that any new injury is primary and that the industrial accident is therefore secondary to
the claimant's physical complaints. It is possible, in any case in which an injured worker seeks
to reopen a claim, for an appeals officer to issue a baseless ruling that the insurer's doctor is
accepted as credible and the injured claimant's doctor is rejected as not being credible.
I would reverse the ruling of the appeals officer and the district court on both of the
grounds asserted by Mr. Langman. Mr. Langman should not have been faced with new rules
and a new burden of proof; and Mr. Langman's failed spinal fusion is without doubt the
primary cause of his present complaints. Mr. Langman is entitled to reopen his claim. The
present injustice is troublesome, but not so troublesome as the prospect of similar unfair
treatment of industrial claimants in the future based on the opinion that is issued today.
____________
114 Nev. 213, 213 (1998) Browning v. Dixon
DALE M. BROWNING, Appellant v. MELVIN DIXON, Respondent.
No. 29019
February 26, 1998 954 P.2d 741
Appeal from an order of the district court denying appellant's motion to set aside a
default judgment. Eighth Judicial District Court, Clark County; Jack Lehman, Judge.
Defendant in action arising from automobile accident moved to vacate default
judgment, which had been entered against him after substituted service of process through
mail was sought. The district court denied motion.
district court denied motion. Defendant appealed, and the supreme court held that: (1)
plaintiff who seeks substituted service on resident motorist in action arising from accident
must first use due diligence in attempting to locate motorist, and (2) plaintiff had failed to
locate motorist, and (2) plaintiff had failed to exercise such diligence in searching for
defendant, so that substituted service was invalid.
Eglet & Prince, LLP., Henderson, for Appellant.
Albert D. Massi, Ltd., Las Vegas, for Respondent.
1. Automobiles.
Statute allowing substitute service by mail in action arising from automobile accident applies to claims against nonresident
motorists and resident motorists who have departed state or cannot be found within state. NRS 14.070(2).
Plaintiff who attempts substitute service by mail on resident motorist defendant who cannot be found within state following
automobile accident giving rise to action has affirmative obligation to diligently search for defendant to determine whether defendant
has, in fact, departed state or cannot be located within state; both plain language of statute, and principles of procedural due process,
require such investigation. U.S. Const. amend. 14; NRS 14.070(2).
Fundamental requisite of due process is opportunity to be heard. U.S. Const. amend. 14.
4. Automobiles.
Plaintiff who was injured in automobile accident, in which he collided with motorist who was resident of Nevada, failed to
exercise due diligence in attempting to locate and personally serve motorist, and thus could not obtain substituted service on defendant
through mail. Plaintiff mailed initial letter to address from which he omitted defendant's number, thus reducing likelihood that
defendant would know plaintiff was represented by counsel, and made no attempt to locate defendant through defendant's employer or
insurer, both of which were known to plaintiff. NRS 14.070(2).
5. Judgment.
Default judgment not supported by proper service of process is void and must be set aside.
OPINION
Per Curiam:
The principal issue raised in this appeal is whether a plaintiff must use due diligence to locate a defendant before resorting to the
substitute service provisions of NRS 14.070(2). We conclude that procedural due process requires such diligence, and we reverse the
district court's order denying appellant Dale Browning's motion to set aside the default judgment entered
against him.
reverse the district court's order denying appellant Dale Browning's motion to set aside the
default judgment entered against him.
FACTS
Browning and respondent Melvin Dixon were involved in an automobile accident on
January 20, 1995. Browning and Dixon exchanged information about their names, addresses,
telephone numbers, and insurers. Browning also gave to Dixon a business card identifying his
employer's name, address, and telephone number. At the time of the accident, Browning lived
in an apartment complex at 5576 West Rochelle, apartment #29C, in Las Vegas. Dixon
apparently concedes that the apartment number was included in the address Browning gave to
him.
1
Approximately three weeks after the accident, Browning moved to a different
residence in Las Vegas; Browning's employer and employment address remained the same at
all relevant times. Browning asserts that he informed the post office and Department of Motor
Vehicles of his new residential address shortly after his move.
Within a few weeks after the accident, Dixon presented a claim for personal injuries to
Browning's automobile liability insurer. Browning's insurer denied the claim, and Dixon
retained an attorney. On March 3, 1995, Dixon's attorney sent a letter of representation to
Browning at 5576 West Rochelle, Las Vegas, Nevada. Beginning with this letter, and
continuing until after the default was entered, Dixon omitted Browning's apartment number
from the address on every piece of mail he sent to Browning. Dixon also sent a copy of the
representation letter to Browning's insurer, which replied with a letter to Dixon's attorney
indicating that its decision to deny the claim had not changed.
Dixon filed a complaint on October 12, 1995. On November 30, 1995, Dixon filed in
the district court an affidavit of due diligence indicating that he was unable to personally
serve Browning with the summons and complaint. The affidavit, which appears to be a
preprinted form, indicates that Dixon's process server attempted to serve Browning at 5576
West Rochelle, but that no apartment number [was] known. The affidavit further states
that the process server attempted normal and routine checks of telephone directories and real
property and was denied additional information from the apartment rental office.
__________

1
Browning filed an affidavit in the district court indicating that he gave his complete address to Dixon at the
scene of the accident. Dixon did not refute Browning's averment; to the contrary, Dixon acknowledged that
Browning provided his address, and that Browning lived at 5576 West Rochelle #29C, Las Vegas, Nevada. It
is also undisputed that Dixon eventually mailed documents to Browning's complete address.
On December 19, 1995, Dixon filed in the district court an affidavit of compliance
indicating that, pursuant to NRS 14.070(2), he served the summons and complaint on the
Director of the Department of Motor Vehicles, and mailed a notice of service with the
summons and complaint to Browning at 5576 W. Rochelle, Las Vegas, Nevada. Browning
did not answer Dixon's complaint, and Dixon obtained a default on January 19, 1996, and a
default judgment on February 26, 1996. Browning claims that he first learned of the
complaint and default judgment after Dixon contacted Browning's insurer and demanded that
the judgment be satisfied.
On April 26, 1996, Browning filed a motion to set aside the default judgment pursuant to
NRCP 60(b)(1) and NRCP 60(c). Among other things, Browning argued that Dixon failed to
exercise due diligence before resorting to the substitute service provisions of NRS 14.070(2).
The district court noted at the hearing on Browning's motion that Dixon followed the exact
criteria set forth in NRS 14.070(2) and acted in good faith in serving the Department of
Motor Vehicles by using the best address available. The district court's written order denies
Browning's motion without discussion.
DISCUSSION
NRS 14.070(2) authorizes a plaintiff to serve process on an operator of a motor
vehicle involved in an accident by personally serving the Director of the Department of
Motor Vehicles and sending notice of the service, together with the summons and complaint,
to the defendant at the address supplied by the defendant in his accident report, if any, and if
not, at the best address available to the plaintiff.
NRS 14.070(5) provides that NRS 14.070(2) is not an exclusive method of service, but if
the operator defendant is found within the State of Nevada, he must be served with process in
the State of Nevada. (Emphasis added.) NRS 14.070(6) further provides that NRS 14.070(2)
applies to nonresident motorists and to resident motorists who have left the state or cannot
be found within the state following an accident which is the subject of an action for which
process is served pursuant to this section. (Emphasis added.)
[Headnotes 1, 2]
Thus, NRS 14.070(2) applies to nonresident motorists and resident motorists who
have departed the state or cannot be found within the state. We conclude that the phrase
cannot be found imposes an affirmative obligation on a plaintiff to diligently search for a
resident motorist defendant to determine whether the defendant has, in fact, departed the state
or cannot be located within the state. Any other conclusion contravenes the plain meaning of
the statute and violates the principles of procedural due process.
meaning of the statute and violates the principles of procedural due process. See Sheriff v.
Wu, 101 Nev. 687, 689-90, 708 P.2d 305, 306 (1985) (Where a statute may be given
conflicting interpretations, one rendering it constitutional, and the other unconstitutional, the
constitutional interpretation is favored.) (citing Koscot Interplanetary, Inc. v. Draney, 90
Nev. 450, 530 P.2d 108 (1974)); McKay v. Bd. of Supervisors, 102 Nev. 644, 648, 730 P.2d
438, 441 (1986) (words in a statute should be given their plain meaning unless this violates
the spirit of the act).
[Headnote 3]
In Wuchter v. Pizzutti, 276 U.S. 13 (1928), the United States Supreme Court held that
a nonresident motorist statute that allowed service upon the secretary of state, but contained
no provision for attempted notice to a nonresident defendant, violated due process of law.
The fundamental requisite of due process is the opportunity to be heard. Grannis v. Ordean,
234 U.S. 385, 394 (1914). This right to be heard has little reality or worth unless one is
informed that the matter is pending and can choose for himself whether to appear or default,
acquiesce or contest. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314
(1949). An elementary and fundamental requirement of due process in any proceeding which
is to be accorded finality is notice reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and afford them an opportunity to
present their objections. Id. Although impracticable and extended searches are not required,
substitute service is available only where it is not reasonably possible or practicable to give
more adequate warning. Id. at 317; see also Tulsa Professional Collection Services v. Pope,
485 U.S. 478, 484-91 (1988) (emphasizing that the reasonableness of notice depends on the
particular circumstances, and holding that a personal representative in a probate proceeding
was required to make reasonably diligent efforts to identify creditors of the estate).
The foregoing authorities make it clear that substitute service pursuant to NRS
14.070(2) is efficacious only if the plaintiff first demonstrates that, after due diligence, the
resident defendant cannot be found within the state. Our decision today is consistent with
other decisions wherein due diligence in locating nonresident motorist defendants was
required to perfect service of process. See Halliman v. Stiles, 464 S.W.2d 573 (Ark. 1971);
Drinkard v. Eastern Airlines, Inc., 290 S.W.2d 175 (Mo. Ct. App. 1956); Carlson v. Bos, 740
P.2d 1269 (Utah 1987); Colley v. Dyer, 821 P.2d 565 (Wyo. 1991). It is also consistent with
NRCP 4(e)(1)(i), which allows for service by publication only when the defendant, after due
diligence, [cannot] be found within the state."
within the state. See also NRS 179.1171(4) (requiring plaintiffs to exercise reasonable
diligence when locating property claimants in civil forfeiture actions). Having concluded that
due diligence is a necessary prerequisite to substitute service pursuant to NRS 14.070(2), we
now turn to Dixon's specific attempts to locate and personally serve Browning.
[Headnote 4]
In Price v. Dunn, 106 Nev. 100, 787 P.2d 785 (1990), the plaintiff attempted to
discover the defendant's address through the telephone book, inquiries at the power company,
and a conversation with the defendant's stepmother. This court concluded that, despite the
plaintiff's technical compliance with NRCP 4(e)(1)(i), her actual efforts, as a matter of law,
fall short of the due diligence requirement to the extent of depriving [the defendant] of his
fundamental right to due process. Id. at 103, 787 P.2d at 786-87. This court also stated that
[w]here other reasonable methods exist for locating the whereabouts of a defendant, plaintiff
should exercise those methods. Id.; see also Gassett v. Snappy Car Rental, 111 Nev. 1416,
906 P.2d 258 (1995); McNair v. Rivera, 110 Nev. 463, 874 P.2d 1240 (1994).
Dixon contends that he is not required to hunt down Browning, and that he made a
reasonable attempt to personally serve Browning before resorting to substitute service.
Dixon's contentions are belied by the above authorities and the record on appeal. Dixon
mailed his initial letter to Browning's incomplete address, thereby reducing the likelihood that
Browning would know Dixon was represented by counsel. Although Dixon made routine
checks to locate Browning, he made no apparent attempt to locate Browning through
Browning's employer or insurer, both of which were known to him. In so doing, Dixon
ignored other reasonable methods for locating Browning and failed, under the circumstances,
to apprise Browning of the action pending against him.
[Headnote 5]
For these reasons, we conclude, as a matter of law, that Dixon did not exercise due
diligence in attempting to serve Browning. A default judgment not supported by proper
service of process is void and must be set aside. Gassett, 111 Nev. at 1419, 906 P.2d at 261.
Accordingly, we reverse the district court's order denying Browning's motion to set aside the
default judgment entered against him and remand this matter to the district court with
instructions to set aside the default judgment.
2

__________

2
Based on our disposition of this issue, we do not reach the merits of Browning's other allegations of error.
____________
114 Nev. 219, 219 (1998) Lemmond v. State
LEONARD MARTIN LEMMOND, Appellant v. THE STATE OF NEVADA, Respondent.
No. 30978
February 26, 1998 954 P.2d 1179
Appeal from an order of the district court denying a post-conviction petition for a writ
of habeas corpus. Second Judicial District Court, Washoe County; Connie J. Steinheimer,
Judge.
The supreme court held that 30-day period for appealing order denying petition for
writ of habeas corpus did not being to run until petitioner, himself, was served with notice of
entry of order.
Appeal may proceed.
Zeh, Polaha, Spoo, Hearne & Picker, Reno, for Appellant.
Attorney, Washoe County, for Respondent.
1. Habeas Corpus.
Notice of entry of order denying habeas petition is not itself an appealable determination. NRS 34.575, 177.015.
Where intent to appeal from final judgment can be reasonably inferred and respondent is not misled, supreme court will not
dismiss appeal due to technical defects in notice of appeal.
3. Habeas Corpus.
Thirty-day period for appealing from order denying petition for writ of habeas corpus begins to run after clerk of district court
has complied with requirements of statute governing petitions for post-conviction relief by serving petitioner, as well as petitioner's
counsel, if any, with copy of order denying his petition. NRS 34.575(1) (2).
4. Habeas Corpus.
Thirty-day period for filing appeal from order denying petition for writ of habeas corpus began to run after district court clerk
served petitioner with copy of order denying his petition, not when clerk served petitioner's counsel, despite general rule that service
upon counsel constitutes service upon party. NRS 34.575(1) 34.830(2).
OPINION
Per Curiam:
This is an appeal from an order of the district court denying a post-conviction petition for a writ of habeas corpus. Our
preliminary review of the documents filed in this appeal revealed a potential jurisdictional defect. Therefore, on November 13, 1997, this
court ordered appellant to supplement the documents filed in this appeal with certain additional documents and to show cause why this
appeal should not be dismissed for lack of jurisdiction.
diction. On December 3, 1997, appellant filed his response to our order.
[Headnotes 1, 2]
First, the notice of appeal states that this appeal is taken from the order denying
appellant's petition for a writ of habeas corpus entered on August 12, 1997. The district court
did not, however, enter an order denying appellant's petition on that date. Rather, on August
12, 1997, there was filed in the district court an amended notice of entry of an order denying
appellant's petition entered on February 1, 1995. A notice of entry is not itself an appealable
determination. See NRS 177.015; NRS 34.575. The notice of appeal is not, however,
intended to be a technical trap for the unwary draftsman. Where, as here, the intent to appeal
from a final judgment can be reasonably inferred and the respondent is not misled, we will
not dismiss an appeal due to technical defects in the notice of appeal. Forman v. Eagle Thrifty
Drugs & Markets, 89 Nev. 533, 536, 516 P.2d 1234, 1236 (1973). Therefore, and in view of
our determination discussed below, we choose to overlook this technical defect.
Next, it must be determined whether the notice of appeal was timely filed. NRS 34.575(1)
provides that the appeal must be made within 30 days after service by the court of written
notice of entry of the order or judgment. The certificate of mailing for the order denying
appellant's petition indicates that the district court clerk mailed copies of that order to the
Washoe County District Attorney, the Attorney General, and Jane McKenna, apparently
appellant's counsel of record at the time. NRS 34.830(2) provides, however, that a copy of the
order resolving the petition must be served by the clerk of the court upon the petitioner and
his counsel, if any, the respondent, the attorney general and the district attorney of the county
in which the petitioner was convicted.
[Headnotes 3, 4]
Appellant states that he was never served with the order denying his petition.
Appellant contends that the time for filing a notice of appeal should not begin to run until the
district court clerk has fully complied with the requirements of NRS 34.830(2) by serving
him with a copy of the order denying his petition. We agree. Specifically, NRS 34.575(1) sets
forth a thirty-day period for appealing from an order resolving a petition for a writ of habeas
corpus, commencing with service of the order by the clerk of the district court, but does not
define that service. We conclude that NRS 34.830(2), setting forth who must be served with
the order resolving the petition, describes the service contemplated in NRS 34.575(1). See
State, Dep't of Mtr. Vehicles v. McGuire, 108 Nev. 182, 184, 827 P.2d 821, 822 (1992) (
Any doubt about the construction of statutes regulating the right of appeal should be
resolved in favor of allowing an appeal' ") {quoting Thompson v. District Court, 100 Nev.
352, 355, 6S3 P.2d 17, 19 {19S4)).
should be resolved in favor of allowing an appeal' ) (quoting Thompson v. District Court,
100 Nev. 352, 355, 683 P.2d 17, 19 (1984)). Thus, the thirty-day period for appealing from an
order denying a petition for a writ of habeas corpus under NRS 34.575(1) begins to run after
the clerk of the district court has complied with NRS 34.830 and properly served the
petitioner, as well as petitioner's counsel, if any. Therefore, despite the general rule that
service upon counsel constitutes service upon a party, see NRAP 25(1)(b), NRCP 5(b), the
time for filing this appeal did not begin to run until appellant was directly served. Appellant
filed his notice of appeal on August 29, 1997, seventeen days after the clerk of the district
court, on August 12, 1997, served him by mail with notice of entry of the order denying his
petition. Therefore, appellant's notice of appeal was timely filed. Accordingly, this appeal
may proceed. We reinstate the briefing schedule suspended in our order of November 13,
1997.
1

____________
114 Nev. 221, 221 (1998) Lisle v. State
KEVIN JAMES LISLE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 28172
February 26, 1998 954 P.2d 744
Petition for rehearing in an appeal from a judgment of conviction, pursuant to a jury
verdict, for first degree murder with a deadly weapon and a sentence of death. Eighth Judicial
District Court, Clark County; Jeffrey D. Sobel, Judge.
On petition for rehearing, the supreme court held that: (1) failure to pursue
extraordinary writ does not constitute waiver of right to challenge adequacy of grand jury
notice on appeal, but (2) defendant failed to show any prejudice resulting from allegedly
inadequate jury notice.
Petition denied.
Morgan D. Harris, Public Defender, Michael L. Miller, Deputy Public Defender, and
Ralph E. Baker, Deputy Public Defender, Clark County, for Appellant.
Attorney, Stacy Kollins, Deputy District Attorney, and Daniel M. Seaton, Deputy District
Attorney, Clark County, for Respondent.
__________

1
Appellant shall file the opening brief within thirty (30) days of the date this opinion is filed. Thereafter,
briefing shall proceed in accordance with the briefing schedule in NRAP 31(a)(1).
114 Nev. 221, 222 (1998) Lisle v. State
1. Criminal Law.
Writ of mandamus was not only remedy available to defendant to challenge sufficiency of notice of grand jury proceedings, and
thus, defendant did not waive his right to challenge sufficiency of grand jury notice on appeal by failing to apply for writ. NRS
172.241(2).
2. Criminal Law.
Failure to purse extraordinary writ does not constitute waiver of right to challenge adequacy of grand jury notice on appeal. NRS
172.241(2).
3. Criminal Law.
Defendant failed to show any prejudice resulting from allegedly inadequate notice that he was target of grand jury proceedings,
and thus, he was not entitled to relief. NRS 172.241(2).
OPINION
Per Curiam:
On October 22, 1994, appellant Kevin James Lisle shot and killed Kip Logan. After a jury trial, Lisle was convicted of first
degree murder with a deadly weapon and sentenced to death.
On appeal, Lisle alleged that on October 31, 1994, after he was arrested, he was taken to the police station where he was handcuffed to
a chair. He asserted that a female police officer threw a piece of paper across the table in front of him and announced, You've been
subpoenaed. Because he was handcuffed, Lisle alleged that he was unable to read the paper, and no one informed him of the contents.
Two days later, on November 2, 1994, Lisle was given actual notice in justice court that the grand jury would be convening on
November 3, 1994, to consider issuing an indictment against him. The next day, the grand jury proceedings did take place, and Lisle was
indicted for murder.
On December 19, 1994, Lisle filed a motion to dismiss his indictment due to inadequate notice, pursuant to NRS 172.241(2) and
Sheriff v. Marcum, 105 Nev. 824, 783 P.2d 1389 (1989).
1
Additionally, on December 20, 1994, Lisle filed in
the district court a petition for a writ of habeas corpus on this issue. In response, the state
asserted that Lisle was mailed notice of the grand jury proceedings on October 26, 1994,
seven days prior, and that Officer Darlene Falvey also properly served him with notice on
October 31, 1994, when Lisle was arrested.
__________

1
NRS 172.241(2) provided: A district attorney shall give reasonable notice to a person whose indictment is
being considered by a grand jury unless the court determines that adequate cause exists to withhold notice. The
notice is adequate if given to the person, his attorney of record or an attorney who claims to represent the
person. This statute has since been amended to require at least 5 days' notice. 1997 Nev. Stat., ch. 99, 1, at 188.
Sheriff v. Marcum, 105 Nev. 824, 827, 783 P.2d 1389, 1391 (1989), held that a target of grand jury
proceedings has the right to reasonable notice of such proceedings. This court further concluded that a
one-day notice was unreasonable. Id.
114 Nev. 221, 223 (1998) Lisle v. State
grand jury proceedings on October 26, 1994, seven days prior, and that Officer Darlene
Falvey also properly served him with notice on October 31, 1994, when Lisle was arrested.
On February 2, 1995, the district court conducted a hearing on the motion to dismiss
and petition for habeas relief, although this was not an evidentiary hearing. The district court
found that on these facts, Marcum was not violated, and therefore, it denied the motion and
petition on this ground. However, the judge encouraged Lisle to file a writ for extraordinary
relief with this court to consider whether Marcum had indeed been violated. Lisle declined to
file such a writ with this court, and he proceeded to trial where he was convicted and
sentenced to death. This court affirmed his conviction and sentence. Lisle v. State, 113 Nev.
540, 937 P.2d 473 (1997).
In the opinion, this court noted:
A writ of mandamus is an appropriate remedy for inadequate notice of a grand jury
hearing. Solis-Ramirez v. District Court, 112 Nev. 344, 347, 913 P.2d 1293, 1295
(1996). In Sturrock v. State, 95 Nev. 938, 604 P.2d 341 (1979), this court held that a
defendant who has been denied his right to a preliminary hearing, and has failed to
pursue a pretrial remedy through mandamus, has waived any impropriety regarding the
trial court's inaction. Id. at 943, 604 P.2d at 345.
Lisle, 113 Nev. at 551, 937 P.2d at 480.
[Headnote 1]
Lisle filed his timely petition for rehearing, alleging that this court inappropriately
cited Solis-Ramirez and Sturrock for the proposition that a writ of mandamus is the only
remedy available for challenging inadequate Marcum notice. We agree and now wish to
clarify this point. Nonetheless, we conclude that rehearing is not warranted, and we therefore
deny this petition.
In Solis-Ramirez, this court granted an original petition for a writ of mandamus filed by a
defendant prior to trial based on inadequate notice of the grand jury proceedings against him.
Solis-Ramirez, 112 Nev. at 348, 913 P.2d 1295. This court concluded the writ was warranted
because the defendant does not have an adequate legal remedy from the district court's order
denying the motion to dismiss the criminal indictment. Id. at 347, 913 P.2d at 1295 (citing
NRAP 3A and NRS 177.015 (provisions for taking an appeal from a judgment or order)).
In Sturrock, 95 Nev. at 942, 604 P.2d at 344, after appellant was tried and convicted,
he appealed, contesting the district court's denial of his preliminary examination. A
two-justice plurality of this court concluded, "[M]andamus was available to compel
remand [to justice court for the preliminary examination].
114 Nev. 221, 224 (1998) Lisle v. State
plurality of this court concluded, [M]andamus was available to compel remand [to justice
court for the preliminary examination]. By failing to pursue this remedy, and instead
proceeding to trial, appellant has waived any impropriety regarding the trial court's inaction.
Id. at 943, 604 P.2d at 345 (citation and footnote omitted). The two-justice plurality further
concluded, [A]n extraordinary remedy must be sought, because no post-judgment appeal
will be available to review the error complained of . . . . Id.
[Headnote 2]
We now wish to clarify that our reliance on these two cases was not intended to
announce a rule of law establishing that the failure to pursue an extraordinary writ with this
court prior to trial will constitute a waiver of the right to challenge the adequacy of grand jury
notice on appeal. We emphasize that such is not the law in Nevada. See Parker v. State, 100
Nev. 264, 266 n. 3, 679 P.2d 1271, 1273 n. 3 (1984). That is, an appellant's contention that he
or she did not receive adequate Marcum notice will not be waived if the appellant fails to
seek a writ from this court pretrial.
2

The two-justice plurality opinion in Sturrock is not binding authority for the conclusion
that failure to seek a pretrial writ constitutes waiver of a challenge to a grand jury notice.
Further, our holding in Solis-Ramirez merely restated the well-settled rule that there is no
immediate right to appeal from an interlocutory order denying a pretrial motion to dismiss.
Solis-Ramirez does not hold that an order of the district court denying a pretrial motion to
dismiss cannot be reviewed in a direct appeal from a final judgment of conviction. See NRS
177.045 (any decision in an intermediate order or proceeding may be reviewed on appeal
from the final judgment); see also Johnston v. State, 107 Nev. 944, 822 P.2d 1118 (1991) (on
a direct appeal from a judgment of conviction, this court addressed the merits of appellant's
claim that he did not receive reasonable notice of the grand jury proceedings). Accordingly,
we conclude that Lisle did not waive this issue by deciding not to seek an extraordinary writ
from this court before he proceeded to trial.
[Headnote 3]
Although Lisle did not waive this issue, we conclude that he is not entitled to relief. In
our prior opinion in this case, we determined that Lisle failed to show any prejudice resulting
from the allegedly inadequate notice. Lisle, 113 Nev. at 551-52, 937 P.2d at 480; see also
United States v. Mechanik, 475 U.S. 66, 70 (1986) (holding that because the defendants were
convicted after trial beyond a reasonable doubt, probable cause undoubtedly existed to bind
them over for trial; therefore, any error in the grand jury proceedings connected with the
charging decision was harmless beyond a reasonable doubt).
__________

2
By this holding, we do not limit one's right to pursue such extraordinary relief from this court prior to trial.
114 Nev. 221, 225 (1998) Lisle v. State
existed to bind them over for trial; therefore, any error in the grand jury proceedings
connected with the charging decision was harmless beyond a reasonable doubt). We continue
to adhere to this determination and, accordingly, deny this petition.
3

____________
114 Nev. 225, 225 (1998) State v. Harnisch
THE STATE OF NEVADA, Appellant v. THOMAS JACOB HARNISCH, Respondent.
No. 27347
February 26, 1998 954 P.2d 1180
Petition for rehearing in an appeal from a district court order granting a motion to
suppress evidence. Eighth Judicial District Court, Clark County; Gene T. Porter, Judge.
Defendant moved to suppress evidence seized from trunk of automobile. The district
court granted motion to suppress. The supreme court affirmed. 113 Nev. 214, 931 P.2d 1359
(1997). On motion for rehearing, supreme court held that: (1) state constitution requires both
probable cause and exigent circumstances in order to justify warrantless search of parked,
immobile, unoccupied vehicle, and (2) absent exigent circumstances, warrantless search of
defendant's car was not justified under automobile exception to state constitution's warrant
requirement.
Petition denied.
Attorney, and James Tufteland, Deputy District Attorney, Clark County, for Appellant.
Kirk Kennedy, Las Vegas, for Respondent.
1. States.
States are free to provide greater protections in their criminal justice system than federal Constitution requires.
2. Searches and Seizures.
While federal Constitution may not require presence of exigent circumstances to validate warrantless search of automobile, state
may adhere to this requirement. U.S. Const. amend. 4.
Exigent circumstances to validate warrantless search of automobile may include medical emergencies if police officers
reasonably believe that person on premises is in need of immediate aid, imminent and substantial threats to life, health, or property,
necessity to determine whether victims or suspects are on premises, potential destruction of evidence, and concerns for safety of
officers or public.
__________

3
The Honorable A. William Maupin, Justice, did not participate in this decision.
States are free to interpret their own constitutional provisions without regard to analogous federal provisions.
State constitution requires both probable cause and exigent circumstances in order to justify warrantless search of parked,
immobile, unoccupied vehicle. Const. art. 1, 18.
Absent exigent circumstances, warrantless search of defendant's parked, immobile, unoccupied car, conducted after search
pursuant to warrant of defendant's apartment, was not justified under automobile exception to state constitution's warrant requirement.
Const. art. 1, 18.
OPINION
Per Curiam:
Appellant State of Nevada has petitioned for rehearing of this court's opinion in State v. Harnisch, 113 Nev. 214, 931 P.2d 1359
(1997). The opinion affirmed the district court's order granting respondent Thomas Jacob Harnisch's motion to suppress evidence. Although
we have concluded that rehearing is not warranted, we issue this opinion to clarify one point of law.
Harnisch was a suspect in the kidnapping and robbery of Stephanie Prather on September 12, 1994. The police obtained a valid search
warrant of Harnisch's apartment unit. While the police were conducting the search, Harnisch arrived home in his vehicle which he parked
in his designated parking space. He was arrested while the search of his apartment was still in effect. Upon completion of the search of
Harnisch's residence, the police proceeded to search his automobile without a warrant or an attempt to obtain a warrant. In a suitcase in the
trunk of the car, the officers found a telephone book containing the names and addresses of other suspects in the crime upon Prather.
On July 20, 1995, Harnisch filed a motion to suppress the evidence found in his car. The state opposed the motion, arguing that
the car was within the curtilage of Harnisch's home and, therefore, the warrant encompassed the vehicle. The district court disagreed with
the state's position and granted Harnisch's motion. The state appealed to this court, again asserting its curtilage argument.
On January 30, 1997, this court issued an opinion affirming the district court's order suppressing the evidence found in Harnisch's car.
State v. Harnisch, 113 Nev. 214, 931 P.2d 1359 (1997). This court concluded that the car did not fall within the curtilage of Harnisch's
apartment. Id. at 220-21, 931 P.2d at 1363-64. This court further determined, sua sponte, that a warrant was required to search the car and
that no exception, including the "automobile exception," applied.
ing the automobile exception, applied. Id. at 222-23, 931 P.2d at 1365. Specifically, this
court concluded:
Additionally, the automobile exception to the warrant requirement does not apply in
this case. For the automobile exception to apply, two conditions must be 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. Carroll v. United States, 267 U.S. 132, 153-54 (1925). In the
instant case, the first factor may have been satisfied but the second, as stated above, was
not; the opportunity to search the car was not fleeting because the car was not readily
movable by the defendant. See Chambers v. Maroney, 399 U.S. 42, 51-52 (1970).
Id. (emphasis added).
In its petition for rehearing, the state correctly indicates that federal law no longer
requires the presence of exigent circumstances to justify a warrantless automobile search. The
state cites at length numerous United States Supreme Court decisions clearly establishing that
the Court no longer requires the exigent circumstance prong in order to search an automobile
without a warrant. E.g., Ornelas v. United States, 517 U.S. 690 (1996); California v.
Acevedo, 500 U.S. 565 (1991); Michigan v. Thomas, 458 U.S. 259 (1982).
In Carroll v. United States, 267 U.S. 132, 158-59 (1925), the Supreme Court held that a
search of an automobile without a warrant was permissible if (1) the police had probable
cause to believe that evidence of a crime was present in the vehicle, and (2) exigent
circumstances existed to believe the car would be removed from the area. However, the Court
has since retreated from a strict application of the exigency requirement in vehicle searches
and has emphasized that pervasive schemes of regulation giving rise to reduced
expectations of privacy, and the exigencies attendant to ready mobility justify searches
without prior recourse to the authority of a magistrate so long as the overriding standard of
probable cause is met. California v. Carney, 471 U.S. 386, 392 (1985) (emphasis added); see
also Barrios-Lomeli v. State, 113 Nev. 952, 944 P.2d 791 (1997) (acknowledging the
Supreme Court's abandonment of the exigency requirement).
[Headnotes 1, 2]
Even though this court did not correctly pronounce the present status of the federal
constitutional law on this issue, [i]t is elementary that States are free to provide greater
protections in their criminal justice system than the Federal Constitution requires."
requires. California v. Ramos, 463 U.S. 992, 1013-14 (1983). Therefore, while the federal
constitution may not require the presence of exigent circumstances to validate a warrantless
search of an automobile, Nevada may adhere to this requirement as some of our sister states
have done.
In State v. Kock, 725 P.2d 1285, 1287 (Or. 1986), the Oregon Supreme Court
concluded that its state constitution requires:
[A]ny search of an automobile that was parked, immobile and unoccupied at the time
the police first encountered it in connection with the investigation of a crime must be
authorized by a warrant issued by a magistrate or, alternatively, the prosecution must
demonstrate that exigent circumstances other than the potential mobility of the
automobile exist.
(Emphasis added.) In addition, other states have concluded that their state constitutions
require either a warrant to search a parked, immobile, unoccupied vehicle or a showing that
probable cause and exigent circumstances exist to search the automobile without a warrant.
See, e.g., State v. Larocco, 794 P.2d 460, 469-70 (Utah 1990); State v. Patterson, 774 P.2d
10, 12 (Wash. 1989).
[Headnote 3]
The state has the burden to prove the existence of exigent circumstances. Nelson v.
State, 96 Nev. 363, 366, 609 P.2d 717, 719 (1980). Exigent circumstances may include
medical emergencies if the police officers reasonably believe that a person on the premises is
in need of immediate aid; imminent and substantial threats to life, health, or property;
necessity to determine whether victims or suspects are on the premises; potential destruction
of evidence; and concerns for the safety of the officers or the public. See State v. Miller, 630
A.2d 1315, 1326 (Conn. 1993); Alward v. State, 112 Nev. 141, 151, 912 P.2d 243, 250
(1996); Nelson, 96 Nev. at 366, 609 P.2d at 719.
[Headnote 4]
Although states are free to interpret their own constitutional provisions without regard
to analogous federal provisions, Michigan v. Long, 463 U.S. 1032, 1041 (1983), in the
present case, our prior opinion relied solely on federal precedent to interpret the Fourth
Amendment of the United States Constitution. We did not expressly interpret our state
constitution in deciding whether probable cause and exigent circumstances are both necessary
to validate a warrantless automobile search. See Nev. Const. art. 1, 18.
[Headnote 5]
We now conclude, however, that the Nevada Constitution requires both probable
cause and exigent circumstances in order to justify a warrantless search of a parked,
immobile, unoccupied vehicle.
to justify a warrantless search of a parked, immobile, unoccupied vehicle. Any other
interpretation would be contrary to our state's strong public policy requiring police to obtain a
warrant whenever feasible. Abandonment of the exigency requirement in Nevada would
essentially eliminate any need for a warrant whenever a government agent wishes to search an
immobile vehicle.
It is axiomatic that probable cause is necessary to obtain a warrant, see NRS 179.045,
and this court has repeatedly stated that warrantless searches are per se unreasonable, subject
only to specifically established and well-delineated exceptions. We have also observed that in
evaluating the right of our citizens to be free from unreasonable searches and seizures, this
Court, on review, must be careful not to permit the exception to swallow the rule. Phillips v.
State, 106 Nev. 763, 765-66, 801 P.2d 1363, 1365 (1990) (quoting Nelson, 96 Nev. at 366,
609 P.2d at 719 (citation omitted)). If we cast aside the exigency requirement from the
automobile exception in situations such as the instant case, the probable cause warrant
requirement would become virtually meaningless, and we would accomplish exactly what
Nelson warns against; that is, we would permit the exception to swallow the rule.
[Headnote 6]
Because no exigency was present here, Harnisch, 113 Nev. at 223, 931 P.2d at 1365,
the warrantless search of Harnisch's car was not justified under the automobile exception to
the warrant requirement.
1
Accordingly, we deny this petition.
2

____________
114 Nev. 229, 229 (1998) Chism v. State
MARIO CHISM, Appellant v. THE STATE OF NEVADA, Respondent.
No. 31342
February 26, 1998 954 P.2d 1183
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of
conspiracy to commit robbery, one count of possession of a stolen vehicle, two counts of
burglary while in possession of a firearm, and two counts of robbery with use of a deadly
weapon. Eighth Judicial District Court, Clark County; Mark W. Gibbons, Judge.
__________

1
Cause appearing, we grant the state's request to exceed the ten-page limit for petitions for rehearing. NRAP
40(b). We hereby direct the clerk of this court to file the state's petition and Harnisch's response to the petition.
However, we deny the state's request for oral argument. NRAP 40(a).

2
The Honorable A. William Maupin, Justice, did not participate in this decision.
114 Nev. 229, 230 (1998) Chism v. State
The supreme court held that: (1) defendant did not waive issue of sufficiency of
evidence by failing to seek judgment of acquittal in trial court, and (2) evidence was
sufficient to sustain convictions.
Affirmed.
Morgan D. Harris, Public Defender, and Robert D. Caruso, Deputy Public Defender,
Clark County, for Appellant.
Attorney and James Tufteland, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Defendant did not waive issue of sufficiency of evidence to sustain convictions by failing to move for judgment of acquittal in
trial court. NRS 175.381.
2. Criminal Law; Robbery.
Evidence, including eyewitness identifications, was sufficient to sustain convictions of conspiracy to commit robbery and
robbery with use of deadly weapon for armed holdups of bar and grocery store.
3. Receiving Stolen Goods.
Evidence was sufficient to sustain conviction of possession of stolen vehicle that was used as getaway vehicle in commission of
robberies.
OPINION
Per Curiam:
Mario Chism appeals from a judgment of conviction of conspiracy to commit robbery (count I), possession of a stolen vehicle
(count II), two counts of burglary while in possession of a firearm (counts III and V), and two counts of robbery with use of a deadly
weapon (counts IV and VI). The district court sentenced Chism to imprisonment for: a term of thirteen (13) to sixty (60) months on count I;
a term of twelve (12) to forty-eight (48) months on count II to be served concurrently with count I; a term of forty-eight (48) to one hundred
twenty (120) months on count III to be served concurrently with count II; a term of forty-eight (48) to one hundred twenty (120) months,
plus an equal and consecutive term for the deadly weapon enhancement, on count IV to be served concurrently with count III; a term of
forty-eight (48) to one hundred twenty (120) months on count V to be served concurrently with count IV; and a term of forty-eight (48) to
one hundred twenty (120) months, plus an equal and consecutive term for the deadly weapon enhancement, on count VI to be served
concurrently with count V. The district court further ordered the sentence in this case to be served consecutively to another, unrelated
case.
114 Nev. 229, 231 (1998) Chism v. State
unrelated case. Finally, the district court ordered Chism to pay a $25.00 administrative
assessment fee and a $500.00 attorney fee.
[Headnote 1]
Chism's only contention on appeal is that the evidence presented at trial was
insufficient to support the jury's finding of guilt. The state, in response, urges this court to
hold that the issue of sufficiency of the evidence is waived unless the defendant moves for a
judgment of acquittal in the district court.
1

This court, however, has never refused to review the sufficiency of the evidence in a
criminal case based on the defendant's failure to move for a judgment of acquittal. Moreover,
NRS 175.381 permits a defendant to move for an acquittal, it does not require him to do so.
We therefore decline the state's invitation to adopt a waiver analysis with respect to
sufficiency of the evidence.
In this case, our review of the record on appeal reveals sufficient evidence to establish
guilt beyond a reasonable doubt as determined by a rational trier of fact. See Wilkins v. State,
96 Nev. 367, 609 P.2d 309 (1980).
[Headnotes 2, 3]
Between 5:00 and 6:00 in the morning on August 22, 1996, the Von's grocery store at
Pecos and Russell in Las Vegas and the Boston Grill & Bar in Las Vegas were robbed by a
man carrying a rifle. Witnesses at the grocery store described a man wearing a sheet or
hood over his head, light blue nylon jogging pants, a dark colored shirt, gloves, and white
tennis shoes. Although the majority of the man's face was covered, at least two of the grocery
store witnesses could see the skin area around the man's eyes and testified that they believed
he was African-American. The man threatened the cashier in charge of the video poker
machines in the grocery store, Patricia Covington, and ordered her to fill a pillowcase with all
of the currency and coin. Covington testified that, in addition to the cash, she put
approximately $1600 in quarters in the pillowcase and that the man had to drag the
pillowcase out of the store. During the robbery, some workers in the back of the store exited
through a back door and noticed a white station wagon parked with its engine idling and its
lights on.
__________

1
In support of its position, the state cites the following: United States v. Ward, 914 F.2d 1340, 1346-47 (9th
Cir. 1990) (to preserve the issue of sufficiency of the evidence on appeal, the defendant must move for a
judgment of acquittal pursuant to Fed. R. Crim. P. 29(a)), modified, 946 F.2d 899 (9th Cir. 1991); Jones v. State,
931 S.W.2d 83, 84-85 (Ark. 1996) (similar); and 2 Charles Alan Wright, Federal Practice and Procedure
469, at 672 (2d ed. 1982) (There is a seemingly well-settled doctrine that if no motion for judgment of acquittal
was made in the trial court, an appellate court cannot review the sufficiency of the evidence.).
114 Nev. 229, 232 (1998) Chism v. State
lights on.
2
One witness, Sam Gibbs, saw a man run and get in the driver's seat, and a few
seconds later, saw another man wearing a hood and carrying a rifle run up and get in the
passenger's seat. Gibbs could hear change falling while the second man was running.
The only witness to the subsequent robbery at the Boston Grill & Bar that occurred
approximately one half-hour later was Mike Pangrac. Pangrac described a man wearing a
towel or sheet over his head, light blue sweat pants, and a dark blue shirt. The man had a rifle
and ordered Pangrac to fill a plastic bag with cash from the gaming drawer and the cash
register. The man told Pangrac not to give him any coins. Pangrac put all the cash, plus two
checks made out to the bar, in the bag. During the robbery, the man's hood slid down to
expose his entire face. The man took the bag and got in the passenger door of a white station
wagon, which headed east on Spring Mountain. Pangrac called 911. Within minutes, the
police called Pangrac to another location to make an identification.
A patrol officer, Ernest Brown, spotted a vehicle, fitting the description given by Pangrac
and witnesses at the grocery store, in an eastbound lane on Spring Mountain. Officer Brown
began following the suspect vehicle, waiting for backup patrol cars to arrive. Other patrol cars
arrived at a nearby intersection and one officer made eye contact with Chism, who slid down
in the passenger seat. The suspect vehicle went through the intersection after the light
changed and began to increase speed. The officers moved in behind the suspect vehicle and
activated their overhead lights. A chase ensued, and the driver of the suspect vehicle lost
control and stopped in the dirt area to the side of a highway onramp. Chism exited the vehicle
from the passenger side and began to run. When Chism was arrested, a police officer
discovered a plastic grocery bag, filled with money and two checks made out to the Boston
Grill & Bar, stuffed inside the front of Chism's pants. During an inventory search of the white
station wagon, a loaded rifle and a pillow case containing cash and coin were retrieved. Also,
coins were strewn over the floor of the car.
Pangrac and witnesses from the grocery store were brought to the scene. Pangrac
positively identified Chism based on the robber's face and clothing. Although the grocery
store witnesses could not see the robber's entire face, they were able to identify Chism as the
robber based on his clothing. In particular, many of them testified that Chism's nylon pants
had made a distinctive noise when he walked.
__________

2
At approximately 7:30 a.m., Salah Kneibe reported his white station wagon stolen. At approximately 11:00
p.m. the night before, Kneibe had parked the car outside his apartment. When the car was recovered, the ignition
had been tampered with so that the car could be started without a key.
114 Nev. 229, 233 (1998) Chism v. State
noise when he walked. Also, Gibbs was able to identify the white station wagon that he had
seen the robber get in after leaving the grocery store. Finally, John Villa, an employee at the
grocery store, testified that he was able to identify Chism as the robber based on his eyes and
clothing.
The jury could reasonably infer from the evidence presented that Chism was guilty on
all counts. It is for the jury to determine the weight and credibility to give conflicting
testimony, and the jury's verdict will not be disturbed on appeal where, as here, substantial
evidence supports the verdict. See Bolden v. State, 97 Nev. 71, 624 P.2d 20 (1981).
Accordingly, we affirm the judgment of conviction.
____________
114 Nev. 233, 233 (1998) Yamaha Motor Co. v. Arnoult
YAMAHA MOTOR COMPANY, U.S.A., Appellant, v. BETH ARNOULT, Respondent.
No. 27649
February 26, 1998 955 P.2d 661
Appeal from a judgment pursuant to a jury trial. Eighth Judicial District Court, Clark
County; Myron E. Leavitt, Judge.
Plaintiff, who was paralyzed from the waist down following an accident in which she
flipped over forward while riding an all-terrain vehicle (ATV), sued manufacturer of ATV on
theories of strict products liability and negligence. A trial jury in the district court awarded
plaintiff $3,600,000 in damages for failure to warn, and the trial court awarded plaintiff
$237,100 for attorney fees. Manufacturer appealed. The supreme court held that: (1) evidence
sustained finding that plaintiff was not attempting a jump or stunt before the accident, and
thus was not abusing or misusing her ATV; (2) evidence sustained finding of inadequate
warning; (3) evidence sustained finding of foreseeable use of ATV; (4) trial court did not
abuse its discretion in admitting testimony of plaintiff's expert witness as to adequacy of
warnings; (5) trial court did not abuse its discretion in refusing manufacturer's use of
deposition transcript of manufacturer's expert design witness during manufacturer's case in
chief; (6) evidence sustained jury's award of $500,000 for future medical expenses; (7) loss of
household services qualified as separate compensable economic loss; but (8) jury awards of
$10,000 and $400,000, respectively, for past and future costs of disablement would be
vacated; and (9) trial court abused its discretion in awarding attorney fees, and remand was
necessary for reweighing of Beattie factors.
Pico & Mitchell and James R. Rosenberger, Las Vegas; Wilson, Elser, Moskowitz,
Edelman & Dicker, and James P. Donovan, New York, New York, for Appellant.
Donald J. Campbell and J. Colby Williams, Las Vegas; Unglesby & Koch, and
Stephen R. Edwards, Baton Rouge, Louisiana, for Respondent.
District court's findings will be upheld if they are supported by substantial evidence, meaning evidence which a reasonable
mind might accept as adequate to support a conclusion.
Appellate court is not at liberty to weigh evidence anew, and where conflicting evidence exists, all favorable inferences must be
drawn towards prevailing party.
3. Negligence.
To establish prima facie case of negligence or strict tort liability, plaintiff must satisfy the element of proximate causation.
4. Negligence.
Proximate causation is generally issue of fact for jury to resolve.
Nevada law requires that warnings adequately communicate any dangers that may flow from use or foreseeable misuse of
product.
It was question for jury whether plaintiff was attempting jump or stunt, and thus was abusing or misusing her all-terrain vehicle
(ATV), when ATV became airborne on sand dune, causing plaintiff to be flipped over forward. Numerous witnesses testified that
plaintiff was operating ATV safely, and plaintiff's mechanical engineering and accident reconstruction expert testified that evidence
was inconsistent with manufacturer's jumping theory because plaintiff's point of rest following the spill was inconsistent with high rate
of speed.
It was question for jury whether owner's manual for all-terrain vehicle (ATV) was inadequate to warn novice user of how
jumping could be avoided while using ATV to climb slope over rough desert terrain within speed capabilities of the ATV. Owner's
manual did not address possibility of flipping forward when brakes were applied while cresting hill or while trimming the throttle, and
manual depicted rider climbing 30-degree slope in exact manner as attempted by plaintiff.
It was question for jury whether it was foreseeable that all-terrain vehicle (ATV) would be used to climb 30-degree slope over
rough desert terrain within speed capabilities of the ATV. Owner's manual depicted rider climbing hill with 30-degree slope at
half-throttle.
Manufacturer is not required to warn against dangers that are generally known.
In determining whether jury's finding was supported by substantial evidence, appellate court must presume that jury found
evidence favorable to prevailing party and that all reasonable inferences were resolved in prevailing party's favor.
11. Evidence.
Daubert analysis for admissibility of expert scientific testimony did not apply to expert testimony on adequacy of warnings in
owner's manual for all-terrain vehicle (ATV) regarding dangers of jumping the ATV. Warnings expertise did not entirely implicate
natural laws of science, though some empirical behavioral testing might have been involved in assessing efficacy of different warnings.
NRS 50.275.
12. Evidence.
Expert testimony is not restricted to areas of inquiry governed by laws of science. NRS 50.275.
13. Evidence.
Trial court did not abuse its discretion in admitting testimony of plaintiff's expert witness as to adequacy of warnings in
all-terrain vehicle (ATV) owner's manual regarding dangers of jumping the ATV. Witness held masters and doctoral degrees in
industrial engineering and had 24 years of tenure as assistant professor of safety engineering, and witness assisted in assessment of
warnings by testifying that manual was silent as to avoidance of forward flips and conditions that could contribute to forward pitch roll
when cresting a hill. NRS 50.275.
Appellate court will not disturb district court's sound discretion in determining competency of expert witness, absent clear abuse
of discretion.
15. Trial.
Jury instruction which stated in part that manufacturer of all-terrain vehicle (ATV) is liable for foreseeable misuse of product
did not improperly allow jury to find foreseeable misuse without finding failure to include adequate warnings in owner's manual. Jury
instructions as a whole, and special verdict question in particular, conditioned any liability in connection with foreseeable misuse of
failure to include adequate warnings in manual.
Trial court's rulings concerning admission of depositions will not be disturbed absent abuse of discretion. NRCP 32.
Trial court did not abuse its discretion in refusing manufacturer's use of deposition transcript of manufacturer's expert design
witness during manufacturer's case in chief in products liability trial. Witness' production of foreign language documents at deposition
had effect of compromising plaintiff's cross-examination, manufacturer had previously represented that all such documents had been
produced, witness was not designated as expert untill after discovery deadline, and manufacturer was not prevented from eliciting live
testimony from the witness. NRCP 32.
18. Damages.
Evidence sustained jury's award of $500,000 for future medical expenses of products liability plaintiff, who was injured using
all-terrain vehicle (ATV). Internist testified that plaintiff's paraplegia had led to persistent bowel problems which might cause
potentially deadly bouts of infection, orthopaedic surgeon who performed plaintiff's post-accident surgery testified that plaintiff would
encounter debilitating and deteriorating skin breakdown which would precipitate onset of decubitus ulcers, and president of Help
Them Walk Again Foundation testified that costs of hospitalization for treatment of decubitus ulcers could approach $350,000.
19. Damages.
Award of future medical expenses must be supported by sufficient and competent evidence.
20. Damages.
Loss of household services qualified as separate compensable economic loss in products liability case brought by plaintiff who
became paraplegic after all-terrain vehicle (ATV) accident, as such category did not fit with any of the other categories listed in special
verdict form.
21. Damages.
Substantial evidence supported jury's awards of $35,000 and $300,000, respectively, for past and future household services in
products liability case brought by plaintiff who became paraplegic after all-terrain vehicle (ATV) accident, though plaintiff's economist
was not qualified as physician, as elements of such loss were adequately demonstrated by other competent evidence upon which
economist could make his projections.
22. Damages.
Jury awards of $10,000 and $400,000, respectively, for past and future costs of disablement would be vacated in products
liability case brought by plaintiff who became paraplegic after all-terrain vehicle (ATV) accident, as trial court's failure to define the
terms used in those categories of damages had the potential for duplicating plaintiff's recovery for future medical expenses and
household service expenses.
23. Damages.
Manufacturer was not prejudiced by trial court's inclusion in special verdict form, after products liability plaintiff's closing
arguments and before manufacturer's closing arguments, of plaintiff's claims for past and future household services and past and future
disability costs. Manufacturer was sufficiently aware of evidence regarding such damages and after manufacturer's objection at trial
was overruled, manufacturer did not request a recess to construct an argument addressing the issue and addressed no damage issues in
its closing arguments.
24. Costs.
Trial court abused its discretion in awarding attorney fees of $237,100 to plaintiff in products liability case, though jury award
of $3.6 million was $1.1 million higher than the offer of judgment rejected by manufacturer, as trial court did not consider, as Beattie
factor, whether manufacturer's defenses were litigated in good faith, and trial court, in finding as Beattie factor that rejection of offer
was in bad faith, may not have appropriately weighed the fact that manufacturer prevailed on two of its three defenses, and thus,
remand was necessary for reweighing under Beattie. NRCP 68.
25. Costs.
No one factor under Beattie analysis for attorney fee award is determinative, and trial court has broad discretion to grant request
for attorney fees so long as all appropriate factors are considered. NRCP 68.
OPINION
Per Curiam:
After sustaining catastrophic injuries while operating a Yamaha four-wheel all-terrain vehicle, Beth Arnoult filed suit against
Yamaha Motor Company, U.S.A., on theories of strict products liability and negligence.
Yamaha Motor Company, U.S.A., on theories of strict products liability and negligence. The
trial jury awarded Arnoult $3,600,000 in damages, and the district court awarded attorney's
fees under NRCP 68. Yamaha appeals.
We affirm the judgment with the exception of one component of the damage award
and the award of attorney's fees.
FACTS
On March 30, 1991, respondent Beth Arnoult (Arnoult) was paralyzed from the
waist down following an accident in which she flipped over forward while riding a 1988
model YFM200DX Yamaha Moto 4 four-wheel all-terrain vehicle (ATV), in the desert
north of Las Vegas. She was not wearing a helmet.
Arnoult was travelling at approximately one-half of the vehicle's maximum speed
1
as
she climbed a three-foot sand dune with a face angle of approximately thirty degrees.
Although Arnoult had successfully traversed the sand dune prior to the accident, she was
launched forward on a second attempt as the machine rotated back over front. Eyewitnesses
testified that Arnoult was not operating the ATV in an unsafe manner. To the best of her
recollection, she had ridden the ATV on three previous occasions.
Arnoult sued appellant, Yamaha Motor Corporation, U.S.A. (Yamaha), on theories of
strict products liability and negligence, alleging, inter alia, that an improperly designed
suspension and inadequate warnings were the proximate cause of her injuries. At trial, the
district court certified Dr. Waymon Johnston (Johnston) as Arnoult's warnings expert, and
Dr. Richard McLay (McLay) as an expert in mechanical engineering and accident
reconstruction. Yamaha elected not to have its warnings expert testify.
Arnoult testified that she spent about twenty minutes reading the owner's manual prior
to the accident, and that she applied some of the techniques used in her snowmobiling
experience to operate the ATV. She acknowledged that, after reading the owner's manual, she
understood that jumping the ATV could cause serious injuries. Arnoult testified that, at the
time of the accident, she tried to stay on the ATV until it was virtually in a vertical pitch, after
which she only recalled lying on the ground in extreme pain.
Arnoult had been a very active twenty-five-year-old woman with a bachelor of science
degree in mathematics from Iowa State University. Since the accident, she has experienced
severe back pain, intermittent loss of bowel and bladder function and is unable to perform
routine household chores.
__________

1
The maximum speed of the ATV was forty miles per hour.
unable to perform routine household chores. Her paraplegia is expected to be permanent.
Following a three-week trial, the jury awarded Arnoult $3,600,000 in damages. The
jury, via a special verdict, grounded liability upon Yamaha's failure to warn. It did not find
the existence of a defect in the design of the ATV.
2
Thereafter, the district court awarded
Arnoult attorneys' fees in the amount of $237,100 under NRCP 68.
DISCUSSION
Failure to warn
A. Standard of review
[Headnotes 1, 2]
If the district court's findings are supported by substantial evidence, they will be
upheld. Nelson v. Peckham Plaza Partnerships, 110 Nev. 23, 25, 866 P.2d 1138, 1139 (1994).
Substantial evidence is that which a reasonable mind might accept as adequate to support a
conclusion.' State, Emp. Security v. Hilton Hotels, 102 Nev. 606, 608, 729 P.2d 497, 498
(1986) (quoting Richardson v. Perales, 402 U.S. 389 (1971)). This court is not at liberty to
weigh the evidence anew, and where conflicting evidence exists, all favorable inferences
must be drawn towards the prevailing party. Smith v. Timm, 96 Nev. 197, 202, 606 P.2d 530,
532 (1980).
B. Burden of proof
[Headnotes 3, 4]
To establish a prima facie case of negligence or strict tort liability, a plaintiff must
satisfy the element of proximate causation. This court has long recognized that to establish
proximate causation it must appear that the injury was the natural and probable consequence
of the negligence or wrongful act, and that it ought to have been foreseen in the light of the
attending circumstances. Crosman v. Southern Pacific Co., 42 Nev. 92, 108-09, 173 P. 223,
228 (1918) (citations omitted). Proximate causation is generally an issue of fact for the jury to
resolve. Nehls v. Leonard, 97 Nev. 325, 328, 630 P.2d 258, 260 (1981).
C. The adequacy of the warnings in the owner's manual
[Headnote 5]
Nevada law requires that warnings adequately communicate any dangers that may
flow from the use or foreseeable misuse of a product.
__________

2
Although the jury found Yamaha negligent, it did not find that the negligence was the proximate cause of
Arnoult's injuries.
product. Fyssakis v. Knight Equipment Corp., 108 Nev. 212, 214, 826 P.2d 570, 571-72
(1992). This court has articulated the conditions under which such liability may be
established:
Where the defendant has reason to anticipate that danger may result from a particular
use of his product, and he fails to warn adequately of such a danger, the product sold
without a warning is in a defective condition. Strict liability may be imposed even
where the product is faultlessly made, if it was unreasonably dangerous to place the
product in the hands of the consumer without adequate warnings concerning its safe
and proper use.
Oak Grove Investors v. Bell & Gossett Co., 99 Nev. 616, 624, 668 P.2d 1075, 1080 (1983).
3

[Headnote 6]
Although Yamaha conceded that the ATV model at issue was suitable for riding in
desert terrain, its primary defense to the warnings claim was that Arnoult was attempting a
jumping maneuver in contravention of warnings which she clearly understood. Thus, Yamaha
claims that the nature of the warnings in the owner's manual could not have been the
proximate cause of the incident in which her injuries were sustained.
More particularly, Yamaha contends that the laws of physics dispel Arnoult's claim that
she was not attempting a jump. At trial, Yamaha characterized Arnoult's alleged jump as a
stunt or a hellacious jump, and that the vehicle's speed, combined with the thirty-degree
slope, catapulted her in the air for approximately .7 seconds, allowing the ATV to rotate.
Yamaha, therefore, maintains that, rather than inadequate warnings, operator error was the
actual and proximate cause of this incident. In this, Yamaha relies in part on Arnoult's
warnings expert, Dr. Waymon Johnston. Dr. Johnston testified that becoming airborne and
collisions with other vehicles were the only dangers in connection with cresting a hill
which should have been the subject of warning information. Thus, Yamaha argues, Arnoult
must have been jumping or the incident could not have occurred.
Yamaha seemingly argues that becoming airborne on an ATV for any reason is
tantamount to jumping. However, becoming airborne does not, necessarily, determine the
issue of whether Arnoult was attempting a jump in contravention of the warnings manual.
4
This is also true with regard to the fact that the ATV "flipped."
__________

3
The jury instruction on this issue essentially mirrored this language.

4
Yamaha relies on letters to friends that Arnoult was injured when she fell off the ATV while going over a
jump. This does not prove that, as a matter of law, she was attempting a jump. This was simply another piece
flipped. The jury was entitled to reject Yamaha's jumping theory and base its decision on
the testimony of numerous eyewitnesses, even if the vehicle did become airborne. Also, the
eyewitnesses were corroborated by Dr. Richard McLay, plaintiff's mechanical engineering
and accident reconstruction expert. He testified that the evidence was inconsistent with
Yamaha's jumping theory because Arnoult's point of rest following the spill was inconsistent
with a high rate of speed. Although this testimony was disputed, the jury could have
concluded that Arnoult was not attempting a hellacious jump, a huge jump, [or] a stunt.
[Headnote 7]
We conclude that the warnings issue was sufficiently developed for submission to the
jury with competent evidence. While there were warnings against jumping, the jury could
have reasonably concluded that the warnings were inadequate to advise the novice user of
how jumping could be avoided while using the vehicle as depicted (i.e., over rough desert
terrain within the speed capabilities of the vehicle).
Dr. Johnston recommended that an X be inscribed over a diagram or picture of a
four-wheeled vehicle jumping with written warnings stating: Avoid jumping or else and
You could be seriously injured. Additionally, the owner's manual does not address the
possibility of flipping forward when the brakes are applied while cresting a hill or while
trimming the throttle. Further, and most tellingly, the manual depicts a rider climbing a
thirty-degree slope in the exact manner as attempted by Arnoult. Thus, in our view, the
district court properly allowed the jury to consider whether the owner's manual sufficiently
apprised a novice rider like Arnoult of the dangers of flipping forward while hill climbing at
one-half of the vehicle's maximum speed.
In this connection, Yamaha's expert, Walter Reed, testified that on smaller desert
undulations, operating the ATV at approximately half-speed was problematic:
Q: And in all of this time and all of this work and all of these years of experience,
you've now decided that the operator of a 1988 DXU 200 shouldn't go at less than half
the available speed of the vehicle over a hill approximately 2 feet?
A: I would agree that I would now recommend that a person not do that. But I probably
would have recommended before even starting this analysis that a person not do that.
__________
of evidence for the jury to consider on this issue. Certainly, under Dr. Johnston's testimony, the danger pertinent
to this case, which should have been the subject of warnings, was leaving the ground. However, inadvertently
leaving the ground while operating an ATV within its speed capabilities is not, necessarily, the equivalent of
attempting a jump within the contemplation of the owner's manual; nor is going over a jump.
He also testified that letting off the throttle and retracing the same tracks could contribute to a
pitch. It was on Arnoult's second pass that she injured herself.
[Headnotes 8, 9]
Yamaha correctly notes that it was not required to warn against dangers that are
generally known. General Electric Co. v. Bush, 88 Nev. 360, 365, 498 P.2d 366, 369 (1972).
However, Arnoult presented sufficient evidence for the jury to conclude that her use of the
ATV was foreseeable and potentially dangerous to the novice, and that it was not generally
known that a novice rider could sustain serious injuries when operating the vehicle as
described by the witnesses. It was also foreseeable that a rider would emulate the depiction in
the owner's manual of a rider climbing a hill with a thirty-degree slope at half-throttle.
Further, for the reasons stated, using the ATV in this manner does not constitute abuse or
misuse of the vehicle.
[Headnote 10]
In determining whether the jury's finding was supported by substantial evidence, we
must presume that the jury found evidence favorable to Arnoult and that all reasonable
inferences were resolved in Arnoult's favor. See Steen v. Gass, 85 Nev. 249, 253, 454 P.2d
94, 97 (1969). After weighing the entirety of the evidence, the jury was entitled to conclude
that Yamaha fell short of its duty to properly warn of foreseeable dangers when using the
ATV as suggested. The issue as to whether Arnoult attempted a hellacious jump or a stunt
was a question of fact for the jury, which it ultimately decided in Arnoult's favor.
Whether the trial court abused its discretion in admitting the testimony of Arnoult's expert
witness, Dr. Waymon Johnston
The competency of an expert witness is a question for the sound discretion of the
district court, and we will not disturb the ruling absent a clear abuse of discretion. Brown v.
Capanna, 105 Nev. 665, 671, 782 P.2d 1299, 1303 (1989); see also General Electric Co. v.
Joiner, 118 S. Ct. 512 (1997) (reiterating that an abuse of discretion is the proper standard by
which to review a district court's decision to admit or exclude expert testimony). This
principle was reinforced in Hanneman v. Downer, 110 Nev. 167, 179, 871 P.2d 279, 287
(1994), in which the court stated:
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.
B. Admissibility of expert testimony
Yamaha also argues that Arnoult failed to meet her burden of proof with regard to the
warnings issue because her warnings expert proffered unsupported opinion testimony with no
scientific basis. Yamaha contends that the district court failed in its gatekeeping role under
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), in connection with the
testimony of Arnoult's sole warnings expert, Dr. Waymon Johnston. Daubert overturned the
landmark case of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
Under Frye, scientific evidence offered through expert opinion was only admissible if
based upon a technique that had gained general acceptance in the scientific community. The
Daubert court concluded that this general acceptance had been superseded by the adoption
of Rule 702 of the Federal Rules of Evidence. Rule 702 explicitly requires that such
testimony assist the trier of fact to understand or determine a fact in issue. Thus, Daubert
expands a trial court's discretion in the evaluation of the reliability and relevance of scientific
evidence. This evaluation process is characterized as gatekeeping.
Gatekeeping under Daubert, requires the trial court to engage in a two-part analysis:
(1) to determine whether the evidence is based on scientific knowledge; and (2) whether the
evidence is relevant, i.e., that it will assist the trier of fact. Daubert, of course, expands the
boundaries of admissible expert testimony as long as some indicia of reliability and accuracy
are satisfied. Daubert, 509 U.S. at 579.
Daubert's applicability, however, is still unclear. For example, in Lappe v. American
Honda Motor Co., Inc., 857 F. Supp. 222, 228 (N.D.N.Y. 1994), the court concluded that
factors listed in Daubert for evaluating the admissibility of testimony are limited to novel
scientific evidence under FRE 702, and thus Daubert is confined to assessing the outer
boundaries of a body of scientific and technical knowledge.
5

__________

5
FRE 702 governs the admissibility of scientific and technical evidence. Rule 702 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 knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion or otherwise.
NRS 50.275 tracks the federal rule: 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.
[Headnotes 11, 12]
To date, we have not adopted the Daubert test. We conclude that Daubert does not
apply to this case because, while some empirical behavioral testing may be involved in
assessing the efficacy of different warnings, warnings expertise does not, in its entirety,
implicate the natural laws of science. Unlike the case at bar, Daubert dealt with the
admissibility of causation evidence in a case where the drug Bendectin allegedly caused birth
defects. Here, the assessment of warnings falls within the area of specialized knowledge
that may be the subject of expertise not totally governed by the scientific method.
6

In Townsend v. State, 103 Nev. 113, 117, 734 P.2d 705, 708 (1987), we noted that the
threshold test for the admissibility of expert testimony turns on whether the expert's
specialized knowledge will assist the trier of fact in understanding the evidence or an issue in
dispute. This requirement essentially satisfies the statutory conditions codified in NRS 50.275
which mirrors Rule 702. We further stated in Townsend that the admissibility of such
evidence must also satisfy the prerequisites of all relevant evidence, i.e., that its probative
value is not substantially outweighed by its prejudicial effect. Id. at 118, 734 P.2d at 708.
[Headnote 13]
We conclude that Dr. Johnston's credentials demonstrate that he was qualified to
testify with regard to the sufficiency of the warnings in the case at bar. Dr. Johnston holds
masters and doctoral degrees in industrial engineering with specializations in human factors
engineering and ergonomics from Texas Tech University. His work experience included
service with McDonnell Douglas Corporation as a senior engineer on Gemini spacecraft and
assistant professor of safety engineering at Texas A&M University with twenty-four years of
tenure (until his retirement, Dr. Johnston taught graduate and undergraduate courses at Texas
A&M in industrial engineering on product safety design and safety warnings). Finally,
numerous corporations have enlisted Dr. Johnston's services as a safety consultant.
Dr. Johnston noted that, while the owner's manual provides information on how to avoid a
backward flip, none is provided as to the avoidance of forward flips. He also testified that the
manual is totally silent in instructing the user concerning conditions that could contribute to
a forward pitch roll when cresting a hill similar to the one depicted in the owner's manual.
__________

6
Expert testimony is not restricted to areas of inquiry governed by the laws of science. Non-scientific
expertise has been found admissible (helpful to the fact finder) in many other contexts. By way of examples,
experts in legal malpractice, psychology, insurance bad-faith and accounting malpractice have been allowed to
testify where their specialized knowledge satisfies FRE 702 or NRS 50.275, et. seq.
could contribute to a forward pitch roll when cresting a hill similar to the one depicted in the
owner's manual. Based upon his specialized knowledge as an experienced safety engineer, Dr.
Johnston concluded that the owner's manual failed to adequately warn of the dangers which
caused Arnoult's injuries.
[Headnote 14]
We will not disturb a district court's sound discretion in determining the competency
of an expert witness absent a clear abuse of discretion. Hanneman, 110 Nev. at 179, 871 P.2d
at 287. Dr. Johnston's testimony was based upon specialized knowledge that assisted in the
assessment of the warnings contained within Yamaha's owner's manual.
Whether jury instruction number nine incorrectly stated the law, and if so, whether reversal
is warranted
[Headnote 15]
Yamaha argues that jury instruction number nine improperly directed a verdict against
it:
Plaintiff also seeks to recover damages based upon a claim of a defective product.
A product may be defective because of a defect in its design or because of a failure to
warn the consumer of a hazard involved in the foreseeable use of the product.
Defendant is not liable for an abnormal or unintended use of its product but is liable
for a foreseeable misuse.
Yamaha focuses on that portion of the jury instruction which stated that [the]
defendant is liable for a foreseeable misuse. (Emphasis added.) Yamaha urges that the use of
is incorrectly placed an unconditional and absolute liability for any foreseeable misuse of
the ATV without regard to whether the warnings in the owner's manual were adequate and
without regard to whether the danger in connection with its use was obvious or known.
In Otterbeck v. Lamb, 85 Nev. 456, 456 P.2d 855 (1969), this court reviewed a jury
instruction where one sentence correctly stated the law while another did not. As noted by the
Otterbeck court, the issue is whether the incorrect sentence is erroneous and thus prejudicial,
warranting reversal. Otterbeck, 85 Nev. at 461, 456 P.2d at 859.
Arnoult argues that the instructions in their totality informed the jury that liability
would not lie unless they first found the product defective. The first jury instruction stated, in
pertinent part:
If, in these instructions, any rule, direction or idea is repeated or stated in different
ways, no emphasis thereon is intended by me and none may be inferred by you. For that
reason, you are not to single out any certain sentence or any individual point or
instruction and ignore the others, but you are to consider all the instructions as a
whole and regard each in light of all the others.
reason, you are not to single out any certain sentence or any individual point or
instruction and ignore the others, but you are to consider all the instructions as a whole
and regard each in light of all the others.
Instructions twelve and thirteen address in part the problem of which Yamaha now
complains. Jury instruction twelve stated:
A product must include a warning that adequately communicates the dangers that may
result from its use or foreseeable misuse; otherwise the product is defective.
Jury instruction thirteen read as follows:
A product, though faultlessly made, is defective for its failure to be accompanied by
suitable and adequate warnings concerning its safe and proper use, if the absence of
such warnings renders the product unreasonably dangerous.
Finally, the special interrogatory on the warnings issue restricted the scope of
recovery:
Did the warnings provided with the ATV adequately communicate the dangers that may
result from the use or foreseeable misuse of the ATV?
By answering the question in the affirmative, the jury was forced to condition any liability in
connection with foreseeable misuse on the failure to include adequate warnings in the
manual.
We conclude that, when read together, the jury instructions and the special verdict
form were not prejudicially misleading on this point. Moreover, for liability to obtain, the jury
must have concluded that Arnoult's injury resulted from foreseeable use as opposed to
foreseeable misuse of the ATV, i.e., if it found she had been attempting a jump or stunt,
they would have had to have found for the defense based on Arnoult's testimony regarding
her understanding of the warnings manual. Thus, even if instruction number nine ascribed
absolute liability for the foreseeable misuse of Yamaha's product, such was not prejudice
warranting reversal and a new trial.
Refusal to allow the deposition testimony of Takumi Fukui
Yamaha contests the trial court's refusal to admit the deposition testimony of Takumi
Fukui (Fukui), an engineer for Yamaha Motor Company, Ltd., (YMC).
7
Fukui, a
resident of Japan, was instrumental in the design and developmental testing of the ATV. His
deposition was taken by Yamaha in California on March 10, 1995.
__________

7
Yamaha Motor Company, Ltd., is an affiliate of Yamaha. Although a named party, Yamaha Motor
Company, Ltd., was not served and did not actively participate in the litigation.
Arnoult's experts, Drs. McClay and Johnston, relied on Fukui's deposition testimony.
Yamaha contends that these witnesses falsely represented his deposition testimony at trial.
Despite these claims, the district court refused to allow Yamaha to cross-examine Dr.
Johnston with Fukui's deposition transcript, or allow portions of the transcript to be read in
response to Dr. Johnston's testimony.
8
The reason for this ruling relates to problems
encountered during pre-trial discovery. The complaint in this matter was filed on March 5,
1993. For a time, the litigation was marked by charges and countercharges of discovery
abuses. Our review of the record confirms that both sides, by design, omission or the pressure
of tightly wound time frames, respectively created and attempted to solve their mutual
difficulties. Suffice it to say, neither side can lay claim to the high ground in this regard.
Thus, an appreciation of the procedural history of the matter is necessary to a resolution of
this particular claim of error.
Although the complaint was filed in March of 1993, the NRCP 16.1 Scheduling Order
was not lodged until November 5, 1993. The parties were instructed at that time that
discovery was to be completed by June 10, 1994, and to be ready for trial by July 11, 1994.
Because of the likelihood that a trial date would not be set for many months subsequent to the
trial ready date, the parties jointly applied for an accelerated trial setting. As a result, the
trial was set for May 31, 1994. This, of necessity, required the parties to expedite preparation
for this rather complex piece of litigation.
During the spring of 1994, the parties had several occasions to seek relief from the
discovery commissioner of the Eighth Judicial District Court. Discovery problems resulted in
a brief continuance of the trial from May 31 to August 15, 1994. A May 5, 1994 order issued
by the discovery commissioner compelled Arnoult to comply with certain discovery requests
and ordered Yamaha to produce its experts for deposition on fifteen days' notice. Later, on
June 16, 1994, citing abuses by Yamaha in the discovery process, the discovery commissioner
excluded Fukui from testifying by way of deposition as a NRCP 30(b)(6) witness or as an
expert. Fukui was not, however, excluded as a trial witness.
On the eve of trial, Yamaha became aware that a preliminary order prohibiting
modification of the subject ATV had been violated by Arnoult's experts or representatives.
9
Rather than grant Yamaha's motion to dismiss the matter because of Arnoult's violation of
the preliminary order, the court properly vacated the trial date so that the defense could
address problems with its testing caused by the modification.
__________

8
Yamaha contends that if Fukui's testimony had been heard in its entirety, the jury would not have agreed
with the premise that the design of the ATV gave rise to a hill-climbing hazard requiring different or stronger
warnings.

9
The modification was made before defense experts examined the ATV. When this revelation occurred, it
became apparent that the defense testing
grant Yamaha's motion to dismiss the matter because of Arnoult's violation of the preliminary
order, the court properly vacated the trial date so that the defense could address problems
with its testing caused by the modification. Months later, the district court re-set the trial for
June 12, 1995, with a discovery cut-off of May 1, 1995. It is important to note that no
interaction between the parties and the discovery commissioner occurred between June of
1994 and the trial in June of 1995.
Ultimately, Fukui was deposed as a fact witness on March 5, 1995. During his
deposition, Yamaha produced several technical documents written in Japanese in connection
with its questioning of the witness that had not been previously produced. These documents
clearly fell within the scope of prior discovery requests. The documents included test results
which, according to prior interrogatory responses, should have been produced.
Fukui was not designated as an expert until May 4, 1995, four days after the discovery
cut-off.
10
Although the district court would have allowed his live testimony, it ultimately
excluded any use of his deposition transcript at trial.
[Headnote 16]
The Colorado Court of Appeals has correctly articulated the standard for admission of
deposition testimony of non-party witnesses at trial:
[T]his rule [unavailability of the witness] is subject to the underlying purpose of the
judicial system to promote fairness and, thus, ensure that the battlefield remains level.
In fulfilling this obligation, the trial court has broad discretion to conduct trial so as to
protect the rights of both parties, including the responsibility to eliminate secrets and
surprises. Accordingly, the trial court's rulings concerning the admission of depositions
pursuant to C.R.C.P. [same as NRCP 32]
11
will not be disturbed absent an abuse of
discretion.
__________
would have to be repeated. Although plaintiff's counsel placed substantial sums at the disposal of the defense to
pay for the expenses of re-testing, the fact of the modification justifiably raised the specter of severe credibility
problems with plaintiff's litigation team.

10
At one point during the proceedings, Yamaha renounced any intention to call Fukui as an expert. However,
the trial court was of the belief that his testimony would fall within the confines of expert testimony.

11
NRCP 32 provides in pertinent part:
(a) Use of depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any
part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness
were then present and testifying, may be used against any party who was present or represented at the
taking of the deposition or who had
Stoczynski v. Livermore, 782 P.2d 834, 835 (Colo. Ct. App. 1989) (emphasis added, citations
omitted and footnote added).
[Headnote 17]
Because Arnoult did not identify her principal trial expert, Dr. Johnston, until
February 24, 1995, six months after the cut-off date for the original trial, Yamaha maintains
that the district court created a double standard by disallowing any use of Fukui's deposition
transcript. Yamaha also contends that Fukui's deposition was admissible under NRCP 32
because Fukui, a Japanese resident, was at a distance greater than 100 miles from the place
of trial. Yamaha also argues admissibility because of the expense and the fact that Yamaha
never attempted to procure his absence.
If the trial court's sole reason for excluding Fukui's deposition testimony stemmed from the
discovery disputes prior to the vacation of the August 1994 trial date, it would have been an
abuse of discretion to exclude the use of the transcript. At that point, both sides were
responsible for discovery problems that necessitated trial continuances. However, the district
court could reasonably have concluded that the production of new foreign language
documents at the March 1995 deposition had the effect of compromising Arnoult's
cross-examination. Additionally, Yamaha had previously represented that all such documents
had been produced, Fukui was not designated as an expert until after the deadline (he had
previously been listed as a fact witness), nor was Yamaha prevented from eliciting live
testimony from Fukui. Therefore, the district court did not abuse its discretion in refusing use
of the deposition transcript at trial during Yamaha's case in chief.
12

The award of special damages
[Headnote 18]
Yamaha contends that reversible error was committed because the jury was
permitted to consider Arnoult's future medical expenses on the special verdict form.
__________
reasonable notice thereof, in accordance with any of the following provisions:
. . . .
(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if
the court finds: (A) that the witness is dead; or (B) that the witness is at a greater distance than 100 miles
from the place of trial or hearing, or is out of the State, unless it appears that the absence of the witness
was procured by the party offering the deposition . . . .

12
As stated above, Yamaha argues that the district court abused its discretion in refusing its attorney's
permission to cross-examine Arnoult's experts with Fukui's deposition transcript. Although Yamaha claims
prejudice in this refusal because Arnoult's experts relied upon and misrepresented Fukui's testimony, Yamaha
has not stated the nature of the misrepresentations in the briefs and has not referred to an offer of proof made at
trial to that effect.
the jury was permitted to consider Arnoult's future medical expenses on the special verdict
form. Yamaha also contests the propriety of including past and future household service
losses and past and future costs of disablement as damage categories within the special
verdict form.
13

Yamaha maintains that Arnoult failed to carry her burden of proof as to the type,
nature, and extent of future medical treatment. Thus, Yamaha argues that the $500,000 award
for future medical expenses was speculative.
[Headnote 19]
An award of future medical expenses must be supported by sufficient and competent
evidence. K-Mart Corp. v. Washington, 109 Nev. 1180, 1196, 866 P.2d 274, 285 (1993).
Arnoult's internist, Dr. B.S. Purcell, testified that Arnoult's paraplegia has led to persistent
bowel problems which may cause potentially deadly bouts of infection. Dr. John Thalgott, the
orthopaedic surgeon who performed Arnoult's post-accident surgery, reinforced the likelihood
of recurrent urinary tract infections. He also testified that Arnoult will encounter debilitating
and deteriorating skin breakdown which will precipitate the onset of decubitus ulcers. Joanne
Toadvine, founder and president of the Help Them Walk Again Foundation, testified to a
survey conducted through her organization which confirmed that costs of hospitalization for
the treatment of decubitus ulcers could approach $350,000.
Yamaha relies on Saide v. Stanton, 659 P.2d 35 (Ariz. 1983), in which the Arizona
Supreme Court held that awards of future medical expenses must be supported by medical
evidence that there is a reasonable probability that such expenses will be incurred. Arnoult
presented competent medical testimony as to the accrued medical costs sustained as of the
date of trial and that her injuries would require recurrent medical attention. Thus, we
conclude that the district court did not err in permitting the jury to consider Arnoult's future
medical expenses. See Seymour v. Carcia, 604 A.2d 1304, 1306 {Conn. 1992) {citing with
approval Willson Safety Products v. Eschenbrenner, 7SS S.W.2d 729, 733 {Ark. 1990)).
__________

13
The jury assessed damages in the special verdict form as follows:
A: Past medical expenses $200,000
B: Past lost wages $ 55,000
C: Past pain and suffering $300,000
D: Past household service lost $ 35,000
E: Past cost of disablement $ 10,000
TOTAL $600,000
F: Future medical expenses $500,000
G: Future lost wages $300,000
H: Future pain and suffering $1,500,000
I: Future household service loss [sic] $ 300,000
J: Future cost of disablement $400,000
TOTAL $3,000,000
Carcia, 604 A.2d 1304, 1306 (Conn. 1992) (citing with approval Willson Safety Products v.
Eschenbrenner, 788 S.W.2d 729, 733 (Ark. 1990)). Finally, given the testimony regarding
certain likely treatment costs, the award of future medical expenses is supported by
substantial evidence in the record.
Yamaha also argues that the additional categories of past and future household
services lost and past and future cost of disablement were without factual basis. It further
contends that these categories are cumulative of the other categories delineated in the special
verdict form, and that the district court erred in failing to define the terms used for these
damage categories.
[Headnotes 20-22]
The propriety of these categories raises an issue of first impression for Nevada. We
note that loss of household services does not fit within any of the other categories listed in the
verdict form; therefore, it would qualify as a separate compensable economic loss. We
conclude that there was substantial evidence in the record to support the awards for past and
future household services. Although Arnoult's economist was not qualified as a physician, the
elements of this loss were adequately demonstrated by other competent evidence upon which
he could make his projections. However, allowing recovery for costs of disablement, without
adequate definition, had the potential for duplication of recovery because these costs could, at
least in part, overlap with the award of future medical expenses. Also, the award seems
speculative because the economist did include numerous medical and household service
expenses in his analysis of the cost of disablement. Thus, because no defining instruction was
offered, and because the award was based on duplicative evidence, the damage award is
vacated and the district court is instructed to reduce the same by $410,000. On all other
damage issues, the jury was properly given the choice between projections proffered by the
parties.
[Headnote 23]
Yamaha also argues that the categories for household services and disability costs
were inserted into the verdict form after closing arguments, thus depriving it of an
opportunity to, at the very least, comment on the categories to the jury in its closing
argument.
14
The record reflects that the district court announced the inclusion of these
categories between Arnoult's and Yamaha's closing arguments. Yamaha's timely objection to
these categories was overruled.
__________

14
Elsewhere in its opening brief on appeal, Yamaha does mention that the change in the verdict form was
made prior to its closing remarks.
We conclude that Yamaha was sufficiently aware of the evidence regarding these
claims that the timing of the change in the verdict form was not prejudicial. Further, counsel
did not request a recess to construct an argument addressing these issues, and addressed no
damage issues in his closing remarks. Thus, regardless of the timing of the inclusion of these
damage components in the special verdict, there is no indication that counsel would have
submitted an argument on this damage issue.
Accordingly, with the exception of the award for past and future disability costs, we
conclude that the district court did not err in altering the verdict form to include the
aforementioned categories.
Attorney's fees under NRCP 68
[Headnote 24]
On June 1, 1995, Arnoult served defense counsel with an offer of judgment in the
amount of $2,500,000. This offer was rejected and the matter proceeded to trial on June 12,
1995. The amount of the verdict exceeded the offer by 1.1 million dollars. The district court
awarded Arnoult $237,100 in attorney's fees pursuant to NRCP 68.
Yamaha contends that the award constitutes an abuse of discretion because of a
misapplication of Beattie v. Thomas, 99 Nev. 579, 668 P.2d 268 (1983). Under Beattie, the
trial court must carefully weigh the following factors in exercising its discretion to award fees
under NRCP 68:
(1) whether the plaintiff's claim was brought in good faith; (2) whether the defendants'
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.
Id. at 588-89, 668 P.2d at 274. [U]nless the trial court's exercise of discretion [in evaluating
the Beattie factors] is arbitrary or capricious, this court will not disturb the lower court's
ruling on appeal. Schouweiler v. Yancey Co., 101 Nev. 827, 833, 712 P.2d 786, 790 (1985).
Both sides vigorously litigated the Beattie factors before the trial court. The written
order formally awarding Arnoult's fees and the oral pronouncements of the district court
demonstrate that all of the factors were considered. However, Yamaha contends that, because
it was the offeree (a recipient of a plaintiff's offer of judgment), the trial court improperly
weighed whether Arnoult's claim was brought in good faith, and erred in finding that
Yamaha's refusal to accept the offer of judgment was in bad faith.
claim was brought in good faith, and erred in finding that Yamaha's refusal to accept the offer
of judgment was in bad faith.
All parties agreed that Arnoult's claims were brought in good faith for the purposes of
NRCP 68 and the district court so found. However, Yamaha contends that the first Beattie
factor should only apply when the defendant is the offeror.
15
Yamaha argues that the first
factor the trial court should weigh where the defendant is the offeree is whether the
defendant's claim or defense was brought in good faith. In this connection, it would seem
meaningless to weigh whether Arnoult's claim was brought in good faith because she was the
prevailing party. Thus, we conclude that the trial court should have taken into account
whether Yamaha's defenses were litigated in good faith. If the good faith of either party in
litigating liability and/or damage issues is not taken into account, offers would have the effect
of unfairly forcing litigants to forego legitimate claims. See Beattie, 99 Nev. at 588, 668 P.2d
at 274.
The trial court also found that Yamaha's refusal of the offer, while not grossly
unreasonable, was in bad faith. In so finding, the court noted the severity of Arnoult's
injuries, that she was a compelling claimant, and the fact that the verdict exceeded the offer
by 1.1 million dollars. Because the liability issues in this matter were quite intricate, and
because Yamaha was successful on two of the three substantive claims set forth in Arnoult's
complaint, it appears that the trial court may not have weighed appropriately the liability
issues in this analysis.
[Headnote 25]
Thus, we reverse that portion of the district court's order awarding attorney's fees to
Arnoult and remand with instructions to re-evaluate whether attorney's fees should be
awarded in this matter. In doing so, the district court is instructed to consider both liability
and damage issues in weighing whether the defense of the matter was brought in good faith,
and whether the rejection of the offer was grossly unreasonable or in bad faith.
16

After a careful review of the record we conclude that Yamaha's remaining
assignments of error are without merit.
__________

15
In Uniroyal Goodrich Tire v. Mercer, 111 Nev. 318, 323, 890 P.2d 785, 789 (1995), we applied the Beattie
factors to a plaintiff's offer of judgment served under NRCP 68. We did not however, reach the issue presented
herein.

16
The district court is reminded that no one factor under Beattie is determinative and that it has broad
discretion to grant the request so long as all appropriate factors are considered.
____________
114 Nev. 253, 253 (1998) Madera v. SIIS
LOUIS MADERA and DORIS MADERA Appellants, v. STATE INDUSTRIAL
INSURANCE SYSTEM, Respondent.
No. 28763
ANGELO DIMARIO, Appellant, v. STATE INDUSTRIAL INSURANCE SYSTEM;
LARRY PRESTON, Individually and in His Official Capacity, JEANNE AYOUB,
Individually and in Her Official Capacity, and KAREN NELSON, Individually and in
Her Official Capacity, Respondents.
No. 28782
JIM FORRESTER and SHIRLEY FORRESTER, Appellants, v. THE STATE OF NEVADA,
STATE INDUSTRIAL INSURANCE SYSTEM OF NEVADA, an Agency of the
State of Nevada, JEAN WALKER, ALLIE GILBERT, JR., LAURA SHERWOOD,
BEVERLY DECKER, IRENE CARTER, JAMES J. KROPID, CRAIG
GROSSMAN, NANCY JENNINGS, JACKIE REDDAWAY, and CAROLYN
KELLOGG, Respondents.
No. 28815
April 2, 1998 956 P.2d 117
Consolidated appeals from orders granting summary judgment and motions to dismiss
suits for bad faith administration of workers' compensation claims. Eighth Judicial District
Court, Clark County; Jack Lehman and Stephen L. Huffaker, Judges.
In three separate actions, workers' compensation claimants sued State Industrial
Insurance System (SIIS) alleging, inter alia, bad faith administration of their claims. The
district court dismissed actions or granted summary judgment to SIIS. Claimants appealed
and appeals were consolidated. The supreme court held that: (1) statute prohibiting actions
alleging bad faith administration of workers' compensation claims applied retroactively, and
(2) one claimant failed to make sufficient allegations upon which 1983 claim could be
based.
Affirmed.
Clark & Hunt, Las Vegas, for Appellants Madera.
Leslie Mark Stovall, Las Vegas, for Appellant Dimario.
114 Nev. 253, 254 (1998) Madera v. SIIS
Needham & Needham, Las Vegas; Broening, Oberg, Woods, Wilson & Cass, Las
Vegas, for Appellants Forrester.
Lenard Ormsby, General Counsel, D. Michael Clasen, Associate General Counsel and
Mary Lynn Newman, Associate General Counsel, Carson City, for Respondents SIIS, Preston,
Ayoub, and Nelson.
Laxalt & Nomura, Reno, for Respondents SIIS, Walker, Gilbert, Sherwood, Decker,
Carter, Kropid, Grossman, Jennings, Reddaway and Kellogg.
In reviewing motions to dismiss, supreme court considers whether challenged pleading sets forth allegations sufficient to
establish elements of right to relief, and in making its determination, court is bound to accept all factual allegations in complaint as
true.
Orders granting summary judgment are reviewed de novo.
3. Judgment.
Summary judgment should be granted where there is no issue of material fact and moving party is entitled to judgment as matter
of law.
Statute providing that actions against insurer or third-party administrator who violates provision of industrial insurance statute
cannot be brought or maintained applied retroactively to actions commenced before its effective date. NRS 616D.030.
Review in supreme court from district court's interpretation of statute is de novo.
6. Statutes.
Where language of statute is plain and unambiguous and its meaning clear and unmistakable, there is no room for construction,
and courts are not permitted to search for its meaning beyond statute itself.
7. Statutes.
Where language is ambiguous, court should consult other sources such as legislative history, legislative intent, and analogous
statutory provisions.
8. Statutes.
Statutes are presumptively prospective, as a general matter.
9. Statutes.
Presumption of prospective application applies only to vested rights or to penalties; presumption does not obtain when new
statute affects only remedies.
10. Civil Rights.
Workers' compensation claimant failed to state valid civil rights claim against State Industrial Insurance System (SIIS) under
1983. Employee alleged that individual SIIS employee acted in manner that completely transcended their authority as claims examiners
and deprived him of his federal constitutional rights, but he failed to state which federal rights he believed had been violated and
specific manner in which they were violated and he failed to point to actions engaged in by SIIS employees outside of their official
capacities. 42 U.S.C. 1983.
114 Nev. 253, 255 (1998) Madera v. SIIS
11. Civil Rights.
Civil rights claim under 1983 must meet federal standards even if brought in state court.
OPINION
Per Curiam:
These consolidated appeals concern actions alleging bad-faith administration of workers' compensation claims. All of the
matters were initiated prior to the effective date of NRS 616D.030, which prohibits the commencement or maintenance of such actions.
The district courts concluded that NRS 616D.030 mandated dismissal of the claims even though they were filed before the statute went
into effect. The issue on appeal is whether this statute bars actions commenced, but not yet reduced to judgment, as of its effective date. We
conclude that it does and, accordingly, affirm the judgments below.
STATEMENT OF FACTS
Dimario v. SIIS
Angelo Dimario (Dimario) was injured in the course of his employment. The State Industrial Insurance System (SIIS) delayed
approval of recommended surgery because a second doctor advised against the procedure. Dimario claims that the delay in approval
aggravated his condition causing additional permanent injuries. He brought suit for general damages against SIIS and three of its
administrators. On March 14, 1996, SIIS filed a motion to dismiss pursuant to NRS 616D.030. The motion was granted.
Forrester v. SIIS
Jim Forrester (Forrester) and his wife brought suit against SIIS and numerous SIIS employees for injuries he allegedly sustained
as a result of the bad faith, negligence, and breach of contract in the processing of his SIIS claim. SIIS moved for summary judgment in the
district court. The motion was granted.
2

__________

1
We hereby vacate our prior opinion issued in this matter on February 26, 1998, and substitute this opinion
in its place.

2
It should be noted that Forrester was convicted and imprisoned on felony charges in connection with an
attack on SIIS offices in Las Vegas. In this assault, ostensibly in reaction to the handling of his claim, a heavily
armed Forrester drove his vehicle through the lobby of the facility, caused many thousands of dollars in property
losses, and endangered the lives of numerous bystanders.
114 Nev. 253, 256 (1998) Madera v. SIIS
Madera v. SIIS
Louis Madera (Madera) was injured at work on four occasions between 1988 and
1990. Although SIIS awarded him compensation, Madera and his wife filed suit against SIIS
alleging negligence, loss of consortium, and bad faith administration of his claims. A motion
to dismiss pursuant to NRS 616D.030 was granted.
DISCUSSION
Standard of review
[Headnote 1]
In reviewing motions to dismiss, this court considers whether the challenged pleading
sets forth allegations sufficient to establish the elements of a right to relief. Pemberton v.
Farmers Ins. Exchange, 109 Nev. 789, 722, 858 P.2d 380, 381 (1993). In making its
determination, this court is bound to accept all the factual allegations in the complaint as
true.' Id. at 792, 858 P.2d at 381 (quoting Maroz v. Summa Corporation, 106 Nev. 737, 739,
801 P.2d 1346, 1347 (1990)).
[Headnotes 2, 3]
Orders granting summary judgment are reviewed de novo. Bulbman, Inc. v. Nevada
Bell, 108 Nev. 105, 110, 825 P.2d 588, 591 (1992). Summary judgment should be granted
where there is no issue of material fact and the moving party is entitled to judgment as a
matter of law. Bird v. Casa Royale West, 97 Nev. 67, 69-70, 624 P.2d 17, 18 (1981).
I. Whether NRS 616D.030 applies retroactively
[Headnote 4]
In 1995, the Nevada Legislature made significant changes to the state's workers'
compensation laws. One of those changes is embodied in NRS 616D.030, a measure which
took effect while the cases on appeal were pending at the district court level. NRS 616D.030
provides:
1. No cause of action may be brought or maintained against an insurer or third party
administrator who violates any provision of [Nevada's industrial insurance statutes].
2. The administrative fines provided for in NRS 616B.318 and 616D.120 are the
exclusive remedies for any violation of this chapter or chapter 616A, 616B, 616C or
617 of NRS committed by an insurer or a third party administrator.
NRS 616D.030 was enacted in response to our ruling in Falline v. GNLV Corp., 107
Nev. 1004, 823 P.2d 888 (1991). In Falline, we recognized limited tort actions against
workers' compensation insurers for bad faith and negligence in the processing of workers'
compensation claims.
114 Nev. 253, 257 (1998) Madera v. SIIS
we recognized limited tort actions against workers' compensation insurers for bad faith and
negligence in the processing of workers' compensation claims. This was based on our
conclusion that the then existing statutory fines were insufficient to compensate injured
workers and their families. Although noting decisions of other courts to the contrary, we held
that, [i]f the Legislature sees fit to declare the statutory scheme of fines an exclusive remedy
to aggrieved workmen whose claims are denied or delayed as a result of negligence or bad
faith, the Legislature may enact legislation to that end. Id. at 1011, 823 P.2d at 893. With the
enactment of NRS 616D.030, the legislature accepted this court's invitation to limit the
potential liability of workers' compensation insurers by narrowing the remedies available to
an aggrieved party.
Appellants, having commenced their actions prior to its effective date, argue that NRS
616D.030 does not apply because it is not, by its terms, retroactive. We disagree.
[Headnotes 5, 6]
Review 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). It is
well-settled that:
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.
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)).
[Headnote 7]
However, where language is ambiguous, 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, 871 P.2d 935 (1994).
[Headnotes 8, 9]
As a general matter, statutes are presumptively prospective. See McKellar v.
McKellar, 110 Nev. 200, 203, 871 P.2d 296, 298 (1994) (holding that [t]here is a general
presumption in favor of prospective application of statutes unless the legislature clearly
manifests a contrary intent or unless the intent of the legislature cannot otherwise be
satisfied). It is also well settled that the presumption of prospective application applies only
to vested rights or to penalties. The presumption does not obtain when the new statute affects
only remedies. See T. R. G. E. Co. v. Durham, 38 Nev. 311, 316, 149 P. 61, 62 (1915), in
which we held that "the general rule against retrospective construction of a statute does
not apply to statutes relating merely to remedies and modes of procedure"; and Friel v.
Cessna Aircraft Co.,
114 Nev. 253, 258 (1998) Madera v. SIIS
held that the general rule against retrospective construction of a statute does not apply to
statutes relating merely to remedies and modes of procedure; and Friel v. Cessna Aircraft
Co., 751 F.2d 1037, 1039 (9th Cir. 1985) (when a statute is addressed to remedies or
procedures and does not otherwise alter substantive rights, it will be applied to pending
cases). Nevada's approach mirrors the general rule.
Here, NRS 616D.030 is limited in its effect to remedies available against a third-party
administrator or insurer, i.e., it supplants the common-law tort remedy under Falline, leaving
in its place the administrative remedy. See also, Torre v. J.C. Penny Co., Inc., 916 F. Supp.
1029 (D. Nev. 1996) (federal court concluding in diversity action that the Nevada Supreme
Court would apply NRS 616D.030 to pending cases). Because we conclude that NRS
616D.030 is restricted in its effect to remedies available and does not abridge vested rights,
we hold that its proscriptions are not presumptively prospective in their application.
We further conclude that application to pending matters is consistent with the clear intent
of the legislature. See Convention Properties v. Washoe Co. Assessor, 106 Nev. 400, 402,
793 P.2d 1332, 1333 (1990) (general presumption in favor of prospective application in
absence of legislative intent clearly manifested to the contrary). Because NRS 616D.030,
effective July 1, 1995, provides that an action against an insurer for violation of the industrial
insurance statutes may not be brought or maintained, we conclude that the legislature
intended application to actions filed but not resolved, prior to the effective date of the statute.
Maintain is defined as follows:
To maintain an action is to uphold, continue on foot, and keep from collapse a suit
already begun, or to prosecute a suit with effect. George Moore Ice Cream Co. v. Rose,
Ga., 289 U.S. 373, 53 S.Ct. 620, 77 L.Ed. 1265. To maintain an action or suit may
mean to commence or institute it; the term imports the existence of a cause of action.
Maintain, however, is applied to actions already brought, but not yet reduced to
judgment. Smallwood v. Gallardo, 275 U.S. 56, 48 S.Ct. 23, 72 L.Ed. 152.
Black's Law Dictionary 859 (5th ed. 1979).
Nevada law is in accord with the dictionary definition of maintain. In National
Mines Co. v. District Court, 34 Nev. 67, 116 P. 996 (1911), this court interpreted the phrase
institute and maintain as it was used in a legislative act. Maintain was defined as follows:
114 Nev. 253, 259 (1998) Madera v. SIIS
The word maintain, as used frequently in statutes in reference to actions,
comprehends the institution as well as the support of the action, and the statutes of this
state contain many instances where it is used in this broader sense. It is used in other
instances to express a meaning corresponding to its more restricted and more proper
definition, as in the cases of Carson-Rand v. Stern, 129 Mo. 381, 31 S.W. 772, 32
L.R.A. 420, and Cal. Savings Co. v. Harris, 111 Cal. 133, 43 Pac. 525, cited in
petitioner's brief, where it was construed not to comprehend the institution of an action,
but merely the support thereof. In section 1 [of the statute] the two words are used
together, institute and maintain; and hence both are used in their restricted sense.
Id. at 77-78, 116 P. at 1000.
We conclude that the use of brought and maintained in NRS 616D.030 parallels the
use of institute and maintain as used in the statute in National Mines. Accordingly, we hold
that the language of the statute is a manifestation of the legislature's intent that NRS
616D.030 should have retroactive effect.
3

II. Whether Dimario's 42 U.S.C. 1983 cause of action was properly dismissed
[Headnote 10]
Appellant Dimario separately argues that the allegations in his complaint stated a
valid claim under 42 U.S.C. 1983.
[Headnote 11]
A civil rights claim under 42 U.S.C. 1983 must meet federal standards even if
brought in state court. See Will v. Michigan Department of State Police, 491 U.S. 58, 66
(1989). In Buckey v. County of Los Angeles, 968 F.2d 791 (9th Cir. 1992), an action against
government entities was dismissed for failure to state a claim. On appeal, the Ninth Circuit
affirmed, concluding that a complaint containing only bare allegations describing the
plaintiff's misfortunes and the persons she believed caused them was vague and conclusory
under section 1983. Id. Also, in Northern Nev. Ass'n Injured Workers v. SIIS, 107 Nev. 108,
807 P.2d 728 (1991), this court held that, unless a complaint against an agency and its
employees alleges actions taken outside their official capacities, it will fail to state a claim
under federal law.
__________

3
This matter is analogous to Nevada Industrial Commission v. Reese, 93 Nev. 115, 560 P.2d 1352 (1977). In
Reese, we noted that the 1967 amendments regarding judicial review under the Nevada Industrial Insurance Act
specifically provided that the amendments were not to apply to pending cases: [T]he 1967 amendatory act
stated, in section 13: The provisions of this act do not apply to contested cases pending on July 1, 1967.' Id. at
123, 560 P.2d at 1356. Therefore, in the absence of any language to the contrary, the use of the word
maintained in NRS 616D.030 is an unmistakable indication that the legislature intended retroactive
application.
114 Nev. 253, 260 (1998) Madera v. SIIS
and its employees alleges actions taken outside their official capacities, it will fail to state a
claim under federal law. Id. at 114, 807 P.2d at 732.
In his complaint, Dimario alleges that the individual SIIS employees acted in a
manner that completely transcended their authority as claims examiners with SIIS. He
contends these employees deprived him of his Federal Constitutional Rights. Dimario fails
to state which federal rights he believes have been violated and the specific manner in which
they were violated. He also fails to point to actions engaged in by the SIIS employees outside
of their official capacities. We conclude that Dimario's 1983 cause of action was properly
dismissed because he failed to make sufficient allegations upon which a 1983 claim can be
based.
Accordingly, we affirm the district courts in these matters.
As stated in the majority opinion, the issue here is whether the enactment of NRS
616D.030 bars actions commenced, but not yet reduced to judgment. All three of these
actions were in the process of litigation, and all three are now barred by what has been
incorrectly interpreted as retrospective legislation. In my view, the statute does not require
that all of these actions must be thrown out of court; and if it did, it would be a violation of
due process to frustrate these ongoing law suits.
During oral argument I posed the hypothetical case of one of the appellant/plaintiff's
having obtained a large jury verdict against one or more of the named respondents. I asked
counsel what his position would be if an agreed-upon, written judgment on the verdict had
been presented to the judge for signature a few minutes after the time that the governor
approved NRS 616D.030. For example, if it were discovered by defense counsel that the
legislation became effective at 10:00 a.m., by virtue of the governor's approval, and that the
judgment was not signed until 10:30 a.m., would the plaintiff's claim, as the majority puts it,
be barred because it had not yet [been] reduced to judgment as of its effective date? The
question calls attention to the injustice and unfairness of dismissing an ongoing law suit. The
whole idea of throwing a plaintiff's pending case out of court by virtue of the enactment of
legislation enacted after the suit was in progress is repugnant to me and I think to most
readers of this opinion. As I will show, NRS 616D.030 does not require such unseemly action
to be taken by the district court.
NRS 616D.030 directs that [n]o cause of action may be brought or maintained.
Black's Law Dictionary defines maintained as commenced and continued. Black's Law
Dictionary 859 (5th ed. 1979). Now, of course, there is a big difference between
commencing and continuing; but "commenced" is certainly a usual and legitimate reading
of the word "maintained," so that "brought or maintained" can be safely and logically
read as meaning "brought or commenced."
114 Nev. 253, 261 (1998) Madera v. SIIS
between commencing and continuing; but commenced is certainly a usual and legitimate
reading of the word maintained, so that brought or maintained can be safely and logically
read as meaning brought or commenced. It is hard for me to understand why, given the
majority's recognition that as a general matter, statutes are presumptively prospective, the
majority would ignore the meaning of maintained as meaning commenced and interpret
the statute in a manner that would require dismissal of litigation in progress. To me, it is more
reasonable to read brought or maintained to mean the bringing or commencing of litigation
rather than to mean that all ongoing litigation is to be frustrated as of the effective date of the
statute. Brought or maintained is merely a redundancy; and the legislature's use of the word
maintained (although it can also mean continued) was not intended by the legislature to
mean the cutting off of all litigation pending at the time of enactment. This would be a very
strained reading of the language and certainly contrary to the presumption of prospectivity
recognized by the majority.
I do not think it is appropriate for me to discuss the constitutional dimensions of this
case because the majority opinion fails to do so. To the contention that these claimants are
being denied a protectable property right, all the majority has to say is that the statute is
limited in its effect to remedies and not to substantial rights. (My emphasis.) It would be
difficult indeed to persuade the hypothetical plaintiff mentioned above that losing a
substantial jury verdict by a stroke of the governor's pen was merely a procedural or remedial
matter and not a depravation of a constitutionally protected property right. I dissent.
____________
114 Nev. 261, 261 (1998) Daniels v. State
JONATHAN DANIELS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 28098
April 2, 1998 956 P.2d 111
Appeal from a judgment of conviction pursuant to a jury trial of two counts of
first-degree murder with the use of a deadly weapon and two counts of robbery with the use
of a deadly weapon. Eighth Judicial District Court, Clark County; Sally L. Loehrer, Judge.
The supreme court held that: (1) defendant was not entitled to dismissal of charges
based on State's failure to gather blood evidence of his alleged phencyclidine (PCP) use one
hour before convenience store shooting; (2) as a matter of apparent first impression,
defendant seeking dismissal of charges based on State's failure to gather evidence must
show the evidence was "material" and that the failure to gather evidence was the result
of mere negligence, gross negligence, or a bad faith attempt to prejudice the defendant's
case
impression, defendant seeking dismissal of charges based on State's failure to gather evidence
must show the evidence was material and that the failure to gather evidence was the result
of mere negligence, gross negligence, or a bad faith attempt to prejudice the defendant's case
(3) defendant's prosecution for first-degree murder, despite his claimed voluntary
intoxication, did not violate his constitutional rights; and (4) prosecutor's oral notice to
defense counsel of the time, place, and date of the grand jury proceeding was sufficient to
satisfy the Marcum notice requirements.
Affirmed.
Steven McGuire, State Public Defender; Jordan S. Savage, Deputy Public Defender,
Carson City, for Appellant.
Attorney, James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Defendant was not entitled to dismissal of murder and robbery charges based on the state's failure to gather blood evidence of
his alleged phencyclidine (PCP) use one hour before convenience store shooting, where he failed to establish that the blood evidence
was likely to have been material, and that the state's failure to gather the blood evidence was attributable to negligence, gross
negligence, or bad faith.
2. Criminal Law.
State's failure to preserve potentially exculpatory evidence may result in dismissal of the charges if the defendant can show bad
faith or connivance on the part of the government or that he was prejudiced by the loss of the evidence.
3. Criminal Law.
When seeking dismissal of charges based on state's failure to gather evidence, defendant must show that the evidence was
material, such that there is a reasonable probability that, had the evidence been available to the defense, the result of the proceedings
would have been different.
4. Criminal Law.
If the evidence which the state failed to gather was material, the court must determine whether the failure to gather evidence was
the result of mere negligence, gross negligence, or a bad faith attempt to prejudice the defendant's case.
5. Criminal Law.
When mere negligence is involved in state's failure to gather material evidence, no sanctions are imposed, that the defendant can
still examine the prosecution's witnesses about the investigative deficiencies.
6. Criminal Law.
When gross negligence is involved in the state's failure to gather material evidence, the defense is entitled to a presumption that
the evidence would have been unfavorable to the state.
7. Criminal Law.
In cases where the state failed to gather material evidence in bad faith, dismissal of the charges may be an available remedy
based upon an evaluation of the case as a whole.
8. Criminal Law.
Although police officers generally have no duty to collect all potential evidence from a crime scene, this rule is not absolute.
9. Homicide.
Even if blood test indicated the presence of phencyclidine (PCP) in defendant's blood following shooting of convenience store
clerks, test would not prove beyond mere speculation that defendant ingested the drug before the shootings, and, thus, would not have
prevented defendant's murder convictions based on voluntary intoxication defense. Defendant was not arrested until about six hours
after his alleged ingestion of PCP, and his expert testified that PCP could only be detected in the blood for a few hours after
ingestion.
10. Criminal Law.
Reasonable jury could not find that detective was negligent, grossly negligent or acted in bad faith by deferring to nurse's
professional judgment and defendant's own assertions that he was not intoxicated and refusing to gather blood evidence from murder
defendant, where nurse who performed defendant's initial medical screening did not notice any signs that defendant was under the
influence of drugs, and defendant told her that he had not taken any drugs and later admitted to detective to smoking marijuana the
previous day, but denied any other recent drug use.
11. Constitutional Law; Homicide.
Defendant's prosecution for first-degree murder for shooting of two convenience store clerks during robbery, despite his claimed
voluntary intoxication, did not violate his constitutional rights to due process, liberty, and equal protection, where there was no
conclusive presumption or preliminary finding that defendant was intoxicated. U.S. Const. amend. 14.
12. Homicide.
Defendant's claimed incapacity to form specific intent, due to his voluntary intoxication, did not shield him from culpability for
robbery of convenience store and concomitant culpability for first-degree murder of store clerks under the felony murder rule.
13. Grand Jury.
Prosecutor's oral notice to defense counsel of the time, place, and date of the grand jury proceeding, in connection with murder
and robbery charges arising out of shooting at convenience store, was sufficient to satisfy the Marcum notice requirement.
14. Grand Jury.
Oral delivery of notice to defense counsel of grand jury proceeding does not defeat the purpose of the notice requirement so long
as the required information is adequately conveyed.
OPINION
Per Curiam:
Appellant Jonathan Daniels fatally shot two convenience store clerks during a robbery in Las Vegas, Nevada.
clerks during a robbery in Las Vegas, Nevada. Daniels and his companion, Kenya Ennis,
visited the home of Francine Banks on January 20, 1995. Ennis asked Banks to drive her and
Daniels to the AM/PM Mini-Market located one block from the apartment building in which
Banks and Ennis both resided so that Daniels and Ennis could use the public telephone.
Banks' boyfriend, Maurice Marshall, drove Banks, Daniels, Ennis, and Ennis' two children to
the AM/PM Mini-Market. Ennis and Marshall later testified that Daniels and Ennis did not
use the telephone at the AM/PM Mini-Market because Daniels was afraid that some
unspecified people were out to get him. At Daniels' and Ennis' request, Marshall drove
them to a nearby Circle K Market so that they could use the telephone there instead.
After Daniels and Ennis used the public telephone at the Circle K Market, Marshall
drove them back to the AM/PM Mini-Market that they had visited earlier. Marshall testified
that he drove Daniels and Ennis back to the AM/PM Mini-Market at their request so that they
could make another telephone call, but Ennis testified that Marshall suggested returning to
the AM/PM Mini-Market so that he could get more gas. Upon arrival at the AM/PM
Mini-Market, Daniels and Marshall entered the store.
Marshall testified that he entered the store for the sole purpose of paying for gas, but that
Daniels grabbed the female clerk, June Frye, by the neck and drew a gun immediately after
entering the store. Frye opened the cash register in response to Daniels' demands, and Daniels
then began to take the money from the register. As Daniels was preparing to exit the store, the
male clerk, Nicasio Diaz, took a step toward Daniels and said, [M]an, just give me the gun.
Daniels told Diaz not to take another step, but Diaz continued to approach Daniels, repeating
his request for Daniels to give up the gun. Daniels then shot Diaz in the chest, and as Diaz fell
to the ground, Frye and Marshall turned and ran toward the back of the store. Daniels then
fired another shot, and Marshall saw Frye fall to the ground. Ennis entered the store and
began to yell at Daniels, but he ordered her to go back to the car, and he followed her to the
car immediately thereafter.
Daniels drove Marshall's car, with Ennis and her two children as passengers, until the
car ran out of gas. At that point, Ennis called a taxi cab, which took Daniels, Ennis, and her
two children to the home of Daniels' aunt. Daniels told his aunt, mother and cousin about the
shooting, and, concerned about Daniels' mental state, they summoned an ambulance for
Daniels shortly thereafter. Daniels' sister, Ladonna Daniels, testified that the ambulance
would not transport Daniels to the hospital, so she, Daniels' aunt, and a friend of Daniels
drove Daniels to the University Medical Center {"UMC") because "[h]is eyes were bulgy
like and he was just mumbling .
University Medical Center (UMC) because [h]is eyes were bulgy like and he was just
mumbling . . . [and staring] like he was off in space somewhere. Daniels' sister testified that
the wait at UMC was too long, so they drove to Valley Hospital, but then left Valley Hospital
before Daniels was examined, dropped Daniels' aunt off at her home, and were on their way
to an out-patient clinic when they were stopped by the police.
Daniels confessed to the shooting of the AM/PM Mini-Market clerks in a
tape-recorded statement to Las Vegas Metropolitan Police Department Detective Donald
Tremel at 3:49 a.m. on January 21, 1995. Prior to Daniels' statement, Detective Tremel had
received a copy of the UMC record showing that Daniels had complained of drugs in
system when he signed in prior to his arrest. The detective had also been informed that
Marshall and other witnesses described Daniels as appearing to be under the influence of
drugs. Detective Tremel testified that, before the tape was started, Daniels admitted to
smoking marijuana on the day before the shootings, but denied any other recent drug use, and
did not appear to be under the influence of drugs at the time of the interview. In Daniels'
interview, he was not asked about whether he had been under the influence of any
intoxicating substance and did not volunteer any such information.
Daniels' initial medical screening report, prepared by a nurse at the Clark County
Detention Center, indicates that Daniels denied any drug use and did not behave abnormally.
Detective Tremel testified that either one or two days after the tape-recorded interview,
Daniels spoke with the nurse who had conducted his initial medical screening and asked to be
tested for drugs. The nurse reported Daniels' request to Detective Tremel, but the detective
did not order drug testing for Daniels.
On January 22, 1995, Daniels spoke with several police officers, who were not
previously involved with his case and told them that he had ingested phencyclidine (PCP)
about one hour before the shooting incident.
At Daniels' trial, Dan Berkabile, a forensic chemistry expert, testified that PCP can cause
euphoria lasting up to four hours, hallucinations, loss of awareness of the surroundings, and
confusion about one's self and what one is doing. Berkabile also testified that PCP can be
detected in someone's system using samples of either urine, hair, or blood, but that blood
samples would only be useful for testing if drawn within a few hours of ingestion. John
Hiatt, a toxicology expert, testified that Daniels' hair tested positive for both cocaine and PCP
on March 1, 1995. Hiatt also testified that the hair test proved only that Daniels had used
cocaine and PCP within the ninety-day period preceding the test, whereas a blood test could
have determined whether Daniels had ingested the drugs within several hours preceding the
test.
Based on the State's failure to gather blood evidence that might have proven that
Daniels was under the effects of PCP at the time of the shootings, Daniels filed a motion to
dismiss the indictment, or, in the alternative, to suppress his confession, and for a finding that
Daniels must be conclusively presumed to have lacked the specific intent for first-degree
murder as a matter of law. The district court denied the motion, and also denied Daniels'
subsequent pre-trial petition for a writ of habeas corpus based on the State's alleged failure to
provide adequate notice, pursuant to Sheriff v. Marcum, 105 Nev. 824, 783 P.2d 1389 (1989),
of its intent to initiate grand jury proceedings.
After trial, the jury found Daniels guilty of two counts of first-degree murder with use of a
deadly weapon and two counts of robbery with use of a deadly weapon. For each murder
conviction, the jury imposed a sentence of life without the possibility of parole plus an
additional term of life without the possibility of parole for the weapon enhancement. For each
robbery conviction, the jury imposed a sentence of fifteen years plus an additional fifteen
years for the weapon enhancement. All sentences are to run concurrently.
Failure to gather blood evidence
[Headnote 1]
Although Daniels characterizes the State's inaction as a failure to preserve evidence,
his claim of error actually relates to the State's failure to gather blood evidence from Daniels
immediately following his arrest. Daniels admitted to shooting the AM/PM Mini-Mart clerks,
but relied on a voluntary intoxication defense to negate the element of specific intent. Daniels
argues that he could have proven that he was intoxicated when he shot the clerks if the State
had taken a blood sample for testing. Daniels' expert testified that a blood test would have
helped to determine whether Daniels had ingested PCP within several hours preceding his
arrest.
1

[Headnote 2]
In relying on case law involving the failure to preserve evidence, Daniels fails to
distinguish between collection and preservation of evidence. Had the State gathered blood
evidence from Daniels and then allowed it to be lost or failed to deliver it to Daniels' counsel,
his argument would be more tenable. The State's failure to preserve potentially exculpatory
evidence may result in dismissal of the charges if the defendant can show "bad faith or
connivance on the part of the government" or "that he was prejudiced by the loss of the
evidence.
__________

1
The jury does appear to have considered Daniels' claimed intoxication and witnesses' accounts of his strange
behavior, as evidenced by its finding of several mitigating circumstances. These include findings that the
murders were committed while the defendant was under the influence of extreme mental or emotional
disturbance, while the defendant was under duress, and any other mitigating circumstances.
State's failure to preserve potentially exculpatory evidence may result in dismissal of the
charges if the defendant can show bad faith or connivance on the part of the government or
that he was prejudiced by the loss of the evidence. Howard v. State, 95 Nev. 580, 582, 600
P.2d 214, 215-216 (1979) (citations omitted).
Although this court has not previously articulated a rule specifically governing the
present situation, some states have been reluctant to impose a duty to gather exculpatory
evidence. See, e.g., March v. State, 859 P.2d 714, 716 (Alaska Ct. App. 1993) (Officers
investigating a crime need not track down every conceivable investigative lead and seize
every scintilla of evidence regardless of its apparent importance . . . or run the risk of denying
a defendant due process . . . .' (quoting Nicholson v. State, 570 P.2d 1058, 1064 (Alaska
1977))); State v. Rivera, 733 P.2d 1090, 1095 (Ariz. 1987) (The State has no corresponding
duty, however, to gather blood alcohol evidence for the defense to use in corroborating the
defense's own evidence.); State v. Steffes, 500 N.W.2d 608 (N.D. 1993) (state has no duty to
collect particular evidence at the crime scene).
[Headnotes 3-7]
At least one court, recognizing that injustices could arise from the State's failure to
gather evidence under certain circumstances, has developed a test for failure to gather
evidence. In State v. Ware, 881 P.2d 679 (N.M. 1994), the New Mexico Supreme Court
established a two-part test. The first part requires the defense to show that the evidence was
material, meaning that there is a reasonable probability that, had the evidence been
available to the defense, the result of the proceedings would have been different. Id. at 685;
see United States v. Bagley, 473 U.S. 667 (1985). If the evidence was material, then the court
must determine whether the failure to gather evidence was the result of mere negligence,
gross negligence, or a bad faith attempt to prejudice the defendant's case. Ware, 881 P.2d at
685-686. When mere negligence is involved, no sanctions are imposed, but the defendant can
still examine the prosecution's witnesses about the investigative deficiencies. Id. When gross
negligence is involved, the defense is entitled to a presumption that the evidence would have
been unfavorable to the State. Id. In cases of bad faith, we conclude that dismissal of the
charges may be an available remedy based upon an evaluation of the case as a whole.
2

__________

2
The Ware court concluded that, in cases of bad faith, the trial court may order the evidence suppressed.
Id. Of course, suppression of potentially exculpatory evidence that was not gathered in the first place is both
impossible in fact and nonsensical in theory. Even if the evidence was available for suppression, this sanction
would disadvantage the defendant rather than the State. Accordingly, we presume that this language from Ware
is in error, and believe that dismissal of the charges would be the most appropriate measure under the
circumstances.
[Headnote 8]
We agree with the Ware court's conclusion that, although police officers generally
have no duty to collect all potential evidence from a crime scene . . . this rule is not absolute.
Id. at 684. Accordingly, we approve of the approach articulated in Ware, and adopt a similar
standard for Nevada. Despite this decision, we must deny Daniels' appeal because he failed to
establish that the blood evidence was likely to have been material, and because he failed to
establish that the State's failure to gather the blood evidence was attributable to negligence,
gross negligence, or bad faith.
[Headnote 9]
The prosecution does not address the exculpatory potential of the blood evidence;
however, we conclude that whether the blood evidence would likely have prevented Daniels'
conviction is pure speculation. By Daniels' own admission, he was not arrested until about six
hours after his alleged ingestion of PCP. Daniels' expert testified that PCP can only be
detected in the blood for a few hours after ingestion. Thus, if the test did indicate the
presence of PCP, it would not prove beyond mere speculation that Daniels ingested the drug
before the shootings.
[Headnote 10]
Although we need not reach the second part of the prescribed analysis in light of our
conclusion that the first prong of the Ware test has not been satisfied, we note that Daniels
also failed to establish that the State's failure to gather blood evidence was caused by
negligence, gross negligence, or bad faith. Daniels emphasizes that Detective Tremel declined
to order blood tests on the morning of Daniels' arrest despite his awareness that Marshall and
other witnesses had described Daniels' strange appearance and behavior. However, the
detective was also aware that the nurse who performed Daniels' initial medical screening did
not notice any signs that Daniels was under the influence of drugs, and Daniels told her that
he had not taken any drugs. Furthermore, the detective testified that, prior to the
tape-recorded interview, Daniels admitted to smoking marijuana the previous day, but denied
any other recent drug use. We conclude that a reasonable jury could not find that the detective
was negligent, grossly negligent or acted in bad faith by deferring to the nurse's professional
judgment and Daniels' own assertions that he was not intoxicated.
Alleged constitutional violations
[Headnote 11]
Daniels argues that the State violated his constitutional rights to due process, liberty,
and equal protection of the law by prosecuting him for first-degree murder, despite his
claimed voluntary intoxication.
to due process, liberty, and equal protection of the law by prosecuting him for first-degree
murder, despite his claimed voluntary intoxication. Daniels compares operation of a firearm
while intoxicated to operation of a motor vehicle while intoxicated, and notes that when a
voluntarily intoxicated defendant kills someone with a motor vehicle, it is generally
prosecuted as manslaughter rather than first-degree murder.
Even aside from the obvious defects in Daniels' equation of a motor vehicle with a
gun, Daniels' argument contains at least two fatal flaws. First, Daniels begs the question of
his intoxication. Before intoxication could have negated the possibility of specific intent, the
jury would need to have found that Daniels was intoxicated at the time of the killings. The
jury heard testimony from two of Daniels' experts relating to his voluntary intoxication
argument and was entitled to determine whether or not he was intoxicated as a finding of fact.
Because there was no conclusive presumption or preliminary finding that Daniels was
intoxicated, we conclude that Daniels has no legal basis for his argument that the State could
not constitutionally prosecute him for a crime requiring specific intent.
[Headnote 12]
The second fatal flaw in Daniels' argument is that the State supported its prosecution
for first-degree murder with the felony murder rule. Daniels was undisputedly engaged in a
robbery when he shot the clerks, and the felony murder rule encompasses killings in the
course of a robbery.
3
Robbery is a general intent crime, so Daniels' claimed incapacity to
form specific intent would not shield him from culpability for robbery and concomitant
culpability for first-degree murder under the felony murder rule. See Nevius v. State, 101
Nev. 238, 699 P.2d 1053 (1985) (defendant was not entitled to instruction that voluntary
intoxication negated specific intent to kill because robbery invokes the felony murder rule).
Accordingly, we conclude that Daniels' arguments on this issue are completely without merit.
Adequacy of the Marcum notice
[Headnote 13]
Daniels argues that, because he was not provided with written notice of the State's
intent to initiate grand jury proceedings against him, as required by Sheriff v. Marcum, 105
Nev. 824, 783 P.2d 1389 (1989), he was denied the opportunity to testify before the grand
jury on his own behalf.
__________

3
NRS 200.030(1)(b) defines murder which is [c]ommitted in the perpetration or attempted perpetration of
sexual assault, kidnapping, arson, robbery, burglary, invasion of the home, sexual abuse of a child or sexual
molestation of a child under the age of 14 years as murder in the first degree. (Emphasis added.)
before the grand jury on his own behalf. The district court denied Daniels' pre-trial petition
for a writ of habeas corpus on this issue, finding that the State met all of the Marcum
requirements. Because the facts relating to the notice provided are not in dispute, the
adequacy of the notice provided is a question of law and, therefore, appropriate for de novo
review. See SIIS v. United Exposition Services Co., 109 Nev. 28, 30, 846 P.2d 294, 295
(1993) (summarizing authority for the conclusion that matters of law are appropriate for de
novo review).
In Marcum, we held that the right of a defendant to testify on his own behalf at a
grand jury proceeding prior to his indictment, as provided by NRS 172.095(1)(d) and NRS
172.241, is violated when the prosecution does not provide the defense with reasonable
notice of the impending proceeding. Marcum, 105 Nev. at 827, 783 P.2d at 1391. Upon
consideration of the purpose of the Marcum notice requirement, which is to provide the
defendant with the information necessary to exercise his right to appear at the grand jury
proceeding, we recently held that the notice must include the time, place, and date of the
grand jury proceeding. Solis-Ramirez v. District Court, 112 Nev. 344, 913 P.2d 1293 (1996).
Daniels does not dispute the State's claim that it provided Daniels' attorney, approximately
two weeks in advance, with notice of the time, place, and date of the grand jury proceeding.
Daniels' argument focuses on the fact that the notice was given orally, and Daniels contends
that written notice is necessary to satisfy the requirements of Marcum. Daniels provides no
legal authority for this proposition, and it does not comport with Nevada law. This court
approved of an orally delivered notice in Johnston v. State, 107 Nev. 944, 822 P.2d 1118
(1991), finding that it was sufficient under Marcum.
[Headnote 14]
We conclude that oral delivery of notice to defense counsel does not defeat the
purpose of the notice requirement so long as the required information is adequately conveyed.
Accordingly, we hold that the district court did not err in finding that the State provided
Daniels with adequate notice of the grand jury proceeding and in denying Daniels' pre-trial
petition for a writ of habeas corpus on this issue. Having concluded that each of Daniels'
arguments is meritless, we affirm the district court's judgment of conviction.
____________
114 Nev. 271, 271 (1998) Castillo v. State
WILLIAM PATRICK CASTILLO, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 29512
April 2, 1998 956 P.2d 103
Appeal from a judgment of conviction entered pursuant to a jury verdict of guilty of
one count of murder with use of a deadly weapon, and from a sentence of death. Eighth
Judicial District Court, Clark County; A. William Maupin, Judge.
Defendant was convicted in the district court of conspiracy to commit burglary,
burglary, robbery of a victim 65-years or older, first-degree murder with use of a deadly
weapon, conspirarcy to commit burglary and arson, and first-degree arson, and was sentenced
to death. Defendant appealed. The supreme court held that: (1) admission of testimony about
booties, which murder victim was knitting for her grandchildren, did not deprive defendant of
his rights to due process or a fair trial; (2) probative value of the victim's family photograph
outweighed its prejudicial effect; (3) even if defendant's coworker's testimony about
defendant's involvement in another case was improper, inadvertent reference to defendant's
prior criminal conduct did not warrant a mistrial; (4) although a portion of the prosecutor's
improperly argued defendant's future dangerousness, the improper argument did not unfairly
prejudice defendant; and (5) defendant was not entitled to proposed jury instructions as to
nonstatutory mitigating factors.
Affirmed.
[Rehearing denied November 25, 1998]
Frankie Sue Del Papa, Attorney General, Carson City; Stewart Bell, District Attorney,
Clark County, and James Tufteland, and Ronald C. Bloxham, Chief Deputy District
Attorneys, Clark County, for Respondent.
1. Criminal Law.
Admission of testimony about booties, which murder victim was knitting for her grandchildren, did not deprive defendant of his
rights to due process or a fair trial, where testimony served to connect the booties found at defendant's apartment with the crime scene,
was generally relevant, was sufficiently brief so as not to have prejudiced defendant, and was not unnecessarily cumulative.
2. Criminal Law.
District courts are vested with considerable discretion in determining the relevance and admissibility of evidence.
3. Criminal Law.
Probative value of the victim's family photograph outweighed its prejudicial effect, and, thus, the district court did
not abuse its discretion by admitting it in murder prosecution.
prejudicial effect, and, thus, the district court did not abuse its discretion by admitting it in murder prosecution. Family photograph
was relevant on the issue of victim's identity and accurately depicted her six months prior to the killing, and provided a comparison
with her appearance in the autopsy photographs.
4. Criminal Law.
Admissibility of photographs is within the sound discretion of the district court.
5. Criminal Law.
It is within the district court's discretion to exclude photographs when their prejudicial effect substantially outweighs their
probative value.
6. Criminal Law.
Admission of autopsy photographs which revealed the extent and severity of murder victim's injuries from beating with tire iron
was not an abuse of discretion.
7. Criminal Law.
Prosecutor's eliciting testimony from murder defendant's coworker that defendant was involved in another case did not violate
district court's pretrial ruling prohibiting admission of evidence of why defendant incurred fees to his attorney, where testimony did not
disclose whether case was criminal or civil.
8. Criminal Law.
Even if murder defendant's coworker's testimony about defendant's involvement in another case was improper, inadvertent
reference to defendant's prior criminal conduct did not warrant a mistrial.
9. Criminal Law.
Although a portion of the prosecutor's argument improperly suggested that the jury was required to decide whether to execute
murder defendant or bear responsibility for the death of an innocent future victim, the improper argument did not unfairly prejudice
defendant in light of the overwhelming evidence of his guilt.
10. Criminal Law.
Absent abundant evidence of guilt, personalizing the identity of a defendant's potential future victim might merit a new penalty
hearing.
11. Criminal Law.
Test for evaluating whether an inappropriate comment by a prosecutor merits reversal of a defendant's conviction is whether the
inappropriate comments so infected the trial with unfairness as to make the resulting conviction a denial of due process. U.S. Const.
amend. 14.
12. Homicide.
Admission of victim impact testimony from victim's daughter and two granddaughters was not an abuse of discretion in
sentencing phase of murder prosecution, where daughter and granddaughters each testified about the quality of the victim's life and the
impact of her death upon themselves and other family members and spoke about periods of time they spent with the victim.
13. Homicide.
Jury was properly instructed that a verdict may never be influenced by sympathy in sentencing phase of murder prosecution in
which defense counsel argued mitigation during his penalty phase closing argument, the district court properly instructed the jury
regarding mitigation, and the jury found three mitigating factors.
14. Criminal Law.
Murder defendant was not entitled to proposed jury instructions as to nonstatutory mitigating factors, where
proposed instruction would have amounted to inappropriate comment on the evidence by the court, and
defendant was free to argue these outside factors under the "catchall" mitigation instruction.
to nonstatutory mitigating factors, where proposed instruction would have amounted to inappropriate comment on the evidence by the
court, and defendant was free to argue these outside factors under the catchall mitigation instruction.
15. Criminal Law.
Supreme court reviews a district court's refusal to give a proposed nonstatutory mitigating jury instruction for an abuse of
discretion, or judicial error.
OPINION
Per Curiam:
In late November 1995, appellant William Patrick Castillo held a job as a roofer in Las Vegas. Harry Kumma, a former
co-worker, contacted Castillo and two other roofing employees, Kirk Rasmussen and Jeff Donovan, about completing a side job. The side
job involved re-roofing the residence of the victim, Isabelle Berndt.
Kumma, Rasmussen, Donovan, and Castillo worked on Berndt's roof on November 25, 1995. While performing ground cleanup at
Berndt's residence, Castillo indicated to Donovan that he found a key to Berndt's home and wanted to enter. Donovan told Castillo that he
should not and directed Castillo to return the key to the place where he found it. In response, Castillo stated I'll just come back later at
nighttime.
At some time during the roofing job, Castillo asked Kumma to lend him $500 so that Castillo could pay his lawyer for services
rendered in connection with an unrelated criminal battery charge. Kumma did not lend Castillo the money.
Prior to these events, Castillo began residing with his girlfriend, Tammy Jo Bryant, and a friend, Michelle Platou. At about 6:00 p.m.
on December 16, 1995, Castillo left the apartment with Platou in Platou's car. The two returned to the apartment at approximately 3:00 a.m.
on the morning of December 17, 1995, with a VCR, a box containing silverware, and a bag containing knit booties. A few minutes later,
Castillo and Platou again departed. They returned about twenty minutes later.
At about 9:00 or 10:00 a.m. on December 17, 1995, Castillo and Platou allegedly informed Bryant that they had committed a
robbery and stolen several items. According to Bryant, Castillo and Platou further informed her that while in the house, Platou inadvertently
bumped into a wall and made some noise. Castillo and Platou allegedly told Bryant that Castillo then hit a sleeping person with a tire iron
Castillo brought into the house. The two then departed the scene. According to Bryant, they further stated that, out of fear that they left
incriminating fingerprints on the wall of the house, they returned to the residence at 3:00 a.m. to burn down the
house.
wall of the house, they returned to the residence at 3:00 a.m. to burn down the house.
In the early morning hours of December 17, 1995, neighbors notified the police that
Berndt's residence was ablaze. Firefighters found Berndt's body inside the house. An arson
investigator determined that two independent fires, set by human hands, using some type of
accelerant, caused the blaze. Investigators found a charred bottle of lighter fluid at the scene
and several spots in the living room where an accelerant was present. Laboratory tests
confirmed these findings.
According to the coroner's autopsy report, Berndt suffered multiple crushing-type injuries
with lacerations of the head, crushing injuries of the jaws, and several broken teeth. Berndt
also had deep lacerations on the back of the head and injuries to the face and ears. According
to the coroner, all injuries were contemporaneous. The coroner testified that Berndt died as a
result of an intracranial hemorrhage due to blunt force trauma to the face and head. The
coroner further testified that these injuries were consistent with blows from a crowbar or tire
iron.
A Las Vegas Metropolitan Police Department crime analyst investigated Berndt's
residence and observed fire, smoke and water damage in the living room, kitchen and master
bedroom. He noted that dresser drawers had been opened, two jewelry boxes had been
opened, and the house had been ransacked. The crime analyst also observed blood marks
on the wall next to Berndt's body, which was found lying on a bed.
On December 17, 1995, Berndt's only child, Jean Marie Hosking, arrived at Berndt's
residence. She searched the house and determined that her mother's silverware was missing.
This silverware featured a distinctive floral pattern, had an engraved B on each piece, and
was stored in a wooden box on the shelf in Berndt's bedroom. Also missing were a VCR,
Christmas booties Berndt was knitting for her grandchildren, and eight $50 U.S. savings
bonds.
On December 19, 1995, Rasmussen, one of Castillo's coworkers, contacted the police.
According to Rasmussen, during the carpool to work on December 18, 1995, Castillo said,
This weekend I murdered an 86-year-old lady in her sleep. Castillo also allegedly stated
that he entered Berndt's house with the intent to steal Berndt's valuables, hit Berndt numerous
times with a tire iron, and heard her gurgling in her own blood, before he put a pillow over
her head to smother her. Castillo also allegedly told Rasmussen that he had stolen a VCR,
money, and silverware and that he intended to sell these items to raise money to pay his
attorney.
The following morning, Castillo allegedly told Rasmussen that the crime had been
reported on the news.
the crime had been reported on the news. On December 19, Rasmussen drove by Berndt's
residence, saw that it had been burned, and contacted the police to report what he had learned.
On the evening of December 19, 1995, Charles McDonald, another roofer, visited
Castillo's apartment. Castillo offered to sell a set of silverware to McDonald for $500.
McDonald testified that the silverware was in a wooden box. When McDonald later viewed
Berndt's silverware, he noted that it appeared to be the same silverware that Castillo tried to
sell to him.
Based upon the information provided by Rasmussen, police obtained and executed a
search warrant on the apartment shared by Castillo, Bryant, and Platou at 10:00 p.m. on
December 19, 1995. Castillo and Bryant were present when the police arrived and permitted
them to enter; both Castillo and Bryant gave their consent to a search of their apartment.
Police recovered the silverware, the VCR, the booties, and a bottle of lighter fluid from the
apartment. The officers also located a notebook with the notation $50, VCR, $75, camera,
silverware.
After execution of the search warrant, the officers arrested Castillo. At the detective
bureau, Castillo waived his Miranda rights and made statements during two separate,
consecutive interviews. During the first interview, Castillo indicated that he had received the
VCR and other property from a friend. Shortly after the first interview ended, the detectives
returned and informed Castillo of the evidence that had been obtained against him from
Bryant and Rasmussen. Castillo then confessed to the killing, robbery, and arson.
Subsequently, Castillo pleaded not guilty on all counts, and a jury trial commenced
August 26 and concluded on September 4, 1996. The prosecution presented all the evidence
cited above in its case in chief. The defense did not put on a case in chief. The jury returned
guilty verdicts on all counts: conspiracy to commit burglary, burglary, robbery of a victim
sixty-five years or older, first-degree murder with use of a deadly weapon, conspiracy to
commit burglary and arson, and first-degree arson.
Castillo's penalty hearing took place from September 19 to September 24, 1996. Bruce
Kennedy of the Nevada Youth Parole Board testified about Castillo's extensive juvenile
history and record. Kennedy became acquainted with Castillo in 1984 while Kennedy was a
parole counselor at the Nevada Youth Training Center in Elko. Kennedy's testimony revealed:
(1) Castillo began running away from home regularly when he was nine years old, (2) by
1984, Castillo had already been charged with attempted murder, petty larceny, and six counts
of arson (including an incident in which he tried to burn down the Circus Circus Hotel in Las
Vegas), and (3) much of Castillo's criminal misbehavior remained uncharged.
remained uncharged. Kennedy also testified that, by the age of fifteen, Castillo had already
used marijuana, speed, cocaine, and alcohol.
Due to his extensive misbehavior, Castillo participated in numerous Nevada state
juvenile programs, lived with family members in different areas of the country for short
periods of time and ultimately returned to Nevada. During his adolescence, doctors
determined that Castillo understood the difference between right and wrong, did not suffer
from a neurological disorder, but suffered from a personality disorder.
Other State witnesses testified that in 1990, at age seventeen, Castillo escaped from a
Nevada youth training facility; Castillo was arrested for attempted burglary and later certified
to adult status on charges arising from this incident. Castillo served fourteen months in
prison, expiring his term. In April 1993, Castillo was convicted of robbery arising from an
incident which occurred in December 1992. Castillo had a gun during that robbery. Castillo
was sentenced to three years, served just under two years, committed multiple disciplinary
infractions while in prison, and was released in May 1995.
In June 1995, Castillo participated in the armed robbery of a cashier, but was not
formally charged. In December 1995, Castillo was charged with battery upon one of his
neighbors. These charges were pending at the time of the instant trial.
After this extensive testimony about Castillo's prior criminal behavior, the State
introduced victim impact evidence through testimony by Berndt's granddaughters and
Berndt's daughter, Hosking. These individuals testified about their personal interaction with
Berndt, the quality of Berndt's life, and the effect of Berndt's death on their lives.
The first defense witness, a neuropsychologist, testified that Castillo: had been
emotionally, mentally, physically and behaviorally abused; suffered from reactive
attachment disorder and attention deficit hyperactivity disorder; and came from a
dysfunctional family. One correctional officer and one juvenile facility counselor testified as
to several positive episodes regarding Castillo.
Thereafter, Castillo's girlfriend, Bryant, testified that Castillo had few social skills, acted
like a big kid, but was trying to improve. Castillo's mother testified that Castillo had a
difficult upbringing due to the physical and emotional abuse he received from his biological
father, her own lack of affection for Castillo, and the family's instability. At the hearing's
conclusion, Castillo read an unsworn statement to the jury expressing his feelings including
regret and remorse concerning his conduct.
The jury returned a verdict of death, finding four aggravating circumstances and
three mitigating circumstances.
circumstances and three mitigating circumstances. The jury found that the aggravating
circumstances were that the murder was committed: (1) by a person previously convicted of a
felony involving the use or threat of violence, specifically, a robbery committed on December
14, 1992; (2) while Castillo was committing burglary; (3) while Castillo was committing
robbery; and (4) to avoid or prevent a lawful arrest. The jury found the following mitigating
circumstances: (1) the youth of the defendant at the time of the crime; (2) the murder was
committed while the defendant was under the influence of extreme emotional distress or
disturbance; and (3) any other mitigating circumstances.
Castillo alleges that the district court committed seven reversible errors, three during
the guilt phase of his trial.
[Headnote 1]
First, Castillo contends that the district court improperly allowed repeated testimonial
references to the booties Berndt knitted for her grandchildren. He contends that this testimony
was irrelevant and prejudicial; Castillo further contends that the references amounted to an
improper emotional appeal to consider the victim's family and constituted improper victim
impact evidence. Castillo also contends that the admission of the testimony relating to the
booties violated his rights to due process and a fair trial.
[Headnote 2]
Relevant evidence is evidence having 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. Although generally admissible, relevant evidence is
inadmissible if its probative value is substantially outweighed by unfair prejudice, if it
confuses the issues, or if it amounts to the needless presentation of cumulative evidence. NRS
48.025; NRS 48.035. District courts are vested with considerable discretion in determining
the relevance and admissibility of evidence. Atkins v. State, 112 Nev. 1122, 1127, 923 P.2d
1119, 1123 (1996), cert. denied, 520 U.S. 1126, 117 S. Ct. 1267 (1997).
Hosking and Rasmussen each briefly discussed the booties in their testimony. Testimony
about the booties served to connect the booties found at Castillo's apartment with the crime
scene. We conclude that this testimony was generally relevant, sufficiently brief so as not to
have prejudiced Castillo, and not unnecessarily cumulative. Thus, we conclude that its
admission did not deprive Castillo of his rights to due process or a fair trial.
[Headnote 3]
Second, Castillo contends that admission of a family photograph and autopsy
photographs depicting Berndt amounted to impermissible victim impact evidence. Castillo
contends that the prejudicial effect of these photographs substantially outweighed their
probative value.
[Headnotes 4, 5]
The admissibility of photographs is within the sound discretion of the district court.
Greene v. State, 113 Nev. 157, 167, 931 P.2d 54, 60 (1997). It is within the district court's
discretion to exclude photographs when their prejudicial effect substantially outweighs their
probative value. Id.
We conclude that the family photograph was relevant on the issue of Berndt's identity and
accurately depicted her six months prior to the killing; this photograph also provided a
comparison with her appearance in the autopsy photographs. Accordingly, we conclude that
the probative value of the family photograph outweighed its prejudicial effect thus the district
court did not abuse its discretion by admitting it.
[Headnote 6]
With respect to the autopsy photographs, this court recently reiterated its position that
even gruesome photographs are admissible if they aid in ascertaining the truth, and that
despite gruesomeness, photographic evidence has been held admissible when . . . utilized to
show the cause of death and when it reflects the severity of wounds and the manner of their
infliction.' Browne v. State, 113 Nev. 305, 314, 933 P.2d 187, 192 (1997) (Quoting
Theriault v. State, 92 Nev. 185, 193, 547 P.2d 668, 674 (1976).
Here, the autopsy photographs reveal the extent and severity of Berndt's injuries. In light
of the considerable discretion afforded the trial court in deciding whether to admit
photographic evidence and this court's pronouncements in Browne, we conclude that the
district court did not abuse its discretion in admitting the autopsy photographs.
[Headnote 7]
Third, Castillo contends that the State improperly elicited testimony from Kumma
indicating the subject of another case in which Castillo was involved. The district court judge
made a pretrial ruling barring admission of evidence of why the fees [to his attorney] were
incurred but allowing evidence of the fact of Castillo's debt to his attorney on the issue of
motive. Despite this pretrial ruling, the district court permitted Kumma to testify that Castillo
was involved in another case. Castillo contends that in light of its pretrial ruling, the district
court abused its discretion by allowing this testimony and erred in refusing to declare a
mistrial on the basis of this admission.
by allowing this testimony and erred in refusing to declare a mistrial on the basis of this
admission.
[Headnote 8]
Our review of the challenged testimony reveals that the testimony the prosecutor
elicited from Kumma did not disclose the nature of the other case in which Castillo was
involved, namely, whether it was criminal or civil; thus, the prosecutor did not violate the
district court's pretrial ruling on the matter. We conclude that even if Kumma's testimony was
improper, the inadvertent reference to Castillo's prior criminal conduct did not warrant a
mistrial. Therefore, we conclude that the district court did not err in refusing to declare a
mistrial on this basis.
Castillo contends that the district court committed four additional, reversible errors
during his penalty hearing.
[Headnote 9]
Castillo contends that the prosecutor's improper argument concerning future victims
mandates a new penalty hearing pursuant to Howard v. State, 106 Nev. 713, 800 P.2d 175
(1990) (Howard II). Castillo further contends that the prosecutor's argument went far
beyond that Castillo might be a future danger.
This improper prosecutorial argument to which Castillo objected at trial, was as
follows:
The issue is do you, as the trial jury, this afternoon have the resolve and the intestinal
fortitude, the sense of commitment to do your legal and moral duty, for whatever your
decision is today, and I say this based upon the violent propensities that Mr. Castillo
has demonstrated on the streets, I say it based upon the testimony of Dr. Etcoff and
Corrections Officer Berg about the threat he is to other inmates, and I say it based upon
the analysis of his inherent future dangerousness, whatever your decision is today, and
it's sobering, whatever the decision is, you will be imposing a judgment of death and it's
just a question of whether it will be an execution sentence for the killer of Mrs. Berndt
or for a future victim of this defendant.
This court has held that a prosecutor may argue the future dangerousness of a
defendant during a penalty hearing even where there is no evidence of violence independent
of the murder in question. Jones v. State, 113 Nev. 454, 469, 937 P.2d 55, 64 (1997) (citing
Redman v. State, 108 Nev. 227, 235, 828 P.2d 395, 400 (1992)). Here, the prosecutor
presented to the jury copious evidence of Castillo's dangerous propensities. Specifically, Dr.
Etcoff, a psychologist for the defense, testified on cross-examination that Castillo told him:
cross-examination that Castillo told him: (1) he had a God-like complex when he had a
gun, (2) he had committed many crimes, and (3) he was not afraid of punishment. Dr. Etcoff
also testified that due to Castillo's attitude, Castillo was likely to be more rebellious in prison,
act aggressively and anti-socially, and injure people without remorse. Dr. Etcoff further
testified that in the past, Castillo had been violent in prison, even in the high security wing,
and that Castillo would continue to pose a security threat.
Corrections Officer Mark Berg testified that while serving a sentence in the Northern
Nevada Corrections Center in 1992 and 1993, Castillo assaulted other inmates on at least two
separate occasions, and breached other prison security regulations. We conclude that in
addition to the violent nature of the crime in this case, we conclude that there exists copious
evidence to support the future dangerousness theory presented by the prosecution.
We also conclude, however, that portions of the prosecutor's future dangerousness
argument were improper. We take this opportunity to sharpen the line that separates proper
from improper future dangerousness argument.
[Headnote 10]
In Jones v. State, this court admonished the prosecutor for suggesting that the
defendant, Jones, might have intended to use weapons, found in his cell before trial, to inflict
bodily harm upon members of the jury. 113 Nev. 454, 469, 937 P.2d 55, 64-65 (1997). Our
admonition in the Jones case clarified our position that personalizing the identity of a
defendant's potential future victim is improper. Absent abundant evidence of guilt, such
conduct might merit a new penalty hearing. We affirmed this position in McGuire v. State,
100 Nev. 153, 158, 677 P.2d 1060, 1064 (1984) where we declared improper a prosecutor's
attempt to personalize the identity of a future victim, by suggesting that individual jurors
place themselves in the position of the victim or a member of the victim's family.
In Howard v. State we held that it is also improper to ask the jury to vote in favor of
future victims and against the defendant. 106 Nev. 713, 719, 800 P.2d 175, 178 (1990). In
the instant case, the prosecutor presented to the jurors just such a choice when he said, you
will be imposing a judgment of death and it's just a question of whether it will be an
execution sentence for the killer of Mrs. Berndt or for a future victim of this defendant. This
language improperly suggests that the jury must decide whether to execute the defendant or
bear responsibility for the death of an innocent future victim. Presenting the jury's decision as
a choice between killing a guilty person or an innocent person will likely result in a juror's
decision to impose the death penalty more often than if the jury's decision had been portrayed
in its proper light.
[Headnote 11]
The test for evaluating whether an inappropriate comment by the prosecutor merits
reversal of the defendant's conviction is whether the inappropriate comments so infected the
trial with unfairness as to make the resulting conviction a denial of due process. Bennett v.
State, 111 Nev. 1099, 1105, 901 P.2d 676, 680 (1995). We conclude that although a portion
of the prosecutor's argument was improper, the improper portion did not unfairly prejudice
Castillo in light of the overwhelming evidence of his guilt.
[Headnote 12]
Castillo contends that testimony from Berndt's daughter and two granddaughters was
unduly repetitive and constituted improper and cumulative victim impact evidence. Castillo
contends that the district court's failure to limit the nature and scope of this testimony to
avoid the arbitrary and capricious entry of the death penalty violated the Due Process Clause
and the Nevada Constitution.
The three victim impact witnesses were each related to Berndt. They testified about the
quality of Berndt's life and the impact of her death upon themselves and other family
members. They also spoke about periods of time they spent with Berndt. This court has
previously concluded that similar testimony did not violate the defendant's constitutional
rights. See Wesley v. State, 112 Nev. 502, 519-20, 916 P.2d 793, 804 (concluding that
repetitive testimony of victim's three friends, two of whom testified that the victim was a
father figure in their lives, did not violate the defendant's constitutional rights). The policy
underlying admission of victim impact evidence in penalty hearings strongly favors affirming
the decision and penalty in the instant case. Furthermore, Castillo's position is untenable
because it contradicts relevant case law and requires reinterpretation of the Nevada
Constitution. Accordingly, we conclude that the district court did not abuse its discretion in
permitting all three witnesses to testify.
[Headnote 13]
Castillo contends that the anti-sympathy jury instruction violated his Eighth
Amendment rights because it undermined the jury's constitutionally mandated consideration
of mitigating evidence.
The district court instructed the jury as follows: A verdict may never be influenced by
sympathy, prejudice or public opinion. Your decision should be the product of sincere
judgment and sound discretion in accordance with these rules of law. This court approved
this instruction in Wesley, 112 Nev. at 519, 916 P.2d at 803-04, stating that it is proper when
offered in conjunction with an instruction regarding the consideration of mitigating factors.
factors. The record here reveals that Castillo's counsel argued mitigation during his penalty
phase closing argument, that the district court properly instructed the jury regarding
mitigation, and that the jury in fact found three mitigating factors. Accordingly, we conclude
that this argument lacks merit.
[Headnote 14]
Castillo contends that the district court erred in refusing to instruct the jury regarding
five nonstatutory mitigating circumstances.
At the penalty phase, the district court approved the defense's request to give jury
instructions as to three statutory mitigating circumstances: the youth of the defendant, that the
murder was committed while the defendant was under the influence of extreme mental or
emotional disturbance, and any other mitigating circumstances. The district court denied
the defendant's request to instruct the jury separately on five nonstatutory mitigating
circumstances, namely, that the defendant: (1) has admitted his guilt of the offense charged,
(2) has demonstrated remorse for the commission of the offense, (3) cooperated with police
after he was identified as a suspect, (4) had not planned to commit the murder; and (5) had a
difficult childhood.
[Headnote 15]
This court reviews a district court's refusal to give a proposed nonstatutory mitigating
jury instruction for an abuse of discretion, or judicial error. Howard v. State, 102 Nev. 572,
578, 729 P.2d 1341, 1345 (1986) (Howard I). Castillo cites Lockett v. Ohio, 438 U.S. 586
(1978) in support of his argument. There, a four-justice plurality of the United States
Supreme Court concluded that a death penalty statute entirely precluding the sentencer from
considering as a mitigating factor any aspect of the defendant's character or record violates
the Eighth and Fourteenth Amendments. Id. at 606-08. In Boyde v. California, 494 U.S. 370,
380-86 (1990), however, the Court determined that a mitigating circumstances instruction
similar to the Nevada catchall provision satisfied constitutional standards.
Here, the district court instructed the jury to consider three mitigating circumstances,
including the catchall provision. The jury returned a verdict of death after finding four
aggravating circumstances and three mitigators. Clearly, the jury considered the mitigating
circumstances. Thus, we conclude that the district court properly refused to give Castillo's
proposed instructions on the grounds that they would have amounted to inappropriate
comment on the evidence by the court and that Castillo was free to argue these outside factors
under the catchall mitigation instruction.
Finally, we conclude that the death sentence imposed upon Castillo was not the
product of passion, prejudice, or any arbitrary factor, nor was it excessive in light of the
gravity of the crime and the defendant. See NRS 177.055(2). Thus, we affirm the jury verdict
and sentencing in all respects.
1

____________
114 Nev. 283, 283 (1998) Russo v. Gardner
DEBORAH RUSSO, Appellant, v. JOHN J. GARDNER, Respondent.
No. 29758
April 2, 1998 956 P.2d 98
Appeal from an order of the district court granting joint legal custody of two children.
Eighth Judicial District Court, Clark County; Frances-Ann Fine, Judge.
Putative father brought action seeking joint custody of two children, one of whom was
his biological child. The district court granted joint custody, and mother appealed. The
supreme court held that: (1) doctrine of equitable adoption did not entitle putative father to
joint custody of non-biological child; (2) joint custody was not in non-biological child's best
interests; and (3) father's biological child was not required to change her name to reflect
father's paternity.
Carol A. Menninger, Las Vegas, for Appellant.
Gus W. Flangas, Las Vegas, for Respondent.
1. Children Out-of-Wedlock.
Mother's argument in her opening brief that district court erred in excluding testimony from a psychiatrist in action in which
mother sought sole custody of her children would not be considered on appeal. Mother never filed motion to supplement record with
evidence to support her argument, or filed reply brief in appeal. NRAP 10(c).
2. Infants.
Trial court's determination in a child custody proceeding will not be disturbed absent an abuse of discretion, but supreme court
must be satisfied that trial court applied appropriate reasoning.
Award to putative father of custody of child of woman with whom he lived was not warranted on theory of equitable adoption,
where putative father was not child's biological father, relationship between mother and putative father was unstable, and
putative father had history of domestic violence.
__________

1
The Honorable A. William Maupin, Justice, did not participate in the decision of this appeal.
putative father was unstable, and putative father had history of domestic violence. NRS 126.051.
Equitable adoption doctrine did not apply to putative father's action seeking custody of child of woman with whom he lived.
NRS 126.051.
District court abused its discretion in finding that child's best interests would be served by grant of joint custody, where
custodial father was not biological father, was never married to child's mother, was convicted of criminal domestic violence, and
repeatedly moved out on mother. Custodial father's domestic violence conviction created presumption that joint custody would not be
in child's best interest, and court did not consider that presumption. NRS 125.480.
Father was required to show by clear and compelling evidence that it was necessary for his daughter, who was living with her
mother, to change her name to reflect father's paternity.
OPINION
Per Curiam:
FACTS
The relationship between appellant Deborah Russo (Russo) and respondent John J. Gardner (Gardner) began sometime in
1989. Their relationship was tumultuous; Gardner moved in and out several times before 1991. During one of the times Gardner was not
living with her, Russo conceived a child by another man after a one night stand.
The child, named Zachary C. Gardner-Russo (Zachary), was born on May 15, 1992. At that time, Gardner was not living with Russo.
However, about two weeks after Zachary was born, Gardner moved back to the home, and his relationship with Russo continued. Gardner
and Russo broke up and reunited at least six times during the first three years of Zachary's life. On August 31, 1994, Russo gave birth to a
second child, Samantha Russo (Samantha). Gardner is Samantha's biological father.
Gardner had a violent temper with Russo and Zachary. On June 19, 1995, Russo filed an application for a temporary protection
order (TPO) to keep Gardner away, alleging Gardner had physically abused her and Zachary. Russo alleged that Gardner pushed Zachary
up against a wall and made him stay there. When Zachary would move, Gardner would pull down Zachary's pants and hit him. Russo also
alleged Gardner physically abused her, including punching her in the stomach when she was pregnant with Samantha, and even threatened
her life. Russo also stated that Gardner had been living with her for about a year, but had moved out about a week prior to June 19, 1995.
On June 27, 1995, the district court entered the TPO.
Additionally, on August 6, 1995, Gardner was convicted of domestic violence against
Russo.
At an unspecified time after Samantha's birth and during Gardner's cohabitation with
Russo, Russo filed an application for welfare benefits. The State of Nevada filed a suit
challenging paternity of Zachary and Samantha. On September 22, 1995, blood tests
confirmed that Gardner was Samantha's biological father, but not the biological father of
Zachary.
The relationship finally ended in December 1995. On December 18, 1995, Gardner
allegedly struck Russo on the back of the head and attempted to choke her. Russo has a
history of suffering from epileptic seizures, one of which was allegedly triggered by the
assault. Russo was taken to the hospital, and Gardner was arrested for battery.
1

On an unspecified date, Gardner petitioned for joint legal custody and primary physical
custody of both Zachary and Samantha. On January 23, 1996, the district court entered a
temporary order awarding joint legal custody to Gardner and Russo, but primary physical
custody to Russo. The court also referred the case to the Family Mediation and Assessment
Center (FMAC) for evaluation.
In June 1996, during one of the times specified for a supervised exchange of the
children by Russo and Gardner, Gardner physically intimidated and became verbally abusive
with a court-recognized third party, Kathy Ervalina (Ervalina). Ervalina was transporting
the children to and from their scheduled time-share with Gardner. According to Ervalina,
Gardner became irate when Zachary was not present during one of the scheduled time-shares.
Ervalina explained that Zachary was in surgery and could not be present. Gardner began
shouting profanity at Ervalina. Ervalina told Gardner she did not have to take verbal abuse
from him. Gardner then grabbed Ervalina by the arm and continued shouting profanity at her.
Ervalina left the scene, went to the Las Vegas Metropolitan Police Department, and filed a
complaint against Gardner for battery. On June 17, 1996, Ervalina contacted FMAC to state
that she would no longer transport Zachary and Samantha to see Gardner.
On July 17, 1996, FMAC submitted a report based on its observations of Gardner, Russo,
and the children. The report addressed various issues, including Gardner's allegations that
Russo attempted to impede his relationship with the children and Gardner's alleged violent
temper. The report indicated that there were no issues between Gardner and the children that
needed to be addressed.
__________

1
Gardner does not deny he was arrested, but claims he never struck Russo. Gardner claims that Russo's
brother, a Las Vegas police officer, somehow manipulated the system to have him arrested on false charges.
be addressed. The FMAC report stated that the children were responsive to both Gardner and
Russo, and that from FMAC observations, Gardner's and Russo's relationships with the
children were healthy. The FMAC report also recommended Gardner seek anger management
counseling and that Russo should continue counseling to work on co-parenting issues.
However, the report stated that there did not appear to be any deliberate attempts by Russo to
impede Gardner's relationship with the children.
On August 28, 1996, after three consecutive days of testimony in an evidentiary
hearing, the district court found that Russo's testimony was motivated by animus toward
Gardner and that Gardner's testimony was credible. The district court found that evidence
showing Zachary called Gardner daddy and Russo's attempts to prevent that was further
indicia of both Russo's animus and of Gardner's position as a father. The district court also
found that the multiple separations the couple experienced indicated a desire to work things
out and that they thought of themselves as a family. The district court concluded that Gardner
had equitably and constructively adopted Zachary. Thus, the district court awarded joint legal
custody of Zachary and Samantha to Gardner because Gardner had placed himself in a
position of loco parentis, and that it would be devastating to Zachary to have Gardner
treat him differently than his sister. The district court did not cite any statutory authority in
support of its findings, but instead cited to Frye v. Frye, 103 Nev. 301, 738 P.2d 505 (1987);
McGlone v. McGlone, 86 Nev. 14, 464 P.2d 27 (1970); and Murphy v. Murphy, 84 Nev. 710,
447 P.2d 664 (1968). The district court also ordered that Samantha's surname be changed
from Russo to Gardner-Russo.
On December 18, 1996, Russo filed her notice of appeal.
Other facts have come to light since Russo appealed the district court's order. First,
blood tests have confirmed that Zachary's natural father is Andrew Nati (Nati). Zachary and
Nati have allegedly formed a strong relationship and enjoy spending time together. Nati has
allegedly changed Zachary's birth certificate to show the child's name as Zachary Cameron
Nati, put Zachary on his health insurance coverage, notified the district attorney's office of
his financial responsibility for Zachary, and changed his Social Security information to reflect
his biological parentage of Zachary.
DISCUSSION
[Headnote 1]
First, Russo argues in her opening brief that the district court erred in excluding
testimony from a psychiatrist. However, Russo never filed any motion under NRAP 10{c) to
supplement the record with any evidence to support her argument, nor did she file a reply
brief in this appeal.
never filed any motion under NRAP 10(c) to supplement the record with any evidence to
support her argument, nor did she file a reply brief in this appeal. Because Russo's argument
is based solely on alleged facts outside the record, we need not consider this argument.
Next, Russo argues that the district court erred in granting visitation rights and joint
legal custody of Zachary to Gardner. Specifically, Russo argues that the Nevada Uniform
Parentage Act, NRS 126.011, et seq., and the parental preference presumption preclude this
result and, therefore, the district court erred as a matter of law. Further, Russo contends that
substantial evidence does not exist to support the district court's findings concerning the best
interest of Zachary.
The district court determined that Gardner equitably and constructively adopted Zachary.
Further, the written findings of fact and conclusions of law refer to both parties as parents.
Russo argues that Gardner is not a parent for purposes of determining custody and,
therefore, the district court erred.
NRS 126.051 provides, in relevant part:
1. A man is presumed to be the natural father of a child if:
. . . .
(b) He and the child's natural mother were cohabiting for at least 6 months before the
period of conception and continued to cohabit through the period of conception.
. . . .
(d) While the child is under the age of majority, he receives the child into his home
and openly holds out the child as his natural child.
. . . .
3. A presumption under this section may be rebutted in an appropriate action only by
clear and convincing evidence. If two or more presumptions arise which conflict with
each other, the presumption which on the facts is founded on the weightier
considerations of policy and logic controls. The presumption is rebutted by a court
decree establishing paternity of the child by another man.
[Headnote 2]
A trial court's determination in a child custody proceeding will not be disturbed absent
an abuse of discretion, but this court must be satisfied that the trial court applied the
appropriate reasoning. Litz v. Bennum, 111 Nev. 35, 37, 888 P.2d 438, 440 (1995).
We have previously considered NRS 126.051 for determining legal parentage in the
context of a custody dispute between a biological parent and a non-biological parent.
Hermanson v. Hermanson, 110 Nev. 1400, SS7 P.2d 1241 {1994).
Hermanson, 110 Nev. 1400, 887 P.2d 1241 (1994). In Hermanson, Mr. and Mrs. Hermanson
were married when Mrs. Hermanson was six months pregnant. Id. at 1401, 887 P.2d at 1242.
Mrs. Hermanson asserted that she told Mr. Hermanson at that time that he was not the father
of the child. Mr. Hermanson denied her assertions, but also admitted Mrs. Hermanson had
never actually told him that the child was his. Id. After the birth of the child, the marriage fell
apart because of Mr. Hermanson's physical abuse of his wife. Id. at 1401-02, 887 P.2d at
1243. The couple divorced, and Mr. Hermanson filed a motion to be recognized as the child's
de facto father even if he was not the biological father of the child. Id. at 1402, 887 P.2d at
1243. Subsequently, blood tests proved conclusively that Mr. Hermanson was not the
biological father. Id.
However, the district court found that Mrs. Hermanson was equitably estopped from
contesting the child's paternity. Id. The district court found that both Mr. and Mrs.
Hermanson held themselves out to the public as the biological parents of the child, listing Mr.
Hermanson as the father on the child's birth certificate and Mrs. Hermanson's welfare
application. Id. at 1404-05, 887 P.2d at 1244.
[Headnote 3]
We held that the fact that Mr. Hermanson admitted he was never told he was the
father and his own admission in his appellate brief did not support the district court's finding.
Id. at 1405, 887 P.2d at 1245. Further, the doctrine of equitable adoption enunciated in Frye
v. Frye, 103 Nev. 301, 738 P.2d 505 (1987), and the myriad of other psychological theories of
parentage that the parties mention in order to determine paternity are inapplicable.
Hermanson, 110 Nev. at 1406, 887 P.2d at 1245. We held that Nevada's Uniform Parentage
Act was to be applied to determine legal parentage and, therefore, the district court's order
granting joint legal custody must be reversed. Id. at 1406-07, 887 P.2d at 1246.
In the instant case, the district court looked to Frye and concluded that Gardner equitably
adopted Zachary. The district court based this conclusion on the findings that Gardner had
placed himself in the position of loco parentis' and has since birth held himself out to be
the biological father of Zachary.
However, as stated above, Frye was rejected by Hermanson as inapplicable for
determining legal parentage in a custody proceeding. Hermanson, 110 Nev. at 1406, 887 P.2d
at 1246. Further, although Gardner claims he never knew he was not the biological father, the
record indicates that Gardner was never listed as Zachary's father on the birth certificate.
Russo also claims she told Gardner that he was not Zachary's father at the time she was
pregnant with Zachary.
time she was pregnant with Zachary. Russo describes the relationship as off-again, on-again,
with Gardner moving in and out. Gardner asserts that he has always thought of Russo,
Zachary, Samantha, and himself as a family, but admits he was not living with Russo when
she told him she was pregnant with Zachary. Additionally, it is worth noting that Gardner has
a documented history of physical violence with Zachary, Russo, and even an FMAC
representative.
We conclude that the district court erred in applying the doctrine of equitable adoption
to this case. Like Hermanson, this case concerns the issue of legal custody. Frye, on the other
hand, applied the equitable adoption doctrine in upholding a child support obligation.
Moreover, in Frye, this court limited the application of the equitable adoption doctrine to the
specific facts of that case. Frye, 103 Nev. at 301, 738 P.2d at 505.
[Headnote 4]
Additionally, for purposes of determining legal parentage in a custody dispute
between biological and non-biological parents, Hermanson holds that NRS 126.051 is the
applicable statute. However, the district court engaged in no such analysis. Therefore, we
conclude the district court committed reversible error.
[Headnote 5]
Third, Russo argues that substantial evidence does not exist to support the district
court's finding that Zachary's best interest is served by granting Gardner joint legal custody.
1. In determining custody of a minor child in an action brought under this chapter, the
sole consideration of the court is the best interest of the child. If it appears to the court
that joint custody would be in the best interest of the child, the court may grant custody
to the parties jointly.
. . . .
3. The court shall award custody in the following order of preference unless in a
particular case the best interest of the child requires otherwise:
(a) To both parents jointly . . . or to either parent. . . .
(b) To a person or persons in whose home the child has been living and where the
child has had a wholesome and stable environment.
(c) To any person related within the third degree of consanguinity . . . .
(d) To any other person or persons whom the court finds suitable and able to provide
proper care and guidance for the child.
4. In determining the best interest of the child, the court shall consider, among other
things:
(a) The wishes of the child if the child is of sufficient age and capacity to form an
intelligent preference as to his custody;
. . . .
(c) Whether either parent or any other person seeking custody has engaged in an act of
domestic violence against the child, a parent of the child or any other person residing
with the child.
5. Except as otherwise provided in subsection 6 or NRS 125A.360, a determination
by the court after an evidentiary hearing and finding by clear and convincing evidence
that either parent or any other person seeking custody has engaged in one or more acts
of domestic violence against the child, a parent of the child or any other person
residing with the child creates a rebuttable presumption that sole or joint custody of the
child by the perpetrator of the domestic violence is not in the best interest of the child.
Upon making such a determination, the court shall set forth:
(a) Findings of fact that support the determination that one or more acts of domestic
violence occurred; and
(b) Findings that the custody or visitation arrangement ordered by the court adequately
protects the child and the parent or other victim of domestic violence who resided with
the child.
(Emphasis added.)
Here, the district court granted joint legal custody to Russo, Zachary's biological
mother, and Gardner. Gardner is not Zachary's biological father, nor was he ever married to
Russo. Gardner is not listed as Zachary's father on the birth certificate. Further, Gardner's
relationship with Russo ended when Zachary was only three years old. The break-up was a
result of continued domestic violence by Gardner against Russo and Zachary. Moreover, the
break-up was preceded by Gardner moving in and out of the relationship and Russo's
residence a total of six times.
Nevertheless, the district court found that it was in Zachary's best interest to be in
Gardner's joint custody because Gardner had placed himself in a position of loco parentis.
Despite Gardner's criminal conviction for domestic violence against Russo and his history of
violent behavior, the district court made no finding or consideration of any domestic violence
as required by NRS 125.480(4)(c). Since Gardner was criminally convicted of domestic
violence, by definition it follows that the clear and convincing standard was met for a
finding of domestic violence under NRS 125.480(5), thereby creating a rebuttable
presumption that it would not be in Zachary's best interest to be placed in Gardner's custody.
The district court made no such consideration, and therefore, we conclude the district court
abused its discretion.
ation, and therefore, we conclude the district court abused its discretion.
[Headnote 6]
Finally, Russo argues that the district court abused its discretion in ordering that the
surname of her daughter, Samantha, be changed from Russo to Gardner-Russo.
A current examination of the facts of this case reveals that Samantha is and will be living
with Russo, and that Zachary's surname has changed to Nati since the district court's
judgment. After a thorough review of the record, we conclude that there is no showing of
clear and compelling evidence to necessitate a name change. See Magiera v. Luera, 106
Nev. 775, 777, 802 P.2d 6, 7 (1990) (holding that the burden is on the party seeking the
name change to prove, by clear and compelling evidence, that the substantial welfare of the
child necessitates a name change). Accordingly, we reverse the order changing Samantha's
surname on her birth certificate. Additionally, we reverse the district court's custody order and
remand this matter to the district court for proceedings consistent with the foregoing
reasoning.
____________
114 Nev. 291, 291 (1998) Pierce Lathing Co. v. ISEC, Inc.
PIERCE LATHING CO. d/b/a PIERCE ENTERPRISES, a California Corporation,
Appellant, v. ISEC, INC., a Colorado Corporation, Respondent.
No. 28895
April 2, 1998 956 P.2d 93
This is an appeal from judgment rendered pursuant to orders granting respondent's
NRCP 41(b) motion at trial and denying appellant's motion to retax costs. Eighth Judicial
District Court, Clark County; Jack Leham, Judge.
Painting sub-subcontractor brought action against subcontractor seeking payment for
additional work allegedly arising from subcontractor's supplying substandard moldings. On
the second day of trial, the district court granted subcontractor's motion to amend its answer
to add affirmative defense of accord and satisfaction, and subsequently granted
subcontractor's motion to dismiss. Sub-subcontractor appealed. The supreme court held that:
(1) exception to pleading requirement for accord and satisfaction as affirmative defense
applied to allow subcontractor to amend its answer to assert accord and satisfaction defense,
but (2) only liquidated and undisputed portion of sub-subcontractor's claim was discharged by
sub-subcontractor's negotiation of the checks from subcontractor.
McKnight & Hendrix, Las Vegas, for Appellant.
McKnight & Bowers, Las Vegas; Kevin J. Blair, Las Vegas; Andrade & Muzi, Irvine,
California, for Respondent.
1. Pleading.
Exception to pleading requirement for accord and satisfaction as affirmative defense applied to allow subcontractor to amend its
answer to assert accord and satisfaction defense to sub-subcontractor's action for unpaid labor, where, during its case-in-chief,
sub-subcontractor sought admission of cancelled checks and a cover letter from subcontractor, which expressly stated that
sub-subcontractor's cashing of the checks would constitute full and final payment. NRCP 15(b).
2. Pleading.
If an affirmative defense is not pleaded, it is deemed waived, and no evidence can be submitted relevant to that issue.
3. Pleading.
It is within a district court's sound discretion to allow a party to amend its answer to plead an affirmative defense where the
plaintiff has raised the issue.
4. Accord and Satisfaction.
Meeting of the minds occurred only as to the liquidated and disputed portion of sub-subcontractor's claim for unpaid labor, and,
thus, only portion of claim was discharged by sub-subcontractor's negotiation of checks from subcontractor, resulting in accord and
satisfaction. Subcontractor fully intended to further litigate matter with regard to the unliquidated disputed portion of the claim, and
expressly communicated this intention to subcontractor before cashing the checks, as evidenced by the disclaimers on the checks and
its decision to proceed to trial.
Litigant must allege and prove that an accord and satisfaction occurred to overcome the burden that the claim has not been
discharged. NRS 104.3311.
To successfully establish the fact of an accord and satisfaction with regard to an unliquidated claim, a litigant must satisfy three
elements: (1) a bona fide dispute over the unliquidated amount; (2) a payment tendered in full settlement of the entire dispute; and (3)
an understanding by the creditor of the transaction as such, and acceptance of the payment.
While certain conduct by a creditor may imply an accord and satisfaction as a matter of law, the intent of the parties to make a
settlement is generally a question of fact.
OPINION
Per Curiam:
Appellant Pierce Lathing Company (Pierce) and respondent ISEC, Inc. (ISEC) were subcontractors in connection with
construction of luxury suites at the Caesar's Palace resort in Las Vegas.
Vegas. The stated contract price was $78,000.00. The subcontract contained the following
retention provision:
ISEC shall upon receipt from the Owner pay the subcontractor 90% of such work,
labor, and materials and shall retain the remaining 10% until the final completion and
acceptance of all work covered by this Subcontract, and such percentage so retained
shall not be considered monies due and owing until the work under the contract has
been completed to the satisfaction of and the same acceptance by the Owner and
payment therefore has been made by Owner to ISEC. All pay estimates must be
submitted in an approved form on or before the 15th day of each month and will be
paid within 10 days after the pay request is accepted by the Owner and the Owner has
paid ISEC.
Pursuant to the subcontract, Pierce agreed to paint and install glass fiber reinforced
gypsum (GFRG) moldings for the Caesar's Palace job. ISEC was to supply GFRG molding
for the installation and painting.
1

Pierce alleges that the GFRG molding supplied by ISEC was substandard.
2
However, due
to time constraints, the general contractor, Perini Construction Company (Perini),
instructed Pierce to go forward with the installation of the molding. Pierce claims it honored
the responsibilities under its subcontract with ISEC. The defective molding allegedly caused
Pierce to expend extra time and services re-working the substandard moldings.
Specifically, Pierce states that ISEC required Pierce's employees to perform antique
and opaque painting. When Pierce received ISEC's order, Pierce asserted that it was
entitled to additional compensation because antique painting was a special finish which
was specifically excluded from the Pierce/ISEC subcontract. Pierce's paint expert testified
that the painting industry does indeed consider opaque and antique painting as types of
special finishes. ISEC concedes that the special painted finish is essentially an artistic
painted finish. ISEC's project manager, Ms. Hoffritz-Brown, could not give a specific reason
at trial as to why the contract excluded special finishes and special painted finishes.
When Pierce submitted invoices for the extra work performed to repair the GFRG
moldings and perform antique painting work, ISEC denied payment. On August 30, 1994,
ISEC wrote Pierce a letter and enclosed two checks totalling $12,028.70check number
7S372 for $11,63S.70 and check number 7S371 for $390.00.
__________

1
ISEC was a subcontractor of Perini Construction Company, the general contractor of the overall
construction project at the resort. Perini is not a party to this litigation.

2
According to Pierce's field superintendent, the individual moldings were expected to be as similar to
possible to ensure continuity and symmetry.
ber 78372 for $11,638.70 and check number 78371 for $390.00. The cover letter provided:
Pursuant to our conversation on August 18, 1994, I have looked into your matter
regarding the Antique and Glaze Finishing for the Architectural Woodwork along with
the installation of the GFRG molding for the above referenced project and for all
reasons previously stated, your position is without merit. Accordingly, we reject any
additional claims and are prepared to tender to your firm the final payment due Pierce
Enterprises in the amount of $12,028.70. Execution of this check will constitute full
satisfaction of all obligations owed by ISEC, Incorporated to Pierce Enterprises.
Pierce forwarded the checks to its main office in Fresno, California, where the checks
were eventually deposited into the Pierce Enterprises account on February 6, 1995. Pierce
included a disclaimer that stated, The above terms are not accepted by payee, payee claims
extra work in the amount of $71,031.00. According to ISEC, Pierce violated the
endorsement/cashing restriction as set forth in ISEC's letter to Pierce by including the
disclaimer on the checks.
On September 30, 1994, Pierce's counsel wrote ISEC, demanding payment of $49,000.00
for settlement. Although ISEC was not amendable to discussing the matter any further, it did
not notify Pierce of its intent to utilize an accord and satisfaction as a defense. Pierce filed a
complaint on December 6, 1994. ISEC's answer did not affirmatively allege accord and
satisfaction.
3
A five-day bench trial commenced on February 12, 1996.
After Pierce introduced the checks and letter during the second day of trial, ISEC
moved to amend its answer to include accord and satisfaction as an affirmative defense. The
district court expressed great concern regarding ISEC's failure to notify Pierce of this possible
defense, stating that ISEC should have previously amended its answer to include it. After
initially denying ISEC's motion to amend its answer, the district court ultimately allowed the
amendment pursuant to Adelman v. Arthur, 83 Nev. 436, 433 P.2d 841 (1967).
On February 21, 1994, ISEC moved for dismissal pursuant to NRCP 41(b), arguing that
the cancelled checks constituted an accord and satisfaction as a matter of law. The court
extended Pierce one week to find authority against the motion.
__________

3
During the second day of trial, the district court asked ISEC's counsel why an accord and satisfaction had
not been pled as an affirmative defense. Counsel stated that, although the cancelled checks were in ISEC's
possession for about a year, they first realized one week before trial that the checks had actually been cashed on
February 6, 1995.
Pierce one week to find authority against the motion. Thereafter, the district court granted
ISEC's motion to dismiss.
Pierce appeals the district court's order granting ISEC's motion at trial to amend its
answer, the order of dismissal, and the order denying its motion to retax costs.
DISCUSSION
ISEC's motion to amend
[Headnote 1]
Pierce contends that the district court abused its discretion when it granted ISEC's
motion to amend its answer pursuant to NRCP 15(b).
4
Pierce further argues that ISEC
purposely concealed its intent to plead accord and satisfaction until the second day of trial.
[Headnote 2]
In addressing the importance of pleading affirmative defenses, this court has stated:
An affirmative defense raises a matter which is beyond the limits of the plaintiff,
prima facie case. Surprise and prejudice may result when evidence is admitted to prove
a true affirmative defense that is without the scope of the plaintiff's complaint.
See Mason v. Hunter, 534 F.3d 822, 825 (8th Cir. 1976). If an affirmative defense is not
pleaded, it is deemed waived, and no evidence can be submitted relevant to that issue.
Chisholm v. Redfield, 75 Nev. 502, 508, 347 P.2d 523, 526 (1959).
When the district court permitted ISEC to amend its answer, it relied upon Adelman
v. Arthur, 83 Nev. 436, 433 P.2d 841(1967). We held in Adelman that, despite a defendant's
failure to specifically plead accord and satisfaction under NRCP 8(c), a narrow exception may
apply. This court stated:
In the case under consideration neither Arthur nor Prudential especially pleaded
accord and satisfaction as required by NRCP 8(c), however, there occurs an exception
to the requirement that accord and satisfaction be especially pleaded when the fact
of accord and satisfaction is disclosed by the evidence offered in behalf of the
plaintiff.
__________

4
NRCP 15(b) provides in pertinent part:
If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings,
the court may allow the pleadings to be amended and shall do so freely when the presentation of the
merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the
admission of such evidence would prejudice him in maintaining his action or defense upon the merits.
The court may grant a continuance to enable the objecting party to meet such evidence.
to the requirement that accord and satisfaction be especially pleaded when the fact of
accord and satisfaction is disclosed by the evidence offered in behalf of the plaintiff. In
such a case a defendant is entitled to take advantage of such a disclosure,
notwithstanding the fact that he has made no plea of accord and satisfaction.
Id. at 440, 433 P.2d at 844 (footnote omitted).
In the instant matter, Pierce sought admission of the cancelled checks and the cover
letter during its case-in-chief. Pierce argues that this evidence was proffered to show that no
meeting of the minds occurred, as confirmed by the disclaimer written on the back of the
checks. ISEC contends that, because the letter accompanying the checks expressly stated that
Pierce's cashing of the checks would constitute full and final payment, it was entitled to
amend its answer to assert an accord and satisfaction. The district court ultimately relied upon
this court's rationale in Adelman and permitted the amendment.
[Headnote 3]
It is within a district court's sound discretion to allow a party to amend its answer to
plead an affirmative defense where the plaintiff has raised the issue. Marschall v. City of
Carson, 86 Nev. 107, 464 P.2d 494 (1970).
We conclude that this narrow exception which Adelman carved out, applies in the instant
matter. Under both NRCP 15(b) and Adelman, the district court acted within its sound
discretion and, therefore, did not err in allowing ISEC to plead accord and satisfaction at trial.
5

Although we conclude that the district court did not abuse its discretion in allowing
ISEC to amend its answer, this is not the end of our inquiry.
ISEC's NRCP 41(b)
6
motion
__________

5
Although the district court believed ISEC's counsel had been unaware that Pierce had cashed the checks, we
hasten to add that trial by ambush will not be tolerated and such tactics may warrant sanctions in the future.

6
NRCP 41(b) provides in pertinent part:
For failure of the plaintiff to comply with these rules or any order of court, a defendant may move for
dismissal of an action or for any claim against him. After the plaintiff has completed the presentation of
his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not
granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has failed to
prove a sufficient case for the court or jury. Unless the court in its order for dismissal otherwise specifies,
a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal
for lack of jurisdiction, or for failure to join a party under Rule 19, operates as an adjudication upon the
merits.
[Headnote 4]
In reviewing a motion to dismiss, this court is to determine whether or not the
challenged pleading sets forth allegations sufficient to make out the elements of a right
to relief. In making its determination, this court is bound to accept all the factual
allegations in the complaint as true. Further [a] claim should not be dismissed . . .
unless it appears to a certainty that the plaintiff is not entitled to relief under any set of
facts which could be proved in support of the claim.
Pemberton v. Farmers Ins. Exchange, 109 Nev. 789, 792, 858 P.2d 380, 381 (1993) (citations
omitted).
This court has applied a heightened standard of review when reviewing dismissals
with prejudice. See GNLV Corp. v. Service Control Corp., 111 Nev. 866, 900 P.2d 323
(1995) (discussing discovery sanctions of dismissals with prejudice).
Pierce contends that the district court erred in granting ISEC's motion to dismiss pursuant
to NRCP 41(b), based upon the doctrine of accord and satisfaction. Pierce avers that it clearly
communicated to ISEC that its negotiation of the checks was not a release of ISEC from
further liability. Pierce further contends that the checks totalling $12,028.70 constituted
payment for the undisputed liquidated portion of the entire amount owed, and that a question
of fact sill remained as to the unliquidated disputed amount. We agree with Pierce.
[Headnote 5]
A litigant must allege and prove that an accord and satisfaction occurred to overcome
the burden that the claim has not been discharged. See NRS 104.3311. This court has stated:
The law of Nevada requires that the party availing himself of a plea of accord and
satisfaction must bear the burden of proof and must establish clearly that there was a
meeting of the minds of the parties, accompanied by a sufficient consideration.
Walden v. Backus, 81 Nev. 634, 637, 408 P.2d 712, 713 (1965).
[Headnotes 6, 7]
To successfully establish the fact of an accord and satisfaction with regard to an
unliquidated claim, the general rule is that a litigant must satisfy three elements, to wit: 1) a
bona fide dispute over an unliquidated amount; 2) a payment tendered in full settlement of the
entire dispute; and 3) an understanding by the creditor of the transaction as such, and
acceptance of the payment. See Thompson v. Thompson, 48 Cal. Rptr. 2d 882 (Ct. App.
1996). Central to the issue, however, is that a meeting of minds with regard to a resolution of
the claim be proved. While certain conduct by a creditor may imply an accord and
satisfaction as a matter of law, the intent of the parties to make a settlement is generally
a question of fact.
certain conduct by a creditor may imply an accord and satisfaction as a matter of law, the
intent of the parties to make a settlement is generally a question of fact. Id. at 882.
In some jurisdictions, conduct revealing a subjective intent not to accept the lower
payment as full discharge of their claims is deemed immaterial. See discussion in Connecticut
Printers, Inc., v. Gus Kroesen, Inc., 184 Cal. Rptr. 436 (Ct. App. 1982). The common law in
these jurisdictions is that negotiation under protest of a conditionally tendered check
constitutes an accord and satisfaction as a matter of law. Id. at 436-37; see also Potter v.
Pacific Coast Lumber Co., 234 P.2d 16 (Cal. 1951). In Connecticut Printers, the court
attempted to resolve the apparent conflict between the common law rule of Potter, and the
subsequently enacted California commercial code provision allowing negotiation under
protest. Connecticut Printers, at 438, 439.
7

Adopting the doctrine that subjective intent is never relevant presents a creditor with one
of two options. He can either accept the check on the debtor's terms, or refrain from
negotiating the check and seek the entire disputed amount through judicial process. Id.; see
also 1 Corbin on Contracts, discharge of contract; accord and satisfaction, 1279 (1952).
We choose not to follow this stringent approach, preferring to focus on the specific
facts presented. Although settled law in other jurisdictions may support an accord and
satisfaction as a matter of law without a meeting of minds, we conclude that a rigid
application of such a doctrine would result in unnecessary punishment of the creditor.
Specifically, it would disallow any creditor access to funds which the debtor already concedes
is owed because, as stated previously, even a disclaimer would not assist in preserving the
creditor's right to litigate.
8

This court has consistently held that a prerequisite for the finding of an accord and
satisfaction is a clearly established meeting of the minds. Matthews v. Collman, 110 Nev.
940, 947, 878 P.2d 971, 976 (1994). The record indicates that Pierce fully intended to further
litigate this matter with regard to the unliquidated disputed portion of the claim. Further,
Pierce expressly communicated this intention to ISEC before cashing the checks, as
evidenced by the disclaimers on the checks and its decision to proceed to trial.
__________

7
Nevada's commercial code does not contain an under protest provision.

8
Because this amount of Pierce's claim is the undisputed portion, we need not address the issue of wrongful
retention or wrongful use of the funds.
We conclude that the record supports a finding that a meeting of the minds did occur
as to the liquidated and undisputed portion of Pierce's claim. Therefore, only a portion of the
claim was discharged by Pierce's negotiation of the checks.
With regard to the unliquidated and disputed portion of Pierce's claim, our review of the
record persuades us that the prerequisite of a meeting of the minds never occurred. Because
this necessary element of an accord and satisfaction was absent, and because the tender of the
checks was arguably not a bona fide offer of settlement of a disputed amount, we conclude
that the district court erred in finding that Pierce's entire claim had been discharged. The
question of the intent of the parties to settle was properly one of fact.
Having concluded that the district court erred in granting a dismissal, we need not
reach Pierce's remaining issues. We therefore reverse the district court's order of dismissal
pursuant to NRCP 41(b), and remand for a new trial consistent with this order.
____________
114 Nev. 299, 299 (1998) Lane v. State
GERALD CARTER LANE, Appellant v. THE STATE OF NEVADA, Respondent.
No. 23825
April 2, 1998 956 P.2d 88
On rehearing, appeal from a judgment of conviction, entered pursuant to a jury
verdict, of one count each of first-degree murder with use of a deadly weapon, robbery with
use of a deadly weapon, attempted murder with use of a deadly weapon, and attempted
robbery with use of a deadly weapon, and from a sentence of death. Second Judicial District
Court, Washoe County; Deborah A. Agosti, Judge.
The supreme court affirmed, 110 Nev. 1156, 881 P.2d 1358 (1994), and then granted
defendant's motion for rehearing. On rehearing, the supreme court held that: (1) receiving
money aggravating circumstance improperly duplicated the robbery aggravating
circumstance; and (2) evidence was insufficient to support the great risk of death
aggravating circumstance.
Rehearing granted; sentence vacated and remanded for a new penalty hearing.
Steven G. McGuire, State Public Defender, and Timothy P. O'Toole, Appellate Deputy
Public Defender, Carson City; Michael R. Specchio, Public Defender,
114 Nev. 299, 300 (1998) Lane v. State
Michael R. Specchio, Public Defender, Janet Cobb Schmuck, Deputy Public Defender, and
Jane McKenna, Deputy Public Defender, Washoe County; Michael Pescetta, Executive
Director, Nevada Appellate and Post Conviction Project, Las Vegas, for Appellant.
Attorney, and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
1. Homicide.
Capital murder defendant's sentence could not simultaneously reflect both aggravating circumstances of receiving money and
robbery based on same set of facts. NRS 200.033(4), (6).
2. Homicide.
Defendant's shootings of three victims in three distinct incidents over course of one hour did not constitute course of action,
within meaning of great risk of death aggravating circumstance. NRS 200.033(3).
Per Curiam:
In 1992, appellant Gerald Carter Lane shot three people. The first two were wounded, and the third died as a result of the
shooting. Lane was convicted of one count each of first-degree murder with use of a deadly weapon, robbery with use of a deadly weapon,
attempted murder with use of a deadly weapon, and attempted robbery with use of a deadly weapon. Lane was sentenced to death for the
murder, and to two consecutive fifteen-year terms, two consecutive twenty-year terms, and two consecutive seven-and-one-half-year terms
for the other crimes. On direct appeal, this court affirmed Lane's convictions and sentences. Lane v. State, 110 Nev. 1156, 881 P.2d 1358
(1994).
Subsequently, Lane filed a suggestion for rehearing on the court's own motion, or in the alternative, motion for leave to file a petition
for rehearing. This court elected to treat Lane's suggestion as a petition for rehearing, ordered the state to file an answer addressing certain
issues, and permitted appellant to file a reply. Lane v. State, Docket No. 23825 (Order, March 31, 1995). After considering appellant's
petition and the briefs on rehearing, the record on appeal, and our opinion, we conclude that the opinion overlooked or misapprehended
material matters in the record on appeal or the relevant law and grant rehearing. Accordingly, we vacate appellant's death sentence and
remand for a new penalty hearing.
114 Nev. 299, 301 (1998) Lane v. State
FACTS
In 1992, Lane, accompanied by James Millhouse, went on a spree in downtown
Reno in which Lane shot Frederick Spruell in the stomach, shot William Boone in the hand,
and fatally shot Raymond Dunham, a cab driver, in the head and took Dunham's money.
Millhouse was acquitted. Lane was convicted of each crime charged.
During the penalty phase of the trial, the jury was instructed on aggravating
circumstances as follows:
The jury may impose a sentence of death only if it finds, beyond a reasonable doubt,
that there is at least one aggravating circumstance and further finds that any mitigating
circumstances do not outweigh the aggravating circumstances;
The applicable circumstances by which murder of the first degree may be aggravated
are:
1. The murder was committed by GERALD CARTER LANE who created a great
rick [sic] of death to more than one person by means of a weapon or course of action
which would normally be hazardous to the lives of more than one person;
2. The murder was committed while GERALD CARTER LANE was engaged in
flight after attempting to commit robbery and GERALD CARTER LANE attempted to
kill FREDERICK SPRUELL; or that he knew or had reason to know that life would be
taken or lethal force used.
3. The murder was committed while GERALD CARTER LANE was engaged in the
commission of or flight after committing robbery, and GERALD CARTER LANE
killed RAYMOND DUNHAM; or that he knew or had reason to know that life would
be taken or lethal force used.
4. The murder was committed upon one or more persons at random and without
apparent motive.
5. The murder was committed by GERALD CARTER LANE, for himself or another,
to receive money or other thing of monetary value.
These aggravating circumstances are found at, respectively, NRS 200.033(3), (4), (4), (9), and
(6). The jury found all five aggravating circumstances and sentenced Lane to death.
On appeal, Lane contended that (1) the capital sentencing process was administered in
a racially discriminatory manner in violation of the Fourteenth Amendment's Equal
Protection Clause; (2) he was denied a fair trial because the jury was not impartial due to
improper juror influence; (3) the district court erred in denying his motion to suppress
statements made during interrogation because the statements were involuntary;
114 Nev. 299, 302 (1998) Lane v. State
interrogation because the statements were involuntary; (4) he was denied a fair penalty
hearing because the district court admitted evidence which violated NRS 176.015 and which
was unduly prejudicial; and (5) he was denied a fair penalty hearing because the district court
allowed duplicative aggravating factors in the jury instructions.
Specifically, Lane argued that in the above instruction, the fifth aggravating
circumstance duplicated the second and third aggravating circumstances in that a robbery
cannot be accomplished without trying to take money or something of monetary value. In
addition, Lane argued that the third and fourth aggravating circumstances were inconsistent
because if the murder was committed in the course of a robbery, the motive is to rob, and the
murder cannot be without apparent motive.
A majority of this court rejected each of Lane's contentions concerning aggravating
circumstances. Lane v. State, 110 Nev. 1156, 1167-68, 881 P.2d 1358, 1366 (1994). In
conducting its mandatory review of the death sentence, this court concluded that the evidence
supported the first, third, fourth and fifth aggravating circumstances, but held that the second
aggravating circumstance was invalid. Id. at 1168, 881 P.2d at 1366-67. The opinion then
states: In light of the fact that no mitigating circumstances were found by the jury, we hold
that the jury's finding of an invalid aggravating factor constituted harmless error. Such
reweighing compels us to affirm Lane's death sentence. Id. at 1169, 881 P.2d at 1367
(citations omitted).
On December 19, 1994, Lane filed a Suggestion for Rehearing on the Court's Own
Motion; or, in the Alternative, Motion for Leave to File Petition for Rehearing and Petition
for Rehearing. The state filed an answer. This court entered an order stating that it would
treat Lane's suggestion for rehearing as a petition for rehearing and would consider the
petition on its merits, and requiring the state to file an answer addressing the following issues:
(1) whether this court misapprehended a material matter in the record regarding mitigating
evidence, (2) whether the third and fifth aggravating circumstances are duplicative in
violation of appellant's constitutional rights, (3) whether the first aggravating circumstance is
unconstitutional as applied to appellant, and (4) whether the fourth aggravating circumstance
is unconstitutional as applied to appellant. Lane v. State, Docket No. 23825 (Order, March
31, 1995).
DISCUSSION
On rehearing, the parties may not reargue the same issues, nor may they raise a new
issue not previously raised. NRAP 40(c)(1). However, this court may consider rehearing
when it appears that the court has overlooked or misapprehended a material matter in the
record or otherwise, or in other circumstances to promote substantial justice.
114 Nev. 299, 303 (1998) Lane v. State
the court has overlooked or misapprehended a material matter in the record or otherwise, or in
other circumstances to promote substantial justice. NRAP 40(c)(2).
Lane argues that this court's reweighing and resentencing violates his constitutional
rights, that this court erroneously affirmed the robbery and the receiving money aggravating
circumstances, that the jury should not have been instructed on the great risk of death
aggravating circumstance, and that this court's reweighing was defective because this court
erroneously believed that the jury found no mitigating circumstances. We address these
contentions in turn.
First, this court recently addressed the propriety of this court's reweighing of aggravating
and mitigating circumstances, concluding that appellate reweighing does not involve
impermissible fact-finding under state constitutional or statutory law. Canape v. State, 109
Nev. 864, 881-82, 859 P.2d 1023, 1034-35 (1993), cert. denied, 513 U.S. 862 (1994). We
decline to revisit this issue.
[Headnote 1]
We agree, however, with Lane's contention that this court erroneously affirmed the
robbery and the receiving money aggravating circumstances (aggravating circumstances three
and five). Lane argues on rehearing that the receiving money aggravating circumstance does
not apply because it is inconsistent with the taking aspect of the robbery aggravating
circumstance. Lane asserts that the receiving money aggravating circumstance only makes
sense if it is construed in a murder for hire situation, and not, as in the instant case, where
there is a robbery-murder.
On appeal, Lane raised the issue of duplicative aggravating circumstances, citing several
cases for the proposition that double counting is not permissible. This court found that
Lane's argument lacked merit, citing Guy v. State, 108 Nev. 770, 839 P.2d 578 (1992), cert.
denied, 507 U.S. 1009 (1993), and Bennett v. State, 106 Nev. 135, 787 P.2d 797, cert. denied,
498 U.S. 925 (1990). Lane, 110 Nev. at 1167, 881 P.2d at 1366.
Our reliance upon Guy and Bennett was in error. In Guy, this court concluded that
there was an evidentiary basis for both the robbery and the receiving money aggravating
circumstances. Guy, 108 Nev. at 781, 839 P.2d at 585. We did not consider whether the
aggravating circumstances were duplicative, and Guy therefore does not stand for the
proposition that they are not. Neither does Bennett. In Bennett, where the defendant argued
that the district court erred in considering the underlying felonies of robbery and burglary as
separate aggravating circumstances, this court concluded that if a defendant can be prosecuted
for each crime, then each crime can be used as an aggravating circumstance.
114 Nev. 299, 304 (1998) Lane v. State
each crime, then each crime can be used as an aggravating circumstance. Bennett, 106 Nev. at
142, 787 P.2d at 801.
Under Nevada law, Lane could not be convicted of both robbery and receiving stolen
property. This court reversed a conviction for possessing stolen property on the ground that
the legislature did not intend to compound the punishment for larceny or robbery by
permitting a conviction for receipt or possession of the stolen property against the person who
took the property. Point v. State, 102 Nev. 143, 146-48, 717 P.2d 38, 40-41 (1986). Similarly,
Lane's conviction may not be aggravated by both the robbery and the receipt of money stolen
during that robbery. We agree with those courts which have concluded that finding both the
robbery and the receiving money aggravating circumstances in the context of a
robbery-murder is improper. See Cook v. State, 369 So. 2d 1251, 1256 (Ala. 1979) (applying
pecuniary gain aggravator to a situation already condemned under robbery aggravator
inappropriate); People v. Bigelow, 691 P.2d 994, 1006 (Cal. 1984) (submitting financial gain
aggravator to jury where robbery aggravator applied error because former applies only where
victim's death is consideration for financial gain sought by defendant); Provence v. State, 337
So. 2d 783, 786 (Fla. 1976) (applying robbery and pecuniary gain aggravators in a
robbery-murder improper because they refer to the same aspect of the crime), cert. denied,
431 U.S. 969 (1977); Willie v. State, 585 So. 2d 660, 680-81 (Miss. 1991) (jury cannot be
allowed to doubly weigh the commission of the underlying felonyrobberyand the motive
behind that felonypecuniary gainas separate aggravators). We hold that it is improper to
find both the aggravating circumstance of robbery and the aggravating circumstance of
receiving money when both aggravating circumstances are based on the same facts.
Accordingly, we conclude that the aggravating circumstance of receiving money is invalid in
this case.
[Headnote 2]
Further, we agree with Lane that the great risk of death aggravator (aggravating
circumstance one) was improperly applied in his case. Lane contends that the meaning of
course of action within that aggravating circumstance is ambiguous. The prosecution relied
upon the course of action prong in support of this aggravating circumstance. This court has
upheld this aggravator based on course of action where a defendant threatened a person's
life because of the proximity between that person and the victim at the time of the murder.
See Flanagan v. Nevada, 112 Nev. 1409, 930 P.2d 691 (1996) (shooting grandmother
knowing that grandfather was upstairs and shooting grandfather as he came downstairs);
Evans v. State, 112 Nev. 1172, 926 P.2d 265 {1996) {discharging weapon in an apartment
occupied by six people constitutes a course of conduct hazardous to the life of more than
one person), cert. denied, ___ U.S. ___, 117 S. Ct. 1S54 {1997).
114 Nev. 299, 305 (1998) Lane v. State
265 (1996) (discharging weapon in an apartment occupied by six people constitutes a course
of conduct hazardous to the life of more than one person), cert. denied,
------
U.S.
------
, 117
S. Ct. 1854 (1997).
The facts in the instant case are not analogous to those in which this court has upheld
this aggravator. Here, the course of action took place over the span of about an hour and in
three distinct incidents in different locations. Lane shot Spruell at approximately 4:00 a.m. on
Lake Street in Reno near the Oxford Motel, shot Boone at approximately 4:30 a.m. on Center
Street, and killed Dunham at approximately 5:00 a.m. at the Lakeview Apartments on
Brinkby Street. These shootings do not constitute a course of action under NRS 200.033(3).
Rather, this case is analogous to those cases in which this court has rejected this aggravator.
See Jiminez v. State, 105 Nev. 337, 775 P.2d 694 (1989) (holding that aggravator did not
apply where defendant fatally stabbed one person with one knife, then stabbed another person
with another knife); Moran v. State, 103 Nev. 138, 734 P.2d 712 (1987) (holding that
aggravator did not apply where no other persons in apartment, no neighbor at immediate risk
of death, and defendant not aware of any other person within close proximity when victim
shot); see also Domingues v. State, 112 Nev. 683, 917 P.2d 1364 (state agreed to strike great
risk of death aggravator where defendant killed mother by strangling her, then killed child by
stabbing), cert. denied, 519 U.S. 968, 117 S. Ct. 396 (1996). Accordingly, we hold that this
aggravating circumstance may not stand.
Lane also argues on rehearing that this court's reweighing was defective because this court
incorrectly believed that the jury found no mitigating circumstances. The opinion states that
no mitigating circumstances were found by the jury. Lane, 110 Nev. at 1169, 881 P.2d at
1367. The verdict does not state that the jury found no mitigating circumstances, but that any
mitigating circumstances do not outweigh the aggravating circumstances. Therefore, our
statement in Lane was incorrect.
We have concluded above that the receiving money aggravating circumstance
improperly duplicates the robbery aggravating circumstance. We have also concluded that
insufficient evidence exists to support the great risk of death aggravating circumstance, and
that therefore the jury should not have been instructed on this aggravator. There still remain
two aggravating circumstances that the state proved beyond a reasonable doubt: robbery and
random and without apparent motive. Having concluded that a total of three aggravating
circumstances are invalid, we vacate the sentence of death previously imposed in this case
and remand for a new penalty hearing. NRS 177.055(3)(b)(1).
114 Nev. 299, 306 (1998) Lane v. State
We conclude that Lane's other contentions on rehearing, among them that the
random and without apparent motive aggravator did not apply in his case, that this court
should reconsider the issue of racially discriminatory charging, and that this court should
consider whether it is constitutionally permissible to substitute an alternate juror during
deliberations when other jurors have already reached a partial verdict, lack merit.
____________
114 Nev. 306, 306 (1998) Levingston v. Washoe County
NOAH LEVINGSTON, Individually and as Administrator of the ESTATE OF DANIEL W.
LEVINGSTON, Appellant, v. WASHOE COUNTY, NEVADA, by and Through the
Sheriff of Washoe County, Respondent.
No. 26265
April 2, 1998 956 P.2d 84
Petition for rehearing in an appeal from a final judgment in a forfeiture action. Second
Judicial District Court, Washoe County; Mills Lane, Judge.
Following seizure of home for alleged illegal drug activity, county filed civil
forfeiture action. The district court granted forfeiture, and homeowner appealed. The supreme
court reversed on, inter alia, double jeopardy claim, and remanded, 112 Nev. 479, 916 P.2d
163 (1996). On rehearing, the supreme court overruled Wright v. State, 112 Nev. 391, 916
P.2d 146 (1996), and held that forfeiture of home, as having been used to facilitate unlawful
processing and distribution of marijuana, was not punitive for double jeopardy purposes.
Rehearing granted; opinion modified; remanded.
Lynn G. Pierce, Reno, for Appellant.
Richard A. Gammick, District Attorney and Margaret Crowley, Deputy District
Attorney, Washoe County, for Respondent.
1. Double Jeopardy.
In determining whether forfeiture statutes are criminal or civil for double jeopardy purposes, court must ascertain whether
legislature intended statutes to be civil or criminal, and where legislative intent is to establish civil penalty, court must then decide
whether proceedings are so punitive as to demonstrate that proceeding may not legitimately be viewed as civil in nature; clearest proof
is required to establish that proceedings are so punitive in form and effect as to render them criminal despite legislative intent to
contrary. U.S. Const. amend. 5.
2. Double Jeopardy.
Forfeiture of house, as having been used to facilitate unlawful processing and distribution of marijuana, was not punitive for
double jeopardy purposes. Legislature intended forfeiture statutes to be civil and there was no clearest proof that statutes should be
viewed as criminal; overruling Wright v. State, 112 Nev. 391, 916 P.2d 146 (1996). U.S. Const. amend. 5.
Per Curiam:
On April 30, 1996, this court issued an opinion reversing and remanding a final
judgment of the district court in a civil forfeiture action. Levingston v. Washoe Co., 112 Nev.
479, 916 P.2d 163 (1996). The county has petitioned for rehearing, contending that the United
States Supreme Court's decision in United States v. Ursery, 518 U.S. 267, 116 S. Ct. 2135
(1996), controls the issue presented in this appeal. We agree, and for the reasons set forth
below, we grant rehearing and issue this opinion modifying our previous opinion in this case.
FACTS
The facts underlying this appeal are described in detail in our prior decision. See
Levingston, 112 Nev. at 481-82, 916 P.2d at 165. On appeal, appellant contended that the
district court's order granting Washoe County's complaint pursuant to NRS Chapter 179 for
civil in rem forfeiture of a Washoe County home violated the Due Process, Double Jeopardy,
and Excessive Fines Clauses of the United States Constitution. This court held that the
application of Nevada's forfeiture statutes was unconstitutional with respect to two owners of
the property, Rita Dennis and David Levingston, because the forfeiture subjected them to
double jeopardy. Further, we concluded the forfeiture of Lula Levingston's and Noah
Levingston's interest in the subject property may constitute an excessive fine. Therefore, we
remanded the matter to the district court for a determination of that issue.
The county timely petitioned for rehearing, and subsequently presented supplemental
authority citing to the Supreme Court's Ursery decision. Appellant opposes the petition.
DISCUSSION
In Ursery, the United States government instituted a civil in rem forfeiture proceeding
against respondent Ursery's house. The government alleged that the house had been used to
facilitate the unlawful processing and distribution of a controlled substance {marijuana).
(marijuana). Ursery paid the government $13,250 to settle the forfeiture claim. Before the
settlement was completed, however, Ursery was criminally indicted for manufacturing
marijuana. He was later found guilty, pursuant to a jury trial, and sentenced to 63 months in
prison. The Sixth Circuit Court of Appeals reversed Ursery's conviction, concluding that it
subjected him to double jeopardy. Ursery, 518 U.S. at 272, 116 S. Ct. at 2138-39.
The Court in Ursery also reviewed the Ninth Circuit Court of Appeals' decision in
United States v. $405,089.23 U.S. Currency, 33 F.2d 1210 (9th Cir. 1994). The U.S.
Currency case involved a civil in rem forfeiture action instituted against various items of
property belonging to two individuals who were charged with conspiracy to aid and abet the
manufacture of methamphetamine and conspiracy to launder monetary instruments. That civil
forfeiture action was deferred while respondents were prosecuted and convicted on the
criminal charges. Thereafter, the court granted the government's motion for summary
judgment in the civil forfeiture proceeding. The Ninth Circuit Court of Appeals held that the
Double Jeopardy Clause prohibited the government from punishing the respondents for a
criminal offense and forfeiting their property for that same offense in a separate civil
proceeding. Ursery, 518 U.S. at 272, 116 S. Ct. at 2139.
[Headnote 1]
In reviewing these decisions, the Supreme Court reexamined whether a civil in rem
forfeiture constitutes punishment for double jeopardy purposes and reversed the rulings of the
Sixth and Ninth Circuit Courts of Appeal. Id. at 274-291, 116 S. Ct. at 2140-49. The Court
applied a two-step test derived from its previous holdings addressing civil in rem forfeitures.
Id. at 288, 116 S. Ct. at 2147 (citing United States v. One Assortment of 89 Firearms, 465
U.S. 354 (1984); One Lot Emerald Cut Stones v. United States, 409 U.S. 232 (1972); Various
Items of Personal Property v. United States, 282 U.S. 577 (1931)). First, the two-step analysis
approved in Ursery requires an examination of legislative intent to ascertain whether the
forfeiture statutes were intended to be civil or criminal. Id. at 288, 116 S. Ct. at 2147. If this
examination discloses a legislative intent to create civil in rem forfeiture proceedings, a
presumption is established that the forfeiture is not subject to double jeopardy. Id. at 290 n.3,
116 S. Ct. at 2148 n.3.
Second, Ursery requires an analysis of whether the proceedings are so punitive in fact as
to [demonstrate] that the forfeiture proceeding[s] may not legitimately be viewed as civil in
nature,' despite legislative intent to the contrary. Id. at 288, 116 S. Ct. at 2147 (quoting 89
Firearms, 465 U.S. at 366). The clearest proof is required to establish that the forfeiture
proceedings are so punitive in form and effect as to render them criminal despite
legislative intent to the contrary. Id. at 290 & n.3, 116 S. Ct. at 214S & n.3.
ceedings are so punitive in form and effect as to render them criminal despite legislative
intent to the contrary. Id. at 290 & n.3, 116 S. Ct. at 2148 & n.3.
Applying this two-step analysis, the Court determined in Ursery: (1) that the forfeiture
statutes at issue were intended to establish civil in rem proceedings; and (2) that there was
little evidence, much less the clearest proof' that the forfeitures were so punitive in form
and effect as to render them criminal despite the contrary statutory intent. Id. at 288-291, 116
S. Ct. at 2147-49. Therefore, the Court ruled, the forfeitures and convictions at issue did not
offend the Double Jeopardy Clause of the United States Constitution. Id. at 291, 116 S. Ct. at
2149.
Reconsideration of prior opinion
In this petition, the county correctly contends that the reasoning in Ursery undermines
this court's previous opinion. This court's prior opinion was based in large part on the Ninth
Circuit Court of Appeals decision in the U.S. Currency case that was reversed in Ursery.
Appellant contends that this court did not rely heavily upon the Ninth Circuit's decision in
U.S. Currency, but instead relied upon United States v. Halper, 490 U.S. 435 (1989), and
Austin v. United States, 509 U.S. 602 (1993), two cases that were not overturned by Ursery.
1
It was the U.S. Currency case, however, that applied the Halper and Austin reasoning to civil
forfeitures. Also, as the county observes, Ursery quite clearly establishes that Halper was
never intended to apply to civil in rem forfeiture proceedings, and that Austin did not involve
the Double Jeopardy Clause at all, but was decided solely under the Excessive Fines Clause
of the Eighth Amendment. Ursery, 518 U.S. at 288, 116 S. Ct. at 2147.
We followed the direction of the Ninth Circuit's decision in U.S. Currency in our
previous opinion. In determining whether Nevada's forfeiture statute is punitive, we reviewed
factors that were enunciated in Austin, and applied by the Ninth Circuit in U.S. Currency. For
example, we looked to the existence of the innocent owner defense as evidence that
forfeitures were intended to be punitive. In Ursery, however, the Supreme Court stated we
do not think that such a provision, without more indication of an intent to punish, is relevant
to double jeopardy analysis.
__________

1
We note that recently the Supreme Court in large part disavowed the Halper decision. See Hudson v. United
States, 522 U.S. 93, 118 S. Ct. 488 (1997). We also note that the discussion of the issue in Ursery by Chief
Justice Rehnquist and Justice Stevens demonstrates the confusion caused by the dicta in Halper.
Id. at 291, 116 S. Ct. at 2149. We also referred to the link between forfeitures and illegal
activities as evidence that forfeitures are punitive. Ursery concludes, however, that [b]y
itself, the fact that a forfeiture statute has some connection to a criminal violation is far from
the clearest proof' necessary to show that a proceeding is criminal. Id. at 291, 116 S. Ct. at
2149.
In sum, we conclude that the double jeopardy analysis articulated in our previous
opinion is undermined by Ursery. The key determination in this court's double jeopardy
analysis was whether Nevada's forfeiture statute constituted punishment. This court applied a
test that the Supreme Court has now concluded is not applicable to civil in rem forfeitures.
Accordingly, we grant the county's petition for rehearing, and reconsider this appeal under the
guidance of Ursery.
2

Application of the Ursery test
The Ursery Court announced [w]e do not hold that in rem civil forfeiture is per se
exempt from the scope of the Double Jeopardy Clause. Id. at 290 n.3, 116 S. Ct. at 2148 n.3.
As noted above, the Court applied a two-part test to determine whether the forfeiture
constitutes punishment. Id. at 289, 116 S. Ct. at 2147. The first question under Ursery is
whether the forfeiture statutes were intended to be civil or criminal in nature.
[Headnote 2]
Appellant contends that Nevada's forfeiture statutes should be considered criminal in
nature because they are contained within a section of the Nevada Revised Statutes pertaining
to criminal actionsChapter 179and a section pertaining to crimes involving controlled
substancesChapter 453. Further, appellant contends that Nevada statutory forfeiture actions
are tied to criminal activity and that proceedings for forfeiture mirror the statutory provisions
for arrests. We conclude, however, that these factors do not evince a legislative intent to
create a criminal rather than civil proceeding.
NRS Chapter 179 applies the rules of civil procedure to forfeiture actions, defines the
parties as the plaintiff and claimant, provides that a forfeiture proceeding is an in rem
proceeding, and establishes that the state's burden of proof is proof by a preponderance of the
evidence, not proof beyond a reasonable doubt. See NRS 179.1158, 179.1159, 179.1171 and
179.1173. In light of these factors, it is clear that the legislature intended Nevada's forfeiture
statutes to be civil, not criminal, in rem proceedings.
Second, as in Ursery, there is no clear proof that Nevada's statutory forfeiture
proceedings are so punitive in form and effect as to render them criminal despite the
legislative intent to the contrary.
__________

2
To the extent that our reasoning in Wright v. State, 112 Nev. 391, 916 P.2d 146 (1996) conflicts with the
approach followed in this opinion, Wright is overruled.
statutory forfeiture proceedings are so punitive in form and effect as to render them criminal
despite the legislative intent to the contrary. The Ursery Court focused particularly on the
non-punitive aspects of the forfeiture statutes under review. By linking the forfeiture of
property to illegal drug activity that occurs in or on that property, forfeiture encourages
property owners to responsibly manage their property and ensures that owners will not permit
illegal activities on or in that property. Ursery, 518 U.S. at 291, 116 S. Ct. at 2148; see also
Bennis v. Michigan, 516 U.S. 442 (1996) (forfeiture of a car that was used for illegal sexual
conduct did not violate co-owner's rights under Due Process Clause or Takings Clause).
We conclude that pursuant to Ursery, the clearest proof is not present in this case
establishing that the forfeiture of the home at issue should be viewed as criminal rather than
civil. The forfeiture served non-punitive goals. It prevented the further illicit use of the house,
thereby ensuring that the house would not be used again for illegal purposes and that Rita and
David particularly would not profit from illegal conduct.
Further, as this court stated in City of Sparks v. Nason, 107 Nev. 202, 204, 807 P.2d 1389,
1390 (1991), [t]he proceeds from forfeiture actions go toward crime prevention and help
defray the costs of court proceedings and law enforcement. Its purpose is remedial and not
punitive. Although Nason indicated that forfeitures have an ancillary punitive effect, as
Ursery explains, civil in rem forfeiture statutes may have punitive aspects that are outweighed
by important non-punitive goals.
3
See Ursery, 518 U.S. at 289, 116 S. Ct. at 2148.
Appellant argues that the home in this case was not purchased with illegally obtained
funds. Specifically, appellant states that the home had been the long term residence of David
and Rita's parents, and there are no facts in evidence to even suggest that either deceased
parent had any connection with or involvement in illegal drugs.
4
However, the Supreme
Court did not express any concern regarding whether the home forfeited in Ursery had been
purchased with illegal funds. Instead, the Court stated that when a forfeiture applies to
proceeds of illegal drug activity, it serves the additional nonpunitive goal of ensuring that
persons do not profit from their illegal acts." Id. at 291, 116 S. Ct. at 214S-49 {emphasis
added).
__________

3
Ursery also instructs that the phrase solely to serve a remedial purpose in Halper was mere dictum and
that civil penalties are suspect on double jeopardy grounds only to the extent that the sanctions may not fairly be
characterized as remedial, but only as deterrents or as retribution.

4
We note that the innocent owner defense contained within Nevada's forfeiture statute protects owners who
are reasonably ignorant of the illegal conduct on their property, thereby avoiding the inequitable result alluded
to by appellant.
not profit from their illegal acts. Id. at 291, 116 S. Ct. at 2148-49 (emphasis added).
Importantly, the houses in Ursery and in this case were used to facilitate illegal drug activity.
We conclude that the forfeiture in this case is virtually indistinguishable from the forfeiture in
Ursery and is neither punitive nor criminal for purposes of the Double Jeopardy Clause of the
United States Constitution.
CONCLUSION
In our previous opinion, we remanded to the district court for an evaluation of
whether the forfeiture was an excessive fine with respect to Lula Levingston's and Noah
Levingston's interest in the home. We did not direct the district court to conduct an excessive
fines analysis of Rita Dennis' and David Levingston's forfeited interests because we
pronounced the forfeiture of those interests invalid on double jeopardy grounds. However, the
excessive fines reasoning that applies to Lula's and Noah's interests applies with equal force
to Rita's and David's interest.
Accordingly, we grant rehearing and modify our previous opinion. We conclude that Rita
and David were not subjected to double jeopardy. However, we remand to the district court to
review whether the forfeiture violated the Excessive Fines Clause of the Eighth Amendment
of the United States Constitution with respect to all individuals with an interest in the
property.
Shearing, J., concurring:
I agree with the majority that the forfeiture does not implicate the Double Jeopardy Clause,
but I do not agree with the finding that the forfeiture is not punitive. Although the forfeiture is
punitive, it is not punishing anyone for the same offense as the criminal prosecution. I agree
with Justice Kennedy who stated in his concurring opinion in United States v. Ursery, 518
U.S. 267, 116 S. Ct. 2135, 2150 (1996) that [t]he key distinction is that the
instrumentality-forfeiture statutes are not directed at those who carry out the crimes, but at
owners who are culpable for the criminal misuse of property. These may or may not be the
same persons. Therefore, the Double Jeopardy Clause is not implicated.
____________
114 Nev. 313, 313 (1998) State v. Lomas
THE STATE OF NEVADA, Appellant, v. DANIEL LOMAS, Respondent.
No. 28387
April 2, 1998 955 P.2d 678
Appeal from a district court order granting a pretrial motion to dismiss. Second
Judicial District Court, Washoe County; Jerry Carr Whitehead, Judge.
Defendant was charged with driving under influence of alcohol (DUI) and related
offenses stemming from automobile collision. Following the Department of Motor Vehicles
and Public Safety (DMV) revocation of defendant's driver's license, driver moved to dismiss
criminal case based on double jeopardy. The district court granted motion, and State
appealed. The supreme court held that defendant was not entitled to double jeopardy
protection.
Attorney, Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Appellant.
Martin H. Wiener, Reno, for Respondent.
1. Double Jeopardy.
Double Jeopardy Clause protects against: (1) second prosecution for same offense after acquittal; (2) second prosecution for
same offense after conviction; and (3) multiple punishments for same offense. Const. art. 1, 8; U.S. Const. amend 5.
2. Double Jeopardy.
Defendant whose driver's license was suspended by Department of Motor Vehicles and Public Safety (DMV) for driving under
the influence of alcohol (DUI), was not entitled to double jeopardy protection from prosecution for criminal offenses stemming from
same incident. Revocation proceeding was civil rather than criminal, revocation did not require finding of scienter, and revocation was
rationally related to government goal of maintaining safety on public roads. Const. art. 1, 8; U.S. Const. amend. 5; NRS
483.460(4)(b).
3. Double Jeopardy.
In determining whether particular punishment is criminal or civil for double jeopardy purposes, court must ask whether
legislature, in establishing penalizing mechanism, indicated either expressly or impliedly preference for one label or other, and even in
those cases where legislature indicates intention to establish civil penalty, court should inquire further whether statutory scheme is as
punitive either in purpose or effect, as to transform what was clearly intended as civil remedy into criminal penalty. Const. art. 1, 8;
4. Double Jeopardy.
In determining whether statutory scheme was so punitive in purpose or effect as to transform what was clearly intended as civil
remedy into criminal penalty for double jeopardy purposes, factors include: (1) whether sanction involves affirmative
disability or restraint;
114 Nev. 313, 314 (1998) State v. Lomas
whether sanction involves affirmative disability or restraint; (2) whether it has historically been regarded as punishment; (3) whether it
comes into play only on finding of scienter; (4) whether its operation will promote traditional aims of punishment, namely retribution
and deterrence: (5) whether behavior to which it applies is already crime; (6) whether alternative purpose to which it may rationally be
connected is assignable for it; and (7) whether it appears excessive in relation to alternative purpose assigned. Const. art. 1, 8; U.S.
Const. amend. 5.
5. Double Jeopardy.
In double jeopardy analysis, although deterrence is traditional goal of criminal punishment, mere presence of deterrent purpose
is insufficient to render sanction criminal, because deterrence also may serve civil goals. Const. art. 1, 8; U.S. Const. amend. 5.
OPINION
Per Curiam:
FACTS
On January 21, 1995, Daniel Lomas was involved in two-vehicle collision at the intersection of North McCarran Boulevard and
Seventh Street in Reno. The driver of the other car was injured in the accident. Shortly after the accident, police officers apprehended
Lomas and administered a test to determine his blood alcohol content. Three blood draws revealed blood alcohol levels of .211, .201, and
.188. The state charged Lomas with four felony counts: driving under the influence of alcohol; driving while having 0.10 percent or more
by weight of alcohol in the blood; having a blood alcohol content of 0.10 percent by weight of alcohol in the blood within two hours of
driving; and leaving the scene of an accident involving personal injury.
In February 1995, the Department of Motor Vehicles and Public Safety (DMV) notified Lomas that, due to the results of the
evidentiary chemical test showing that Lomas had been driving with a blood alcohol content of 0.10 percent or more, his driver's license
would be revoked for ninety days. See NRS 484.385.
In July 1995, Lomas signed a waiver of his right to a preliminary examination in the criminal case. The waiver contained a plea
agreement whereby Lomas agreed to plead guilty to the charge of driving under the influence in exchange for: (1) leave to file a motion to
dismiss the charge of driving under the influence on double jeopardy grounds, and (2) the prosecution's promise to drop all other charges.
One month later, Lomas appeared in district court and entered a plea of not guilty.
1
Trial was set for November 1995.
__________

1
It appears that Lomas entered a plea of not guilty so that he could pursue his motion to dismiss as permitted
by the plea agreement.
114 Nev. 313, 315 (1998) State v. Lomas
Prior to trial, Lomas filed a motion to dismiss his case on the ground that, because he
had already been punished by having his driver's license revoked, a criminal conviction
would violate federal and state constitutional prohibitions against double jeopardy. The state
opposed the motion. In January 1995, the district court dismissed the case, finding that double
jeopardy barred the criminal prosecution because the DMV had previously revoked Lomas'
driver's license.
The state timely appealed from the district court's order of dismissal. We conclude that,
under the United States Supreme Court's recent decision in Hudson v. United States, 522 U.S.
93, 118 S. Ct. 488 (1997), the district court clearly erred by dismissing the charges against
Lomas. Therefore, we reversed the district court's order.
DISCUSSION
The Double Jeopardy Clause of the Fifth Amendment of the United States
Constitution provides that no person shall be subject for the same offence 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, Benton v. Maryland, 395 U.S. 784, 794 (1969), and has been
incorporated into the Nevada Constitution. See Nev. Const. art. 1, 8, cl. 1.
[Headnote 1]
The Double Jeopardy Clause protects against three 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. North Carolina v. Pearce, 395
U.S. 711, 717 (1969).
The prohibition against multiple punishments prevents the government from punishing
twice, or attempting a second time to punish criminally, for the same offense. Witte v.
United States, 515 U.S. 389, 396 (1995) (quoting Helvering v. Mitchell, 303 U.S. 391, 399
(1938) (emphasis in Witte)). It has long been recognized, however, that the clause does not
prohibit the imposition of any additional sanction that could, in common parlance,' be
described as punishment. See Hudson, 522 U.S. at 98-99, 118 S. Ct. at 493 (quoting United
States ex rel. Marcus v. Hess, 317 U.S. 537, 549 (1943) and quoting Moore v. Illinois, 14
How. 13, 19 (1852)). Rather, [t]he Clause protects only against the imposition of multiple
criminal punishments for the same offense. Id. at 99, 118 S. Ct. at 493.
[Headnote 2]
In its recent Hudson decision, the Supreme Court in large part disavowed the double
jeopardy analysis announced in United States v. Halper, 490 U.S. 435 (1989). The district
court in the instant case applied the Halper analysis in resolving Lomas' double jeopardy
claim.
114 Nev. 313, 316 (1998) State v. Lomas
instant case applied the Halper analysis in resolving Lomas' double jeopardy claim. Under the
analysis defined in Hudson, the district court's order dismissing the criminal charges against
Lomas on double jeopardy grounds must be reversed.
2

[Headnote 3]
Based on a previously established rule exemplified in United States v. Ward, 448 U.S.
242, 248-49 (1980), Hudson articulates a two-part test for determining whether a particular
punishment is criminal or civil. First, [a] court must . . . ask whether the legislature, in
establishing the penalizing mechanism, indicated either expressly or impliedly a preference
for one label or the other.' Hudson, 522 U.S. at 99, 118 S. Ct. at 493 (quoting Ward, 448
U.S. at 248). Second, even in those cases where the legislature indicates an intention to
establish a civil penalty, a court should inquire further 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.' Id. at 99, 118 S. Ct. at 493 (quoting Rex Trailer Co. v.
United States, 350 U.S. 148, 154 (1956)).
[Headnote 4]
In making this latter determination, the Hudson Court looked to seven factors listed in
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), as useful guideposts.
Hudson, 522 U.S. at 99, 118 S. Ct. at 493. These factors include: (1) whether 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 punishment-retribution 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, 118 S. Ct. at 493.
Hudson emphasizes that these factors must be considered "in relation to the statute on its
face,"
__________

2
Although Hudson renders it unnecessary to decide the issue, we have serious doubts about whether the
district court correctly analyzed the facts of this case pursuant to Halper. In particular, we note that 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. Halper, 490 U.S. at 449.
The driver's license revocation at issue here does not constitute an overwhelmingly disproportionate sanction.
The district court's misapprehension of Halper is quite understandable given our decision in Desimone v. State,
111 Nev. 1221, 904 P.2d 1 (1995). Desimone, along with many other appellate and trial court decisions
nationwide, interpreted dictum in Halper as mandating double jeopardy analysis whenever a civil penalty does
not solely serve a remedial purpose. United States v. Ursery, 518 U.S. 267 (1996) and Hudson clear up the
confusion created by Halper.
114 Nev. 313, 317 (1998) State v. Lomas
emphasizes that these 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. at 100, 118 S. Ct. at 493 (internal
quotation marks and citations omitted).
Turning then to the first step of the Hudson analysis, our prior holdings make it clear
that the Nevada legislature intended driver's license revocation proceedings to be civil rather
than criminal. We have previously concluded, for example, that an administrative driver's
license revocation proceeding is civil in nature, not criminal. State, Dep't of Mtr. Vehicles
v. Frangul, 110 Nev. 46, 50, 867 P.2d 397, 399 (1994); see also State, Dep't of Mtr. Vehicles
v. Binder, 109 Nev. 945, 949, 860 P.2d 163, 166 (1993); Beavers v. State, Dep't of Mtr.
Vehicles, 109 Nev. 435, 438, 851 P.2d 432, 434 (1993); State, Dep't of Mtr. Vehicles v.
McLeod, 106 Nev. 852, 854, 801 P.2d 1390, 1392 (1990); Yohey v. State, Dep't Motor
Vehicles, 103 Nev. 584, 587-88, 747 P.2d 238, 240 (1987). Moreover, as the Court noted in
Hudson, the legislature's decision to confer authority to impose a civil sanction on an
administrative agency is prima facie evidence that the legislature intended to provide for a
civil sanction. Hudson, 522 U.S. at 103, 118 S. Ct. at 495. Therefore, it is clear that the
Nevada legislature intended administrative proceedings relating to revocation of a driver's
license to be civil, not criminal.
With respect to the second part of the Hudson test, we conclude that there is little
evidence, much less the clearest proof, that driver's license revocation is so punitive in form
and effect as to render it criminal despite the legislature's contrary intent. We note, for
example, that the revocation of a privilege voluntarily granted, such as the privilege to
drive, is a sanction characteristically free of the punitive criminal element.
3
Hudson, 522
U.S. at 104, 11S S. Ct. at 496 {internal quotation marks and citation omitted).
__________

3
The vast majority of appellate courts that have addressed the issue have concluded that revocation of a
driver's license serves the remedial purpose of safeguarding the public and reducing traffic fatalities and does not
constitute punishment for double jeopardy purposes. See, e.g., State v. Zerkel, 900 P.2d 744 (Alaska Ct. App.
1995); Snow v. Superior Court, 903 P.2d 628 (Ariz. Ct. App. 1995); State v. Nichols, 819 P.2d 995 (Ariz. Ct.
App. 1991); Baldwin v. Dept. of Motor Vehicles, 42 Cal. Rptr. 2d 422 (Ct. App. 1995); Ellis v. Pierce, 282 Cal.
Rptr. 93 (Ct. App. 1991); State v. Hickman, 668 A.2d 1321 (Conn. 1995); Freeman v. State, 611 So. 2d 1260
(Fla. Dist Ct. App. 1992); Kirkpatrick v. State, 464 S.E.2d 882 (Ga. Ct. App. 1995); State v. Higa, 897 P.2d 928
(Haw. 1995); State v. Talavera, 905 P.2d 633 (Idaho 1995); State v. Mertz, 907 P.2d 847 (Kan. 1995); Butler v.
Dept. of Public Safety & Corr., 609 So. 2d 790 (La. 1992); State v. Savard, 659 A.2d 1265 (Me. 1995); State v.
Jones, 666 A.2d 128 (Md. 1995); Johnson v. State, 622 A.2d 199 (Md. Ct. Spec. App. 1993); Luk v.
Commonwealth, 658 N.E.2d 664 (Mass. 1995); State v. Hanson, 532 N.W.2d 598 (Minn. Ct. App. 1995), aff'd,
543 N.W.2d 84 (Minn. 1996); State v. Young, 530 N.W.2d 269 (Neb.
114 Nev. 313, 318 (1998) State v. Lomas
U.S. at 104, 118 S. Ct. at 496 (internal quotation marks and citation omitted). The revocation
also does not involve an affirmative disability or restraint, as that term was evidently
understood in Hudson. Hudson observed, for example, that the civil sanction at issue in that
case, imposition of a fine and the loss of the privilege to participate in the banking industry,
was certainly nothing approaching the infamous punishment of imprisonment.'
Hudson, 522 U.S. at 104, 118 S. Ct. at 496 (quoting Flemming v. Nestor, 363 U.S. 603, 617
(1960)). If occupational debarment from the banking industry cannot be considered an
affirmative disability or restraint, then quite obviously the temporary suspension of
respondent's driving privilege also cannot be so considered.
With respect to the remaining guideposts listed in Hudson, we note that an
administrative driver's license revocation does not require a finding of scienter. Revocation
can be imposed without inquiry into the violator's state of mind. Further, although the
conduct for which the revocation is imposed can also be criminal, this fact is insufficient to
render the sanction criminally punitive in the double jeopardy context. Id. at 105, 118 S. Ct.
at 496 (citing United States v. Ursery, 518 U.S. 267 (1996); United States v. Dixon, 509 U.S.
688 (1993)).
Next, we conclude that driver's license revocation is rationally connected to a purpose
other than criminal punishment. Specifically, revocation furthers the government's goal of
maintaining safety on public roads. Moreover, a minimum ninety-day suspension is not
excessive in relation to that goal.
4
The state's interest in removing drunk drivers from the
roads is of such a nature and importance to society in general that the inconvenience
occasioned by the temporary suspension of driving privileges pales by comparison. City of
Columbus v. Adams, 461 N.E.2d 887, 890 (Ohio 1984), overruled on other grounds by State
v. Williams, 667 N.E.2d 932 (Ohio 1996); see also Jones, 666 A.2d at 141.
[Headnote 5]
Finally, the revocation statues may deter drivers who entertain the idea of driving
while intoxicated and may also discourage drivers whose licenses have been revoked from
engaging in similar misconduct in the future.
__________
Ct. App. 1995), aff'd, 544 N.W.2d 808 (Neb. 1996); State v. Cassady, 662 A.2d 955 (N.H. 1995); Sate ex. rel.
Schwartz v. Kennedy, 904 P.2d 1044 (N.M. 1995); State v. Zimmerman, 539 N.W.2d 49 (N.D. 1995); State v.
Phillips, 909 P.2d 882 (Or. Ct. App. 1996); State v. Arbon, 909 P.2d 1270 (Utah Ct. App. 1996); State v.
Strong, 605 A.2d 510 (Vt. 1992); Tench v. Commonwealth, 462 S.E.2d 922 (Va. Ct. App. 1995).

4
Although Lomas was only subject to a ninety-day suspension, we also conclude that the five-year maximum
suspension authorized pursuant to NRS 483.460(4)(b) is not excessive in relation to the government's remedial
goal.
114 Nev. 313, 319 (1998) State v. Lomas
similar misconduct in the future. Although deterrence is a traditional goal of criminal
punishment, the mere presence of a deterrent purpose is insufficient to render a sanction
criminal for purposes of the Double Jeopardy Clause because deterrence also may serve civil
goals. Hudson, 522 U.S. at 105, 118 S. Ct. at 496.
The license revocation statutes at issue do not appear on their face to be punitive
rather than remedial. On the contrary, by suspending the licenses of drivers who pose a
danger to their own safety and to that of others, the statutes reveal a rational remedial, or civil
deterrent purpose, rather than a retributive or criminal purpose.
CONCLUSION
Today, we adopt the double jeopardy analysis articulated in Hudson. To whatever
extent that Hudson may effect a change in existing law, we conclude that the change is
applicable to the instant appeal. See Griffith v. Kentucky, 479 U.S. 314 (1987); Franklin v.
State, 98 Nev. 266, 269, 646 P.2d 543, 544 (1982). Under Hudson, we conclude that the
district court erred by dismissing the case against Lomas on double jeopardy grounds. We
therefore reverse the order of the district court granting Lomas' motion to dismiss and remand
this matter for further proceedings on all charges.
____________
114 Nev. 319, 319 (1998) State v. Clark
THE STATE OF NEVADA, Appellant, v. JOHN ERNEST CLARK, Respondent.
No. 27628
April 2, 1998 956 P.2d 83
Appeal from an order of the district court dismissing all criminal charges filed against
respondent on the basis of double jeopardy. Second Judicial District Court, Washoe County;
Connie J. Steinheimer, Judge.
Defendant was charged with seven counts involving controlled substance violations.
The district court dismissed on the basis of double jeopardy. State appealed. The supreme
court held that criminal prosecution did not subject defendant to double jeopardy, absent
clearest proof that prior forfeiture of automobile which he was driving at time of arrest was so
punitive as to render it criminal despite contrary legislative intent.
114 Nev. 319, 320 (1998) State v. Clark
Attorney, and Margaret M. Crowley, Deputy District Attorney, Washoe County, for
Appellant.
David Houston, Reno, for Respondent.
Double Jeopardy.
Proceeding for forfeiture of automobile which defendant was driving at time of arrest for controlled substance violations was
intended by legislature to be civil in rem proceeding, and thus, subsequent criminal prosecution of defendant did not subject defendant
to double jeopardy, absent clearest proof that forfeiture was so punitive in form and effect as to render it criminal despite contrary
legislative intent. U.S. Const. amend. 5.
OPINION
Per Curiam:
FACTS
On October 17, 1993, respondent John Ernest Clark was arrested and charged with seven counts involving controlled substance
violations. The police seized a 1986 Toyota automobile during the arrest. Clark was driving the Toyota when he was arrested. The state
filed a complaint for forfeiture of the Toyota pursuant to NRS Chapter 179. Four individuals, including Clark, were named as potential
claimants for the automobile. A title search on the car revealed that it was registered to a deceased person. None of the claimants filed an
answer to the complaint for forfeiture, and the district court entered a default judgment in favor of the state.
Thereafter, Clark sought dismissal of the criminal charges based on double jeopardy grounds. He claimed that the forfeiture of the
Toyota imposed a punishment on him. According to Clark, criminal prosecution arising out of the same incident that gave rise to the
automobile forfeiture subjected him to double jeopardy. The district court agreed and dismissed the criminal charges against Clark. The
state appeals.
DISCUSSION
After the parties filed their briefs in this appeal, the United States Supreme Court announced its decision in United States v.
Ursery, 518 U.S. 267 (1996). On July 19, 1996, appellant filed a supplemental memorandum that included a copy of the Ursery opinion for
this court's consideration. The Ursery decision provides a specific two-step approach to determine whether a civil in rem forfeiture
proceeding subjects an individual to jeopardy for the purposes of the Double Jeopardy Clause of the United States
Constitution.
114 Nev. 319, 321 (1998) State v. Clark
the purposes of the Double Jeopardy Clause of the United States Constitution. The Ursery
approach differs markedly from the analysis that previously appeared to govern double
jeopardy issues, and that was followed by the district court in this case. Recently, in
Levingston v. Washoe County, 114 Nev. 306, 956 P.2d 84 (1998), this court adopted and
applied Ursery's two-step approach.
Pursuant to the reasoning announced in Ursery and Levingston, we conclude that: (1)
the Nevada legislature intended the forfeiture proceedings at issue here to be civil in rem
proceedings; and (2) the clearest proof is not present in this case establishing that the
instant forfeiture is so punitive in form and effect as to render it criminal despite the contrary
legislative intent. Therefore, we conclude that the civil in rem forfeiture in this case did not
subject respondent to double jeopardy.
1

CONCLUSION
Respondent Clark was not subjected to double jeopardy. Accordingly, we reverse the
district court's order dismissing the criminal charges against him, and we remand this matter
to the district court for further proceedings consistent with this opinion.
____________
114 Nev. 321, 321 (1998) Sonner v. State
MICHAEL HAMPTON SONNER, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 26485
April 2, 1998 955 P.2d 673
On rehearing, appeal from a judgment of conviction of one count of first-degree
murder with use of a deadly weapon and a sentence of death and one count each of ex-felon
in possession of a firearm, possession of a stolen vehicle, and resisting a public officer. Sixth
Judicial District Court, Pershing County; Richard Wagner, Judge.
Following affirmance of his judgment of conviction and sentence, 112 Nev. 1328, 930
P.2d 707 (1996), defendant sought rehearing. The supreme court held that jury instruction on
power of Pardons Board to modify sentences did not mislead jury.
Rehearing granted in part; opinion modified; judgment and sentence affirmed.
__________

1
Having so concluded, it is unnecessary to address the state's contention that respondent waived his
protection against double jeopardy by failing to appear in the forfeiture proceeding.
Steven G. McGuire, State Public Defender, and James P. Logan, Appellate Deputy
State Public Defender, Carson City, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Belinda Quilici, District
Attorney, and David K. Neidert, Assistant District Attorney, Pershing County, for
Respondent.
1. Criminal Law.
During penalty phase of capital murder trial, jury instruction stating that, although Pardons Board had power under certain
circumstances to modify sentences, jurors were not to speculate as to whether sentence they imposed would be changed at later date did
not impermissibly mislead jury into believing that if defendant received sentence of life imprisonment without possibility of parole, it
could be modified to life sentence with possibility of parole. NRS 213.1099(4).
2. Criminal Law.
During penalty phase of trial for capital offense, district courts are no longer to instruct juries on matter of sentence modification
by Pardons Board.
Per Curiam:
Appellant Michael Hampton Sonner was convicted of first-degree murder and other offenses and sentenced to death. This court
affirmed his judgment of conviction and sentence. Sonner v. State, 112 Nev. 1328, 930 P.2d 707 (1996). Sonner seeks rehearing on a
number of issues. We conclude that rehearing is warranted in part, but we reaffirm Sonner's judgment of conviction and sentence.
FACTS
On the evening of November 30, 1993, Sonner pumped $22.00 worth of gasoline into his vehicle at a truck stop on Interstate 80
twenty-three miles west of Lovelock and drove away without paying. Sonner shot Nevada State Highway Patrol Trooper Carlos Borland to
death after Borland stopped Sonner's vehicle near Lovelock.
Sonner was tried in September 1994. The jury found him guilty of one count each of first-degree murder with use of a deadly weapon,
ex-felon in possession of a firearm, possession of a stolen vehicle, and resisting a public officer. At the penalty hearing, the state presented
evidence that Sonner had been convicted of robbery and assault with a deadly weapon on a peace officer in North Carolina, was a fugitive
from North Carolina, had robbed and raped a woman in Virginia, and had shot to death two people in Texas.
had robbed and raped a woman in Virginia, and had shot to death two people in Texas. His
presentence report showed that he had eleven prior felony convictions.
The jury found that the murder was committed under five aggravating circumstances:
Sonner was under sentence of imprisonment; Sonner had previously been convicted of two
felonies involving the use or threat of violence (each prior conviction was listed as a separate
aggravating circumstance); the murder was committed to avoid or prevent a lawful arrest or
to effect an escape from custody; and the victim was a peace officer, which Sonner knew or
reasonably should have known, killed while engaged in the performance of his official duty.
The jury found four mitigating circumstances: the murder was committed while Sonner was
under the influence of extreme mental or emotional disturbance; he was subject to neglect as
a child; he was subject to abuse as a child; and he had never denied culpability for his
criminal conduct. The jury returned a sentence of death. The district court also adjudicated
Sonner a habitual criminal.
On October 28, 1994, the district court entered a judgment of conviction and sentenced
Sonner to death for the murder, a consecutive prison term of six years for ex-felon in
possession of a firearm, a consecutive term of life in prison without possibility of parole for
possession of a stolen vehicle and habitual criminality, and a consecutive prison term of six
years for resisting a public officer.
DISCUSSION
NRAP 40(a) requires a petition for rehearing to state with particularity the points of
law or fact which in the opinion of the petitioner the court has overlooked or
misapprehended. Matters presented in the briefs and oral arguments may not be reargued in
the petition for rehearing, and no point may be raised for the first time on rehearing. NRAP
40(c)(1). This court may consider a rehearing if it appears that the court has overlooked or
misapprehended a material matter in the record or otherwise or in such other circumstances
as will promote substantial justice. NRAP 40(c)(2).
Appeal of the nonmurder counts
In footnote one of our prior opinion in this case, we concluded that Sonner failed to
address on appeal the counts of ex-felon in possession of a firearm, possession of a stolen
vehicle, and resisting a public officer and had therefore abandoned any issues on appeal
relating to these counts. Sonner, 112 Nev. at 1332 n.1, 930 P.2d at 710 n.1. In his petition for
rehearing, Sonner points out that several of his claims on appeal applied to the lesser
counts as well as the murder count, e.g., the denial of his motion for change of venue and
alleged prosecutorial misconduct.
out that several of his claims on appeal applied to the lesser counts as well as the murder
count, e.g., the denial of his motion for change of venue and alleged prosecutorial
misconduct. The state concedes that some of the claims applied to all the counts. We
consequently retract the conclusion reached in footnote one of Sonner. Nevertheless, we
reiterate that none of Sonner's claims relevant to the nonmurder counts have merit.
Jury instruction on the authority of the Pardons Board to modify sentences
[Headnote 1]
During the penalty phase, the jury was instructed:
Life imprisonment with the possibility of parole is a sentence to life imprisonment
which provides that the defendant would be eligible for parole after a period of 10
years. This does not mean that he would be paroled after ten years but only that he
would be eligible after that period of time.[
1
]
Life imprisonment without the possibility of parole means exactly what it says, that
the defendant shall not be eligible for parole.
If you sentence the defendant to death you must assume that the sentence will be
carried out.
Although under certain circumstances and conditions the State Board of Pardons
Commissioners has the power to modify sentences, you are instructed that you may not
speculate as to whether the sentence you impose may or may not be changed at a later
date.
Sonner, 112 Nev. at 1333 n.2, 930 P.2d at 711 n.2. This instruction was first set forth in
Petrocelli v. State, 101 Nev. 46, 56, 692 P.2d 503, 511 (1985).
Sonner contends that in his case the Petrocelli instruction implied that if he received a
sentence of life imprisonment without possibility of parole, it could be modified to a life
sentence with the possibility of parole. He argues that this was misleading because NRS
213.1099(4) prevents him from receiving parole even if he received a sentence of life
imprisonment without possibility of parole and it was modified to a life sentence with the
possibility of parole.
__________

1
The penalties for first-degree murder were amended in 1995 so this instruction is no longer correct for
offenses committed on or after July 1, 1995. See 1995 Nev. Stat., ch. 443, 44, at 1181-82, and 393, at 1340.
NRS 200.030(4) now provides that first-degree murder is punishable by death, life in prison without possibility
of parole, life in prison with the possibility of parole after serving a minimum of twenty years, or fifty years in
prison with eligibility for parole after serving a minimum of twenty years.
the possibility of parole. Our prior opinion did not address NRS 213.1099(4).
2
Sonner
therefore asserts that the court misapprehended a material point of law.
Sonner bases this assertion on Geary v. State, 112 Nev. 1434, 1439-44, 930 P.2d 719,
723-26 (1996), reh'g granted on other grounds, 114 Nev. 100, 952 P.2d 431 (1998). In
Geary, we vacated a death sentence, concluding that under the unique circumstances of this
case the Petrocelli instruction was unconstitutional. Id. at 1440-41, 930 P.2d at 724. The
circumstances which rendered the instruction prejudicial in Geary are not present in Sonner's
case. In Geary, even though Geary could not qualify for parole, counsel for both sides based
their arguments on a presumption that he could qualify for parole. Id. at 1442, 930 P.2d at
724. Further, Geary had previously received a sentence of life without possibility of parole,
the State Board of Pardons Commissioners (Pardons Board) had commuted that sentence to a
life term with the possibility of parole, and Geary had in fact been released on parole. Id., 930
P.2d at 724-25. Because these facts were so heavily emphasized before the jury, the jury may
have speculated that a sentence of death was the only way to prevent Geary's eventual release
from prison. Id., 930 P.2d at 725. Finally, in closing argument the prosecutor emphasized
Geary's future dangerousness in asking the jury to impose the death penalty. Id. at 1442-43,
930 P.2d at 725.
The facts in this case contrast with those in Geary: neither the prosecutor nor defense
counsel assumed or implied that Sonner would ever be eligible for parole if sentenced to life
in prison without possibility of parole; the jury did not hear any evidence that Sonner had
ever gained parole after receiving a sentence of life without possibility of parole; and the
prosecutor did not argue to the jury that Sonner posed a future danger. Given these factual
distinctions, we conclude that our holding in Geary does not apply here and that the
Petrocelli instruction did not mislead the jury and prejudice Sonner.
__________

2
NRS 213.1099(4) provides:
Except as otherwise provided in NRS 213.1215, the [State Board of Parole Commissioners] may not
release on parole a prisoner whose sentence to death or to life without possibility of parole has been
commuted to a lesser penalty unless it finds that the prisoner has served at least 20 consecutive years in
the state prison, is not under an order to be detained to answer for a crime or violation of parole or
probation in another jurisdiction, and that he does not have a history of:
(a) Recent misconduct in the institution, and that he has been recommended for parole by the director
of the department of prisons;
(b) Repetitive criminal conduct;
(c) Criminal conduct related to the use of alcohol or drugs;
(d) Repetitive sexual deviance, violence or aggression; or
(e) Failure in parole, probation, work release or similar programs.
The statute has been amended slightly since Sonner's sentencing, but in substance read the same at that time.
1995 Nev. Stat., ch. 443, 234, at 1259, and ch. 584, 9, at 2071.
distinctions, we conclude that our holding in Geary does not apply here and that the
Petrocelli instruction did not mislead the jury and prejudice Sonner.
Sonner also cites a recent decision by the Ninth Circuit Court of Appeals, Gallego v.
McDaniel, 124 F.3d 1065, 1074-76, 1079 (9th Cir. 1997). In that case, a sentencing jury in
Nevada was specifically instructed that executive clemency might be available to Gallego if
the jury decided to sentence him to life without the possibility of parole. Id. at 1074. The
jury was also told that [e]xecutive clemency involves a decision . . . to commute or reduce a
defendant's sentence from life without possibility of parole to life with possibility of parole.
The instructions inadequately stated the law because, when sentenced in Nevada, Gallego was
under sentence of death in California and NRS 213.1099(4) made it unlikely that he would
ever receive parole. Id. at 1076. The Court of Appeals concluded that Gallego must be
resentenced. Id. at 1079.
The jurors who sentenced Sonner did not receive the executive clemency instructions
deemed misleading in Gallego. Rather, they were instructed that life imprisonment without
possibility of parole means exactly what it says, that the defendant shall not be eligible for
parole and that they were not to speculate as to whether the sentence you impose may or
may not be changed at a later date.
Geary and Gallego both cite Simmons v. South Carolina, 512 U.S. 154 (1994), in
which a majority of the United States Supreme Court concludedin a plurality opinion and a
concurring opinionthat where the prosecution argued future dangerousness, a state could
not preclude a jury from considering parole if such preclusion presented the jury with a false
choice between sentencing a person to death or sentencing him to a limited period of
incarceration.
3
We conclude that Simmons is inapposite to Sonner's case because the
prosecutor did not argue future dangerousness and the jury was not presented with a false
choice between a death sentence or a limited term of incarceration.
We conclude that the Petrocelli instruction did not mislead the jury and did not
prejudice Sonner.
Revising the Petrocelli instruction
[Headnote 2]
In regard to offenses committed on or after July 1, 1995, the Pardons Board no longer
has the power to commute a sentence of death or of life imprisonment without possibility of
parole to a sentence allowing parole.
__________

3
The Supreme Court has concluded that Simmons announced a new rule and does not apply retroactively in
federal habeas proceedings. O'Dell v. Netherland, 521 U.S. 151, 117 S. Ct. 1969 (1997)
death or of life imprisonment without possibility of parole to a sentence allowing parole. See Nev. Const. art.
5, 14(2); NRS 213.085; Miller v. Warden, 112 Nev. 930, 921 P.2d 882 (1996); California Dept. of
Corrections v. Morales, 514 U.S. 499, 505 (1995). Given this definite limit on the Pardons Board's power and
the possibility that a jury can occasionally be misled in circumstances like those in Geary, we conclude that it is
best to eliminate all language in the Petrocelli instruction which discusses modification of sentences by the
Pardons Board. Therefore, we direct the district courts to no longer give the final paragraph of the Petrocelli
instruction to juries in capital penalty phases.
Henceforth, unless and until statutory amendment requires otherwise, when a
defendant is charged with murder and the death penalty is sought, district courts are to give
the following jury instruction explaining possible penalties.
A prison term of fifty years with eligibility for parole beginning when a minimum of
twenty years has been served does not mean that the defendant would be paroled after
twenty years but only that he or she would be eligible for parole after that period of
time.
Life imprisonment with the possibility of parole is a sentence to life imprisonment
which provides that the defendant would be eligible for parole after a period of twenty
years. This does not mean that he or she would be paroled after twenty years but only
that he or she would be eligible for parole after that period of time.[
4
]
Life imprisonment without the possibility of parole means exactly what it says, that
the defendant shall not be eligible for parole.
If you sentence the defendant to death, you must assume that the sentence will be
carried out.
Other issues raised in the petition for rehearing
Sonner claims that the jury instructions unconstitutionally failed to instruct the jury to
find each aggravating circumstance unanimously and that the jury instruction on reasonable
doubt was improper. Sonner improperly raises these issues for the first time in his petition for
rehearing. NRAP 40(c)(1). We also conclude that these claims lack merit; therefore, their
consideration on rehearing would not promote substantial justice. NRAP 40(c)(2). Sonner
also contends that this court overlooked precedent in determining that the district judge did
not err when he refused to recuse himself.
__________

4
These first two paragraphs do not apply to murders committed before July 1, 1995. See footnote one above.
dent in determining that the district judge did not err when he refused to recuse himself. We
conclude that Sonner has failed to show that this court misapprehended a material matter in
deciding this issue. Id.
CONCLUSION
The jury instruction on the power of the Pardons Board to modify sentences did not
mislead the jury or prejudice Sonner. We therefore deny rehearing on this issue.
Rehearing is warranted in two matters. First, contrary to our statement in Sonner, we
recognize that Sonner did not abandon certain issues on appeal relating to the nonmurder
counts of his conviction; nevertheless, none of Sonner's claims relevant to the nonmurder
counts have merit. Second, in light of NRS 213.085, we direct the district courts to no longer
instruct juries on the matter of sentence modification by the Pardons Board. In all other
respects, rehearing is denied, and we reaffirm Sonner's judgment of conviction and sentence.
5

____________
114 Nev. 328, 328 (1998) Currier v. SIIS
TERESA CURRIER, as Personal Representative of JAMES RAIKE, Deceased, Appellant, v.
THE STATE INDUSTRIAL INSURANCE SYSTEM, an Agency of the STATE OF
NEVADA; and BEL-AIR PLASTERING, Respondents.
No. 28127
April 9, 1998 956 P.2d 810
Appeal from an order of the district court reversing the appeals officer's decision.
Eighth Judicial District Court, Clark County; Donald M. Mosley, Judge.
Widow requested permanent partial disability (PPD) evaluation of her deceased
husband. Appeals officer ordered the State Industrial Insurance System (SIIS) to provide PPD
evaluation based on husband's medical records, and SIIS petitioned for judicial review. The
district court reversed. Widow appealed. The supreme court held that widow was entitled to
posthumous PPD rating despite fact that husband's condition had not yet stabilized prior to
his death.
__________

5
On February 24, 1997, September 17, 1997, and February 20, 1998, Sonner filed motions to supplement his
petition for rehearing. Cause appearing, we grant Sonner's motions.
Nancyann Leeder, Nevada Attorney for Injured Workers, Carson City, for Appellant.
Lenard T. Ormsby, General Counsel, and Javier A. Arguello, Associate General
Counsel, Carson City, for Respondent State Industrial Insurance System.
McGroarty & Lane, Las Vegas, for Respondent Bel Air.
Supreme court's role in reviewing administrative decision is identical to that of district court.
In reviewing administrative decision, supreme court shall not substitute its judgment for that of agency in regard to questions of
fact, but must determine whether agency's decision was clearly erroneous or arbitrary abuse of discretion. NRS 233B.135(2).
Decision of administrative agency will be affirmed if substantial evidence exists to support it, and substantial evidence is that
which reasonable mind might accept as adequate to support conclusion.
On appeal from administrative decision, questions of law are reviewed de novo.
When workers' compensation claimant suffers non-industrially related death prior to stabilization of injury, posthumous
permanent partial disability (PPD) evaluation may be conducted utilizing the deceased claimant's existing medical records; any
benefits resulting from such evaluation may be paid to dependents of the deceased claimant. NRS 616C.490(1), (2).
OPINION
Per Curiam:
This is an appeal from the district court's order reversing the appeals officer's decision that sufficient medical documentation
existed upon which to base a posthumous permanent partial disability (PPD) rating on behalf of the deceased claimant, James Raike. On
December 12, 1991, Raike sustained injuries to his left wrist, elbow, and shoulder while working as a lather for Bel-Air Plastering and
sought medical treatment from orthopedic surgeon Patrick J. Brandner, M.D. (Dr. Brandner).
On June 11, 1992, Dr. Brandner informed the State Industrial Insurance System (SIIS) that Raike's wrist problem was work-related,
permanent and progressive, and would probably require surgical treatment. In August 1992, Raike suffered a fatal non-industrially related
heart attack. Approximately two years after his death, Raike's widow, Teresa Currier, requested a PPD evaluation of her deceased
husband.
ation of her deceased husband. After a review of his medical records, SIIS medical advisor
Mary Ann Shannon M.D. (Dr. Shannon), concluded that there was insufficient documentation
upon which to provide a rating. Consequently, on September 2, 1994, SIIS denied Currier's
request for the PPD evaluation. The hearing officer affirmed SIIS' decision.
Currier appealed to the appeals officer, who reversed the hearing officer's decision and
ordered SIIS to provide a posthumous PPD evaluation based on Raike's medical records.
Following the appeals officer's determination, SIIS petitioned for judicial review. The district
court reversed the appeals officer's decision, concluding that Raike's entitlement to a PPD
evaluation had not accrued prior to his non-industrial death because his medical condition
was neither stable nor ratable pursuant to NRS 616.537(1)-(2) and NAC 616.5545. Currier
now appeals the order of the district court.
FACTS
On December 12, 1991, Raike sustained injuries to his left wrist, elbow, and shoulder
while working within the scope of his employment as a lather for Bel-Air Plastering. Raike
sought treatment from orthopaedic surgeon Dr. Brandner, who, in a letter to SIIS dated June
11, 1992, indicated that he had diagnosed Raike as having intercarpal arthritis of the
scaphoradial joint with mild degenerative changes in other portions of the wrist.
Dr. Brandner concluded that Raike's medical condition was caused by the nature of his
employment as a lather, where he engaged in multiple, repetitive motions for long periods of
time. Dr. Brandner further concluded that, in his professional opinion, Raike's condition was
permanent and progressive. Dr. Brandner concluded his letter to SIIS by indicating that Raike
would most likely need to have a surgical fusion of his left wrist.
On August 2, 1992, Raike died from a non-industrial related heart attack.
Approximately two years after his non-industrial death, Currier, Raike's widow, requested a
PPD evaluation and rating on behalf of her deceased husband. In response to this request,
SIIS asked its medical advisor whether, based on the available medical documentation, Raike
had an impairment. In her response dated August 25, 1994, SIIS medical advisor Dr.
Shannon, concluded:
There is not sufficient reporting to rate the wrist sprain, and elbow and shoulder
tendinitis. This Claimant's problems-the wrist is industrial only based on aggravation of
pre-existing non-industrial arthritis of the wrist. The exams are insufficient to give any
rating.
On September 2, 1994, SIIS denied Currier's request for a PPD evaluation. On
October 7, 1994, Currier appealed SIIS' decision to the hearing officer, who, by decision
dated November 9, 1994, affirmed SIIS' determination that there was insufficient evidence
upon which to support a PPD evaluation and rating. Currier appealed the hearing officer's
decision to the appeals officer. In preparation for this hearing, Currier requested an additional
evaluation of Raike's medical files from Dr. Brandner. On January 13, 1995, Dr. Brandner
reported:
I could only estimate the rating of [Raike's] injury to his wrist from my recollection.
He had lost approximately 70-90% of his motion and the wrist extension was to 10
degrees with flexion to 10 degrees, giving him an extension percent impairment of 8%
and 14% in extension and flexion, respectively, giving him a total impairment of 21%
for his wrist. His radial and ulnar deviations were limited to 95 degrees, to the best of
my recollection, and this would give him a 12% total impairment for the loss of the
deviation motions. This gives a total of 30% impairment of his upper extremity,
translating to 18% impairment of the whole person . . . His range of motion of his wrist
after surgical fusion would be 0%.
In addition to requesting Dr. Brandner's evaluations, Currier also requested an
evaluation of Raike's medical records from Dr. B.J. Molzen. After reviewing Raike's medical
file, along with the reports of Dr. Brandner, Dr. Molzen concluded in a report dated March
14, 1995, that Raike would have had an approximate fifteen percent to eighteen percent
impairment rating.
In a decision dated March 22, 1995, the appeals officer reversed the hearing officer by
concluding that Raike's medical records contained sufficient documentation upon which to
base a posthumous rating evaluation. In making this determination, the appeals officer
considered the reports of Drs. Brandner, Molzen, and Shannon. Although Dr. Molzen's rating
was not obtained pursuant to the rating physician rotating list, the appeals officer relied
heavily on Dr. Molzen's report in concluding that there was sufficient documentation upon
which to base a rating evaluation.
Because of the preponderance of medical evidence, the appeals officer concluded that
Raike's entitlement to PPD compensation had accrued prior to his death pursuant to NRS
616.605
1
and NRS 616.550.
__________

1
NRS 616.605(1) (currently codified as NRS 616C.490(1)) provided:
Every employee, in the employ of an employer within the provisions of this chapter, who is injured by
an accident arising out of and in the
NRS 616.550.
2
Consequently, the appeals officer remanded the matter to SIIS for a
posthumous rating evaluation by a physician next on the IIRS rotating list. Lastly, the appeals
officer ordered SIIS to pay Raike's dependents any benefits resulting from that evaluation
pursuant to NRS 616.615.
In its order dated December 13, 1995, the district court reversed the appeals officer's
decision after concluding that Raike's entitlement to PPD benefits had not accrued prior to his
non-industrial death because his medical condition was not stable and ratable as required by
NRS 616.537(1)-(2)
3
and NAC 616.5545.
4
Currier now appeals the decision and order of
the district court.
DISCUSSION
Standard of review
[Headnotes 1-4]
This court's role in reviewing an administrative decision is identical to that of the
district court.
__________
course of employment is entitled to receive the compensation provided for permanent partial disability.
As used in this section disability and impairment of the whole man are equivalent terms.

2
NRS 616.550 (currently codified as NRS 616C.205) provided in pertinent part:
[B]ut in the case of the death of an injured employee covered by this chapter from causes independent
from the injury for which compensation is payable, any compensation due the employee which was
awarded or accrued but for which a check was not issued or delivered at the date of death of the
employee is payable to his dependents as defined in NRS 616.615.

3
NRS 616.537(1)-(2) (recodified as NRS 616C.490(2)) provided:
1. An insurer shall schedule a rating for an injured employee within 30 days after the injured
employee is determined to be stable and ratable by the treating physician or chiropractor.
2. A rating evaluation must include an evaluation of the loss of motion, sensation and strength of an
injured employee if the injury is of a type that might have caused such a loss.

4
In relevant part, NAC 616.5545 (recodified as NAC 616C.103) provided:
1. When a physician or chiropractor . . . has determined that an injured worker is stable, stationary or
ratable and information in the insurer's file on the injured worker indicates the probability that he has a
ratable impairment, according to the American Medical Association's Guides to the Evaluation of
Permanent Impairment, the insurer shall comply with subsection 2 of NRS 616.605 by selecting a
physician or chiropractor from the panel designated by the administrator, to evaluate the injured worker
and determine the extent of any permanent impairment.
2. . . . [I]f the evaluating physician or chiropractor finds that the injured worker has a ratable
impairment, the insurer shall, within 30 days after receipt of the physician's or chiropractor's evaluation,
offer the injured worker the award to which he is entitled. . . .
identical to that of the district court. Collett Electric v. Dubovik, 112 Nev. 193, 196, 911 P.2d
1192, 1195 (1996). We shall not substitute our judgment for that of the agency in regard to
questions of fact, but must determine whether the agency's decision was clearly erroneous or
an arbitrary abuse of discretion. Id.; NRS 233B.135(2). The decision of the agency will be
affirmed if substantial evidence exists to support it. SIIS v. Swinney, 103 Nev. 17, 20, 731
P.2d 359, 361 (1987). Substantial evidence is that which a reasonable mind might accept as
adequate to support a conclusion.' State, Emp. Security v. Hilton Hotels, 102 Nev. 606, 608,
729 P.2d 497, 498 (1986) (quoting Richardson v. Perales, 402 U.S. 389 (1971)). Questions of
law, however, are reviewed de novo. Collett, 112 Nev. at 196, 911 P.2d at 1195.
In American Int'l Vacations v. MacBride, 99 Nev. 324, 326, 661 P.2d 1301, 1302
(1983), we concluded that a reviewing court may undertake independent review of the
administrative construction of a statute. Here, because the central issue on appeal concerns
the propriety of the appeals officer's interpretation as to when an injured worker's entitlement
to PPD compensation accrues pursuant to NRS 616.605 and NAC 616.5545, we conclude
that an independent review of the appeal's officer's construction of these statutory provisions
is appropriate.
The district court erred in concluding that the deceased claimant's entitlement to permanent
partial disability compensation did not accrue prior to his non-industrial death
[Headnote 5]
The appeals officer concluded that Raike's entitlement to PPD compensation had
accrued prior to his non-industrial death pursuant to NRS 616.605(1). The district court
reversed the decision of the appeals officer after concluding that Raike's entitlement to PPD
compensation had not accrued prior to his non-industrial death because his medical condition
was not stable and ratable as required by NRS 616.537(1)-(2) and NAC 616.5545. Currier
argues that NRS 616.605(1) does not preclude the possibility of a posthumous rating using a
deceased claimant's medical records. We agree.
Although SIIS argues that Raike was not entitled to a posthumous PPD rating because his
medical condition had not yet stabilized prior to his death, we approvingly note the authority
from other jurisdictions which permits the use of medical records to obtain posthumous PPD
evaluations in those situations where an injured worker has suffered a non-industrial death
prior to stabilization.
In his treatise on workers' compensation law, Professor Larson states:
Since awards for permanent partial disability are normally to be made only after the
healing period has been completed and the injury has become stabilized so that the
degree of permanent impairment can be appraised, if the injured employee dies before
stabilization has taken place, the degree of impairment should not be taken as that in
effect at the moment of death. The proper procedure is to make the best possible
medical estimate of the probable residual disability that would have remained if the
employee had lived to complete his healing period.
4 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law, 58.45 (1997).
In Robinson v. Newberg, 849 S.W.2d 532 (Ky. 1993), Robinson suffered a
work-related back injury in February, 1989. Id. at 532. His employer paid temporary total
disability benefits until March 2, 1993, the day on which Robinson died from a
non-work-related heart attack. Id. at 533. After Robinson's death, his widow's claim for either
permanent total disability or permanent partial disability was denied by the Workers'
Compensation Board on the ground that Robinson's medical condition had not stabilized
prior to his non-industrial death. Id.
On appeal to the Supreme Court of Kentucky, Robinson's widow argued that Ky. Rev.
Stat. Ann. 342.730(3)
5
did not require a showing that the claimant's medical condition had
stabilized prior to the claimant's non-work-related death in order for the dependents to be
entitled to a deceased claimant's disability benefits. Id. at 534. Quoting Professor Larson, the
court agreed with this assertion and concluded that the proper procedure is to make the best
possible medical estimate of the probable residual disability that would have remained if the
employee had lived to complete his healing period.' Id.
Likewise, in Sears Roebuck v. Ralph, 666 A.2d 1239 (Md. 1995), the claimant
suffered a compensable work-related back injury in February 1991, and began receiving
treatment from an orthopedic physician.
__________

5
Ky. Rev. Stat. Ann. 342.730(3) provides in part:
When an employe [sic], who has sustained disability compensable under this section, and who has filed,
or could have timely filed, a valid claim in his lifetime, dies from causes other than the injury before the
expiration of the compensable period specified, portions of the income benefits specified and unpaid at
the individual's death, whether or not accrued or due at his death, shall be paid, under an award made
before or after such death, for the period specified in this section, to and for the benefit of the persons
within the classes . . . specified. . . .
Robinson, 849 S.W.2d at 534 (quoting Ky. Rev. Stat. Ann. 342.730(3)).
orthopedic physician. Id. at 1240. Additionally, the employer's insurer began paying the
claimant temporary total disability benefits in March 1991. Id.
In June 1991, at the request of the insurer, an independent medical examination was
performed on the claimant by a different physician who concluded that the claimant would be
able to return to work after two to four weeks of treatment. Id. In contrast, the claimant's
original physician concluded that he found the claimant to be totally disabled for any
gainful employment.' Id. In August 1991, the claimant was diagnosed with colon cancer and
died as a result on November 9, 1991. Id. at 1241.
Approximately four months after his non-work-related death, the claimant's widow made a
request for permanent partial disability benefits, submitting the original physician's notations
regarding the claimant's treatment. Id. The Workers' Compensation Commission concluded
that the claimant's widow was not entitled to PPD benefits because the claimant had not
reached maximum medical improvement at the time of his death . . . . Id.
On appeal, the Maryland Court of Appeals concluded that an injured employee need
not have obtained a permanent impairment rating prior to a non-industrial death in order to
recover PPD benefits. Id. at 1245. Consequently, the court concluded that posthumous
disability ratings could be used as evidence to support the awarding of PPD benefits to the
dependents of deceased claimants. Id. Implicit in the court's decision was the policy rationale
that the dependents of the deceased claimant should not be penalized because the claimant
died before the commission was able to hold a hearing and make a determination concerning
the claimant's disability award.
Here, we conclude that there are important policy reasons which favor the adoption of a
rule allowing for posthumous PPD evaluations in cases where the claimant suffers a
non-industrial death prior to obtaining a rating or stabilization of injury. Because workers'
compensation laws were enacted to protect injured workers and their families, the dependents
of a deceased claimant should not be penalized because a claimant suffers a non-industrial
death prior to obtaining a disability rating or stabilization of injury. Accordingly, we hold that
the district court erred in concluding that Raike's entitlement to PPD benefits had not yet
accrued prior to his non-industrial death because his medical condition was not stable and
ratable pursuant to NRS 616.537(1)-(2) and NAC 616.5545. While we perceive that there
may be future cases where it will be impossible to establish a posthumous rating evaluation
utilizing a deceased claimant's available medical records, that situation is not presented here.
CONCLUSION
Based on the important policies underlying workers' compensation laws, we hold that
when a claimant suffers a non-industrially related death prior to stabilization of injury, a
posthumous PPD evaluation may be conducted utilizing the deceased claimant's existing
medical records.
6
Any benefits resulting from such an evaluation may be paid to the
dependents of the deceased claimant. Therefore, we conclude that the district court erred in
determining that Raike's entitlement to PPD benefits had not accrued prior to his death
because his medical condition was not yet stable or ratable.
Accordingly, we reverse the order of the district court and reinstate the decision of the
appeals officer directing SIIS to conduct a posthumous PPD rating evaluation utilizing
Raike's available medical records.
____________
114 Nev. 336, 336 (1998) Advanced Sports Info., Inc. v. Novotnak
ADVANCED SPORTS INFORMATION, INC., Appellant, v. BRETT NOVOTNAK; and
NEVADA EMPLOYMENT SECURITY DEPARTMENT, NEVADA
EMPLOYMENT SECURITY DIVISION, Respondents.
No. 28337
April 9, 1998 956 P.2d 806
Appeal from a district court's order denying appellant's petition for judicial review.
Eighth Judicial District Court, Clark County; Lee A. Gates, Judge.
Telemarketing company in the business of selling sports advisory information
petitioned for judicial review of administrative determination that it was liable for
unemployment insurance contributions for its sales representatives. The district court denied
company's petition. Company appealed. The supreme court held that sports advisory
information sold by company constituted products, within meaning of unemployment
compensation statute excluding from definition of employment those services performed by
certain individuals who directly sold or solicited sale of products.
Hutchison & Steffen, Las Vegas, for Appellant.
__________

6
Here, the appeals officer determined that the records, as a factual matter, were sufficient to enable a
qualified physician to posthumously rate Raike's condition. It was error for the district court not to defer to that
determination.
Crowell, Susich, Owen & Tackes, Carson City; Brett Novotnak, In Proper Person,
Rockton, Illinois, for Respondents.
1. Taxation.
Sales representatives working for telemarketing company which sold sports advisory information sold products, within
meaning of unemployment compensation statute excluding from definition of employment those services performed by certain
individuals who directly sold or solicited sale of products, and therefore company was exempt from paying unemployment insurance
contributions for its sales representatives. NRS 612.144.
2. Social Security and Public Welfare.
Term products, as used in unemployment compensation statute excluding from definition of employment those services
performed by certain individuals who directly sell or solicit sale of products, encompasses intangible consumer services in addition to
tangible goods. NRS 612.144.
3. Statutes.
Statutory construction is question of law which invites independent appellate review of administrative decision.
4. Statutes.
Court may look to entire statute, and even to related statutes, to construe an ambiguous or undefined word or term.
OPINION
Per Curiam:
Respondent Brett Novotnak (Novotnak) was terminated from his position as a sales representative for appellant, Advanced
Sports Information (ASI). On March 31, 1994, Novotnak filed a claim for employee benefits with co-respondent, the Department of
Employment, Training, and Rehabilitation, Employment Security Division (Division). Novotnak listed ASI as his employer.
ASI is a registered telemarketing service that sells advice, information and opinions regarding the probable outcome of sporting events.
ASI is a sole proprietorship. Its sales representatives work on a commission basis pursuant to independent contract agreements.
After Novotnak filed his claim, the Division conducted an investigation and determined that ASI had not paid employment
taxes. Specifically, the Division notified ASI that it was liable for unemployment insurance contributions for its employees.
On May 24, 1994, ASI appealed the Division's determination to the appeals officer, arguing that ASI was exempt from paying
unemployment contributions for its salespeople under NRS 612.144, because they were direct sellers of products.
On June 19, 1995, after conducting a hearing, the appeals officer entered his decision affirming the Division's
determination that ASI was not exempt from paying unemployment insurance contributions.
officer entered his decision affirming the Division's determination that ASI was not exempt
from paying unemployment insurance contributions.
On July 22, 1995, ASI appealed to the board of review. On August 11, 1995, the
board of review declined further consideration of ASI's appeal.
On August 17, 1995, ASI filed a petition for judicial review in district court. On
January 19, 1996, the district court denied ASI's petition for judicial review.
This appeal followed.
DISCUSSION
[Headnote 1]
At the time the Division notified ASI that it was liable for unemployment insurance
contributions for its employees, NRS 612.144 provided:
Employment does not include services performed by a person who meets all of the
following requirements:
1. Directly sells or solicits the sale of products, in person or by telephone:
(a) On the basis of a deposit, commission, purchase for resale or similar arrangement
specified by the administrator by regulation, if the products are to be resold to another
person in his home or place other than a retail store; or
(b) To another person from his home or place other than a retail store.
2. Receives compensation or remuneration based on his sales or the services he
performs for customers rather than for the number of hours worked.
3. Performs pursuant to a written agreement with the person for whom the services
are performed which provides that he is not an employee for the purposes of this
chapter.
ASI maintains that under NRS 612.144, it is exempt from paying unemployment insurance
contributions for its sales representatives because (1) they are direct sellers of products; (2)
they work on a commission basis; and (3) they are employed pursuant to an independent
contractor agreement.
[Headnote 2]
The parties do not dispute the fact that ASI salespeople meet the second and third
statutory criteria for exemption under NRS 612.144. The only question on appeal is whether
the term products, as used in NRS 612.144, encompasses intangible consumer services,
such as ASI's sports advisory information service, in addition to tangible goods.
ASI argues that the language of NRS 612.144 is ambiguous and, therefore, the district
court erred in affirming the hearing officer's determination on the basis of the plain
meaning rule.
officer's determination on the basis of the plain meaning rule. ASI notes that Nevada
legislators as well as federal courts have recognized that the term products has no plain
meaning. Accordingly, ASI argues that legislative intent, rather than the language of the
statute, controls the issue in this case.
Division argues that the public policy rationale underlying Nevada unemployment
compensation law demands that Nevada citizens should not be denied the protection of
unemployment benefits unless clearly and unambiguously exempted by the legislature.
Standard of Review
[Headnote 3]
This court is asked to interpret NRS 612.144, specifically the meaning of the term
products as used therein. Statutory construction is a question of law which invites
independent appellate review of an administrative decision. Maxwell v. SIIS, 109 Nev. 327,
329, 849 P.2d 267, 269 (1993). Accordingly, this court's interpretation of NRS 612.144 is
based on an independent, as opposed to a deferential, standard of review.
Legislative History and Intent
This court has held that the legislative intent underlying unemployment compensation
statutes is to provide temporary assistance and a measure of economic security for
individuals who become involuntarily unemployed.' State, Emp. Sec. Dep't v. Harich Tahoe,
108 Nev. 175, 178, 825 P.2d 1234, 1237 (1992) (quoting Airport Casino v. Jones, 103 Nev.
387, 390, 741 P.2d 814, 816 (1987)) (holding that NRS 612.133, concerning real estate
salespeople, did not exempt respondent's time share sales agents). Although Nevada adopts a
general presumption of covered employment, the compensation scheme is subject to areas of
statutory exemptions, such as that created by NRS 612.144.
The legislative history underlying NRS 612.144 suggests that the legislature recognized
that the definition of the term products as used in NRS 612.144 was unclear. During a
Senate committee hearing, the following exchange occurred:
Senator Glover questioned the definition of product. Mr. Gibb replied there are several
definitions of product. Senator Robinson asked Mr. Gibb if he felt section one of NRS
612.144 would be beneficial and clarify current statutes. Mr. Gibb replied it would
resolve the problem of using NRS 612.085 to enforce the direct seller situation . . .
[h]owever, it would create the problem of defining product.
Senate Committee Minutes on S.B. 238 Before Committee on Commerce and Labor, 62nd
Leg. 141-142 (Nev. March 22, 19S3).
1983). Although the legislature recognized the ambiguity surrounding the meaning of the
term, it did not specifically define products anywhere in NRS chapter 612. Thus, the
legislature did not explicitly include intangible consumer services within the purview of the
term products as used in NRS 612.144. We can conclude that the word product as used in
the statute is susceptible of two reasonable interpretations and is, thus, ambiguous. Therefore,
a resort to principles of statutory construction is appropriate.
With regard to statutory construction, this court has stated that
The leading rule for the construction of statutes is to ascertain the intention of the
legislature in enacting the statute, and the intent, when ascertained will prevail over the
literal sense. The 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)).
The legislative history indicates that NRS 612.144 was enacted in order to conform
Nevada's unemployment compensation law with existing federal law. In its purpose and
policy, NRS 612.144 is derived from 26 U.S.C. 3508, which exempts direct sellers of
consumer products from the status of employee. The only substantive difference between
Nevada's statute and its federal counterpart is the reference to consumer products instead of,
simply, products. However, we view this semantic difference as insignificant; thus, a review
of the federal case law interpreting 26 U.S.C. 3508 and with the phrase consumer
products, is appropriate.
When Nevada legislation is patterned after a federal statute or the law of another state,
it is understood that the courts of the adopting state usually follow the construction placed
on the statute in the jurisdiction of its inception. Securities Investment Co. v. Donnelley, 89
Nev. 341, 347 n.6, 513 P.2d 1238, 1242 n.6 (1973). Two federal cases have interpreted the
term consumer products as used in 26 U.S.C. 3508Cleveland Institute of Electronics,
Inc. v. United States, 787 F. Supp. 741 (N.D. Ohio 1992) and The R Corporation v. United
States, No. 92-1368-CIV-T-24B, 1994 WL 465819 (M.D. Fla. July 15, 1994).
In Cleveland Institute, an employer claimed that its salespersons were independent
contractors under 26 U.S.C. 3508 and that it did not need to withhold any federal income
tax from its salespersons' compensation.
that it did not need to withhold any federal income tax from its salespersons' compensation.
The court agreed and concluded that [t]o find that this statute applies only to direct sellers of
tangible goods will inevitably lead to disputes over whether a direct seller is selling goods or
services and thereby defeat the purpose of the statute. Id. at 749.
The court in R Corporation adopted the broad definition of consumer products
announced by the court in Cleveland Institute. In R Corporation, plaintiff employer argued
that the government erroneously assessed employment taxes against the corporation with
regard to its salespersons. The salespersons in that case were performing door-to-door sales of
cable television subscriptions and equipment, such as stereos and home computers. The R
Corporation court agreed that the definition of consumer products in 26 U.S.C. 3508
included intangible consumer services. R Corporation, 1994 WL 465819, at *4.
Cleveland Institute and R Corporation are legally and factually analogous to the case at
bar because they interpret a federal statute very similar to NRS 612.144. These cases clearly
indicate that the word product should include both tangible goods and intangible services.
Language of the Statute
[Headnote 4]
NRS 612.144 does not contain a definition of the word product, but a court may
look to the entire statute, and even to related statutes, to construe an ambiguous or undefined
word or term. See Colello v. Administrator, Real Est. Div., 100 Nev. 344, 347, 683 P.2d 15,
16 (1984) (stating that legislative intent can be determined by looking at the entire act and
construing the statute as a whole in light of its purpose). NRS 612.144(2) provides that
employment does not include services performed by a person who receives compensation or
remuneration based on his sales or the services he performs for the customers rather than for
the number of hours worked. This clearly indicates that the legislature contemplated that the
salesperson could be selling tangible goods, intangible services, or a combination of both, and
this lends support to ASI's interpretation of the word products.
CONCLUSION
We conclude that the word product as used in NRS 612.144 encompasses both
tangible goods and intangible services, and that ASI is exempt from paying unemployment
contributions for its salespeople. Accordingly, we reverse the judgment of the district court,
deny ASI's request for attorneys fees on appeal, and remand for further proceedings consistent
with this opinion.
114 Nev. 342, 342 (1998) Smolen v. Smolen
JASON SMOLEN, as Trustee for the MARTIN SMOLEN Revocable Trust Agreement,
Appellant, v. ROSLYN SMOLEN, Respondent.
No. 28390
April 9, 1998 956 P.2d 128
Appeal from a district court order cancelling a deed. Eighth Judicial District Court,
Clark County; Terrance P. Marren, Judge.
Former wife brought action to cancel deed executed by former husband prior to his
death which transferred his interest in joint tenancy property to revocable trust. The district
court cancelled deed and ordered that property be deeded to former wife as surviving joint
tenant. Trust beneficiary appealed. The supreme court held that former husband's transfer of
his interest to trust terminated joint tenancy created by divorce decree and established tenancy
in common.
Rolle & Stone, Las Vegas, for Appellant.
Treitler & Montisano, Las Vegas, for Respondent.
1. Joint Tenancy.
Supreme court has long recognized attributes of common law joint tenancy, though it has abandoned complete adherence to
requirement of manner of its acquisition.
2. Divorce.
Former wife and husband held real property as tenants in common following husband's transfer of his interest in property to
revocable trust, despite divorce decree which stated that property in question shall remain in joint tenancy. Decree created joint
tenancy between former husband and wife, replete with all characteristics attributable to that estate under common law, including
power of either husband or wife to unilaterally transfer interest and terminate estate.
3. Joint Tenancy.
All joint tenants possess not only an interest in the joint tenancy but also the power to transfer such interest and sever the
tenancy.
OPINION
Per Curiam:
Martin Smolen and respondent Roslyn Smolen married on March 1, 1970. In 1990, doctors diagnosed Martin with a brain
tumor. Martin's physical health began to deteriorate. To protect their assets from liability for extensive, anticipated medical costs, the
parties consulted a lawyer, who advised them to divorce.
On February 8, 1994, the district court entered a Decree of Divorce terminating the
marriage and dividing the parties' property. In this decree, the district court ordered that the
following community property of the parties shall remain in joint tenancy: (i) Real property
located at 3676 Pecos Road, Las Vegas, Nevada. This language reflects the parties' desire
that the survivor retain ownership of the residence.
Martin and Roslyn lived together for nine months after the divorce, during which time
Martin's health continued to deteriorate. In August 1994, doctors diagnosed Martin with
degenerative brain disease, dementia, and atypical Parkinson's disease. In November 1994,
Roslyn obtained temporary legal guardianship of Martin without his knowledge or consent.
On December 8, 1994, Roslyn put Martin in a group home, against his wishes. Martin
did not want to live in a group home; he wished to remain at the couple's Las Vegas
residence. Martin contacted his nephew, appellant Jason Smolen, an attorney in Virginia.
Jason hired a Nevada attorney to assist Martin; this attorney filed a motion with the district
court seeking to terminate Roslyn's temporary guardianship. Based on an April 19, 1995
hearing, the district court revoked Roslyn's temporary guardianship and found Martin
competent to manage his person and estate.
On May 26, 1995, Martin established a revocable trust naming Jason sole beneficiary and
successor trustee. Martin also instructed Jason as to his wishes regarding the remainder of his
estate. Martin executed a deed, dated May 31, 1995, by which he transferred his interest in
the Las Vegas residence to this new trust. On July 4, 1995, Martin apparently suffered a
stroke, which rendered him incapacitated and dependant upon life support.
Between Martin's July 4th stroke and his death on October 15, 1995, Martin resided at
Sunrise Hospital. While Martin was at Sunrise Hospital, Roslyn discovered that Martin had
deeded his interest in the Las Vegas residence to Jason. She contacted Jason numerous times
in an effort to compel him to deed Martin's interest in the property back to her. Jason claims
that he offered several compromise proposals to Roslyn, in an attempt to resolve her concerns
while carrying out his uncle's clearly articulated wishes. Roslyn rejected Jason's offers,
including the opportunity to remain in the residence, cost free, for the rest of her life. On
October 29, 1995, Roslyn retained counsel to assist her in this matter.
On December 29, 1995, Roslyn moved to cancel the May 31, 1995 deed.
1995 deed. A January 23, 1996 hearing resulted in a February 9, 1996 district court order. In
this order, the district court cancelled the May 31, 1995 deed, recorded June 6, 1995, and
ordered that the property [the Las Vegas residence] is to be returned to the community and
deeded to the Plaintiff [Roslyn] as the survivor. Jason appealed this order of the district
court.
In her motion to cancel Martin's May 31, 1995 deed, Roslyn successfully argued that
upon entering into the divorce, Martin and Roslyn had an agreement that the surviving spouse
would own 100 percent of the Las Vegas residence. Roslyn now argues that the district
court's order that the property shall remain in joint tenancy reflects this understanding.
Roslyn also argues that the district court's order expressly preserves the joint tenancy, and
thus, impliedly prohibits its destruction. Consequently, Roslyn argues, the deed transferring
Martin's interest in the joint tenancy violated the divorce decree and, therefore, was void.
At common law, creation of a joint tenancy required four unities: interest, time, title and
possession. See Tenhet v. Boswell, 133 Cal. Rptr. 10, 13 (Ct. App. 1976). If one of these
unities was destroyed, a tenancy in common remained. See id. Severance of a joint tenancy
extinguished the principal feature of the estate, the right of survivorship. See Riddle v.
Harmon, 162 Cal. Rptr. 530, 531 (Ct. App. 1980).
This right' [of survivorship associated with a joint tenancy] is a mere expectancy that
arises only upon success in the ultimate gamble, survival, and then only if the unity of
the estate has not theretofore been destroyed by voluntary conveyance . . ., by partition
proceedings . . ., by involuntary alienation under an execution . . ., or by any other
action which operates to sever the joint tenancy.'
Riddle, 162 Cal. Rptr. at 531 (quoting Tenhet, 133 Cal. Rptr. at 14). At common law, each
joint tenant possessed the indisputable right and power to convey his or her interest in the
estate, without the knowledge or consent of the other joint tenant, thereby terminating the
joint tenancy. See id.
[Headnotes 1, 2]
This court has long recognized the attributes of the common law joint tenancy,
though we have abandoned complete adherence to the requirement of the manner of its
acquisition.
1
Mullikin v. Jones, 71 Nev. 14, 24, 278 P.2d 876, 880 (1955). Consequently,
the district court's order stating that the property shall remain in joint tenancy" created a
joint tenancy replete with all characteristics attributable to this estate under the common
law.
__________

1
NRS 111.065, entitled Joint tenancy in real and personal property: Creation, sets forth Nevada's revised
requirements for the creation of a joint tenancy.
joint tenancy created a joint tenancy replete with all characteristics attributable to this estate
under the common law. One such characteristic is the power of any joint tenant to unilaterally
transfer his interest and terminate the estate. The language of the divorce decree does not
prohibit future transfer or alienation of the property. Thus, Martin severed the joint tenancy
when he conveyed his interest in the Las Vegas residence to the new trust. This transfer not
only severed the joint tenancy but also created a tenancy in common between Roslyn and the
new Martin Smolen trust. Upon Martin's death, his interest in the Las Vegas property passed
through the trust to Jason, rendering Jason a tenant in common with Roslyn.
[Headnote 3]
Martin and Roslyn, like all joint tenants, possessed not only an interest in the joint
tenancy but also the power to transfer such interest and sever the tenancy. Martin's transfer of
his interest in the joint tenancy terminated the joint tenancy but did not violate the common
law or the divorce decree.
Therefore, we conclude that the district court's order of February 9, 1996, cancelling the
deed effecting Martin's transfer, contradicts the common law rule that such transfer is valid.
Accordingly, we reverse the district court's order of February 9, 1996, and remand this case to
the district court for issuance of a new order in accordance with this opinion.
____________
114 Nev. 345, 345 (1998) Nelson v. CSAA
THOMAS NELSON, Appellant, v. CALIFORNIA STATE AUTOMOBILE ASSOCIATION
INTER-INSURANCE BUREAU, Respondent.
No. 29232
April 9, 1998 956 P.2d 803
Appeal from an order of the district court granting summary judgment in an action for
breach of contract and associated tort claims. Second Judicial District Court, Washoe County;
Janet J. Berry, Judge.
Insured brought suit against automobile insurer which had refused to pay stacked
benefits in excess of $15,000 statutory minimum for uninsured motorist (UM) coverage for
injuries he suffered while riding motorcycle insured under another policy. The district court
entered summary judgment for insurer, and insured appealed. The supreme court held that:
(1) owned but uninsured exclusion in automobile insurance policy was enforceable with
respect to coverage above statutory UM minimum of $15,000, and
114 Nev. 345, 346 (1998) Nelson v. CSAA
$15,000, and (2) exclusion operated to preclude full stacking of UM coverages under
motorcycle and automobile policies.
Affirmed.
Leverty & Associates and Matthew L. Sharp, Reno, for Appellant.
McKissick Van Walraven & Harris, Reno, for Respondent.
1. Judgment.
Questions of contract construction, in the absence of ambiguity or other factual issues, are suitable for determination by
summary judgment.
2. Insurance.
In the absence of a violation of public policy, insurance contracts will be enforced as written.
3. Insurance.
Owned but uninsured exclusion in automobile insurance policy, which precluded uninsured motorist (UM) coverage for injuries
suffered while occupying owned vehicle that was not insured under policy, was enforceable only to extent of preventing insured from
recovering UM benefits in excess of statutory minimum.
4. Insurance.
Owned but uninsured exclusion in automobile insurance policy covering two vehicles, which limited insured's uninsured
motorist (UM) coverage to statutory minimum while occupying owned vehicle not insured under policy, was not invalid simply
because it operated to preclude full stacking of UM benefits with those available under policy on motorcycle which insured was riding
at time of accident.
OPINION
Per Curiam:
The facts of this case are not in dispute. Appellant Thomas Nelson (Nelson) insured two vehicles on a policy provided by
respondent California State Automobile Association Inter-Insurance Bureau (CSAA). This policy provided uninsured motorist (UM)
coverage in the amount of $15,000.00 per person and $30,000.00 per accident, for which Nelson paid a premium of $60.00 per vehicle.
Nelson's CSAA policy contained a provision which excluded UM coverage for any injury sustained while occupying an owned but
uninsured vehicle (owned but uninsured exclusion).
1
Nelson also owned a motorcycle which he insured
through a different insurer.
__________

1
The relevant portion of the policy reads:
This coverage does not apply to bodily injury sustained by an insured person:
(1) While occupying a motor vehicle, other than the insured motor vehicle, owned by any insured
person, or leased to any insured person, under a written contract for a period of six months or longer, or
through being struck by such a motor vehicle.
114 Nev. 345, 347 (1998) Nelson v. CSAA
he insured through a different insurer. Nelson expressly rejected UM coverage on the
motorcycle.
On May 21, 1993, while riding the motorcycle, Nelson was seriously injured in an
accident with an uninsured motorist. Nelson demanded $30,000.00 of CSAA, claiming that
the UM coverages for each vehicle should be stacked pursuant to this court's line of authority
represented by Allstate Ins. Co. v. Maglish, 94 Nev. 699, 586 P.2d 313 (1978). CSAA paid
$15,000.00 to Nelson, but denied payment of the additional $15,000.00, arguing that it was
not obligated, under Zobrist v. Farmers Ins. Exchange, 103 Nev. 104, 734 P.2d 699 (1987), to
stack the UM coverages for any injuries sustained while using an owned but uninsured
vehicle.
On May 25, 1995, Nelson filed a complaint against CSAA. On August 14, 1995, Nelson
filed a second amended complaint claiming damages based on breach of contract, bad faith,
unfair trade practices, fraud, unjust enrichment, and negligence.
On July 26, 1996, CSAA moved for summary judgment. On August 2, 1996, Nelson
filed a countermotion for summary judgment and a motion for leave to file a third amended
complaint asserting a class action. On August 26, 1996, the district court issued an order
granting summary judgment in favor of CSAA on the grounds that pursuant to Zobrist, the
owned but uninsured exclusion was void to prevent payment of the statutory minimum
($15,000.00) but is valid to restrict any amount in excess thereof. The district court also
denied Nelson's motion for summary judgment and dismissed his complaint with prejudice.
Nelson now appeals that order.
DISCUSSION
Nelson first argues that the district court erred in granting summary judgment because
the owned but uninsured exclusion is void under Zobrist and State Farm Mut. Auto. Ins. v.
Hinkel, 87 Nev. 478, 488 P.2d 1151 (1971), and therefore, the two coverages should have
been stacked. We conclude this argument is meritless.
[Headnotes 1, 2]
It is well settled that summary judgment is appropriate only where there are no
genuine issues of material fact and the movant is entitled to judgment as a matter of law.
NRCP 56(c). Furthermore, orders of the district court granting summary judgment are
reviewed de novo. Bulbman, Inc. v. Nevada Bell, 108 Nev. 105, 110, 825 P.2d 588, 591
(1992). Questions of contract construction, in the absence of ambiguity or other factual
issues, are suitable for determination by summary judgment. Ellison v. C.S.A.A., 106 Nev.
601, 603, 797 P.2d 975, 977 (1990). In the absence of a violation of public policy, insurance
contracts will be enforced as written. Id. The parties here agree that no genuine issues of
material fact exist.
114 Nev. 345, 348 (1998) Nelson v. CSAA
absence of a violation of public policy, insurance contracts will be enforced as written. Id.
The parties here agree that no genuine issues of material fact exist.
[Headnote 3]
In Hinkel, this court held that an owned but uninsured exclusion was void because it
violated the public policy enunciated in the former NRS 693.115, which required liability
insurers to provide UM coverage. Hinkel, 87 Nev. at 481-82, 488 P.2d at 1153. In Zobrist, we
narrowed the holding of Hinkel to some extent. In Zobrist, an insurance company insured
several cars under one policy with $500,000.00 in UM coverage. This policy contained an
owned but uninsured exclusion similar to the one at issue here. The insured was injured by an
uninsured driver while operating an owned but uninsured vehicle. The insurer paid
$15,000.00 to the insured, but argued that the owned but uninsured exclusion released it from
any obligation to pay more. This court agreed with the insurer, holding that pursuant to NRS
690B.020,
2
an exclusionary clause is void only to the extent that it would defeat the
minimum security required by statute but valid to prevent recovery in excess of the
minimum. Zobrist, 103 Nev. at 106, 734 P.2d at 700 (emphasis added).
The exclusion at issue in Zobrist is essentially identical to the one at issue in this case.
Nelson is incorrect in his contention that Zobrist supports the proposition that the owned but
uninsured exclusion at issue here is entirely void. Rather, Zobrist makes clear that the
exclusion is void only to the extent that it would prevent Nelson from recovering the
minimum UM benefits which NRS 690B.020 requires insurers to provide. Therefore, we
conclude that the district court correctly determined that Zobrist does not require CSAA to
stack Nelson's UM coverages.
[Headnote 4]
Nelson next argues that the district court erred in granting summary judgment
because, if the owned but uninsured exclusion operates to prevent the UM coverages
from being stacked, then he received no benefit in consideration for the additional
premium which he paid for UM coverage on the second car.
__________

2
NRS 690B.020 provides, in relevant part:
1. Except as otherwise provided in this section and NRS 690B.035, no policy of insuring against
liability arising out of the ownership, maintenance or use of any motor vehicle may be delivered or issued
for delivery in this state unless coverage is provided therein or supplemental thereto for the protection of
persons insured thereunder who are legally entitled to recover damages, from owners or operators of
uninsured or hit-and-run motor vehicles, for bodily injury, sickness or disease, including death, resulting
from the ownership, maintenance or use of the uninsured or hit-and-run motor vehicle. . . .
2. The amount of coverage to be provided must not be less than the minimum limits for liability
insurance for bodily injury provided for under chapter 485 of NRS [$15,000.00 per person, $30,000.00
per accident].
114 Nev. 345, 349 (1998) Nelson v. CSAA
summary judgment because, if the owned but uninsured exclusion operates to prevent the UM
coverages from being stacked, then he received no benefit in consideration for the additional
premium which he paid for UM coverage on the second car. Therefore, he argues, the UM
coverages must be stacked. We conclude that this argument is also without merit.
In Maglish, the insured purchased a single policy of automobile liability insurance,
including UM coverage, for two vehicles. While operating an unowned vehicle in the course
of his employment, the insured was injured in an accident with an uninsured motorist. The
insurer denied his claim for benefits in connection with both vehicles, arguing that a
limitation of liability clause prevented the insured from stacking the two policies. This court
rejected the insurer's argument, holding that the insured is entitled to recover damages to the
full extent of personal coverage for which he has paid premiums. Id. at 702, 586 P.2d at
314-15. Because the insured had paid two separate premiums for UM coverage, the court
reasoned, he was entitled to stack those coverages. Id.
Although there are certain factual similarities, the present case is distinguishable from
Maglish. In Maglish, there was no exclusion of coverage written into the insurance contract;
the insurer denied coverage based only on a clause which purported to limit recovery to the
policy limits. If this clause had been read as the insurer urged, the insured would not, in any
circumstances, have received a benefit from the second premium.
In this case, Nelson paid two premiums under his CSAA policy. Had he been an
occupant of one of the two insured vehicles when injured by an uninsured motorist, he would
have been entitled to stack his uninsured motorist coverage pursuant to Maglish. However,
Nelson's coverage was expressly limited by the owned but uninsured clause. While CSAA
was obligated to pay the statutory minimum despite this exclusion, the dictates of Maglish do
not prohibit explicit limitations on coverage in a way that does not violate public policy.
Nelson also argues that because CSAA would have stacked non-excluded UM coverages,
and because the premiums may have been computed with Zobrist in mind, the insurer had no
actuarial justification for refusing to stack coverages where the owned but uninsured
exclusion applies. However, we conclude the actuarial testimony had no bearing on Nelson's
alleged expectations regarding stacked coverage beyond that mandated by Zobrist.
Therefore, we conclude that the district court properly found that CSAA was not
contractually obligated to stack Nelson's UM coverage.
____________
114 Nev. 350, 350 (1998) Hannam v. Brown
ROBERT S. HANNAM, Co-Trustee of the Family Share of the HANNAM FAMILY
TRUST, and Trustee of the SHERWOOD R. HANNAM LIVING TRUST,
Appellant/Cross-Respondent, v. DENNIS BROWN, Co-Trustee of the HANNAM
FAMILY TRUST, Respondent/Cross-Appellant.
No. 28655
April 9, 1998 956 P.2d 794
Appeal and cross-appeal from a judgment relating to administration and distribution
of trust funds. Second Judicial District Court, Washoe County; Mills Lane, Judge.
Petition was filed for instructions relating to the administration of a family A-B
trust split into family and survivor's shares. The district court granted partial summary
judgment. Beneficiaries appealed. The supreme court held that: (1) as a matter of first
impression, Nevada allows good faith challenges to wills or trusts based on probable cause,
as an implied exception to no-contest clauses in wills or trusts; (2) substantial evidence
supported finding that beneficiary's challenge to surviving settlor's will was made in good
faith based on probable cause; (3) substantial evidence supported trial court's order that
one-half of surviving settlor's final medical expenses be paid from the family share; (4)
co-trustee of family share was authorized to pay surviving settlor's final medical expenses
without unanimous consent of the other co-trustees; (5) substantial evidence supported
finding that the combined trust authorized special periodic payments to one beneficiary; (6)
deceased beneficiary's share of family share did not lapse; (7) trial court abused its discretion
in denying request of co-trustee of family share trust for reimbursement of attorney fees; (8)
trial court abused its discretion in denying request of co-trustee of family share trust for
compensation for serving as co-trustee; and (9) beneficiary of family trust failed to
demonstrate that procedural irregularities denied him a fair hearing.
Affirmed in part; reversed in part and remanded with instructions.
Thomas F. Riley, Reno, for Appellant/Cross-Respondent.
Law Office of Richard C. Blower, Sparks, for Respondent/Cross-Appellant.
1. Trusts; Wills.
Nevada allows good faith challenges to wills or trusts based on probable cause, as an implied exception to no-contest clauses in
wills or trusts; the failure to recognize such an exception by implication would chill assertion of legitimate claims.
2. Trusts.
Substantial evidence supported finding that family A-B trust beneficiary's challenge to surviving settlor's will was made in
good faith based on probable cause, as exception to no-contest forfeiture provision of the trust, which was split into family and
survivor's shares, though trial court ultimately determined that beneficiary failed to make a prima facie showing that settlor lacked
testamentary capacity at execution of contested will that poured over survivor's share to trust for which the family trust beneficiary was
not a beneficiary; settlor was 82 years old when contested will was executed and was incapable of verbal communication.
3. Trusts.
Abuse of discretion standard applies to trial court's finding regarding whether, as exception to the no-contest clause of a will or
trust, the will or trust was contested in good faith under probable cause.
4. Trusts.
Substantial evidence supported trial court's order that one-half of surviving settlor's final medical expenses be paid from the
family share of family A-B trust split into family and survivor's shares. Trust document for the combined trust directed payment from
the Trust Estate, and trial court found that settlors had assumed that surviving settlor would not exercise option to will survivor's
share into a trust other than the family share, so that family and surviving shares would be recombined into the Trust Estate.
5. Trusts.
Co-trustee of family share of family A-B trust split into family and survivor's shares was authorized to pay surviving settlor's
final medical expenses without unanimous consent of the other co-trustees, as payment was made pursuant to trial court's conclusion
that family share was liable for one-half of such expenses, rather than being made pursuant to the discretionary trust invasion
provision of the trust, and payments were necessary to equalize family share's payments with survivor's share's payments.
6. Trusts.
Substantial evidence supported finding that family A-B trust split into family and survivor's shares authorized special periodic
payments to one beneficiary, so that such payments were not to be deducted from the beneficiary's portion of the family share upon
final distribution after death of surviving settlor. Trust document for the combined trust directed the periodic payments from the Trust
Estate, and trial court found that settlors had assumed that surviving settlor would not exercise option to will survivor's share into a
trust other than the family share, so that family and surviving shares would be recombined into the Trust Estate.
7. Trusts.
Deceased beneficiary's share of family share trust established by husband and wife did not lapse, though the beneficiary, who
was one of two nephews named as wife's sole beneficiaries under the trust, predeceased the wife. Trust provided that if either of the
nephews died, the surviving nephew would take the deceased nephew's share, and such provision was intended to prevent either
husband's or wife's relatives from taking collectively more than one-half of the family share.
8. Trusts.
Trial court's conclusions that beneficiary's share of family share trust had lapsed, and that it was not saved by anti-lapse statute,
were conclusions of law which supreme court would review de novo. NRS 133.200.
9. Trusts.
Anti-lapse statute is not to be applied in contravention of the distribution provisions in a trust instrument. NRS 133.200.
10. Trusts.
Beneficiary's share of family share of family A-B trust was not a mere expectancy, and thus did not lapse, though beneficiary
predeceased settlor by three days and the trust was not split into family and survivor's shares until settlor's death.
11. Trusts.
Trial court abused its discretion in denying request of co-trustee of family share trust for reimbursement of attorney fees, other
than attorney fees incurred by co-trustee as a result of the co-trustee's challenge to settlor's will. Trust instrument authorized
reimbursement for reasonably necessary expenses and trial court provided no reason for its denial of the reimbursement request.
12. Trusts.
District court's order regarding distribution or administration of trust funds will generally not be disturbed unless it clearly
demonstrates an abuse of discretion.
13. Trusts.
Trial court abused its discretion in denying request of co-trustee of family share trust for compensation for serving as co-trustee;
trust instrument explicitly instructed that co-trustees were to be compensated for their services, and trial courts could not rely on
protracted arguments and disputes among the co-trustees as basis for requiring the co-trustees to waive their contractual rights.
14. Trusts.
Beneficiary of family trust failed to demonstrate that procedural irregularities denied him a fair hearing regarding petition for
instructions relating to trust administration, and thus was not entitled to a new hearing, though beneficiary alleged that trial court failed
to allow him to call witnesses or present testimony at the hearing, as beneficiary did not specify what witnesses or evidence he would
have presented or how he was prejudiced. NRCP 59.
15. Trusts.
Supreme court would not require trial court to hold a new hearing to determine the reasonably necessary expenses for which
co-trustees of family trust would be reimbursed and the redistribution of trust assets to allocate a deceased beneficiary's share to
another beneficiary. Redistribution of trust assets was essentially a mathematical task, and trial court might be able to determine the
reimbursements from co-trustees' previous submissions.
OPINION
Per Curiam:
This case involves disagreement between trust beneficiaries concerning the distribution of an inter vivos trust. Sherwood R.
Hannam and Cleo M. Hannam, husband and wife, created the Hannam Family Trust Agreement on May 22, 1991. The trust was of the
A-B variety, splitting the trust assets evenly into a Family Trust Share and a Survivor's Trust Share upon the death of either
spouse.
death of either spouse. Sherwood and Cleo subsequently placed most of their assets into the
trust, creating approximately $1,000,000.00 in trust assets. Cleo died on January 13, 1992;
however, Sherwood did not immediately divide the trust into the family and survivor's shares
specified in the trust. No division occurred until the district court ordered, on September 7,
1993, that the trust be retroactively divided into two equal shares.
The trust provided that the family share was to be divided evenly between Robert S.
Hannam, Sherwood's son from a previous marriage, David S. Hannam, Robert's son, Dennis
Brown, Cleo's nephew, and Lance Brown, another of Cleo's nephews. The same parties were
to serve as co-trustees of the family share. Lance died on January 10, 1992, three days before
Cleo's death. The district court determined that Lance's one-fourth of the family share lapsed
because he predeceased Cleo, and ordered that the family share be divided equally among the
remaining three beneficiaries.
The trust provided that the survivor (Sherwood or Cleo) would be the sole trustee of the
survivor's share, and could distribute the survivor's share either by a probated will or by doing
nothing, which would cause the survivor's share to be added to the family share upon the
death of the survivor. The trust specified that Robert, David, Dennis and Lance were to take
over as trustees of the survivor's share if the survivor became incapacitated. Sherwood did
create a pour-over will, which provided that, upon Sherwood's death, the survivor's share
would pour over into the Hannam Family Trust.
Robert contacted Dennis in April 1993, to advise him that Robert, David and Dennis
were the surviving named trustees of the family share. Dennis travelled to Nevada to discuss
the matter with Robert and David. Sherwood had developed some serious health problems,
and there was some confusion and disagreement between the parties and their attorneys
regarding Sherwood's mental capacity to serve as trustee of the survivor's share. Dennis
claims to have discovered that Robert had been issuing checks to himself and paying for
Sherwood's health care, support, and maintenance from the family share without consulting
the other co-trustees. Robert claims that, on July 4 or 5, 1993, Dennis contacted nearly all of
the banks where Sherwood's funds were held and advised them that Sherwood was possibly
incompetent. Robert further claims that, as a result of these letters, Sherwood's accounts
were frozen, and Sherwood was unable to pay his personal expenses.
Following Dennis' assertion that Sherwood was incompetent, Sherwood replaced his
existing will with a second will that poured the survivor's share over to a new trust. The new
trust, entitled the "Sherwood R. Hannam Trust" and dated July 13, 1993, was for the
benefit of Robert and David only.
entitled the Sherwood R. Hannam Trust and dated July 13, 1993, was for the benefit of
Robert and David only. Sherwood was the sole trustee of the Sherwood R. Hannam Trust
during his lifetime, and provided that Robert and David would serve as co-trustees after
Sherwood's death.
Dennis claims that Sherwood was determined to be incapacitated in August of 1993,
and that Robert, David and Dennis took over as co-trustees of the survivor's share thereafter.
The trust fund was split into the survivor's and family shares in September, 1993. The
co-trustees were unable to agree on the number of co-trustee votes required to administer
either trust share, so the district court ordered that a unanimous vote would be required for
actions involving the family trust share while only a majority vote would be necessary for
actions involving the survivor's share.
Sherwood died on November 24, 1993, after which Dennis filed an opposition to
Sherwood's will, arguing that Sherwood lacked capacity at the time the will was executed,
that the proper formalities for a valid will were not followed, and that Robert may have
exercised undue influence over Sherwood. A trial on the will contest was held on June 9 and
10, 1994. The trial ended when the district court concluded that Dennis had failed to make a
prima facie showing that Sherwood lacked capacity. Dennis agreed to an order dismissing the
will contest with prejudice and requiring him to reimburse Sherwood's estate $16,000.00 in
out-of-pocket costs. The will was subsequently probated, and the survivor's share assets were
transferred to the Sherwood R. Hannam Trust.
In May 1995, Robert and David filed joint motions for partial summary judgment,
asking the district court to enforce the Hannam Family Trust's no-contest clause against
Dennis. This clause provided, in pertinent part, that any beneficiary contesting either
creator's Estate or Will would forfeit his or her interest in the trust and co-trustee status.
Dennis filed a request for an order for payment of fees and costs shortly thereafter. Robert
filed an alternative motion for partial summary judgment in October 1995, asking for a
determination that Lance's portion of the family share lapsed when he predeceased Cleo.
On February 23, 1996, the district court denied Robert and David's requests for partial
summary judgment on the no-contest clause issue, granted Robert's motion for partial
summary judgment on the lapsing of Lance's portion of the family share, and denied Dennis'
request for payment of trustee's fees and reimbursement expenses. Robert now appeals the
denial of his motions for partial summary judgment on the no-contest clause issue and Dennis
cross-appeals the court's partial summary judgment on the lapsing of Lance's portion of the
family share, denial of his request for payment of fees and costs, and several other claimed
errors.
of his request for payment of fees and costs, and several other claimed errors.
The no-contest clause
Robert appeals the district court's denial of his partial motions for summary judgment
relating to the no-contest clause of the trust. Robert argues that Dennis' opposition to
Sherwood's will invoked the forfeiture provision of the no-contest clause, thereby preventing
Dennis from receiving any benefit under the trust or serving as co-trustee. The no-contest
clause provides, in pertinent part,
[I]f any beneficiary herein asserts any claim . . . or interest against or in either Creator's
Estate or Will or any properties of this Trust, other than pursuant to the express terms
hereof or of said Will, directly or indirectly contests, disputes, or calls into question
before any court, the validity of this declaration of trust or of said Will or the validity of
any provisions of this Declaration of Trust or of said Will, then;
A. Such beneficiary shall thereby absolutely forfeit any and all beneficial interests of
whatsoever kind and nature which such beneficiary might otherwise have under this
Declaration of Trust.
. . . .
C. If then acting as a Trustee, such claiming, electing or contesting beneficiary shall
automatically cease to be a Trustee.
Dennis does not dispute Robert's assertion that Dennis' challenge to Sherwood's will
falls under the facial provisions of the no-contest clause, and Dennis also does not deny that
the no-contest clause is generally enforceable. Instead, Dennis relies on the district court's
conclusion that a forfeiture clause in a will or trust is subject to an exception when the
contest is made in good faith and with probable cause. Accordingly, the disposition of
Robert's appeal turns on this court's determination of whether such a good faith exception
exists and, if such an exception is recognized, on whether the district court erred in finding
that Dennis' contest of Sherwood's will was in good faith and based on probable cause.
[Headnote 1]
The question of whether a court may recognize an exception to no-contest clauses in
wills or trust instruments for good faith challenges based on probable cause is an issue of first
impression in Nevada. The district court relied on an American Law Reports annotation
discussing the approach of other states to this issue, electing to follow the line of cases
recognizing a good faith challenge exception.
challenge exception. See Annotation, Validity and Enforceability of Provision of Will or Trust
Instrument for Forfeiture or Reduction of Share of Contesting Beneficiary, 23 A.L.R. 4th 369
(1983). After consideration of the cases relied upon by the district court and various other
materials, we recognize a clear trend favoring an exception for good faith challenges based on
probable cause.
Robert addresses this trend by arguing that the majority of cases recognizing an
exception for good faith challenges arose in states that have also adopted the Uniform Probate
Code, section 3-905, which provides, in pertinent part, that a provision in a will purporting
to penalize any interested person for contesting the will or instituting other proceedings
relating to the estate is unenforceable if probable cause exists for instituting proceedings.
Robert suggests that the courts' allowance of a good faith challenge exception in those cases
is based primarily on these legislative enactments. He contends that, because the Nevada
Legislature rejected Uniform Probate Code, section 3-905, in 1995, recognition of an
exception for good faith challenges would contravene expressed legislative intent.
In fact, of the states that have judicially recognized an exception for good faith challenges
based on probable cause, most have not adopted Uniform Probate Code, section 3-905. See
Restatement (Second) of Property 9.1 n.1 (1982); 23 A.L.R. 4th at 377-78. Of those few
that have also adopted Uniform Probate Code, section 3-905, most did so only after judicially
recognizing an exception for good faith challenges based on probable cause. Restatement
(Second) of Property 9.1 n.1; 23 A.L.R. 4th at 377-78. Accordingly, Robert's suggestion
that courts have simply followed expressions of legislative intent on this issue is clearly
unfounded.
Robert also fails to substantiate his assertion that the Nevada Legislature expressed an
intent to reject the good faith challenge exception. Robert cites to section 89 of A.B. 445 of
the 1995 legislative session, consideration of which was indefinitely postponed. However,
A.B. 445 proposed adoption of the Uniform Probate Code in its entirety, with no specific
mention of Uniform Probate Code, section 3-905. The legislature's decision to postpone
consideration of adopting the entire Uniform Probate Code should not be recognized as an
expression of legislative intent regarding the specific provisions of Uniform Probate Code,
section 3-905.
This court has historically construed trusts in a manner effecting the apparent intent of the
settlor. See, e.g., Byrd v. Lanahan, 105 Nev. 707, 783 P.2d 426 (1989); Nicosia v. Turzyn, 97
Nev. 93, 624 P.2d 499 (1981). Inspection of the no-contest clause in the Hannam Family
Trust reveals no indicia of intent to create an exception for good faith challenges based on
probable cause.
the Hannam Family Trust reveals no indicia of intent to create an exception for good faith
challenges based on probable cause. However, failure to recognize such an exception by
implication would chill assertion of legitimate claims. We conclude that public policy favors
recognition of the implied exception to no-contest clauses for good faith challenges based on
probable cause, and now elect to follow the modern trend favoring the exception.
Accordingly, we conclude that the district court did not err in recognizing the exception.
[Headnotes 2, 3]
There remains the issue of whether the district court properly found that Dennis'
contest of Sherwood's will fell under the exception for good faith challenges based on
probable cause. Robert argues that a clear and convincing evidence standard should apply to
this court's review of the district court's determination. However, Robert cites no legal
authority for this proposal, and it is unwarranted under the circumstances. A district court's
findings [of fact] will not be disturbed 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).
In concluding that Dennis contested Sherwood's will in good faith and with probable
cause, the district court reasoned that Dennis was acting in accord with his fiduciary duty as a
trustee. Robert argues that Dennis contested Sherwood's will in his individual capacity, rather
than as a trustee. Inspection of the will contest documents confirms that Dennis instituted the
will contest in his individual capacity as a beneficiary rather than as a trustee.
Although the district court erred in concluding that Dennis contested Sherwood's will
in his capacity as a trustee, this court will affirm the order of the district court if it reached
the correct result, albeit for different reasons. Rosenstein v. Steele, 103 Nev. 571, 575, 747
P.2d 230, 233 (1987). [I]n the absence of express findings of fact by the district court, the
supreme court will imply findings where the evidence clearly supports the judgment. Trident
Construction v. West Electric, 105 Nev. 423, 426, 776 P.2d 1239, 1241 (1989). Accordingly,
the district court's finding that Dennis' contest of Sherwood's will was in good faith and based
on probable cause should not be set aside if the record contains substantial evidence to
support the finding.
Although Dennis contested Sherwood's will on three separate grounds, Robert addresses
only the challenge alleging lack of testamentary capacity. Accordingly, we need only
determine whether substantial evidence supports the district court's finding that Dennis
challenged Sherwood's testamentary capacity in good faith and with probable cause.
Sherwood was eighty-two years old when he executed the contested will, and had
been recently hospitalized with hemiparesis and aphasia.
1
Robert acknowledges that a
videotape of Sherwood was played at trial, and that the videotape showed that Sherwood was
incapable of verbal communication. Robert also concedes that he provided Dennis with a
letter from an attorney, Robert E. Hales, in which the attorney concluded that Sherwood
lacked capacity to administer the Hannam Family Trust. In addition, Sherwood was
ultimately removed as trustee of the Hannam Family Trust, and replaced by the named
successor trustees. Robert argues that, despite this evidence, Sherwood did not lack the
cognitive capacity to form testamentary intent. The district court did ultimately determine that
Dennis failed to make a prima facie showing that Sherwood lacked testamentary capacity at
the time that the will was executed. However, the dispositive issue in this appeal is whether
there was substantial evidence to support the district court's determination that Dennis'
testamentary capacity challenge was in good faith and based on probable cause. We conclude
that the foregoing evidence, when considered in totality, constitutes sufficiently substantial
evidence to support the district court's conclusion that Dennis' testamentary capacity
challenge was in good faith and based on probable cause. Accordingly, we conclude that the
district court's finding on this issue was not clearly erroneous, and, therefore, that it should
not be disturbed.
Sherwood's final illness expenses
[Headnote 4]
Robert, David and Dennis were the co-trustees of the family share during Sherwood's
lifetime, and a unanimous vote of the co-trustees was required before any co-trustee could
take action affecting the family share. Despite this restriction, Robert issued checks from the
family share, without Dennis' consent, for payment of Sherwood's medical expenses. Dennis
argues that these payments were improper, and that the family share should be compensated
for the expenditures.
The Hannam Family Trust provided, in pertinent part,
TRUST INVASION: Should the trustee determine the Surviving Creator to be in need
of funds for his or her general support, health, maintenance or education to enable him
or her to remain in the living standard to which he or she has become accustomed at
the time this FAMILY TRUST SHARE is created and becomes irrevocable, the Trustee
may .
__________

1
According to a consulting physician, Dr. R. A. Battie, these conditions, which resulted from strokes,
rendered Sherwood incapable of effective speech and made his writing very difficult to understand.
However, Dr. Battie also opined that Sherwood appears to understand quite clearly what is said to him.
become accustomed at the time this FAMILY TRUST SHARE is created and becomes
irrevocable, the Trustee may . . . distribute such sums from the principal of the
FAMILY TRUST up to the whole thereof, as the Trustee feels necessary to satisfy the
above limited purposes.
The trust also provided that, upon the death of the surviving creator, the trustee shall pay all
final illness, funeral and burial expenses from the Trust Estate.
Although the Hannam Family Trust specified that it was to be divided into the family
and survivor's shares upon the death of either settlor, it was not divided until twenty months
after Cleo's death. When it was eventually divided, the family share was funded with one-half
of the trust assets in existence at the time of Cleo's death. The survivor's share was funded
with the other half, less the interim payments for Sherwood's health care and living expenses.
Upon considering the trust language directing payment of final illness expenses from the
Trust Estate, the district court concluded that the settlors had assumed that Sherwood
would not exercise his option to will the survivor's share into a different trust, and that the
survivor's share and the family share would be recombined upon Sherwood's death, forming
the Trust Estate. Based on this conclusion, the court ordered that the payments of
Sherwood's last illness expenses should be divided equally between the family and survivor's
shares. Because division of the Hannam Family Trust into the family and survivor's shares
occurred twenty months late, and none of Sherwood's last illness expenses for that
twenty-month period were deducted from the family share at the time of division, Robert
commenced payment of such expenses from the family share thereafter.
Dennis argues that Robert's payments of Sherwood's medical expenses from the
family share were not authorized under the trust invasion provision recited above, as that
provision places such payments within the discretion of the trustees, invoking the unanimous
vote requirement. However, the district court concluded that the settlors intended such
expenses to be deducted from the entire Hannam Family Trust corpus, and ordered that the
family share was, therefore, liable for one-half of the expenses. The court's determination of
the settlor's intent in this matter was a finding of fact, and should not be disturbed unless
clearly erroneous. See Gibellini, 110 Nev. 1201, 885 P.2d 540. We conclude that the trust
language provided substantial evidence supporting the district court's finding, and, therefore,
conclude that the court's finding was not clearly erroneous. Accordingly, we conclude that the
district court did not err in ordering one-half of Sherwood's final medical expenses to be paid
from the family share.
[Headnote 5]
Because Robert's payment of Sherwood's final illness expenses from the family share
was pursuant to the district court's conclusion that the family share was liable for such
expenses, the court did not err in permitting Robert to issue such payments without Dennis'
consent. The payments were apparently based on the court's attempt to equalize the
distribution between the survivor's and family shares, and not on the discretionary trust
invasion provision requiring unanimous consent of the co-trustees. The unanimous
co-trustee consent requirement, affecting the discretionary aspects of the co-trustees' duties,
did not give Dennis the authority to veto the district court's orders. Accordingly, we conclude
that the court did not err in allowing the payments.
Periodic payments to Robert
[Headnote 6]
Robert, David and Dennis each received some principal distributions from the family
share; however, the district court determined that the funds received by Robert were not to be
deducted from his portion of the family share upon final distribution. The Hannam family
trust specifically provided that Robert was to receive periodic payments from the Trust
Estate until the final distribution of the Trust Estate. This provision was for Robert only,
and similar periodic payments were not authorized for David or Dennis. Dennis argues that
the payments to Robert should be treated similarly to the distributions to David and Dennis,
and that any such distribution should be deducted from the recipient's portion of the family
trust share upon final distribution.
Consistent with its earlier conclusion that the settlors intended the term, Trust Estate, to
refer to the combined corpus of the family and survivor's shares,
2
the district court reasoned
that the periodic payments to Robert were not meant to be advance distributions of his portion
of the family share. As discussed above, the district court did not err in concluding that the
settlors intended distributions from the Trust Estate to be drawn from the combined corpus
of the family and survivor's shares. The district court did order that the survivor's share must
compensate the family share for one-half of the distributions to Robert, all of which had been
drawn from the family share. This order was consistent with the court's allocation of
payments for Sherwood's final medical expenses, dividing them equally between the family
and survivor's shares as though the distributions had come from the undivided Trust Estate.
__________

2
This is explained in the discussion of payment of Sherwood's final illness expenses from the family share,
above.
We conclude that the special periodic payment provision for Robert constituted
substantial evidence of the settlors' intent to support Robert independently of his future
portion of the family share, and that the district court's finding that the settlors so intended
was not clearly erroneous. Upon consideration of the district court's appraisal of the settlor's
intent, we conclude that the court did not abuse its discretion in refusing to order that Robert's
periodic payments should be deducted from his portion of the family trust share upon final
distribution.
Lapsing of Lance's share
[Headnotes 7, 8]
The district court granted Robert's motion for partial summary judgment confirming
the lapse of Lance's portion of the family share. Noting that Lance predeceased Cleo by three
days, the district court granted Robert's motion because [t]he anti-lapse statute, NRS
133.200, only saves a gift flowing from any estate' if the deceased devisee or legatee had
lineal descendants. The court further reasoned that Lance's interest was a mere expectancy,
and that, because his interest in the trust was not vested at the time of his death, his share
lapsed. The district court's decision in this matter was a conclusion of law, and, as such, is
appropriate for de novo review. Bopp v. Lino, 110 Nev. 1246, 885 P.2d 559 (1994).
The language of the Hannam Family Trust directly addressed the possibility of Lance
predeceasing one of the settlors. The trust provided, in pertinent part, that [t]he shares
established for Dennis Brown and Lance Brown shall be known as the Wife's Trust Share, if
either Dennis Brown or Lance Brown should die without issue, their share shall go to the
survivor of either Dennis Brown or Lance Brown. Robert and David enjoyed a similar
benefit with respect to each other. The effect of these provisions was to prevent either settlor's
named relatives from collectively receiving less than one-half of the family share, even if one
of the named relatives predeceased one of the settlors.
[Headnote 9]
We conclude that the district court erred in applying NRS 133.200 under the present
circumstances. NRS 133.200 addresses wills rather than trusts, governing situations in which
an estate is devised or bequeathed to any child or other relation of the testator. In addition,
the statute itself provides that it applies only in the absence of provisions in the will to the
contrary. This court has not approved of the application of this statute in contravention of the
distribution provisions in a trust instrument, and doing so would violate the express
limitations of the statute as well as the settlors' intent.
[Headnote 10]
The settlors clearly intended that each of them would pass one-half of the trust corpus
to his or her own named relatives upon distribution. The trust language addresses the precise
situation before us, specifying that Lance's portion of the family share is to be distributed to
his brother, Dennis. The district court concluded that the trust refers to the share established
for Lance, and that no shares were legally established until the family share was created
upon the death of a settlor. However, construing the settlors' use of the term established in
this legalistic manner would render the provision at issue completely ineffective and without
purpose. We are certain that the settlors did not intend to include ineffective provisions in the
trust instrument, and that they used the term established to connote their earlier
specification of the share to which Lance would be entitled. Because this court has
historically construed trusts in a manner effecting the apparent intent of the settlor, we
conclude that the district court erred in declining to follow the distribution provisions of the
trust instrument.
Fees and expense reimbursement
[Headnote 11]
The district court refused Dennis' request for payment from the family share of the
co-trustees' attorneys' fees, expert fees, costs, travel expenses and personal fees for serving as
co-trustees. The Hannam Family Trust provided that the co-trustees shall be entitled to be
compensated for their reasonably necessary expenses as well as reasonable compensation for
their services not to exceed (1) percent of the Trust corpus per annum.
The district court provided no explanation for its refusal to reimburse the co-trustees for
their reasonably necessary expenses. Robert suggests that the court's refusal reflects its
determination that neither party should receive compensation for attorneys' fees incurred as a
result of Dennis' contest of Sherwood's will. However, the will contest is readily
distinguishable from the co-trustees' reasonably necessary expenses. Under the clear language
of the trust instrument, the parties are entitled to show evidence of reasonably necessary
expenses and be compensated accordingly.
[Headnote 12]
A district court's order regarding distribution or administration of trust funds will
generally not be disturbed unless it clearly demonstrates an abuse of discretion. See, e.g.,
Diotallevi v. Sierra Dev. Co., 95 Nev. 164, 591 P.2d 270 (1979); Abel v. Lowry, 6S Nev.
2S4, 231 P.2d 191 {1951).
Lowry, 68 Nev. 284, 231 P.2d 191 (1951). Because the district court offered no basis for its
refusal to reimburse the co-trustees for their reasonably necessary expenses, and such
reimbursement is specifically instructed by the trust instrument, we conclude that the district
court abused its discretion in refusing to allow the requested reimbursement.
[Headnote 13]
Dennis also requested compensation for the co-trustees for serving as such, as
provided by the trust instrument. The district court refused to allow such compensation, citing
protracted arguments and disputes among the co-trustees as its basis for refusal. Again, the
trust instrument explicitly instructed that the co-trustees were to be compensated for their
services, and the district court has offered no legal explanation for refusing to uphold the
provision of the trust instrument. Because judicial economy alone is an insufficient basis for
requiring a party to waive its contractual rights, we conclude that the district court's refusal to
allow compensation of the co-trustees, as required by the trust instrument, constitutes an
abuse of discretion.
Claimed legal errors and procedural irregularities
Dennis argues that he is entitled to a new hearing under NRCP 59 because the district
court made several legal errors and because of certain procedural irregularities. Although a
hearing is not synonymous with a trial, the hearing at issue was conducted pursuant to NRS
164.030, which falls under the provisions of NRCP 59. See NRCP 81(a). NRCP 59 provides
that a new trial may be granted under certain circumstances, including irregularities in the
proceedings by which either party was prevented from having a fair trial, and errors of law
properly objected to by the moving party.
[Headnote 14]
Dennis claims that the district court did not allow the parties to call witnesses for
presentation of factual testimony. Although Dennis argues that the Nevada Rules of Civil
Procedure govern hearings which are held pursuant to a petition for instructions relating to
trust administration, and that he was, therefore, entitled to call witnesses and present
evidence, he fails to make any specific allegations of how the claimed denial prejudiced his
right to a fair hearing. We conclude that, without reference to any specific witnesses or
evidence that Dennis wished to present, or an explanation of how the inability to present
certain witnesses or evidence prejudiced his right to a fair hearing, Dennis has failed to
demonstrate that the claimed procedural irregularities denied him a fair hearing.
[Headnote 15]
Dennis also asserts the claimed errors of law forming the basis for his appeal as
grounds for a new hearing. As discussed above, we conclude that the district court did err in
finding that Lance's portion of the family share lapsed, and that the court abused its discretion
in denying the co-trustees reimbursement for their reasonably necessary expenses and
compensation for serving as co-trustees. The redistribution of trust assets to allocate Lance's
share to Dennis and to distribute trustee fees to the co-trustees is essentially a mathematical
task, and a hearing would not be useful in this matter. An additional hearing may be useful
for the limited purpose of determining the co-trustees' reasonably necessary expenses;
however, the district court may be able to make these determinations based on the party's
previous submissions. Accordingly, we decline to order a mandatory hearing; however, the
district court may hold a hearing for the limited purpose of determining the co-trustees'
reasonably necessary expenses, if the court determines that such a hearing is appropriate.
We reverse the district court's partial summary judgment on the lapsing of Lance Brown's
portion of the family share; affirm the district court's order denying partial summary judgment
on the no-contest clause; affirm the order allowing one-half of Sherwood's final medical
expenses to be paid from the family share; affirm the district court's decision not to order
deduction of the periodic payments to Robert from his portion of the family trust share;
decline to order a new hearing; and remand the case to the district court with instructions to
allow the co-trustees to claim reimbursement of their reasonably necessary expenses and
compensation for serving as co-trustees.
____________
114 Nev. 364, 364 (1998) Roberts v. SIIS
JOHN ROBERTS, Appellant, v. THE STATE INDUSTRIAL INSURANCE SYSTEM, an
Agency of the STATE OF NEVADA, Respondent.
No. 28889
April 9, 1998 956 P.2d 790
Appeal from an order of the district court reversing an appeals officer's decision.
Claimant sought workers' compensation benefits for treatment of panic attacks he
suffered in connection with proposed surgical treatment of his compensable physical injuries.
An appeals officer ordered payment of benefits, and the State Industrial Insurance System
{SIIS) petitioned for judicial review.
System (SIIS) petitioned for judicial review. The district court reversed. Claimant appealed.
The supreme court held that; (1) statute governing compensability of injury or disease caused
by stress was inapplicable, and (2) claimant was entitled to benefits for his panic attacks
under doctrine of compensable consequences.
Reversed.
Nancyann Leeder, Nevada Attorney for Injured Workers, and Creighton G. Oler,
Deputy Nevada Attorney for Injured Workers, Carson City, for Appellant.
Lenard T. Ormbsy, General Counsel, State Industrial Insurance System, Carson City,
and Carolyn M. Broussard, Associate General Counsel, State Industrial Insurance System,
Carson City, for Respondent.
On issues of fact, supreme court's review of appeals officer's decision in workers' compensation case is limited to whether
substantial evidence exists to support officer's findings of fact. NRS 233B.135.
On appeal in workers' compensation case, supreme court may not substitute its judgment for that of appeals officer on matters of
weight, credibility or issues of fact.
On issues of law in workers' compensation case, supreme court reviews appeals officer's determination de novo.
Statutory construction is issue of law subject to supreme court's de novo review in workers' compensation case.
Workers' compensation statute governing compensability of injury or disease caused by stress and prohibiting compensation for
ailments caused by gradual mental stimulus is restricted to injuries caused by work-related stress, and such statute does not apply to
mental disorders arising as direct consequence of physical injuries sustained in work-place. NRS 616C.180.
Under doctrine of compensable consequences, claimant was entitled to workers' compensation benefits for treatment of panic
attacks he suffered in connection with proposed surgical treatment of his compensable physical injuries. NRS 616C.180.
OPINION
Per Curiam:
This court is asked to determine whether appellant is entitled to workers' compensation benefits for treatment of
anxiety or "panic attacks" suffered in connection with compensable physical injuries.
workers' compensation benefits for treatment of anxiety or panic attacks suffered in
connection with compensable physical injuries. On judicial review, the district court reversed
an appeals officer's finding that appellant was entitled to such benefits. We reverse the district
court.
STATEMENT OF FACTS
On or about February 24, 1994, appellant, John Roberts (Roberts), a chiropractic
assistant, was severely injured while attempting to move a three-hundred pound table at his
place of employment. On March 1, 1994, J. Dennis Richey, M.D. (Dr. Richey), confirmed
that Roberts had sustained bilateral inguinal hernias, sprain/strain, complex lumbar sprain,
facet syndrome, intercostal strain, thoracic strain and cervical strain. Later that month,
Malcolm Poon, M.D. (Dr. Poon) recommended surgical reduction of the hernias. Roberts
filed a claim for workers' compensation benefits with respondent, State Industrial Insurance
System (SIIS).
Shortly thereafter, Roberts began experiencing panic attacks arising from his concerns
regarding the surgery.
1
These attacks took the form of sudden acute symptoms of shortness
of breath, inability to swallow, profuse sweating and disorientation. Dr. Poon advised the SIIS
that he would not perform the requisite surgery until Roberts could be cleared by a
psychologist or psychiatrist.
In June of 1994, Marvin Glovinsky, Ph.D. (Dr. Glovinsky), a psychologist to whom
Roberts was referred by the SIIS for the purpose of obtaining clearance for the surgery,
concluded as follows: [that the] panic attacks, by history, can be understood as having been
precipitated by the prospect of his surgery and thus can be considered a reaction secondary to
this industrial accident of February 24, 1994. Dr. Glovinsky recommended an extensive
pre-surgery and post-surgery treatment program for Roberts, including immediate chemical
intervention.
Thereafter, Timothy D. Moritz, M.D. (Dr. Moritz), a psychiatrist, treated Roberts on
several occasions in connection with the panic disorder. Dr. Moritz concluded that Roberts'
panic attack disorder was the direct result of the industrial injury he suffered on February 24,
1994. Roberts completed this treatment program in August of 1994, and was cleared for the
surgery, which was successfully performed in September 1994.
Although Roberts' claim for compensation with respect to the physical injuries was
accepted, the SIIS denied the claim for treatment of the panic disorder under NRS 616.5019,
which governs compensability issues arising from stress-related injuries or diseases.
__________

1
The contemplated surgical procedures had the potential for serious complications, of which Roberts was
clearly aware.
governs compensability issues arising from stress-related injuries or diseases. A hearing
officer affirmed the denial of benefits.
On July 28, 1995, an appeals officer overturned the decision of the hearing officer,
concluding that NRS 616.5019 did not apply and that the panic disorder was governed by the
common law doctrine of compensable consequences. Accordingly, the appeals officer
ordered payment of benefits in connection with the panic disorder.
On March 20, 1997, the district court granted the petition for judicial review brought by
the SIIS. The court concluded that Roberts' stress claim was barred by NRS 616.5019, and
that the appeals officer was mistaken as a matter of law when he or she applied the rule of
compensable consequences.
Roberts appeals, contending that the panic attacks were a direct consequence of his
primary industrial back injury and, thus, are not barred from compensability under NRS
616.5019.
Standard of Review
[Headnotes 1-4]
On issues of fact, this court's review of an appeals officer's decision is limited to
whether substantial evidence exists to support the officer's findings of fact. See NRS
233B.135 (discussing appellate review of administrative decisions). Accordingly, this court
may not substitute its judgment for that of the appeals officer on matters of weight,
credibility, or issues of fact. Apeceche v. White Pine Co., 96 Nev. 723, 615 P.2d 975 (1980).
On issues of law, this court reviews an appeals officer's determination de novo. Nyberg v.
Nev. Indus. Comm'n, 100 Nev. 322, 683 P.2d 3 (1984). Statutory construction is an issue of
law subject to this court's de novo review. Maxwell v. SIIS, 109 Nev. 327, 849 P.2d 267
(1993).
Thus, we must defer to the appeals officer's findings of fact and independently review
the scope of NRS 616.5019, which is alleged as a bar to appellant's claim for benefits.
I. Whether NRS 616.5019 applies to bar appellant's benefits
NRS 616.5019 (now NRS 616C.180)
2
provides in pertinent part:
1. Except as otherwise provided in this section, an injury or disease sustained by an
employee that is caused by stress is compensable pursuant to the provisions of chapters
616A to 616D, inclusive, . . . if it arose out of and in the course of his employment.
__________

2
NRS 616.5019 was in effect at the time this case came before the district court. In 1993, NRS 616C.180 was
replaced in revision for NRS 616.5019. The legislature, however, made no substantive changes thereto.
2. Any ailment or disorder caused by any gradual mental stimulus, and any death or
disability ensuing therefrom, shall be deemed not to be an injury or disease arising out
of and in the course of employment.
3. Any injury or disease caused by stress shall be deemed to arise out of and in the
course of employment only if the employee proves by clear and convincing medical or
psychiatric evidence that:
(a) He has a mental injury caused by extreme stress in time of danger;
(b) The primary cause of the injury was an event that arose out of and during the
course of his employment; and
(c) The stress was not caused by his layoff, the termination of his employment or any
disciplinary action taken against him.
[Headnote 5]
We have yet to decide whether NRS 616.5019 bars mental disorders that arise as a
direct consequence of physical injuries sustained in the workplace. Given the plain language
of the statute and the evidence in this case, we conclude that NRS 616.5019 only applies to
industrial injuries or diseases caused by work-related stress.
[Headnote 6]
Roberts does not allege that his panic disorder was caused by job-related stress.
Rather, he argues that his panic attacks were precipitated by the need for surgical correction
of his physical injuries. Competent evidence before the appeals officer supports this finding.
Dr. Moritz, expressed the following in his report of August 29, 1994:
Claimant had no prior history of psychiatric or other mental health related treatment. He
was a well functioning chiropractor. He had previously always been emotionally stable.
His psychiatric disorder developed as a result of his industrial injury.
Dr. Glovinsky reached a similar conclusion. Thus, the appeals officer correctly determined
that subsection (2) of NRS 616.5019, prohibiting compensation for gradual mental stress
injuries, did not apply to this claim for benefits.
The record further confirms the appeals officer's finding that there was no evidence
the panic disorder was caused by any gradual mental stimulus preceding the industrial
accident.
Accordingly, we hold that the plain language of the statute is restricted to injuries caused
by job-related stress in specific enumerated circumstances. The prohibitions of the statute do
not apply where, as here, a compensable, physical injury precipitates or causes a medically
diagnosed psychological disorder, and particularly where that disorder must be treated to
facilitate treatment of the worker's physical maladies.
or causes a medically diagnosed psychological disorder, and particularly where that disorder
must be treated to facilitate treatment of the worker's physical maladies.
The legislative history of NRS 616.5019 suggests that the legislature intended to
address fraudulent claims and claims arising from normal stress incident to employment. We
conclude that nothing in the legislative history of this measure suggests an intent to preclude
the payment of benefits in connection with psychiatric disorders which are a reasonable
sequelae of a compensable physical injury.
II. The common law doctrine of compensable consequences
In Nevada, compensation for consequential injuries was created in common law. See
Imperial Palace v. Dawson, 102 Nev. 88, 91, 715 P.2d 1318, 1320 (1986) (holding that a
claimant is entitled to receive SIIS benefits for any foreseeable consequence of a work-related
injury).
The appeals officer concluded that the panic disorder experienced by Roberts was
compensable because it was a direct and natural result of his compensable injuries. This
conclusion is entitled to deference because it is supported by substantial evidence. See
Frances v. Plaza Pacific Equities, 109 Nev. 91, 94, 847 P.2d 722, 724 (1993) (holding that
issues of proximate cause are usually factual issues to be determined by the trier of fact); see
also Apeceche v. White Pine Co., 96 Nev. 723, 725, 615 P.2d 975, 977 (1980) (holding that
this court's review of an appeals officer's finding of fact is limited to whether substantial
evidence exists to support the finding).
CONCLUSION
We conclude that substantial medical evidence exists to support the conclusion of the
appeals officer that Roberts' panic disorder was a genuine sequelae of his physical injuries
and that the disorder created a reasonable medical obstacle to the surgery recommended by
his physicians. We also conclude that the appeals officer was correct in his application of
NRS 616.5019 and the doctrine of compensable consequences.
Accordingly, we reverse the order of the district court.
I agree with the appeals officer and the district court that NRS 616.5019 applies to
this case and that Mr. Roberts is not entitled to recover for the expense of his panic attacks,
whether they were or were not brought on by his fear of the surgical knife.
I find no need to delve into the legislative history discussed in some detail in the
respondent's brief; to me it is clear that the conditions imposed by NRS 616.5019 have not
been fulfilled in this case.
conditions imposed by NRS 616.5019 have not been fulfilled in this case. The statute requires
(1) clear and convincing medical or psychiatric evidence, that the claimant has a mental
injury caused by extreme stress in time of danger, and (2) evidence that the primary cause
of the injury was an event that arose out of and during the course of employment. NRS
616.5019(3). There is no evidence here of a mental injury; and there is no event arising out
of Mr. Robert's employment that can be identified as the primary cause of Mr. Robert's
so-called mental injury.
First, I am unable to identify in this case any evidence of mental injury (whatever
that might be). As pointed out in the majority opinion, Mr. Roberts started experiencing
panic attacks when he learned that he was going to have to undergo hernia surgery. It is
hard for me to understand how fear of remedial surgery can be called a mental injury. Even
if fear of impending surgery were a mental injury, the injury in this case was not caused by
extreme stress in time of danger. The statutory language contemplates a psychological
reaction to an incident in which the claimant suffered extreme stress, which came about, on
the job, during a time of danger. As I see it, none of the statutory requirements are fulfilled;
and, further, it does not seem right to me, aside from the absence of clear requirements that
are stated in the statute, that coverage can be rightfully extended to persons who develop
abnormal fears of relatively simple surgical procedures.
Finally, I would note that if Mr. Roberts did suffer a mental injury, the remedial surgery
required by his industrial accident could not have been, as required by the statute, the primary
cause of his panic attacks. The panic attacks, according to Dr. Marvin Glovinsky, were
secondary to this industrial accidentsecondary, not primary. (My emphasis.) I would
affirm the judgment of the trial court.
____________
114 Nev. 370, 370 (1998) Matter of Parental Rights as to Carron
IN THE MATTER OF THE PARENTAL RIGHTS AS TO SYMANTHA RENAE
CARRON, SHAWN WHITNEY, Appellant, v. TERESA C. PINNEY, Respondent.
No. 30377
April 9, 1998 956 P.2d 785
Appeal from a district court order terminating appellant's parental rights. Eighth
Judicial District Court, Clark County; Steven E. Jones, Judge.
Adoptive mother filed petition to terminate biological father's parental rights. The
district court entered order terminating father's rights.
father's rights. Father appealed. The supreme court held that: (1) trial court properly
considered father's pre-birth conduct as a factor in establishing jurisdictional ground of
abandonment for termination of parental rights, and (2) trial court's decision that terminating
father's parental rights would be in child's best interests was supported by substantial
evidence.
Affirmed.
Frederick A. Santacroce, Las Vegas, for Appellant.
D. Bruce Anderson, Las Vegas, for Respondent.
1. Infants.
Supreme court must carefully scrutinize actions to terminate parental rights.
2. Infants.
Supreme court will uphold orders terminating parental rights if they are based on substantial evidence, and will not substitute its
own judgment for that of trial court.
3. Infants.
In order to terminate a parent's rights, both jurisdictional and dispositional grounds must be established by clear and convincing
evidence.
4. Infants.
Jurisdictional aspect of an action for termination of parental rights involves a specific fault or condition directly related to the
parent, whereas dispositional aspect of action focuses on best interests of child.
5. Adoption; Infants.
Term any conduct in child abandonment statute encompasses a father's actions during the mother's pregnancy, and thus,
district court may consider father's pre-birth conduct as one factor in its abandonment inquiry. NRS 128.012(1), 128.105.
6. Infants.
Father's pre-birth conduct alone cannot justify termination of his parental rights; however, it can serve, at least in part, as basis
for finding of any jurisdictional or dispositional grounds pursuant to termination of parental rights statute. NRS 128.012(1), 128.105.
7. Infants.
District court's decision that terminating father's parental rights would be in child's best interests was supported by substantial
evidence, including pre-birth conduct evidencing abandonment.
OPINION
Per Curiam:
This court is asked to determine whether a district court can consider a father's conduct during the mother's pregnancy as
evidence of his intent to abandon the child. Having reviewed the briefs and having had the benefit of oral argument of
counsel, we affirm the district court's order terminating appellant's parental rights, and hold that a district
court may consider a father's pre-birth conduct as a factor establishing jurisdictional and dispositional grounds
in termination of parental rights proceedings.
briefs and having had the benefit of oral argument of counsel, we affirm the district court's
order terminating appellant's parental rights, and hold that a district court may consider a
father's pre-birth conduct as a factor establishing jurisdictional and dispositional grounds in
termination of parental rights proceedings.
STATEMENT OF FACTS
Appellant Shawn Whitney (Shawn) contests the termination of his parental rights to
his biological daughter, Symantha Renae Carron (Symantha). Symantha was born out of
wedlock on May 29, 1996. Before Symantha's birth, her natural mother, Veronica Carron
(Veronica), had been involved in a relationship with Shawn.
On September 14, 1994, Veronica, an eighteen-year-old high school senior, moved in
with Shawn and his family in New Brunswick, New Jersey. Veronica lived with the Whitney
family for a year-and-a-half.
On October 27, 1995, while Veronica was living at the Whitney house, she found out
that she was pregnant. She immediately believed Shawn to be the father.
Veronica testified that she told Shawn and his mother Linda Whitney (Linda) that she
was pregnant on October 27, 1995, the same day that she took an at-home pregnancy test.
Both Shawn and Linda dispute the time frame within which they learned of Veronica's
pregnancy. The district court, however, determined as a factual matter that Linda and Shawn
were aware of Veronica's pregnancy prior to December of 1995.
Veronica alleges that on November 7, 1995, she ended her relationship with Shawn
because she found heroin in his wallet. Shawn denies the incident.
On December 21, 1995, Veronica moved from New Jersey to Las Vegas to live with her
mother. Thereafter, Veronica contacted Jo McLaughlin (Jo), managing director of the New
Hope Child & Family Agency for the State of Nevada, to arrange for adoption of the baby.
According to Jo, on January 10, 1996, she informed Shawn that he was being named
as putative father of Veronica's child, that the adoption process had begun, and that his
consent to the adoption was necessary. At trial, Shawn denied this conversation ever took
place.
Jo testified that she then contacted Linda on January 25, 1996, and informed her that if she
had an interest in adopting the baby, an investigation was required. Despite her conversation
with Jo, Linda maintained that she still felt [the pregnancy] was a hoax.
In early February 1996, Veronica was hospitalized at University Medical Center in
Las Vegas for surgical removal of an ovarian cyst. During this confinement, she met
respondent Teresa Pinney {"Teresa"), an operating technician at the hospital.
Pinney (Teresa), an operating technician at the hospital. Veronica informed Teresa that she
was pregnant and that she was putting the baby up for adoption. After the surgery, Teresa and
Veronica discussed the possibility of allowing Teresa to adopt the baby. Veronica testified
that she was strongly in favor of this proposal.
On February 16, 1996, Teresa contacted Jo, who then initiated the adoption process.
Teresa maintained close involvement with Veronica throughout the pregnancy.
On March 6, 1996, Jo and Veronica called Linda and Shawn, at which time Shawn
allegedly told Veronica that he would back her on whatever she decided to do. Believing
that Shawn supported Veronica's decision, Jo testified that she went forward with the
adoption process.
1

On May 29, 1996, Veronica gave birth and Symantha was released from the hospital
into Teresa's custody. Symantha is now over sixteen months of age and still resides with
Teresa.
On June 25, 1996, Teresa filed a petition for the termination of Shawn's parental rights.
Although Shawn did not file a written opposition to Teresa's petition, he appeared at the
termination hearing on August 28, 1996. Given his opposition, the court ordered Shawn to
submit to DNA testing to confirm paternity. The matter was continued to December 17, 1996.
In July of 1996, Veronica visited Shawn and Linda in New Jersey. According to
Shawn, he told Veronica that he would fight to maintain custody of his daughter. On August
30, 1996, Shawn filed a motion for temporary custody of Symantha or, in the alternative, for
visitation.
On February 6, 1997, the district court heard the pending motions. Genetic testing
confirmed that Shawn was, in fact, Symantha's biological father and drug tests ordered by the
court were negative. The court denied Shawn's motion for visitation.
On April 24, 1997, following an evidentiary hearing held April 7, 1997, the district
court entered an order terminating Shawn's parental rights.
Shawn appeals on the contention that the district court improperly relied on his
conduct during Veronica's pregnancy to determine parental abandonment. We conclude that
Shawn's contention lacks merit.
Standard of Review
[Headnotes 1, 2]
The power to terminate parental rights is an awesome power."
__________

1
Jo testified that she unsuccessfully attempted to call Shawn and Linda on March 8, March 11, March 13,
and March 15, 1996, to discuss the adoption proceedings.
power. Champagne v. Welfare Division, 100 Nev. 640, 645, 691 P.2d 849, 853 (1984).
Consequently, this court must carefully scrutinize actions of this nature. Kobinski v. State,
103 Nev. 293, 296, 783 P.2d 895, 897 (1987). This court will uphold termination orders if
they are based on substantial evidence, and will not substitute its own judgment for that of the
trial court. Id.
[Headnotes 3, 4]
In order to terminate a parent's rights, both jurisdictional and dispositional grounds
must be satisfied. Id. The jurisdictional aspect of an action for termination involves a specific
fault or condition directly related to the parent; whereas the dispositional aspect of the action
focuses on the best interests of the child. Champagne, 100 Nev. at 647-53, 691 P.2d at
854-58. Both grounds must be established by clear and convincing evidence. Id.
Whether jurisdictional grounds for termination were established by clear and convincing
evidence
[Headnote 5]
NRS 128.105 sets forth grounds for terminating parental rights.
2
The statute
specifically states that a parent need only demonstrate one of the enumerated grounds to
support a termination order. The district court in this case, however, found three separate
jurisdictional grounds under NRS 128.105 for the termination of Shawn's parental rights: (1)
abandonment, (2) risk of serious injury to the child if returned to the home of the parent, and
(3) token efforts by the parent. Because the district court explicitly considered Shawn's
pre-birth conduct in its abandonment inquiry, we confine our review to that issue.
__________

2
NRS 128.105, provides, in pertinent part, that an order of the court for termination of parental rights is
appropriate where:
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 the parent.
1. Abandonment
In its termination order, the district court found that the conduct of the respondent
throughout the pregnancy, and immediately after the birth, is evidence of his intent and may
be used to determine whether he has a settled purpose to relinquish all claims to the child.
The district court focused on the fact that Shawn did not assert his parental rights to
Symantha until after Teresa filed the termination petition. The district court also found that,
throughout Veronica's pregnancy, Shawn had nothing to do with this child, wanted nothing
to do with this child, expended no efforts to establish or maintain a parental relationship, and
. . . specifically stated that he would support the natural mother's desire to have the child
placed with [Teresa]. Accordingly, the district court concluded that the jurisdictional ground
of abandonment had been established by clear and convincing evidence.
Shawn argues that it was improper for the district court to rely on his conduct during
Veronica's pregnancy as evidence of his intent to relinquish all claims to the unborn child.
Instead, he asks this court to focus on his post-birth actions which he contends demonstrate
his lack of intent to abandon Symantha.
Abandonment of a child, as defined in NRS 128.012:
1. [A]ny 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,
or if the child is left under such circumstances that the identity of the parents is
unknown and cannot be ascertained despite diligent searching, and the parents do not
come forward to claim the child within 3 months after he is found, the parent or parents
are presumed to have intended to abandon the child.
In determining abandonment, this court has stated that parental intent is the decisive factor
and may be shown by the facts and circumstances of each case. Smith v. Smith, 102 Nev.
263, 266, 720 P.2d 1219, 1221 (1986).
We conclude that a district court may consider a father's pre-birth conduct as one
factor in its abandonment inquiry. The language of NRS 128.012(1) allows a court to
consider any [parental] conduct when determining whether the parent intended to abandon
the child. We conclude that the term any conduct in NRS 128.012 encompasses a father's
actions during the mother's pregnancy. Accordingly, on the basis of the plain language of the
statute, we conclude that the district court properly considered Shawn's pre-birth conduct in
determining whether he abandoned his daughter for purposes of NRS 12S.012.
erly considered Shawn's pre-birth conduct in determining whether he abandoned his daughter
for purposes of NRS 128.012. See City Council of Reno v. Reno Newspapers, 105 Nev. 886,
891, 784 P.2d 974, 977 (1989) (holding that when the language of a statute is plain and
unambiguous, a court should give that language its ordinary meaning and not go beyond it).
[Headnote 6]
While we do not hold that a father's pre-birth conduct alone justifies termination of his
parental rights, we conclude that it can serve, at least in part, as the basis for a finding of any
jurisdictional or dispositional grounds pursuant to NRS 128.105.
3
The holding we articulate
here is consistent with case authority from other jurisdictions pursuant to which consideration
of a father's pre-birth conduct appears to be the general trend.
4

Whether dispositional grounds for termination were established by clear and convincing
evidence
[Headnote 7]
The district court relied on the well-settled principle announced by this court in
Champagne v. Welfare, 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.
__________

3
In the instant case, the district court determined that the existence of additional jurisdictional and
dispositional grounds mandated termination of Shawn's parental rights.
The district court concluded that Shawn was an unfit parent because of his history of drug use, emotional and
mental illness, and domestic abuse. Additionally, the district court concluded that Shawn displayed only token
efforts towards supporting the child, avoiding being an unfit parent, and eliminating the risk of serious physical,
mental or emotional injury to his child. Consequently, while Shawn did assert his rights to Symantha, the district
court noted that his efforts were made only after Teresa filed a petition to terminate his parental rights, and as
such, Shawn's willingness to now assume parental responsibilities has come at a time too late in this minor
child's life. . . . Accordingly, Shawn's pre-birth conduct notwithstanding, the district court found sufficient
jurisdictional grounds to justify termination in the instant case. See NRS 128.105(2) (providing that the conduct
of the parent need only demonstrate one of the enumerated jurisdictional grounds to support a termination order)
(emphasis added).

4
See In re the Adoption of Baby E.A.W., 658 So. 2d 961, 964 (Fla. 1995) (holding that father's lack of
emotional support toward the mother during her pregnancy could form a basis for a finding of abandonment);
Adoption of Michael H., a Minor, 898 P.2d 891, 897 (Cal. 1995) (holding that a father's conduct before and
after the child's birth must be considered in deciding whether an unwed father is entitled to constitutional
protection); In Re Baby Girl Eason, 358 S.E.2d 459 (Ga. 1987) (holding that unwed fathers possessed an
opportunity interest to develop a relationship with their children, which began at conception and could be lost
if the father did nothing to further it).
termination exist. Id. at 652, 691 P.2d at 858. In sum, the dispositional inquiry concerns the
child's best interest.
The district court concluded that terminating Shawn's parental rights would be in
Symantha's best interests. We conclude that this decision is supported by substantial evidence
in this case. Accordingly, we affirm the decision of the district court.
Amidst very tough competition, I nominate this case as the worst misapplication of
the law relating to termination of parental rights that has emanated from this court.
The case involves two very immature teen-agers who had a child out of wedlock.
When the mother, Veronica, was a high-school senior, she became pregnant. She had told her
boyfriend, Shawn Whitney, on a number of previous occasions, that she believed herself to be
pregnant. These statements turned out to be false, and Shawn had no reason to believe that
she was telling the truth when she finally did become pregnant in October of 1995. As late as
January 25, 1996, Shawn's mother, Linda, according to the majority opinion, maintained that
she still felt [the pregnancy] was a hoax.' Nonetheless, a baby girl was born on May 29,
1996.
On June 25, 1996, one Teresa Pinney, who had talked Veronica into giving her baby away
to her, filed a petition to terminate Shawn's rights as father of the baby.
1
Ultimately Shawn's
paternity was established by DNA testing, and it would appear that after Shawn became
satisfied that he was in fact the father, he acted diligently to protect his legal rights as a father.
He vigorously contested Ms. Pinney's attempts to take his daughter away from him and, on
August 28, 1996, traveled three thousand miles to appear in court to contest Ms. Pinney's
attempts to take his child away from him. Then again, on February 12, 1997, Shawn traveled
from New Jersey to Las Vegas to appear in an evidentiary hearing in opposition to Ms.
Pinney's petition to terminate his parental rights. In addition to this, on August 30, 1996,
Shawn filed his own Motion for Custody or in the Alternative for Visitation. Shawn
completed a baby care class and purchased clothing and furniture for the child. It is hard to
imagine a father who was more interested in maintaining his parental ties than Shawn was.
The majority opinion focuses on Shawn's conduct and attitude during Veronica's
pregnancy, faulting Shawn for not being more attentive to his girlfriend during her
pregnancy.
__________

1
Shawn has not raised the question of respondent Pinney's standing to file a termination proceeding less than
one month after the baby was born and before any adoption proceeding had been instituted. I cannot imagine
what interest Pinney had at that time in terminating Shawn's rights to the baby. This point is not raised by the
appellant; so I will not discuss it further.
during Veronica's pregnancy, faulting Shawn for not being more attentive to his girlfriend
during her pregnancy. In this case, it does not really make much of a difference whether the
trial court did or did not take into consideration Shawn's pre-birth attitude toward Veronica's
claimed pregnancy because, overall, it is very clear that Shawn did everything possible to
protect his parental rights, once he realized that he was the father of this child. To argue,
under the circumstances of this case, that Shawn abandoned his child (which is to say,
under NRS 128.012(1) that he had a settled purpose . . . to forego all parental custody and
relinquish all claims to the child) is without any basis in fact. Shawn exhibited absolutely no
intention at any time to give up his daughter. How the trial court and this court could possibly
have concluded that Shawn abandoned his daughter and that this fact had been proven by
clear and convincing evidence is extremely hard to understand.
The majority does not discuss the other, asserted jurisdictional grounds for
termination (risk of injury to the child and token efforts by Shawn to be a parent); so I will
not discuss them either, except to say that I have found no one who pretends to understand
what the term token efforts might mean in the context of termination proceedings, and
certainly there is nothing even close to a showing that this child would be in danger of
injury if Shawn's parental rights were not permanently eradicated.
With regard to dispositional grounds, the majority merely concludes that the child's best
interests would be served by permanently depriving Shawn of his parental rights. This, of
course, is not sufficient to justify a termination of parental rights; and it is certainly not
possible to say that under no reasonable circumstances [may] the child's best interest be
served by sustaining the parental tie of the child's father. Champagne v. Welfare Division,
100 Nev. 640, 652, 691 P.2d 849, 858 (1984).
There is no just cause why Ms. Pinney should be permitted to get away with this
legally-sanctioned abduction of Shawn's baby. I dissent.
____________
114 Nev. 378, 378 (1998) Origel-Candido v. State
GENARO A. ORIGEL-CANDIDO, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 28256
April 9, 1998 956 P.2d 1378
Appeal from a judgment of conviction, entered pursuant to a jury verdict, of one
felony count of discharging a firearm at or into a house. Second Judicial District Court,
Washoe County; Mark Handelsman, Judge.
Defendant appealed conviction and sentence enhancement. The supreme court,
Young, J., held that: (1) evidence was sufficient to sustain conviction, and (2) evidence did
not provide rational factfinder with sufficient evidence that defendant's gang was criminal
gang as defined by sentence enhancement statute.
Affirmed in part and reversed in part.
Rose and Maupin, JJ., dissented in part.
Michael Specchio, Public Defender, John Reese Petty, Chief Deputy Public Defender,
Washoe County, for Appellant.
Respondent.
1. Criminal Law.
Testimony of witnesses that identified defendant as shooter was sufficient to sustain conviction for discharging firearm at or into
a house. One witness unequivocally identified defendant as one of shooters, and another witness testified that although she could not
identify the shooter 100 percent, shooter looked very similar to defendant.
2. Criminal Law.
Relevant inquiry into whether evidence is sufficient to support jury's verdict is whether, after viewing evidence in light most
favorable to prosecution, any rational trier of fact could have found essential elements of crime beyond reasonable doubt.
3. Criminal Law.
It is jury's function, not that of court, to assess weight of evidence and determine credibility of witnesses.
4. Criminal Law.
Evidence at trial did not provide rational factfinder with sufficient evidence that defendant's gang was criminal gang as defined
by sentence enhancement statute. Prosecution's expert witness' testimony did not address element of whether defendant's gang
members commit felonies as common activity, his testimony as to definition of criminal gang, followed by his statement that
defendant's gang was such a gang, did not, in itself, constitute sufficient evidence, and evidence that individual members committed
felony crimes which benefitted the gang was not sufficient. NRS 193.168(6)(c).
Due process clause of United States Constitution protects accused against conviction except on proof beyond reasonable doubt
of every fact necessary to constitute crime with which he is charged. U.S. Const. amend. 14.
OPINION
On December 12, 1994, Tonya Ismeralda Cisneros {"Cisneros") invited a few friends to her house for a small
party.
(Cisneros) invited a few friends to her house for a small party. Although not invited by
Cisneros, appellant Genaro A. Origel-Candido (Origel-Candido) and some of his friends
attended this party as well. Some of the teenagers were drinking, and rival gang members
were present. Origel-Candido and his friends were members of the Maravilla gang, while
others attending the party were part of the Inglewood gang.
At one point, a party-goer wrote the letters MRV, a graffiti monogram for the
Maravilla gang, on a piece of paper. Guadalupe Dominguez (Dominguez), who was also at
Cisneros' house, crossed out the MRV. Soon thereafter, Origel-Candido entered the room
and demanded to know who had defaced the Maravilla logo. Dominguez identified herself,
and a brief fight broke out.
1
Origel-Candido and his friends were then obliged to leave the
house.
Origel-Candido phoned Cisneros' house later that day and told Cisneros that he and his
friends were going to return to her house to retaliate for the defacement of the Maravilla logo.
At about 1:30 p.m., Origel-Candido and a number of his friends drove to the house. Several
shots were fired at the house and from within the house. It is not clear exactly who was
shooting from where; however, Judith Lightfoot (Lightfoot), who witnessed the shooting
from the house next door, testified that she was certain she had seen Origel-Candido firing
into Cisneros' house. Another eyewitness, Carol Freeman (Freeman), stated that she had
seen someone who looked very similar to the [defendant] firing into Cisneros' house.
Origel-Candido was arrested and charged with discharging a firearm at or into a house
and with discharging a firearm from a motor vehicle. The prosecution also sought a sentence
enhancement under NRS 193.168, which imposes an additional penalty for felonies
committed in furtherance of criminal gang activity. At trial, there was limited testimony as to
whether the Maravillas were a criminal gang for purposes of NRS 193.168. The State gang
expert provided a definition of a criminal gang. When asked if the Maravillas fit within that
definition, the expert replied yes without elaboration.
The jury convicted Origel-Candido of shooting into Cisneros' house and found that he had
done so in furtherance of criminal gang objectives. The jury acquitted Origel-Candido of
firing a gun from a moving vehicle. The district court sentenced Origel-Candido to four years
in prison for the shooting and an additional four years pursuant to the gang enhancement
statute.
__________

1
The State's gang expert testified that street gangs take these logos seriously. The expert further testified that
the defacement of such a logo, if seen by a member of the gang, would be likely to incite an altercation.
four years pursuant to the gang enhancement statute. Origel-Candido appeals the conviction
and the sentence enhancement.
DISCUSSION
[Headnote 1]
Origel-Candido argues that the State did not adduce evidence sufficient to support the
jury's verdict. Specifically, he challenges the credibility of the witnesses who identified him
as the shooter. First, Freeman testified only that Origel-Candido looked similar to the
defendant. Second, while Lightfoot testified that the shooter was wearing a black coat and
black pants, Origel-Candido testified that he was wearing jeans, a white turtleneck, and a blue
shirt.
[Headnote 2]
The relevant inquiry 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 evidence was sufficient to support the jury's finding that Origel-Candido was the
shooter. Lightfoot unequivocally identified Origel-Candido as one of the shooters. Freeman
testified that although she could not identify [the shooter] 100 percent . . . he looks very
similar to [Origel-Candido]. The only evidence contradicting this identification is
Origel-Candido's own testimony as to what he was wearing that day.
[Headnote 3]
[I]t is the jury's function, not that of the court, to assess the weight of the evidence
and determine the credibility of witnesses. McNair v. State, 108 Nev. 53, 56, 825 P.2d 571,
573 (1992). A rational factfinder could have attributed greater weight to the testimony of
Lightfoot and Freeman than that of Origel-Candido, who was obviously interested in the
outcome. Therefore, we conclude that there was sufficient evidence presented upon which the
jury could have convicted Origel-Candido of discharging a firearm into a dwelling.
[Headnote 4]
Origel-Candido next argues that insufficient evidence was adduced at trial to support
a jury finding that the Maravillas are a criminal gang as defined by the sentence
enhancement statute. Because of this, he posits, the statute should not have been applied. We
conclude that this contention has merit.
[Headnote 5]
The Due Process clause of the United States Constitution protects an accused against
conviction except on proof beyond a reasonable doubt of every fact necessary to constitute
the crime with which he is charged. Carl v. State, 100 Nev. 164, 165, 678 P.2d 669, 669
(1984) (emphasis added). In addition, NRS 193.168(3)(b) provides that the gang
enhancement statute applies only when the trier of fact finds, beyond a reasonable doubt, that
the primary offense was committed knowingly for the benefit of a criminal gang.
NRS 193.168(6) defines criminal gang. One of the requirements of this statute is that the
gang [h]as as one of its common activities engaging in criminal activity punishable as a
felony, other than the conduct which constitutes the primary offense. NRS 193.168(6)(c).
Thus, the plain language of the gang enhancement statute, as well as the Due Process
clause, clearly requires that in order for the statute to apply here, the State must prove beyond
a reasonable doubt that the Maravilla gang, as one of its common activities, engages in
felonies.
During direct examination of Officer Mohammad Rafaqat (Rafaqat), the State's gang
expert, the State addressed this issue twice. First, Rafaqat was asked to define a criminal
gang. He testified that what separates [a criminal gang] from a group of kids that play
basketball . . . [is] criminal activity, that is the defining point, the criminal activity. Later,
Rafaqat provided this testimony:
[STATE]: Is the Maravilla gang a criminal gang as defined in Nevada?
[RAFAQAT]: Yes, it is.
[STATE]: Are you familiar with some felony crimes that the Maravilla gang hasor
members of the Maravilla gang has [sic] committed?
[DEFENSE COUNSEL]: Objection, your honor. . . . That question, one, is irrelevant
and, two, is prejudicial.
THE COURT: [Sustained].
[STATE]: Detective Rafaqat, do you know of your personal knowledge of any felony
crimes which were committed by Maravilla gang members prior to December 12th,
1994?
[RAFAQAT]: Yes.
[STATE]: And were those felony crimes committed in the course of or in furtherance
of the activities of the Maravilla Gang?
[RAFAQAT]: Yes.
Rafaqat's testimony simply does not address the element of whether Maravilla
members commit felonies as a common activity.
whether Maravilla members commit felonies as a common activity. Rafaqat did not testify as
to an approximate number of Maravilla gang members who committed felonies. He did not
testify that incoming members of the gang were exhorted to felonious acts by senior
members. The fact that individual members committed felony crimes which benefitted the
gang does not lead necessarily to the conclusion that felonious action is a common
denominator of the gang. Likewise, just because certain members of a hypothetical group play
musical instruments, it does not follow that the group is an orchestra.
Furthermore, Rafaqat's testimony as to the definition of a criminal gang, followed by
his statement that the Maravilla gang was such a gang, does not constitute sufficient evidence.
This testimony is akin to a police officer testifying as to some of the statutory elements of
murder and then stating the legal conclusion that the defendant murdered the victim, without
proving each and every one of those statutory elements. Rafaqat's conclusory testimony is
simply not proof of every factual element required to find that the Maravilla gang was a
criminal gang.
Therefore, we conclude that the evidence at trial, even when viewed in the light most
favorable to the prosecution, does not provide a rational factfinder with sufficient evidence
that the members of the Maravilla gang commit felonies as one of their common activities.
CONCLUSION
We affirm Origel-Candido's judgment of conviction for discharging a firearm into a
house. However, because virtually no evidence was produced at trial which shows that the
Maravilla gang is a criminal gang as defined by statute, we reverse the application of the
sentence enhancement.
Springer, C. J., and Shearing, J., concur.
Rose, J., with whom Maupin, J., joins, concurring and dissenting:
I concur in the majority opinion affirming Origel-Candido's judgment of conviction
for discharging a firearm into a house, but I disagree with its holding that no evidence was
produced at trial which shows that the Maravilla gang was a criminal gang as defined by
statute. I believe there was sufficient evidence presented at trial to support the jury's finding
that the Maravilla gang was a criminal gang as defined by NRS 193.168(6).
Nevada's criminal gang enhancement statute provides for an equal and consecutive
sentence if the underlying felony was committed knowingly for the benefit of, at the
direction of, or in affiliation with, a criminal gang, with the specific intent to promote,
further or assist the activities of the criminal gang."
mote, further or assist the activities of the criminal gang. NRS 193.168(1). Pursuant to NRS
193.168(6), a criminal gang is defined as:
6. . . . any combination of persons, organized formally or informally, so constructed
that the organization will continue its operation even if individual members enter or
leave the organization, which:
(a) Has a common name or identifying symbol;
(b) Has particular conduct, status and customs indicative of it; and
(c) Has as one of its common activities engaging in criminal activity punishable as a
felony, other than the conduct which constitutes the primary offense.
We have held that, [t]he Due Process clause of the United States Constitution
protects an accused against conviction except on proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he is charged. Carl v. State, 100 Nev. 164,
165, 678 P.2d 669, 669 (1984). NRS 193.168(3)(b) also requires that the gang enhancement
be proven beyond a reasonable doubt. Origel-Candido asserts that no evidence established
that the Maravilla gang engaged in criminal activity as one of its common activities, and the
majority holds that insufficient evidence was presented on this point. I disagree.
The evidence presented at trial established that the Maravilla gang was a street gang that
employed graffiti monograms, and engaged in territorial control and retaliatory
activitycharacteristics of a criminal gang. The State's gang expert also testified that he had
personal knowledge that felonies were committed by the Maravilla gang members prior to the
firearm being discharged into Cisneros' house, and that those felony crimes were committed
in the course of or in furtherance of the activities of the Maravilla gang. This evidence was
uncontroverted. I believe this evidence permits a jury to find, as the jury did in this case,
beyond a reasonable doubt, that the requirements of NRS 193.168(6)(c) had been met.
Accordingly, I would affirm the penalty assessed pursuant to the gang enhancement
statute, as well as the underlying conviction.
____________
114 Nev. 385, 385 (1998) Miranda v. State
STEVE CARRILLO MIRANDA, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 29002
April 9, 1998 956 P.2d 1377
Appeal from an amended judgment of conviction correcting a facially illegal sentence
imposed pursuant to a conviction of a third offense of driving under the influence. First
Judicial District Court, Carson City; Michael R. Griffin, Judge.
Defendant pled guilty to charges of two counts of third offense felony driving under
the influence, and was sentenced to consecutive terms of eighteen to 36 months. The district
court subsequently realized that the sentences violated a statute and corrected them by
increasing the maximum term of each sentence. Defendant appealed. The supreme court held
that increasing the maximum term of defendant's sentence was not necessary to correct
sentencing illegality.
Maupin, J., dissented.
Steven McGuire, State Public Defender, Kent Hart, Deputy Public Defender, and
Harriet Cummings, Deputy Public Defender, Carson City, for Appellant.
Frankie Sue Del Papa, Attorney General; Noel S. Waters, District Attorney, Melanie
L. F. Bruketta, Deputy District Attorney, and Jennifer Suter, Deputy District Attorney,
Carson City, for Respondent.
1. Double Jeopardy.
Double Jeopardy Clause of the United States Constitution precludes courts from increasing a sentence when the defendant has a
reasonable expectation that the sentence is final. U.S. Const. amend. 5.
2. Double Jeopardy.
Defendant has no legitimate expectation of finality in an illegal sentence, and thus, correction of an illegally imposed sentence
does not necessarily violate double jeopardy simply because the correction increases the punishment. U.S. Const. amend. 5.
3. Criminal Law.
District court may correct an illegal sentence only to the extent necessary to bring the sentence into compliance with the statute.
4. Double Jeopardy.
In order to comply with the double jeopardy clause of the state constitution, a district court may correct an illegal sentence by
increasing its severity only when necessary to bring the sentence into compliance with the pertinent statute, and a correction that
increases sentence severity is necessary only when there is no other, less severe means of correcting the illegality. Const. art. 1, 8;
NRS 193.130(1).
5. Double Jeopardy.
Sentencing illegality, which resulted from the minimum sentence being more than forty percent of the maximum sentence, could
have been corrected by lowering the minimum rather than by increasing the maximum, and thus, district court violated double jeopardy
clause of State Constitution by increasing the maximum terms of consecutive sentences from 36 to 45 months. Const. art. 1, 8; NRS
193.130(1).
OPINION
Per Curiam:
Steve Carrillo Miranda was sentenced to two consecutive terms of eighteen to thirty-six months in prison following his guilty
plea to two counts of third-offense, felony driving under the influence. The district court subsequently realized that the sentences violated
NRS 193.130(1), which provides that a minimum term of imprisonment must not exceed 40 percent of the maximum term imposed. The
district court corrected the sentences by increasing the maximum term of each sentence to forty-five months. Miranda now appeals.
Miranda argues that increasing the maximum terms of his sentences violated the Double Jeopardy Clause of the state and federal
constitutions because the increases were not necessary to remedy the sentencing illegalities.
1
Because the minimum terms
could have been reduced to forty percent of the maximum terms, thereby bringing the
sentences into compliance with NRS 193.130(1), Miranda contends that increasing the
maximum terms was not necessary to remedy the illegality. We find that this argument has
merit.
[Headnotes 1, 2]
Miranda concedes that the district court had the authority to correct the illegal
sentences. The Double Jeopardy Clause of the United States Constitution precludes courts
from increasing a sentence when the defendant has a reasonable expectation that the sentence
is final. United States v. DiFrancesco, 449 U.S. 117, 135 (1980). However, a defendant has
no legitimate expectation of finality in an illegal sentence. U.S. v. Garren, 884 F.2d 427, 431
(9th Cir. 1989) (citation omitted). Thus, correction of an illegally imposed sentence does not
necessarily violate double jeopardy simply because the correction increases the punishment.
Id. at 431.
__________

1
Miranda also argues that the sentence corrections violate the Due Process Clause of the state and federal
constitutions; however, because the double jeopardy argument is dispositive in this case, we decline to address
the due process argument.
[Headnote 3]
A district court may correct an illegal sentence only to the extent necessary to bring
the sentence into compliance with the statute. U.S. v. Fogel, 829 F.2d 77, 88 (D.C. Cir.
1987). Miranda attempts to marshall federal case law involving the Double Jeopardy Clause
of the United States Constitution in support of his interpretation of the term necessary in
the present context; however, these cases provide no clear support for his position. See
Garren, 884 F.2d 427; Fogel, 829 F.2d 77; United States v. Kenyon, 519 F.2d 1229 (9th Cir.
1975), cert. denied, 423 U.S. 935 (1975).
[Headnote 4]
We need not determine the precise scope of necessary sentence corrections under the
Double Jeopardy Clause of the United States Constitution because the Double Jeopardy
Clause of the Nevada Constitution requires a narrow construction of necessity in the present
context. To comply with the Double Jeopardy Clause of the Nevada Constitution, a district
court may correct an illegal sentence by increasing its severity only when necessary to bring
the sentence into compliance with the pertinent statute, and a correction that increases
sentence severity is necessary only when there is no other, less severe means of correcting
the illegality.
[Headnote 5]
The sentencing illegality in the present case could have been corrected by lowering the
minimum terms rather than increasing the maximum terms, and, therefore, the correction
imposed was not necessary to bring the sentences into compliance with the pertinent
sentencing statute. Because the sentencing correction unnecessarily increased the severity of
the sentences, we conclude that the correction violated the Double Jeopardy Clause of the
Nevada Constitution. We have considered all other arguments not discussed herein, and
conclude that they are without merit. Accordingly, we reverse the sentences imposed by the
district court and remand this case with instructions to correct the illegal sentences by
lowering the minimum terms to fourteen months each.
Maupin, J., dissenting:
I dissent. There is no indication that resentencing was for any purpose other than to
correct an illegality. This being the case, appellant's due process rights were not violated. Cf.
United States v. Kenyon, 519 F.2d 1229 (1975), cert. denied, 423 U.S. 935 (1975).
____________
114 Nev. 388, 388 (1998) Attorney General v. Board of Regents
FRANKIE SUE DEL PAPA, Attorney General, Appellant, v. THE BOARD OF REGENTS
OF THE UNIVERSITY and COMMUNITY COLLEGE SYSTEM OF NEVADA,
Respondent.
No. 28966
April 9, 1998 956 P.2d 770
Appeal from an order of the district court granting summary judgment. Second
Judicial District Court, Washoe County; Janet Berry, Judge.
Attorney General brought action against Board of Regents of the University and
Community College System, alleging violations of Open Meeting Law. Summary judgment
for Board was granted by the district court and Attorney General appealed. The supreme
court, Maupin, J., held that: (1) quorum of a public body using serial electronic
communication to deliberate toward a decision or to make a decision on any matter over
which the public body has supervision, control, jurisdiction or advisory power violates the
Open Meeting Law; (2) insofar as a quorum of the Board of Regents chose to take a position
on advisory responding to criticism by one of their members, yea or nay, via a non-public
vote, using fax or telephone, it violated the Open Meeting Law; and (3) district court had
authority to enjoin future similar violations of the law, but did not err in failing to do so
where danger of similar violations in the future was unlikely.
Affirmed.
Springer, J., dissented.
Frankie Sue Del Papa, Attorney General and Robert L. Auer, Deputy Attorney
General, Carson City, for Appellant.
Thomas J. Ray, General Counsel for the Board of Regents of the University and
Community College System of Nevada, Reno, for Respondent.
Lionel, Sawyer & Collins and Kevin D. Doty, Las Vegas, for Amicus Curiae.
1. Statutes.
Courts must construe statutes to give meaning to all of their parts and language, and court should read each sentence, phrase,
and word to render it meaningful within the context of the purpose of the legislation.
2. Statutes.
Statute should always be construed to avoid absurd results.
3. Statutes.
Where the language of a statute is plain and unambiguous, and its meaning is clear and unmistakable, there is no room for
construction, and the courts are not permitted to search for its meaning beyond the statute itself.
and the courts are not permitted to search for its meaning beyond the statute itself.
4. Statutes.
Words in a statute should be given their plain meaning unless this violates the spirit of the act.
5. Statutes.
Where a statute is capable of being understood in two or more senses by reasonably informed persons, the statute is ambiguous
and plain meaning rule has no application.
6. Statutes.
If statute is ambiguous, the leading rule of statutory construction is to ascertain the intent of the legislature, and this intent will
prevail over the literal sense of the words, and the entire subject matter and policy may be involved as an interpretive aid.
7. Statutes.
Examination of legislative history is useful to determine legislative intent.
8. Statutes.
Where the legislature has had ample time to amend an administrative agency's reasonable interpretation of a statute, but fails to
do so, such acquiescence indicates the interpretation is consistent with legislative intent.
Where legislature had 16 years to override the Attorney General's interpretation of Open Meeting Law via amendment and failed
to do so, notwithstanding the specific opportunity, rejection of bill to amend the law was evidence of the legislature's intent to preserve
the Attorney General's interpretation that voting by telephone to make a public decision, whether that decision is to act or not, violates
the Open Meeting Law. NRS 241.015(1), 241.030(4).
Under Open Meeting Law, individual members of public body may discuss sensitive information privately with counsel, and
though members of a public body may ultimately make decisions on public matters based upon individual conversations with
colleagues, the collective process of decision making, whether legal counsel is present or not, must be accomplished in public. NRS
241.020(1).
Quorum of a public body using serial electronic communication to deliberate toward a decision or to make a decision on any
matter over which the public body has supervision, control, jurisdiction or advisory power violates the Open Meeting Law. NRS
241.010, 241.015(2), 241.020(1).
12. Administrative Law and Procedure; Colleges and Universities.
Insofar as a quorum of the Board of Regents of the University and Community College System chose to take a position on
advisory responding to criticism by one of their members, yea or nay, via a non-public vote, using fax or telephone, it violated the
Open Meeting Law. Simple public response to criticism by one or more of the regents would not have implicated the Open Meeting
Law regardless of whether a quorum of the Board was involved, but here, inter alia, the draft protested the statements in the interests
of protecting the integrity of the Board. NRS 241.010, 241.015(2), 241.020, 241.030(4), 241.035.
13. Administrative Law and Procedure; Colleges and Universities.
Though Board of Regents of the University and Community College System chose not to issue release voted on in
violation of Open Meeting Law, decision on the merits as to claim of violation was not moot since issue
resolved was capable of repetition yet evading review.
System chose not to issue release voted on in violation of Open Meeting Law, decision on the merits as to claim of violation was not
moot since issue resolved was capable of repetition yet evading review. NRS 241.020.
Where public body decided not to take any action, in decision made in violation of Open Meeting Law, section of the law
providing that action taken in violation is void was inapplicable, but district court had authority to enjoin future similar violations of
the law; however district court did not err in failing to do so where danger of similar violations in the future was unlikely. NRS
241.036.
OPINION
By the Court, Maupin, J.:
This is an appeal from an order of summary judgment in an action to enforce Nevada's Open Meeting Law. Appellant, the
Attorney General, contends that the district judge erred in determining as a matter of law that telephone polling does not constitute a
meeting under any circumstances. We agree. However, we affirm on other grounds the district judge's decision to dismiss the action.
FACTS
Nancy Price is a duly elected member of the Board of Regents (hereinafter the Board) for the University and Community
College System of Nevada (hereinafter the University). On several occasions prior to April 5, 1992, Price made comments to the press
criticizing the conduct of her fellow Regents. In these public statements, she objected to the process by which the Board selected an
external auditor and the processes by which the presidents of the University of Nevada, Las Vegas, and the Western Nevada Community
College were selected. Thereafter, at least seven Board members individually expressed their concerns about these comments to the
chairman, James Eardley.
On April 5, 1995, Eardley met with Constance Howard, Interim Director of Public Information for the University. Eardley asked
Howard to draft a response to Price's comments. Howard then drafted a media advisory.
After Eardley reviewed the media advisory, it was disseminated by facsimile transmission to all of the Board members except
Price. The draft advisory stated:
The individual members of the University and Community College System of Nevada Board of Regents wish to express their
concern and opinion that recent statements to the media by Regent Nancy Price are unsubstantiated, incorrect and potentially
damaging to the Board and the University System as a whole.
as a whole. While the members of the Board respect the right of any one member to
express his or her opinions, it is their sense that some of Regent Price's comments go
beyond opinion and are, in fact, unsubstantiated accusations of wrong doing. The
members of the Board feel it is important to protest publicly against these statements in
the interests of protecting the integrity of the Board and its policy-making role for
Nevada's higher education system.
(Emphasis added.)
A memorandum written by Howard accompanied the draft advisory requesting
feedback on the draft, and seeking advice as to whether the proposed course of action should
be pursued. The memorandum further indicated Eardley's two-fold purpose in issuing the
advisory: to protest some of Price's earlier comments and to seek more balanced coverage
from the media. Finally, the memorandum stated that no release would occur without Board
approval.
On April 5, 1995, the recipients of the draft advisory responded by way of telephone calls
to either Eardley, Howard, or both. These calls were charged to University calling cards.
Some of the Regents who responded disagreed with the use of their names and, in varying
degrees, to the language of the advisory itself.
1
On April 6, 1995, Eardley decided not to
issue the advisory.
After receiving a complaint from Regent Price regarding these facsimile transmissions
and telephone calls, the Attorney General filed the instant lawsuit. Four counts of the
Attorney General's complaint charged the Regents with violating the Open Meeting Law by
deciding whether to release the draft privately by fax and telephone rather than by public
meeting. The other two counts alleged that the Regents had conducted a closed meeting to
consider the character, alleged misconduct and professional competence of Price without
giving her notice of the meeting. The Attorney General sought to establish violations of
several sections of NRS chapter 241. She also sought injunctive relief prohibiting the Regents
from repeating those violations, and a judgment voiding the result of the non-public poll. The
district court granted summary judgment in the Board's favor on these issues.
DISCUSSION
In 1993, NRS 241.020(1) provided that all meetings of public bodies must be open
and public, and all persons must be permitted to attend any meeting of these bodies."
__________

1
Of the ten Regents who received the facsimile transmission, five responded in favor of releasing the
advisory, one wanted it released under Eardley's name only, one was opposed to releasing the advisory, two had
no opinion, and one did not respond.
ted to attend any meeting of these bodies. NRS 241.020(1) (amended 1995).
2
The term
[m]eeting' means the gathering of members of a public body at which a quorum is present to
deliberate toward a decision or to make a decision on any matter over which the public body
has supervision, control, jurisdiction or advisory power.
3
NRS 241.015(2) (1995).
4
Furthermore, electronic communication . . . must not be used to circumvent the spirit or
letter of [NRS chapter 241] in order to discuss or act upon a matter over which the public
body has supervision, control, jurisdiction or advisory powers. NRS 241.030(4).
The Attorney General argues that the district court erred in determining as a matter of
law that these individual telephone calls and faxes between Regents and/or their employees
did not constitute a meeting as defined by NRS chapter 241.
1. Statutory Construction
[Headnotes 1, 2]
The construction of a statute is a question of law. General Motors v. Jackson, 111
Nev. 1026, 1029, 900 P.2d 345, 348 (1995). 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. Board
of County Comm'rs v. CMC of Nevada, 99 Nev. 739, 744, 670 P.2d 102, 105 (1983)
(citations omitted). A statute should always be construed to avoid absurd results. General
Motors, 111 Nev. at 1029, 900 P.2d at 348.
[Headnotes 3, 4]
Where the language of a statute is plain and unambiguous, and its meaning is 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 Charlie Brown Constr. Co. v. Boulder City, 106 Nev. 497, 503,
797 P.2d 946, 949 (1990). 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) (hereinafter McKay).
__________

2
The current version of NRS 241.020(1) is virtually identical to the 1993 version.

3
The legislature is specifically exempt from the mandates of the Open Meeting Law. NRS 241.015(3) (a
public body does not include the legislature of the State of Nevada).

4
NRS 241.015(2) was NRS 241.015(1) in 1993.
The Board argues that a meeting could not have taken place because a quorum of the
members was not present to make the decision. It claims that the term present means in
view or at hand. Webster's New Collegiate Dictionary 910 (1975). The Board further
argues that it was neither in view nor at hand because the words at hand are defined as
near in time or place. Webster's New Collegiate Dictionary 514 (1980). However, the term
present is also defined as within reach, sight or call. Webster's Third New International
Dictionary, 1783 (1968) (emphasis added).
The Attorney General, in a 1985 opinion, interpreted the term present as follows:
[W]here . . . the members of a public body agree that action will be taken by that body
through the use of a predetermined mail poll procedure, the members of the public body
should be treated by the law as present to conduct business. This conclusion is
especially warranted in circumstances such as are presently considered where the
members have consented in advance to be ready in mind, if not physically, to deliberate
and decide public business in private without the statutorily mandated scrutiny of a
public meeting. . . . Under these circumstances, a mail balloting by a public body would
constitute a meeting within the statutory purview of NRS 241.015(1).
85-19 Op. Att'y Gen. 90, 92 (1985).
[Headnotes 5, 6]
Thus, the term present can logically be interpreted in different ways. Where a
statute is capable of being understood in two or more senses by reasonably informed persons,
the statute is ambiguous. McKay, 102 Nev. at 649, 730 P.2d at 442. Once the statute is
deemed ambiguous, the plain meaning rule has no application and [t]he leading rule of
statutory construction is to ascertain the intent of the legislature in enacting the statute. . . .
This intent will prevail over the literal sense of the words. . . . The entire subject matter and
policy may be involved as an interpretive aid. Id. at 650-51, 730 P.2d at 442-43.
2. Legislative Intent
The purpose of this legislation is set forth at NRS 241.010 which provides that [i]n
enacting this chapter, the legislature finds and declares that all public bodies exist to aid in the
conduct of people's business. It is the intent of the law that their actions be taken openly and
that their deliberations be conducted openly.
This court has held that [t]he spirit and policy behind NRS chapter 241 favors open
meetings. McKay, 102 Nev. at 651, 730 P.2d at 443. [T]he intent of the law [is] that the
actions and deliberations of public bodies be taken openly. Id.
[Headnote 7]
An examination of legislative history is also useful to determine legislative intent.
United States v. James, 478 U.S. 597, 606 (1986); see also McKay v. Board of Cty. Comm'r,
103 Nev. 490, 492 n.2, 746 P.2d 124, 125 n.2 (1987) (failure to adopt a proposed amendment
is evidence of legislative intent to the contrary).
NRS chapter 241 was adopted in 1960 and revised dramatically in 1977. In 1977, the
legislature adopted the current definition of the term meeting. See NRS 241.015(2). In
doing so, it considered two bills, A.B. 437 and S.B. 333. The legislature specifically
considered the issue raised in this case in 1981 and again in 1995. Additionally, the Attorney
General has, either by opinion or instruction, considered this issue in 1980, 1983, 1985 (see
85-19 Op. Att'y Gen. 90 (1985), supra, (prohibiting mail polling), 1988, and 1991.
a. A.B. 437 and S.B. 333 (1977)
The first draft of A.B. 437, submitted on March 10, 1977, proposed to define a
meeting as the
gathering of members of a public body at which a quorum is present to deliberate
toward a decision or to make a decision on any matter over which the public body has
supervision, control, jurisdiction or advisory power.
A.B. 437, 59th Leg. (Nev. 1977). On March 16, 1977, Deputy Attorney General Bill
Isaeff testified before the Assembly Governmental Affairs Committee. He opined that the
definition of meeting should include telephone conference calls or communication by
electronic means. See Hearing on A.B. 437 Before the Assembly Governmental Affairs
Committee, 59th Leg. (Nev. 1977). Other witnesses also recommended that the committee
include electronic means of communication in the definition of a meeting. Id.
The first reprint of S.B. 333 proposed to define a meeting as the gathering of a quorum
of the constituent membership of a public body, whether in one place or by electronic means,
to discuss or act upon a matter over which the body has supervision, control, jurisdiction or
advisory power. S.B. 333, 59th Leg. (Nev. 1977) (emphasis added). The legislature
ultimately adopted the current version of NRS 241.030(4), prohibiting only the use of
electronic communication to "circumvent the spirit" of chapter 241.
of electronic communication to circumvent the spirit of chapter 241.
The Board argues, and the district court agreed, that enactment of the first version of
A.B. 437, the rejection of S.B. 333, and the apparent rejection of testimony specifically
proposing that electronic communications be considered meetings when used by a quorum
to make decisions demonstrates the legislature's intent not to prohibit the electronic
communications utilized in this case.
The Attorney General argues that the legislature enacted 241.030(4) in response to the
concerns raised at the hearings on these proposed measures. She contends that even if the
communications in this case did not constitute a meeting under NRS 241.015(1), they
circumvented the requirement that the Board's decisions be made in public and violated the
spirit of the Open Meeting Law. NRS 241.030(4).
b. 1980 Open Meeting Law Manual
Every few years the Attorney General publishes a Nevada Open Meeting Law manual
consisting of questions and answers regarding NRS chapter 241. In 1980, question 18 stated:
May a public body convene a meeting' through the use of a telephone conference call? The
answer was given as follows:
Nothing in the Open Meeting Law appears to prohibit the members of a public body
from discussing public business via a telephone conference call in which a quorum of
the members are simultaneously linked to one another telephonically. However, since
this is a meeting, the . . . public must have an opportunity to listen in on the
discussions and votes taking place. . . . Although a telephone conference call may be a
lawful method of conducting the public's business, it should never be used as a
subterfuge to compliance with the Open Meeting Law and its stated intent that the
actions of public bodies are to be taken openly and their deliberations conducted
openly.
Richard H. Bryan, Open Meeting Law Manual 15 (3d ed. 1980).
Question 19 asked, May a public body make a decision (vote) by a mail or telephone
poll? The Attorney General gave the following answer:
In view of the legislative declaration of intent found at NRS 241.010 to the effect that
all actions of public bodies are to be taken openly, the making of a decision by a mail
poll which is not subject to public attendance appears inconsistent with both the spirit
and intent of the law. The same is true for a telephone poll, unless it is conducted as a
telephone conference call in accordance with the requirements noted in Question
and Answer No. 1S, supra.
true for a telephone poll, unless it is conducted as a telephone conference call in
accordance with the requirements noted in Question and Answer No. 18, supra.
Id.
c. A.B. 641 (1981)
In addition to the legislature's consideration of electronic communication in 1977, the
Board of Regents requested that the legislature consider A.B. 641 during the 1981 legislative
session. That bill proposed to allow the Regents to make investment decisions between its
regularly scheduled meeting by means of a vote conducted by telephone. A.B. 641, 63rd
Leg. (Nev. 1981). One of the Board's attorneys testified before the Assembly Governmental
Affairs Committee on May 19, 1981. He stated that the Board's main concern was that the
provision in the open meeting law . . . simply prohibits these types of votes being taken
between regularly scheduled meetings and the attorney general's manual clearly says you don't
have telephone votes. Hearing on A.B. 641 Before the Assembly Governmental Affairs
Committee, 63rd Leg. (Nev. 1981). Thus, it appears the Board was conceding at that time that
telephonic voting was violative of the Open Meeting Law. Although the Board's attorney
assured the committee that the Board would never use the measure as a license to make
policy over the telephone, the committee ultimately voted to indefinitely postpone further
activity on A.B. 641. Thus, the Regents' proposal never became law.
[Headnotes 8, 9]
This court has held that [w]here . . . the legislature has had ample time to amend an
administrative agency's reasonable interpretation of a statute, but fails to do so, such
acquiescence indicates the interpretation is consistent with legislative intent.' Hughes
Properties v. State of Nevada, 100 Nev. 295, 298, 680 P.2d 970, 972 (1984) (quoting Summa
Corp. v. State Gaming Control Bd., 98 Nev. 390, 392, 649 P.2d 1363, 1365 (1982)); see also
Roberts v. State of Nevada, 104 Nev. 33, 39, 752 P.2d 221, 225 (1988). The legislature has
had sixteen years to override the Attorney General's interpretation of NRS 241.015(1) and
241.030(4) via amendment. This it has failed to do, notwithstanding the specific opportunity
in 1981. We therefore conclude that the rejection of A.B. 641 is evidence of the legislature's
intent to preserve the Attorney General's interpretation of the law that voting by telephone to
make a public decision, whether that decision is to act or not, violates the Open Meeting Law.
d. 1983, 1988, and 1991 Open Meeting Law Manuals
In 1983, 1988 and in 1991, the Attorney General published open meeting law
manuals.
open meeting law manuals. In each, the Attorney General, using the questions and answers
found in the 1980 Open Meeting Law Manual, stated that it was of the opinion that a public
body may not, without the opportunity for public attendance, make a decision (vote) by
telephone poll. Brian McKay, Open Meeting Law Manual 18 (4th ed. 1983); Brian McKay,
Open Meeting Law Manual 23-24 (5th ed. 1988); Frankie Sue Del Papa, Open Meeting Law
Manual 25 (6th ed. 1991).
e. A.B. 602 (1995)
In the 1995 legislative session, Nevada's Open Meeting Law was once again before
the legislature. A.B. 602, 68th Leg. (Nev. 1995). A.B. 602 proposed that NRS 241.030(4)
read as follows:
[E]lectronic communication or polling, must not be used to circumvent the spirit or
letter of this chapter in order to discuss or act upon any matter.
Id. Although several witnesses spoke before the committee expressing their concerns about
polling and its impact on the open meeting requirement, the 1995 legislature did not pass
A.B. 602.
The legislature has rejected language defining electronic communications as a
meeting. Further, it has refused to specifically prohibit the telephonic polling for the
purpose of enacting policy or measures within the scope of the public business. This
notwithstanding, the legislature has consistently maintained that electronic communications
shall not be used to circumvent the spirit or letter of chapter 241 in order to discuss or act
upon a matter over which the public body has supervision, control, jurisdiction or advisory
powers. It has also refused to amend the Attorney General's position that telephone polling
circumvents the spirit and letter of the law. Thus, we believe that the legislature intended to
prohibit public bodies from making decisions via serial electronic communications.
2. Case Authority
In State ex rel. Stephan v. County Commissioners, 866 P.2d 1024, 1026 (Kan. 1994),
the Kansas Supreme Court held that telephone calls between a quorum of county
commissioners for the purpose of discussing county business did not constitute meetings
within the meaning of the Kansas Open Meeting Act.
5
In that case, the Kansas Supreme
Court held that the calls did not constitute a meeting because, in 1977, the Kansas
legislature rejected the following senate bill:
__________

5
When Stephan was decided, Kansas did not have a statute analogous to NRS 241.030(4), but defined the
term meeting as follows:
As used in this act, meeting means any prearranged gathering or assembly by a majority of a
quorum of the membership of a body or
did not constitute a meeting because, in 1977, the Kansas legislature rejected the following
senate bill:
No chance meeting, social meeting or electronic or written communication shall be
used in circumvention of the spirit or requirements of this act.
Id. at 1026. That court stated that [c]learly, then, these four alternative opportunities for
communication were not contemplated to be within the term meeting' in K.S.A. 75-4317.
Id. at 1027.
In concluding that the Board's actions in this matter did not constitute a meeting, the
district court relied heavily on Stephan. The Attorney General argues that Stephan is
distinguishable because at the time that case was decided, Kansas did not have legislation
analogous to NRS 241.030(4), prohibiting circumvention of the spirit of the Open Meeting
Law via electronic communication. We agree. In this case, our legislature has enacted
language almost identical to that rejected by the 1977 Kansas legislature.
6
Thus, we believe
that Stephan inferentially supports the Attorney General's position in this matter.
The issue in Stockton Newspapers v. Members of Redevelopment Agency, 214 Cal. Rptr.
561, 562 (Ct. App. 1985), was whether a series of nonpublic telephone conversations, each
between a member of the governing body of a local agency and its attorney, for the commonly
agreed purpose of obtaining a collective commitment or promise by a majority of that body
concerning public business, constitutes a meeting' within the purview of the act. In
reversing a grant of summary judgment for the redevelopment authority, the California court
stated:
Defendants argue that because the alleged telephone conversations were conducted
serially as opposed to simultaneously as in the case of a speaker phone conference
call among a majority of the members, the case falls within the statutory exception to
the open meeting requirement where less-than-a-quorum of the governing body is at
any one time involved. . . . [A] series of nonpublic contacts at which a quorum of a
legislative body is lacking at any given time is proscribed by the Brown Act if the
contacts are "planned by or held with the collective concurrence of a quorum of the
body to privately discuss the public's business" either directly or indirectly through
the agency of a nonmember.
__________
agency subject to this act for the purpose of discussing the business or affairs of the body or agency.
K.S.A. 75-4317(a).

6
In response to Stephan, the Kansas Legislature enacted K.S.A. 75-4317(a) (1995) which states:
Meeting defined. (A) As used in this act, meeting means any gathering, assembly, telephone call or any
other means of interactive communication by a majority of a quorum of the membership of a body or
agency subject to this act for the purpose of discussing the business or affairs of the body or agency.
quorum of a legislative body is lacking at any given time is proscribed by the Brown
Act if the contacts are planned by or held with the collective concurrence of a quorum
of the body to privately discuss the public's business either directly or indirectly
through the agency of a nonmember.
Id. at 565 (quoting 65 Op. Att'y Gen. 63, 66 (Cal. 1982)) (emphasis added).
7
The Stockton
Newspapers court felt that if face-to-face contact of the members of a legislative body were
necessary for a meeting,' the objective of the open meeting requirement of the Brown Act
could all too easily be evaded. Id.
In Roberts v. City of Palmdale, 853 P.2d 496 (Cal. 1993), the California Supreme
Court held that a concerted plan to engage in collective deliberation on public business
through a series of . . . telephone calls passing from one member of the governing body to the
next would violate the open meeting requirement. Id. at 503.
The Board contends that the California cases are in direct conflict with McKay v. Board of
County Commissioners, 103 Nev. 490, 746 P.2d 124 (1987) (hereinafter Commissioners),
and thus, inapplicable in Nevada. In Commissioners, this court held that the Board of County
Commissioners violated the Open Meeting Law when it conducted public business
(settlement of legal action) in a closed meeting with its attorney. We reasoned that, without a
specific statutory exception to the Open Meeting Law, it is not the court's place to interfere
with the legislature's clear intent that [a] public body that meets as a body must meet in
public regardless of whether the body's attorney is present. Id. at 495, 746 P.2d at 127. We
went on to say that, because this requirement might create some measure of frustration or
inconvenience in a public board's legal dealings, [n]othing whatever precludes an attorney
for a public body from conveying sensitive information to the members of a public body by
confidential memorandum; nor does anything prevent the attorney from discussing
sensitive information in private with members of the body, singly or in groups less than a
quorum.
__________

7
At the time Stockton Newspapers was decided, the Brown Act provided:
All meetings of the legislative body of a local agency shall be open and public, and all persons
shall be permitted to attend any meeting of the legislative body of a local agency . . . .
Cal. Govt. Code 54953 (1953). In 1994, the California legislature added the following language to the Brown
Act:
(a) As used in this chapter, meeting includes any congregation of a majority of the members
of the legislative body at the same time and place to hear, discuss or deliberate upon any item that is
within the subject matter jurisdiction of the legislative body or the local agency to which it pertains.
(b) . . . [A]ny use of direct communication, personal intermediaries, or technological devices
that is employed by a majority of the members of the legislative body to develop a collective concurrence
as to action to be taken on an item by members of the legislative body is prohibited.
Cal. Govt. Code 54952.2 (1994).
[n]othing whatever precludes an attorney for a public body from conveying sensitive
information to the members of a public body by confidential memorandum; nor does
anything prevent the attorney from discussing sensitive information in private with
members of the body, singly or in groups less than a quorum.
Id. at 495-96, 746 P.2d at 127.
[Headnote 10]
The above language in Commissioners does not stand for the proposition that
members of a public body may vote individually in the physical absence of a quorum. Rather,
in an attempt to preserve as much of the attorney-client relationship as possible, it simply
reiterates that individual members may discuss sensitive information privately with counsel.
While properly implying that members of a public body may ultimately make decisions on
public matters based upon individual conversations with colleagues, it reiterates that the
collective process of decision making, whether legal counsel is present or not, must be
accomplished in public. See again, generally Stockton Newspapers, 214 Cal. Rptr. 561 (Ct.
App. 1985) (individual telephone calls with attorney to obtain collective promise concerning
public business violated open meeting law).
[Headnote 11]
Based on the foregoing legislative history and case law, we hold that a quorum of a
public body using serial electronic communication to deliberate toward a decision or to make
a decision on any matter over which the public body has supervision, control, jurisdiction or
advisory power violates the Open Meeting Law. That is not to say that in the absence of a
quorum, members of a public body cannot privately discuss public issues or even lobby for
votes. However, if a quorum is present, or is gathered by serial electronic communications,
the body must deliberate and actually vote on the matter in a public meeting.
Here, it is undisputed that a quorum of the members of the Board participated in the
decision not to release the advisory. Thus, the Board's interaction was more than a simple
public response to Price's comments by one or more of the Regents. Such a response would
not have implicated the Open Meeting Law regardless of whether a quorum of the Board was
involved. The constraints of the Open Meeting Law apply only where a quorum of a public
body, in its official capacity as a body, deliberates toward a decision or makes a decision.
[Headnote 12]
In this case, the chairman of the Board chose to invoke the services of the interim
director of public information for the University to draft the advisory, and the Regents
responded to the draft by calling Eardley on their University-paid calling cards.
services of the interim director of public information for the University to draft the advisory,
and the Regents responded to the draft by calling Eardley on their University-paid calling
cards. Further, the draft expressed the Regents' concern that Price's statements were
damaging to the Board and the University System as a whole. Most importantly, the draft
protested Price's statements in the interests of protecting the integrity of the Board and its
policy-making role for Nevada's higher education system.
[Headnote 13]
Because the Board utilized University resources, because the advisory was drafted as
an attempted statement of University policy, and because the Board took action on the draft,
we hold that the Board acted in its official capacity as a public body. Thus, insofar as a
quorum of the Board chose to take a position on the advisory, yea or nay, via a non-public
vote, it violated the Open Meeting Law.
8
Specifically, it violated NRS 241.010, 241.015,
and 241.020, prohibiting closed meetings and requiring written notice of public meetings;
NRS 241.030(4), prohibiting the use of electronic communications to circumvent the spirit or
letter of the Open Meeting Law; and NRS 241.035, requiring a public body to keep written
minutes of its meetings.
9

The Attorney General asked the district court to establish that the Regents violated the
above cited provisions of the Open Meeting Law, and for an injunction prohibiting the
Regents from repeating those violations. She also asked that the district court void the result
of the non-public poll pursuant to NRS 241.036.
10

[Headnote 14]
Because the Board decided not to take any action with respect to the press release,
NRS 241.036 is inapplicable.
__________

8
Although the Board chose not to issue the release, our decision on the merits of this appeal is not moot
because the issue resolved is capable of repetition yet evading review. See, e.g., Binegar v. District Court, 112
Nev. 544, 548, 915 P.2d 889, 892 (1996).

9
The Attorney General also asked the district court to find a violation of NRS 241.031, prohibiting a public
body from holding a closed meeting to consider the character, alleged misconduct, professional competence, or
physical or mental health of an elected member of a public body; and a violation of NRS 241.033, prohibiting a
public body from holding any meeting to consider the above items without written notice to the elected member
under consideration.
We hold that the Board did not consider Price's character, alleged misconduct, professional competence, or
physical or mental health in this case. Therefore, the Board did not violate NRS 241.031 or 241.033 when it
decided not to release the advisory.

10
NRS 241.036 provides that [t]he action of any public body taken in violation of any provision of this
chapter is void.
to the press release, NRS 241.036 is inapplicable. Thus, the Attorney General's only remedy
is for this court to order the district court to enjoin the Board from engaging in future conduct
that would violate the Open Meeting Law.
In Board of Public Instruction of Broward County v. Doran, 224 So. 2d 693 (Fla.
1969), cited with approval in City Council of Reno v. Reno Newspapers, 105 Nev. 886, 890,
784 P.2d 974, 976 (1989), the court stated:
While it is well established that courts may not issue a blanket order enjoining any
violation of a statute upon a showing that the statute has been violated in some
particular respects (see Moore v. City Dry Cleaners & Laundry, 41 So. 2d 865 (Fla.
1949)), . . . they do possess authority to restrain violations similar to those already
committed. See Interstate Commerce Commission v. Keeshin Motor Express, 134 F.2d
228 (C.C.A. Ill. 1943). This Court may enjoin violations of a statute where one
violation has been found if it appears that the future violations bear some resemblance
to the past violation or that danger of violations in the future is to be anticipated from
the course of conduct in the past. See National Labor Relations Board v. Express
Publishing Company, 312 U.S. 426, 437, 61 S. Ct. 693, 700, 85 L. Ed. 930 (1941).
Id. at 699-700.
In Reno Newspapers, this court examined the propriety of a district court's order
permanently enjoining the city council from conducting any closed meetings in the future for
the purpose of selecting a public officer after it selected a city manager in a closed meeting.
Relying on Doran, this court stated:
The district court had a clear indication that the City of Reno had violated Nevada's
Open Meeting Law. Coupled with the Council's stipulation to a judgment that would
enjoin it from violating the Open Meeting Law in the future selection of public officers,
this provided sufficient specificity and basis for entering the permanent injunction.
Reno Newspapers, 105 Nev. at 890, 784 P.2d at 977.
Accordingly, the district court has the authority to restrain the Board from authorizing
press releases via electronic communication regarding Board and University policy. While we
have chosen to decide this issue because if left unresolved, it is capable of repetition yet
evading review, we agree with the district court that an injunction is not necessary at this
time. In light of our ruling today, danger of similar violations in the future should be unlikely.
unlikely. Consequently, we conclude that the district court did not err in declining to enter an
injunction.
Therefore, although the Board violated the Open Meeting Law, the district court
properly dismissed the case even though the lower court relied upon the wrong reasons.
11
Accordingly, we affirm the judgment of the district court.
12

Shearing and Rose, JJ., concur.
13

I concur only to address the errors made or misimpressions left by the dissent. In
support of his dissent, Justice Springer cites Justice Young's and my dissent in O'Brien v.
State Bar, 114 Nev. 71, 952 P.2d 952 {199S), and our belief that two members of the
Board of Governors had cast tainted votes in electing a representative to the Nevada
Judicial Discipline Commission.
__________

11
See Hotel Riviera, Inc. v. Torres, 97 Nev. 399, 403, 632 P.2d 1155, 1158 (1981) (holding that if the result
below is correct, it will not be disturbed on appeal).

12
The dissent, in our view, impliedly criticizes the initiation and maintenance of the instant proceedings.
First, it is the obligation of the Attorney General to enforce the Nevada Open Meeting Law. This, of course, was
the thrust of this suit. Secondly, the Board's action on the draft media advisory was not, as argued in dissent,
merely part of an effort to defend personal reputations; rather, the action dealt with an attempt, as the advisory
stated, to protect the integrity of the Board and its policy-making role for Nevada's higher education system.
The dissent wonders at our reliance on the Board's utilization of University resources in connection with the
draft advisory. This is mentioned only to underscore the fact that the Board members involved felt, obviously in
good faith, that a determination of University policy was involved, to wit: whether a formal Board response to
Ms. Price's public comments was necessary.
The members of the Board of Regents affected by Ms. Price's public statements had every right to respond
thereto, as individuals or as a group. It was only when they attempted to respond in an official capacity that the
Open Meeting Law was implicated. The members of the Board have no reason, as the dissent suggests, to take
this decision as a personal affront to their dedication as public servants. They know that matters such as these
come with ascension to public office.
The rhetorical excesses of the dissent obscure the legitimate debate over whether a violation of the open
meeting legislation has occurred. The allegations that the decision making processes in this case were corrupted
by the desires of a sitting supreme court justice to repay past political debts are flawed in a number of ways.
First, the allegations are patently unfair to the other justices participating in the majority. Second, any issues that
may have existed relative to possible disqualification have been previously resolved. Third, although the issues
raised in the dissent relative to the participation of members of this court are clearly now in the public domain,
no party to this action has suggested that any disqualification issues exist.
It is our intent to now lay to rest the former controversies that have plagued this court over recent years. Thus,
we relegate our response to the dissent to this footnote.

13
The Honorable Cliff Young, Justice, voluntarily recused himself from participation in the decision of this
appeal.
Justice Young's and my dissent in O'Brien v. State Bar, 114 Nev. 71, 952 P.2d 952 (1998),
and our belief that two members of the Board of Governors had cast tainted votes in electing
a representative to the Nevada Judicial Discipline Commission. While I am flattered that
Justice Springer would cite our dissent, he certainly did not like our conclusion because he
was part of the O'Brien majority. It is misleading to favorably cite our O'Brien dissent
without disclosing the fact that Justice Springer previously rejected its reasoning and helped
establish a much different standard in this area of the law.
Justice Springer claims in his dissent that there is nothing in the record of O'Brien, or
anywhere else, to establish that FitzSimmons and Waters contributed more than $10,000 to
Judge Steve Jones' 1996 election bid for the Nevada Supreme Court. FitzSimmons and her
husband are listed as each contributing $10,000 in Judge Steve Jones' 1996 Campaign
Disclosure Forms filed with the Nevada Secretary of State. Waters admitted to making large
additional contributions in a motion to disqualify Justice Young filed on December 16, 1996
in the Whitacre case. In that motion, Waters stated as follows: Kermitt L. Waters, his wife
Jan Waters, and Nevada corporations owned by Mr. Waters contributed substantially to Judge
Jones' campaign. The approximate aggregate amount of campaign contributions from those
sources is $75,000.000 [sic]. Ms. FitzSimmons and her husband, John Lambrose, each
contributed $10,000 to the Steve Jones campaign. Whitacre Inv. Co. v. State, Dep't Transp.,
Docket No. 29401 (Appellant's Motion to Disqualify Justice C. Clifton Young at 4,
December 16, 1996).
Justice Springer once again raises the contention that I should not be sitting on this case
because of a conflict of interest created by the Attorney General's involvement. This court has
previously rejected this contention. In the processing of the case of Hogan v. Warden, 112
Nev. 553, 916 P.2d 805 (1996), Hogan made a motion to disqualify me for the same reasons
stated by the dissent. The Court entered an order on February 18, 1994, rejecting Hogan's
contentions in their entirety. This order was unanimous and signed by Justice Springer.
Now, four years later, Justice Springer again raises this issue sua sponte. Perhaps it is because
he has forgotten the action taken four years ago, or is raising it for some other reason. Suffice
it to say, this issue was considered and rejected by the full court many years ago.
The Attorney General filed, in her own name, charges against the Board of Regents,
complaining that all of the members of the Board (excluding Nancy Price) were guilty of
violating the open meeting law.
open meeting law. The Attorney General's complaint sought an injunction prohibiting the
Regents from repeating the violations of the law.
The trial court properly dismissed the Attorney General's charges, ruling that the
Regents did not violate the law, as charged, because they did not conduct a meeting' as
defined by NRS 241.015 [the Open Meeting Law]. The trial court further ruled that
communications among various Regents involved expression of personal opinion, regarding
personal conflict between various Regents and did not, objectionably, relate to any public
matters over which the Board of Regents had jurisdiction. The trial court's dismissal of the
Attorney General's complaint is legally sound and should have been quickly and
unhesitatingly affirmed by this court.
Rather than affirm the trial court, as it should have, this court sides with the Attorney
General and cancels out the trial court's clearly-correct rulings, wrongly holding that the
defendant Regents violated the Open Meeting Law, when, in fact and law, the Regents did
nothing that even comes close to being a violation of the law. Not since this court ruled that
there are 370 days in a year have we experienced judicial law-making that has such an
appearance of blatant political influence.
1
In this dissenting opinion I will discuss why the
trial court's dismissal of the Attorney General's charges against the Regents should not have
been tampered with and will suggest an explanation as to why the case might have been
decided in the way that it was.
The Attorney General's charges against the Regents arose entirely out of a
memorandum sent out by Regent Eardley to his fellow Regents {other than Regent Price).
__________

1
I refer, of course, to the case of SNEA v. Lau, 110 Nev. 715, 877 P.2d 531 (1994), in which this court, by
vote of a majority which includes Justices Young and Rose, created the 370-day year. Absent this court's
establishment of a 370-day political year, the present governor would not have been allowed to run for a third
term. To overcome the constitutional impediment to a governor's running for a third term, this court found it
necessary to rule that in Nevada there were 370 days in a political year. The court-created political year is
different from the ordinary and well-understood meaning of 365 day[s] and run[s] from and to a floating day
within a month. Id. at 717, 718, 877 P.2d at 533. A political year (by adding five floating days), may have
370 days.
In order for the court to rule today that personal, unconnected, two-person telephone calls constituted an
official meeting of the Board of Regents as a public body, it had to make a leap comparable to its innovative
creation of floating days and political years. It might be argued that we have here floating quorums (quorums
comprised of five unconnected telephone calls by individual Regents to the chairman) and political meetings
(floating quorums that do not meet with the approval of the Attorney General). I note, however, that the court
does not employ either term, floating quorums or political meetings, to shore up the present opinion.
fellow Regents (other than Regent Price). Regent Eardley sent out the memorandum in
question; the other guilty Regents did nothing more than receive it and then say no to the
proposals put forth in the memorandum.
The stated purpose of the Eardley memorandum was to enlist individual members
of the Board to respond to public statements being made by Regent Price and to express
their concern and opinion about remarks that Regent Eardley saw as being slanderous,
unsubstantiated, incorrect and potentially damaging. With his memorandum, Regent
Eardley sent out a proposed draft media advisory which stated his vision of a response that
should be made by the individual Regents to what was perceived as being slanderous public
statements being made by Regent Price.
Regent Eardley suggested to his colleagues that some response is needed (to the
Price slanders) and sought each Regent's support and endorsement of his proposed draft
media advisory. Regent Eardley made it very clear that he was only making suggestions in
draft form and told each Regent that if she or he were not comfortable with this course of
action, please let me know at your earliest convenience, emphasizing that his draft would
not be released under the name of any Regent until individual approval has been given.
As matters turned out, not one Regent approved of the draft in the form proposed by Regent
Eardley.
It is not possible to conjure an official meeting of the University of Nevada Board of
Regents out of the described series of individual and isolated negative responses to Regent
Eardley's proposed media advisory. As pointed out by the trial court, there were no
conference calls, no physical meetings, [and] the Regents never reached a consensus about
the proposed media advisory. Ultimately no action was taken. At most, said the trial court,
the Regents who received Regent Eardley's memorandum were merely exercising their First
Amendment right to publicly deny Regent Price's allegations.
I suppose that it might be possible, in a situation entirely different from the one we
have here, for members of a public board to subvert the open meeting law by secretly polling
the membership and, thereby, vote secretly on an official decision to be made by the board;
but there is nothing like this even remotely involved here. Here, the guilty Regents did
nothing more than ignore the Eardley memorandum or decline to act in their individual
capacities in the manner sought by Regent Eardley's draft proposal. It should be clear to all
that the defendant Regents did not participate in any way in an official meeting of the Board
and that, therefore, none of the Regents (as declared in the majority opinion) "violate[d] the
open meeting law."
opinion) violate[d] the open meeting law. For those who do not readily grasp my point, I
have elaborated upon it in the margin.
2

There is a troubling aspect of this case which, although not raised by the Regents,
should not pass unnoticed. Justice Rose is the swing vote in this case. Justice Rose has
recently authored a dissenting opinion in which he expressed his concern about "tainted
votes" in cases in which decision-makers have conflicts of interest.
__________

2
To be liable for violations of the Open Meeting Law, the Regents here must not only have participated in a
meeting, the meeting must have been an official meeting, that is to say a meeting in which a quorum is
present to deliberate toward a decision or to take action on any matter over which the public body has
supervision, control, jurisdiction or advisory power. NRS 241.015(2) (my emphasis). Although it is quite clear
that the various members of the Board did not conduct or attend a meeting of any kind, it is beyond dispute that
they did not meet in order to deliberate or decide any matter over which the Board had supervision, control,
jurisdiction or advisory power. No official decision or action by the Board was ever mentioned or suggested in
the Eardley draft, and the individual Regents who received the draft were certainly free to ignore the
memorandum or disagree with it without suspecting that she or he would become subject to prosecution by the
Attorney General. The trial court, of course, understood this rather basic aspect of the case when it summarily
dismissed the Attorney General's complaint.
The mischief of today's ruling can be clearly seen if we were to apply this ruling (namely, that a negative,
individual response to another board member's proposal to respond to slanders by another board member can
constitute an illegal, official meeting of that board) to any one of the public boards that have three members.
Two members of these boards make a quorum; thus, under today's ruling virtually any communication between
two members of such a board would result in a public meeting that required notice and the other formalities of
the open meeting law. For example, if one member of a three-member board were to telephone another member
and say, Do you want to help me answer the slanderous statements that our fellow board member is making
against us?, the contacted member could not say yes or no without becoming subject to prosecution by the
Attorney General. (As put in the majority opinion, when a quorum [two] of the Board chose to take a position .
. . yea or nay, via a non-public vote, those two members become law violators.)
I close this note in the assumption that no one takes seriously the Attorney General's contention that the
various Regents' use of University fax and telephone equipment turns these isolated communications into an
official meeting of the Board of Regents. Those Board members who declined to give approval to the Eardley
draft were entitled to use University staff, faxes and telephones to address, individually, a problem that related
not only to unsubstantiated accusations of wrongdoing against individual members of the Board but also,
necessarily, related to the integrity of the Board and its policy making role for Nevada's higher education
system. Under the circumstances of this case, the chairman had every right to utilize University resources;
however, even if we were to think otherwise, the mere use of University resources by members of the Board of
Regents does not a public meeting make, and, quite frankly, the argument that it does is of no significance.
about tainted votes in cases in which decision-makers have conflicts of interest. In O'Brien
v. State, 114 Nev. 71, 952 P.2d 952 (1998), Justice Rose condemned two decision-makers,
who, he claimed, had serious conflicts of interest when they voted for [the successful
party]. Id. at 78, 952 P.2d at 957. Justice Rose went on to say in the O'Brien case that
[w]ithout [these] tainted votes, the result would have been in [the losing party's] favor. Id..
Taking Justice Rose at his word, I would suggest that the justice may have a serious conflict
of interest in the present case and that, arguably, without his tainted vote it is likely that the
Regents would not have been declared to be law breakers.
Justice Rose complained in the O'Brien case that one of the decision-makers had, in
the past, accepted a campaign contribution of $10,000.00
3
from one of the parties to the
dispute. Justice Rose expresses his belief that the contribution was so disproportionate as to
create an appearance of impropriety that was fundamentally unfair to the parties. Id. at
79, 952 P.2d 957 (Rose, J., and Young, J., dissenting). The justice claims that the result
reached by the decision-maker (the Board of Bar Governors) should be invalidated and a new
vote taken in which Board members with [such] conflicts of interest not participate in it.
The Rose doctrine of fairness, impropriety and obvious conflict of interest,
which he adopts in the O'Brien dissent, can be summarized in this way:
1. When a contribution is very large or greatly disproportionate . . ., then an
appearance of impropriety should be recognized.
2. It is an obvious and serious conflict of interest for a recipient of such a
contribution to cast a tainted vote for the person from whom he or she received
the contribution.
3. Such conflict of interest creates fundamental unfairness in the decision-making
process so as to require invalidation of the tainted votes and a new vote in which
those with conflicts of interest not participate.
In O'Brien, Justice Rose insist[s] that a judge be fair and impartial and not participate in
a case where doing so would present the appearance of impropriety and thus a conflict
of interest."
__________

3
Although it is of no real moment, I would note that the concurring opinion makes it clear that the
contribution in question is, in fact, no more than $10,000.00. It may be true, as claimed by the concurring
justice, that the donor's husband made a contribution and that a man named Waters made contributions; but the
fact remains that Ms. FitzSimmons' $10,000.00 contribution in a state-wide campaign does not appear to be
disproportionate as claimed by Justice Rose, especially when it is contrasted to what some may see as a
contribution to Justice Rose made by the Attorney General.
impartial and not participate in a case where doing so would present the appearance of
impropriety and thus a conflict of interest. In the present case, I merely want to hold Justice
Rose to his own standard. The apparent conflict of interest in this case arises much in the way
that Justice Rose claims it arose in O'Brien, namely, by the receipt of a career-saving
contribution from the Attorney General, who is an interested party in the present case. I do
not see how it can be denied that Justice Rose is greatly indebted to the Attorney General,
much more indebted than would be the case if, say, the Attorney General had contributed
$10,000.00 to his political campaign. I will leave it to the reader to decide whether the
following facts give rise to a disproportionate contribution by the Attorney General to
Justice Rose.
In 1993, formal criminal charges, charging two crimes against public justice were
sworn out against Justice Rose by Detective David F. Kallas of the Las Vegas Metropolitan
Police Department. The charging affidavit requested that a Warrant of Arrest/Summons be
issued for suspect, Robert E. Rose, on charges of obstruction of criminal investigation,
violation of NRS 199.520 and violation of NRS 199.540. The Attorney General responded
to the formal charges in writing declaring that NRS 228.175 establishes criminal jurisdiction
in the office of the Attorney General over offenses committed in the course and scope of a
state official's employment or arising out of circumstances related to that employment.
Although the Attorney General expressed some doubt as to whether Justice Rose was actually
acting in his capacity as a state official at the time of the alleged criminal conduct, the
Attorney General, nonetheless, decided to review[] the entire case file. The Attorney
General decided not to prosecute; the requested warrant of arrest/summons was never issued,
and the prosecution ended at that point. As a result of Attorney General Del Papa's decision,
Justice Rose was never prosecuted.
4

__________

4
I do not suggest that the Attorney General's decision not to prosecute the charges against Justice Rose was
made in bad faith, nor do I suggest that Justice Rose was guilty of any criminal conduct. All I do say is that,
given the outcome of the Attorney General's decision, it may present an appearance of impropriety for Justice
Rose to remain in a case in which the Attorney General is a party. I have no objections to Justice Rose's sitting
in cases in which the Attorney General is counsel for the State, as she was, for example, in the Hogan case
referred to in Justice Rose's concurring opinion. I have not, as suggested by Justice Rose, forgotten the Hogan
case. My dissent in the present case is, as I have made clear in the text, based on the Attorney General's being an
interested party in this appeal as distinguished from her merely being one of the attorneys for a party, as she was
in Hogan.
Today's ruling is subject to being condemned as a political or pay-back decision
involving a disqualifying appearance of impropriety for Justice Rose to remain in this case.
Whatever might be behind the court's ruling in favor of the Attorney General and against ten
of eleven members of the Board of Regents, such a ruling is subject to criticism based on at
least an appearance of impropriety as defined by Justice Rose himself in O'Brien.
It is a matter of deep concern to me that not only has the court declared that ten public
officials have violated the open meeting law, it has set a precedent that threatens to
terrorize public board members in the future in a way that will chill legitimate private
communications among members of public boards.
I would offer the respectful suggestion that if Justice Rose refuses to disqualify
himself from this case, it falls upon the Regents to attempt, on rehearing, to get him out of
this case. They should do so not merely to protect their own names and to void this court's
declaration that they are law violators, but to protect other public board members from the
kinds of indignities and injustice that they have suffered. It is certainly arguable that a totally
impartial tribunal would probably affirm the judgment of the trial court and dismiss the
Attorney General's complaint.
____________
114 Nev. 410, 410 (1998) Campbell v. District Court
JAMES ALLEN CAMPBELL, ROBERT LOUIS PHELAN, and BRIAN KEITH
NICHOLSON, Petitioners, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for the County of Clark, and THE HONORABLE LEE
A. GATES, District Judge, Respondents, and THE STATE OF NEVADA, Real Party
in Interest.
No. 31465
JAMES ALLEN CAMPBELL, ROBERT LOUIS PHELAN and BRIAN KEITH
NICHOLSON, Appellants, v. THE STATE OF NEVADA, Respondent.
No. 31560
April 9, 1998 957 P.2d 1141
Appeal and petition for writ of mandamus or prohibition challenging three judgments
and amended judgments of conviction. Eighth Judicial District Court, Clark County; Lee A.
Gates, Judge.
Three defendants were convicted in the district court, two for conspiracy to commit
assault with a deadly weapon, and one for battery and obstructing a public officer.
conspiracy to commit assault with a deadly weapon, and one for battery and obstructing a
public officer. After sheriff released defendants on electronic supervision program, the
district court amended the judgments and added no house arrest provision. Defendants
petitioned for writ of mandamus or prohibition and appealed from judgments and amended
judgments. The supreme court held that: (1) trial court lacked jurisdiction to amend
judgments once defendants began to serve their sentences, and (2) imposing no house arrest
provision in amended judgments did not violate separation of powers clause.
Remanded.
William B. Terry, Chartered, Las Vegas; Smith and Associates, Las Vegas; Stephen
Stein, Las Vegas, for Petitioners/Appellants.
Attorney, and James Tufteland, Deputy District Attorney, Clark County, for
Respondents/Real Party in Interest.
1. Criminal Law.
District court lacked jurisdiction to amend judgments of conviction to include no house arrest provision once defendants
began to serve their sentences, based on its initial misapprehension regarding legal consequences of original judgments of conviction,
i.e., it did not realize that sheriff had power to release defendants on electronic supervision program. District court did not explain that
it intended to include the provision in original judgments but inadvertently neglected to do so.
2. Criminal Law.
Doctrine that permits modification of sentence if it is based upon materially untrue assumptions or mistakes which work to
extreme detriment of defendant does not apply where district court has misapprehensions about legal consequences of sentence.
3. Criminal Law.
Imposing no house arrest provision in amended judgments, after defendants were released on electronic supervision, did not
violate separation of powers clause since statute specifically provides that district court may order that sheriff not supervise a prisoner
electronically. Const. art. 3, 1; NRS 211.250.
4. Criminal Law.
District court is not required to articulate its reasons for imposing a sentence of incarceration in misdemeanor case.
OPINION
Per Curiam:
After the district court entered judgments of conviction and appellants began serving their sentences, the district court entered
amended judgments of conviction which contained a "no house arrest" provision not found in the original
judgments.
entered amended judgments of conviction which contained a no house arrest provision not
found in the original judgments. We conclude that, although the district court could have
included such a provision in the original judgments, the court lacked jurisdiction to add this
provision to the judgments after appellants began serving their sentences.
FACTS
On November 20, 1997, the district court entered a judgment with respect to each
appellant. Appellants James Campbell and Brian Nicholson were each convicted of one count
of conspiracy to commit assault with a deadly weapon, a gross misdemeanor. Appellant
Robert Phelan was convicted of one count of battery and one count of obstructing a public
officer, misdemeanors. The district court sentenced Campbell and Nicholson to serve
nine-month terms in the Clark County Detention Center and sentenced Phelan to serve two
concurrent six-month terms in the Clark County Detention Center. Appellants were remanded
to the custody of the sheriff after sentencing. Apparently, the sheriff released appellants from
jail on an electronic supervision program.
On November 24, 1997, the district court entered an amended judgment with respect to
each appellant. The amended judgments duplicated the original judgments with two
exceptions. First, the amended judgments corrected a clerical error by stating that appellants
entered nolo contendere pleas. The original judgments had erroneously stated that appellants
entered guilty pleas. Second, the amended judgments added a no house arrest provision.
On December 2, 1997, appellants filed in this court a petition for a writ of mandamus
or prohibition and a motion for bail pending decision on the petition. Appellants contended
that the district court lacked jurisdiction to add the no house arrest provision to the
amended judgments. On December 5, 1997, this court entered an order staying those portions
of the judgments which provided for no house arrest. On December 15, 1997, appellants
filed a timely notice of appeal from the judgments and amended judgments.
DISCUSSION
Appellants raise two main issues on appeal. First, appellants contend that the district
court lacked jurisdiction to enter the amended judgments specifying no house arrest after
they began serving their sentences. Second, appellants contend that the district court, in
violation of the separation of powers clause, infringed on the executive branch's power in
ordering that appellants not be released on house arrest.
lants not be released on house arrest. We conclude, and the state concedes that, under the
circumstances of this case, the district court lacked jurisdiction to amend the judgments once
appellants began serving their sentences.
[Headnote 1]
NRS 211.250 provides that unless a sentencing court orders otherwise in a particular
case, a sheriff may supervise a convicted prisoner electronically instead of confining that
prisoner physically in jail. Here, the district court sua sponte entered amended judgments
without any prior notice or hearing. The district court entered no findings of fact or
explanation of why the provision was added, nor did the court offer any explanation for
altering the sentences at any hearing or in any other document contained in the record before
this court. Moreover, it does not appear that the district court based its decision to amend the
judgments on the ground that appellants did not comply with the electronic supervision
program. Based on the absence of any other explanation, it appears that the district court
realized after entering the judgments and after appellants had begun to serve their sentences
that, pursuant to NRS 211.250, the sheriff had the power to release and did release appellants
on an electronic supervision program. Thus, it appears that the district court substantively
amended the judgments of conviction based on the court's initial misapprehension regarding
the legal consequences of the original judgments of conviction.
[Headnote 2]
This court has held that if the district court imposes a sentence within statutory
limits, the court will have jurisdiction to modify, suspend or otherwise correct that sentence if
it is based upon materially untrue assumptions or mistakes which work to the extreme
detriment of the defendant.' State, Dep't of Prisons v. Kimsey, 109 Nev. 519, 522, 853 P.2d
109, 111 (1993) (quoting State v. District Court, 100 Nev. 90, 97, 677 P.2d 1044, 1048-49
(1984)). The doctrine that permits modification of a sentence does not apply, however, where
the district court has misapprehensions about the legal consequences of the sentence. Id.
(citing Passanisi v. State, 108 Nev. 318, 831 P.2d 1371 (1992); Staley v. State, 106 Nev. 75,
787 P.2d 396 (1990)). We therefore conclude that the court lacked jurisdiction to amend the
judgments once appellants began to serve their sentences. We emphasize that this is not a
case where the district court explained that it intended to include the no house arrest
provision in the original judgments but inadvertently neglected to do so.
[Headnote 3]
With respect to appellants' second contentionthat the district court violated the
separation of powers clause in ordering that appellants not be released on house
arrestwe disagree.
court violated the separation of powers clause in ordering that appellants not be released on
house arrestwe disagree. As discussed above, NRS 211.250 specifically provides that the
district court may order that the sheriff not supervise a prisoner electronically. Therefore,
imposing the no house arrest provision did not violate the separation of powers clause. See
Nev. Const. art. 3, 1, cl. 1.
[Headnote 4]
Appellants also contend that in order for counsel to effectively represent their clients
and responsibly address the court, the district court must articulate its reasons for imposing a
sentence of incarceration. As support, appellants rely upon People v. Watkins, 613 P.2d 633
(Colo. 1980), and United States v. Brown, 479 F.2d 1170 (2nd Cir. 1973). Watkins is
inapposite because the rule articulated therein pertains to felony convictions. Brown suggests,
but does not require, that the district court state its reasons in imposing sentence. We decline
to impose such a requirement in this state; this action is best left to the legislature. Therefore,
we reject this contention.
Accordingly, we remand this case to the district court with instructions to vacate the
no house arrest provision of the amended judgments of conviction.
1

The sentencing judge sentenced the three subject convicts to specified terms in jail.
As authorized by NRS 211.250
1
the sentencing judge ordered that there be no house
arrest, thus requiring, as provided by the statute, that the convicted prisoners be
confin[ed] in the county . . . jail, rather than being allowed to serve their sentences at home.
__________

1
Because appellants have a plain, speedy, and adequate remedy at law on appeal from the amended
judgments of conviction in Docket No. 31560, we deny the petition for a writ of mandamus or prohibition filed
in Docket No. 31465. See NRS 34.170, 34.330.

1
NRS 211.250 Prerequisites for electronic supervision. Unless the sentencing court otherwise
orders in a particular case, the sheriff or chief of police may supervise a convicted prisoner electronically
instead of confining him physically in the county or city jail if:
1. The prisoner has a residential living situation which is capable of meeting the standards set in the
general rules and individual conditions for electronic supervision; and
2. The sheriff or chief of police concludes that electronic supervision poses no unreasonable risk to
public safety.
(Emphasis added).
NRS 211.250 is very simple and easy to understand. There is no reason to doubt that a
sentencing judge has the power, under the statute, to enter an order at any time that the jailer
execute the sentence in a manner that confines the prisoners in jail rather than letting them go
home. NRS 211.250 places no time limit on the exercise of this power.
2

It is curious and a bit disconcerting to witness how the majority has been able to ignore the
powers given to sentencing judges under NRS 211.250 to prevent this sentencing judge from
carrying out the confined-in-jail option provided for in the statute. It makes no sense to me
that a jailer and not the judge would be given the power to decide how prisoners must serve
their jail sentencesconfined in jail or in the comfort of their own homes.
What is more disconcerting to me than this court's unsupported and overly restrictive
reading of NRS 211.250 is Deputy District Attorney Tufteland's acting contrary to the
position taken by his client, the sentencing judge, and siding with these convicts in their
far-fetched claim that the jailer has the power to release them, even though the sentencing
judge has ordered otherwise.
The deputy district attorney presents the flimsiest of contrived excuses to justify betraying
his client, the sentencing judge. To borrow a word used by the deputy district attorney in
arguing against his client's case and in favor of these convicts, the deputy district attorney's
position is very creative. The deputy district attorney goes so far as to argue that once a
sentencing judgment is issued under NRS 211.250, the sentencing judge loses the power
granted by NRS 211.250 to order that prisoners serve their jail term in jail rather than at
home. The deputy district attorney's successful opposition to his client's position is at least
partially responsible for this court's clearly incorrect ruling that deprives sentencing judges of
their powers under NRS 211.250 to order confinement rather than house arrest.
Deputy District Attorney Tufteland's argument against his client's position is that his
client somehow lost the power to order confinement once the written sentencing order was
issued. This is, of course, nonsense.
__________

2
I can envision, for example, a case in which the judge did not, at the time of sentencing, order that the
prisoner be kept in confinement. If later, the judge were to learn that the prisoner had violated the terms of
house arrest and decided, under the powers granted by NRS 211.250, that it was appropriate to confine[] him
physically in the county or city jail, I believe that just about everyone would agree that a sentencing judge
would have the power under the statute to take this action. Under today's decision, however, the sentencing
judge loses all control over the sentenced prisoner after the sentencing judgment has been entered, and the jailer,
rather than the judge, has total control over how tihe prisoner will serve the sentencing judge's sentence.
is, of course, nonsense. It should be obvious to anyone that (a) NRS 211.250 places no time
limits on a sentencing judge's ordering jail time instead of home time and (b) it is senseless
and counterintuitive to say that a jailer's order of house arrest should be able to override a
judge's order of confinement.
This would be an entirely different case, of course, if it involved a felony sentencing
rather than the misdemeanor sentencing covered by NRS 211.250, which relates only to
less-than-felony convictions and the critical question of whether prisoners go free or have to
suffer imprisonment in the county or city jail. Strangely, the majority readily concedes that
this court's sentencing case law does not apply to the misdemeanor sentencing involved here
and, particularly, that Watkins is inapposite because the rule articulated therein pertains
[only] to felony convictions. This concession should put an end to any controversy relating
to a sentencing judge's power to require in-jail punishment in misdemeanor sentences.
Whereas disposition of a felony convict, once in prison, may be entirely within the
jurisdiction of the prison warden, NRS 211.250 specifically grants to sentencing judges in
misdemeanor cases the power to order that sentences must be served in jail and not at home.
It really does not make any difference; but it is worth noting that although the sentencing
judge's judgment that corrected a clerical error was accurately titled an amended
judgment, his interlineation, No house arrest cannot properly be called an amended
judgment. The interlineation was merely an independent order issued under the powers
given by NRS 211.250, powers that have no statutory or case-law time limitations.
The problem with politically correct court decisions is that we have to live with them
afterward. I dissent.
____________
114 Nev. 416, 416 (1998) Gilman v. Gilman
RICHARD S. GILMAN, Appellant v. MARJORIE GILMAN, Respondent.
No. 27896
KENNETH CALLAHAN, Appellant, v. VALERIE CALLAHAN, Respondent.
No. 28892
April 9, 1998 956 P.2d 761
Consolidated appeals from orders denying motions to terminate spousal support based
upon cohabitation. Eighth Judicial District Court, Clark County; Terrance P. Marren, Judge,
(Docket No. 27896). Eighth Judicial District Court, Clark County; Gloria S. Sanchez, Judge,
(Docket No. 28892).
Two ex-husbands filed motions to terminate spousal support based upon the
allegation that their ex-wives were engaged in cohabitation relationships. The district court
denied both motions. Ex-husbands' appeals were consolidated. The supreme court, Shearing,
J., held that: (1) ex-husband in first case failed to show that ex-wife's male cohabitant's
contributions to her were significant enough to warrant termination, or even modification, of
spousal support, and (2) ex-spouses in second case were bound by terms of cohabitation
provision in divorce decree.
Affirmed.
[Rehearing denied July 21, 1998]
Daniel Marks, Las Vegas, for Appellant Gilman.
Joseph W. Houston, II, Las Vegas, for Appellant Callahan.
Davidson & Myers, Las Vegas, for Respondent Gilman.
Jolley, Urga, Wirth & Woodbury and Kathryn Stryker Wirth, Las Vegas, for
Respondent Callahan.
1. Divorce.
The supreme court reviews a district court's ruling on a motion to modify spousal support for an abuse of discretion.
2. Divorce.
The economic needs test for determining reduction of spousal support based on cohabitation states that the right to receive
spousal support becomes subject to modification or termination only if the recipient spouse's need for the support decreases as a result
of the cohabitation, and requires a factual examination of the financial effects of the cohabitation on the recipient spouse. NRS
125.150.
3. Divorce.
Shared living arrangements, unaccompanied by evidence of a decrease in the actual financial needs of the recipient spouse, are
generally insufficient to call for alimony modification.
4. Marriage.
Generally, cohabitants owe no legal or financial support to one another, and as no legal support obligation is imposed on the
parties during the relationship, no spousal maintenance can be awarded when and if the relationship ends. Absent an express or implied
agreement to the contrary, no quasi-marital property rights accrue as a result of cohabitation.
5. Divorce.
The economic needs test fairly balances the rights of payor and payee spouses by permitting modification or termination of
spousal support solely when financial circumstances so merit, and also coincides with existing state statutory changed circumstances
scheme and allows lower courts to focus upon the specific facts of each case, while retaining their substantial discretion when making
spousal support modification decisions. NRS 125.150.
6. Divorce.
A showing that an ex-spouse has an actual decreased financial need for spousal support due to the fiscal impact of a cohabitant
may constitute changed circumstances sufficient to require a modification of unaccrued payments under support obligation. NRS
125.150.
7. Divorce.
Ex-husband failed to show that ex-wife's male cohabitant's contributions to her were significant enough to warrant termination,
or even modification, of spousal support, where ex-wife was unable to pay rent and her share of household expenses owed to male
cohabitant for several months and was forced to borrow other monies from male cohabitant, apparently because ex-husband failed to
timely pay spousal and child support and to timely turn over previously divided marital assets. NRS 125.150.
8. Divorce.
Ex-spouses were free to place a cohabitation provision in their divorce decree stating that the court would consider the issue of
spousal support in the event of cohabitation by ex-wife with an adult male who significantly contributed to her support, and this
provision was valid and enforceable.
9. Contracts.
Parties are presumed to contract with reference to existing statutes, and applicable statutes will generally be incorporated into the
contract; however, other legal principles may govern the legal relationship where they are expressly set forth in the contract.
10. Contracts.
When parties to a contract foresee a condition which may develop, and provide in their contract a remedy for the happening of
that condition, the presumption is that the parties intended the prescribed remedy as the sole remedy for that condition.
11. Divorce.
Ex-spouses, who negotiated a cohabitation provision in their divorce decree, were bound by the terms of that contractual
agreement, even though the provision failed to address the instance where the ex-wife supported a male cohabitant with her alimony
payments; neither the statute allowing courts to modify spousal support in the event of changed financial circumstances of the payee
spouse, nor the economic needs test applied to alter the negotiated term. NRS 125.150(7).
OPINION
Docket No. 28892
Appellant Kenneth Callahan (Ken) and respondent Valerie Callahan (Valerie) married on December 31, 1984. Shortly after
the wedding, Valerie apparently quit her job as a secretary to stay at home. The parties agreed that Valerie would stay home permanently
following the birth of their daughter in 1988 or 19S9.
1989. Ken earned $125,000 in 1992 and $110,000 in 1993 in his position as a mortgage
lender.
On July 31, 1992, Valerie filed a complaint for divorce in Clark County. Beginning in
November 1992, she received $500 in temporary spousal support every other week pursuant
to a court order. On July 27, 1994, the district court increased this amount to $700 biweekly.
After a three-day divorce trial in September 1994, the district court issued an order
increasing Valerie's spousal support to $2,000 per month for twenty-four months, then to
$1,500 per month for the following thirty-six months. The court found that Valerie had given
up her career to raise the couple's child, that Ken had more than twenty-five years experience
in his profession, and that Valerie's earning capabilities would never approximate those of
Ken. The separate divorce decree approved by the court states that Ken's obligation to pay
spousal support shall terminate upon his death or Valerie's remarriage. There is no reference
to cohabitation.
After entry of the divorce decree, Valerie and her daughter moved to Reno with
Chuck Maraden (Chuck). On March 28, 1996, Ken filed a motion to modify the decree of
divorce to, inter alia, terminate spousal support based upon the allegation that Valerie and
Chuck were cohabiting and acting in every way as if they were married except the legal
solemnization of the marriage. Ken argued that this cohabitation constituted a change of
circumstances under NRS 125.150.
On April 30, 1996, at a hearing on the motion, Valerie admitted that she was romantically
involved with Chuck and cohabitated with him, but stated that he did not support her
financially. She also declared that she shared monthly living expenses with Chuck, that she
paid for all of her daughter's expenses, that Chuck had loaned her money, that she had signed
promissory notes for the loans, and that Ken had failed to meet his financial obligations to
her. The record shows that Ken's gross monthly income in 1996 was $6,500.
On May 14, 1996, the district court issued an order denying Ken's motion to terminate
alimony. Ken filed a timely notice of appeal from the May 14 order.
Docket No. 27896
Appellant Richard S. Gilman (Richard) and Marjorie Gilman (Marjorie) married
in Brighton, Massachusetts on April 25, 1963. During the marriage, Richard worked as a
certified public accountant and Marjorie remained at home. In 1989, Richard's annual salary
was approximately $60,000.
On August 7, 1989, Richard filed for divorce in Clark County district court. On
November 26, 1990, the district court approved the decree of divorce negotiated by the
parties. The decree states that [s]pousal support shall terminate upon the death or remarriage
of [Marjorie] and the court will consider the issue of spousal support in the event of
co-habitation by [Marjorie] with an adult male who significantly contributes to her support.
Richard agreed to pay spousal support of $1,500 per month.
From some time in 1991 until November 1993, Marjorie lived off and on in Las Vegas
with her friend-boyfriend, Tom Westmoreland (Tom), at Tom's house. From April or May
1993 until November 1993, Marjorie lived full-time with Tom, paid him $400 per month in
rent and paid for her telephone bill and some of the food bill. Thereafter, Marjorie and Tom
moved to Massachusetts. Marjorie purchased a house, making a down payment with money
she received from the sale of the Las Vegas marital residence she shared with Richard. The
title to the Massachusetts house is in Marjorie's name alone; Tom has no ownership interest
in it. Since November 1993, Tom has been living in the Massachusetts house with Marjorie.
By the time of her deposition in March 1994, Marjorie had been unable to secure a job
in Massachusetts. She also had no immediate plans to continue a job search.
In addition to the spousal support, Marjorie also receives $4,000 to $8,000 per year in
payments from an irrevocable family trust established for the benefit of herself, her parents,
and her siblings.
In early 1994, Tom began working full time in a car dealership making $8.00 per
hour. Prior to that, Tom was either collecting unemployment or working odd jobs. Tom does
not pay rent, food bills, or other living expenses at the Massachusetts house. Apparently, Tom
uses his salary to make his car payment and to make payments on the home he owns in Las
Vegas. Tom does carpentry work around the house which, according to Marjorie, is a fair
exchange for the free rent and food. Tom and Marjorie have separate bank accounts;
however, they have put both of their names on the two accounts, allegedly for emergency
purposes. Marjorie has loaned Tom small amounts of money on occasion.
By March 1994, Richard's income had increased to $9,325 per month.
On December 6, 1993, Richard filed a motion to terminate his spousal support
payment to Marjorie based on changed circumstances. Richard declared in an affidavit that
Marjorie had been cohabiting with Tom for two years and that she had chosen not to remarry
to avoid the cohabitation provision [of the divorce decree]."
decree]. Richard alleged that these facts were sufficient to warrant termination of spousal
support.
On July 25, 1995, the district court denied Richard's motion. The court found that
Tom had not significantly contributed to Marjorie's support, that Nevada law contained no
presumption that spousal support should terminate if the recipient cohabits with another
person, and that legal termination of spousal support would arise only upon death of one of
the parties or remarriage of the recipient spouse. The court also noted that parties to a divorce
are free to impose whatever conditions they wish to define the term of alimony. Richard
has appealed the district court's decision denying his motion to terminate alimony.
DISCUSSION
Richard and Ken contend that cohabitation constitutes a changed circumstance under
NRS 125.150, particularly where the cohabitant's finances have any effect, positive or
negative, upon the recipient spouse's finances.
1
Thus, they contend that the district court
erred in refusing to modify or terminate spousal support in their respective cases.
2

Both Marjorie and Valerie concede that financial contributions by a cohabitant might
constitute a change of circumstances under NRS 125.150. However, Marjorie argues that the
express provisions of her divorce decree should control and that Richard failed to make a
showing that Tom significantly contributed to her support. Valerie argues that she presented
ample evidence that her financial condition did not improve, and even worsened, during her
cohabitation and thus that no changed circumstances occurred.
__________

1
Citing out-of-state decisions, Richard also contends that a long-term relationship, such as that between
Marjorie and Tom, constitutes remarriage for purposes of terminating spousal support. However, this court has
held that cohabitation does not amount to a de facto marriage because Nevada does not recognize common
law marriages. Watson v. Watson, 95 Nev. 495, 496, 596 P.2d 507, 507 (1979). Moreover, the term
remarriage, as used in divorce decrees and NRS 125.150(5), means the solemnization or ceremony or
remarriage. Shank v. Shank, 100 Nev. 695, 697, 691 P.2d 872, 873 (1984). Here, there is no evidence that
Marjorie and Tom legally married. Accordingly, we conclude that this contention is without merit.

2
Citing California Family Code 4323 (1994), Richard contends that cohabitation raises a rebuttable
presumption of decreased need for spousal support which must be overcome by the person who receives the
support. The Nevada legislature has had the opportunity to create such a presumption, but has not done so. We
conclude that creating such an important substantive presumption is a matter for the legislature.
[Headnote 1]
7. If a decree of divorce . . . provides for specified periodic payments of alimony, the
decree or agreement is not subject to modification by the court as to accrued payments.
Payments . . . which have not accrued at the time a motion for modification is filed may
be modified upon a showing of changed circumstances, whether or not the court has
expressly retained jurisdiction for the modification.
This court reviews a district court's ruling on a motion to modify spousal support for an abuse
of discretion. DuBois v. DuBois, 92 Nev. 595, 595, 555 P.2d 839, 839 (1976).
[Headnote 2]
The current majority rule regarding the effect of post-divorce cohabitation on spousal
support, at least in jurisdictions where no specific statute covers that situation, appears to be
that the right to receive spousal support becomes subject to modification or termination only
if the recipient spouse's need for the support decreases as a result of the cohabitation. Gayet v.
Gayet, 456 A.2d 102, 104 (N.J. 1983); see also Wendy S. Ricketts, The Relevance of
Premarital and Postmarital Cohabitation in Awarding Spousal Support, 7 Divorce Litigation
150, 154 (1995); Annotation, Divorced Woman's Subsequent Sexual Relations or Misconduct
as Warranting, Alone or With Other Circumstances, Modification of Alimony Decree, 98
A.L.R. 3d 453 (1980 & Supp. 1996). Most jurisdictions following the majority rule have
determined that some financial dependence by the alimony recipient upon the third-party
cohabitant likely warrants a reduction in spousal support. See Gayet, 456 A.2d at 104;
Ricketts, supra, at 154. Similarly, those jurisdictions also hold that alimony payments used to
benefit the cohabitant should be eliminated or reduced to meet the recipient spouse's actual
needs. See, e.g., In re Marriage of Tower, 780 P.2d 863, 866-67 (Wash. Ct. App. 1989). As
stated by the New Jersey Supreme Court: modification [of spousal support] for changed
circumstances resulting from cohabitation [is warranted] only if one cohabitant supports or
subsidizes the other under circumstances sufficient to entitle the supporting spouse to relief.
Gayet, 456 A.2d at 104.
[Headnote 3]
Under this economic needs test, the amount of spousal support reduction, if any,
depends upon a factual examination of the financial effects of the cohabitation on the
recipient spouse. See Ricketts, supra, at 154. Shared living arrangements, unaccompanied by
evidence of a decrease in the actual financial needs of the recipient spouse, are generally
insufficient to call for alimony modification.
alimony modification. See In re Marriage of Bross, 845 P.2d 728, 731-32 (Mont. 1993); see
also Mitchell v. Mitchell, 418 A.2d 1140, 1143 (Me. 1980) (noting, for example, that a
cohabitant's benefit from a recipient spouse's expenditures on heating fuel, which would have
a similar cost absent the shared living arrangements, does not show a decreased need for
alimony).
The economic needs test properly considers the rights and needs, both fiscal and
personal, of payor and recipient spouses. First, the test does not unduly impinge upon an
individual's freedom to choose to cohabit. Rights to spousal support are not rescinded merely
because the recipient spouse is cohabiting.
3

[Headnote 4]
Second, the test also recognizes the fact that a recipient spouse may be left largely
unprotected, from an economic standpoint, if he or she breaks off a relationship with a
cohabitant. The Nevada legislature created spousal support awards to, inter alia, keep
recipient spouses off the welfare rolls. Cf. Fondi v. Fondi, 106 Nev. 856, 863 n.5, 802 P.2d
1264, 1268 n.5 (1990). Modifying or terminating spousal support payments based upon
cohabitation may be inconsistent with this purpose. See generally In re Marriage of Tower,
780 P.2d at 866. Generally, cohabitants owe no legal or financial support to one another. See
In re Marriage of Dwyer, 825 P.2d 1018, 1019 (Colo. Ct. App. 1991). Because no legal
support obligation is imposed on the parties during the relationship, no spousal maintenance
can be awarded when and if the relationship ends. See generally Smith v. Mangum, 747 P.2d
609, 611 (Ariz. Ct. App. 1987). Moreover, absent an express or implied agreement to the
contrary, no quasi-marital property rights accrue as a result of cohabitation. Id.
Third, the test also takes into consideration the financial rights of the payor spouse, as well
as the economic realities associated with cohabitation. As some courts and commentators
have suggested, a possibility exists that cohabitants may sometimes act improperly to
maximize their joint wealth (and retain any spousal support payments) by appearing to
maintain separate financial identities. See In re Marriage of Schroeder, 238 Cal. Rptr. 12,
15 (Ct. App. 1987). Moreover, sharing household expenses gives rise to "economies of
scale" which may permit cohabitants to spend less living together than individually.
__________

3
Some jurisdictions, by statute or judicial decision, require elimination of spousal support upon a showing of
post-divorce cohabitation. For a list of those jurisdictions, see Spector v. Spector, 112 Nev. 1395, 1396 n.2, 929
P.2d 964, 965 n.2 (1996), and Gayet, 456 A.2d at 103-04. Others have concluded that the mere fact of
cohabitation is a proper factor for the court to consider in the changed circumstances assessment. See those cases
cited in Alibrando v. Alibrando, 375 A.2d 9, 13-14 (D.C. 1976). We reject this law and conclude that
cohabitation per se is insufficient to require a modification or termination of spousal support without an
associated change in financial circumstances.
rise to economies of scale which may permit cohabitants to spend less living together than
individually. See id. (citing Grace Ganz Blumberg, Cohabitation Without Marriage, A
Different Perspective, 28 UCLA L. Rev. 1125, 1150 (1981)). The economic needs test
recognizes these situations and promotes fiscal fairness by acknowledging that maintaining
the original amount of spousal support payments may be unfair to payor spouses if they are
essentially subsidizing third party cohabitants, or supporting ex-spouses who have
significantly improved their financial situations. See In re Marriage of Tower, 780 P.2d at
866.
[Headnote 5]
We conclude that the economic needs test fairly balances the rights of payor and
payee spouses by permitting modification or termination of spousal support solely when
financial circumstances so merit. The test coincides with Nevada's existing statutory
changed circumstances scheme and allows lower courts to focus upon the specific facts of
each case, while retaining their substantial discretion when making spousal support
modification decisions.
Our holding in Jackson v. Jackson, 111 Nev. 1551, 907 P.2d 990 (1995), supports our
adoption of the economic needs test. There, in a case involving a motion to increase a child
support obligation, we held that insofar as a parent's expenses are affected by a cohabitant's
contributions to rent and other household payments, the district court may take this
circumstance into account when setting or modifying child support [and determining the
relative income of the parties]. Id. at 1555, 907 P.2d at 993. Thus, we have previously
indicated that the financial support provided by cohabitants should be considered when
modifying court-imposed or court-ratified support obligations.
[Headnote 6]
Accordingly, we hold that a showing that the recipient spouse has an actual decreased
financial need for spousal support due to the fiscal impact of a cohabitant may constitute
changed circumstances sufficient to require a modification of unaccrued payments under that
support obligation.
4

__________

4
While we agree in general terms with the Gayet decision, we cannot adopt wholesale the implication that
modification of a spousal support award is absolutely warranted where the third party contributes anything to the
recipient spouse's support. 456 A.2d at 103. Certainly, situations may arise where the third party makes a
minimal contribution to the recipient spouse's support which has little or no impact on the recipient spouse's
actual needs. For that reason, we emphasize that district courts retain their discretion to examine the facts and
circumstances of each individual case.
Docket No. 28892
[Headnote 7]
Valerie and Ken's divorce decree contains no cohabitation provision. According to
Valerie, she and her daughter moved from Las Vegas to Reno with Chuck in the fall of 1995,
and all three currently live together. The record shows that, on October 1, 1995, Valerie and
Chuck entered into a rental agreement. Valerie promised to pay Chuck $1,000 per month to
cover rent and household expenses. In 1996, Valerie was unable to pay this amount for
several months. She also borrowed other monies from Chuck, apparently because Ken failed
to timely pay spousal and child support and to timely turn over previously divided marital
assets. Under these circumstances, we conclude that the district court did not abuse its
discretion in determining that Ken did not show that Chuck's contributions to Valerie were
significant enough to warrant termination, or even modification, of spousal support. Ken
presented virtually no evidence which indicates that Valerie's actual financial needs have
been reduced because of her living arrangements. Accordingly, Ken's contention is without
merit.
Docket No. 27896
[Headnote 8]
Richard and Marjorie's divorce decree states that the court will consider the issue of
spousal support in the event of cohabitation by [Marjorie] with an adult male who
significantly contributes to her support. We conclude that the district court correctly
determined that the parties were free to place that cohabitation provision in their divorce
decree and that the provision is valid and enforceable. See Spector v. Spector, 112 Nev. 1395,
1396-97, 929 P.2d 964, 965 (1996); Watson, 95 Nev. at 496, 596 P.2d at 507 (holding that
courts are bound by contractual language which is readily understood and unambiguous).
The record shows that Tom earned approximately $320 per week working at a car
dealership. Tom used the money he made to make the payment on a house he owns in Las
Vegas and on his car. Tom does not pay for rent, food, or other household bills at the
Massachusetts residence. He performs carpentry work around the house as a fair exchange
for rent and food. Tom and Marjorie keep separate bank accounts. When Marjorie and Tom
lived together full-time in Tom's Las Vegas home, Marjorie paid her share of the rent and
household bills. Thus, there is no evidence that Tom ever significantly contributed to
Marjorie's support.
Richard contends that his spousal support payments to Marjorie should be reduced or
terminated because Marjorie is using those funds to support Tom.
[Headnotes 9, 10]
Under well settled rules of contract construction, a court has no power to create a new
contract for the parties which they have not created or intended themselves. Old Aztec Mine,
Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981). Parties are presumed to contract
with reference to existing statutes. Wagner v. Wagner, 621 P.2d 1279, 1282 (Wash. 1980).
Applicable statutes will generally be incorporated into the contract; however, other legal
principles may govern the legal relationship where they are expressly set forth in the contract.
Id. Indeed, when parties to a contract foresee a condition which may develop and provide in
their contract a remedy for the happening of that condition, the presumption is that the parties
intended the prescribed remedy as the sole remedy for that condition. S.L. Rowland Const.
Co. v. Beall Pipe & Tank Corp., 540 P.2d 912, 920 (Wash. Ct. App. 1975) (citations
omitted).
[Headnote 11]
Here, the parties negotiated for the cohabitation provision contained in the divorce
decree. That provision fails to address what would happen if Marjorie used her alimony
payments to support Tom. In light of the existence of that term, we conclude that the parties
intended their contractual cohabitation provision, and not the general changed
circumstances statute, to apply in case of Marjorie's cohabitation with another man. See
Brown, 97 Nev. at 52, 623 P.2d at 983; Wagner, 621 P.2d at 1282; S.L. Rowland Const. Co.,
540 P.2d at 920. Accordingly, we decline to apply NRS 125.150(7) and the economic needs
test to this situation. Thus, Richard cannot allege that Tom's failure to pay a share of
household bills at the Massachusetts residence is a valid basis for modifying or terminating
Marjorie's alimony award. We conclude that the district court did not abuse its discretion in
refusing to modify or terminate the spousal support in this case.
In both the Gilmans' and the Callahans' cases, the district courts considered the
cohabitation as it affected the economic situation of the parties receiving spousal support and
concluded that no change in the support orders was warranted. Their conclusions were not
only not abuses of discretion, but were clearly justified based on the evidence presented.
In no way is either of the cases similar to the circumstances in Western States
Construction v. Michoff, 108 Nev. 931, 840 P.2d 1220 (1992). The Michoff case was one in
which the cohabiting parties built and developed a business together based on an implied
agreement of coequal ownership.
implied agreement of coequal ownership. The woman was an integral part of the business,
even being listed as sole owner for a time in order to increase the chances of getting contracts.
They held themselves out as husband and wife, even filing joint tax returns and designating
their holdings as community property. It would certainly have been inequitable not to enforce
the agreement of the parties for coequal ownership, allowing the woman to receive her share
of their assets, when the relationship ended. The cohabitation element of the relationship was
virtually incidental.
The situation with both the Gilmans and the Callahans is not even remotely similar.
There is certainly no evidence of a contract between the cohabitants which was the basis for
Michoff. There is no evidence of pooling of assets or holding themselves out as husband and
wife or treating their assets as community property or building a business together. It should
be clear that neither cohabitation nor a romantic relationship is the real basis for the Michoff
holding, and that is all that is present in both the Gilman and Callahan situations.
The district courts appropriately exercised their discretion, and their orders are
affirmed.
Springer, C. J., concurring in part and dissenting in part:
I concur in the Gilman case and dissent in the Callahan case.
The reason that I agree with the judgment in the Gilman case is that the family court
properly applied the agreed-upon standard for modifying support, namely, whether the person
with whom Marjorie was cohabiting significantly contributed to her support. In accordance
with the agreement of the parties, the court simply ruled that the adult male with whom
Marjorie was cohabiting did not significantly contribute to her support and that, therefore,
Richard was not entitled to relief. The court was acting well within its discretion when it
ruled that there was not such a significant contribution as to justify a modification; so I would
affirm the family court's judgment in the Gilman case.
I dissent in Callahan because, absent the kind of negotiated agreement present in
Gilman, the family court had to apply general principles of law in deciding whether
modification was justified. In my opinion, it was error for the family court to ignore the fact
that Valerie had been living for a time with Chuck, with whom she was acting in every
way as if they were married except the legal solemnization of the marriage. The family court
ruled that this marriage-like cohabitation was not a fact that [the court] was considering
would warrant termination of spousal support."
tion of spousal support. The majority opinion agrees with the family court's judgment in this
regard. In my opinion, this kind of marriage-like relationship should not only be considered
by the family court, it should create a rebuttable presumption of a change in circumstances.
When a man and woman live together as if they were married they create a
legally-cognizable status, a status that might, in Nevada, be properly called a Michoff
1
marriage. A Michoff marriage is created when two people cohabit in such a way as to entitle
either party to make claims against the other for palimony and for community property by
analogy. Michoff marriages are a creature of Michoff, which allows inter-cohabitant
claims to be made based upon a supposed implied contract that is created by virtue of the
cohabitation. It is my position that an alimony-receiving ex-spouse cannot have it both
waysthat is, cannot put himself in a position where he is entitled to receive palimony and
property division by virtue of a Michoff marriage and also be entitled to continue to receive
alimony from a former spouse.
I argue in this dissent that, at the very least, a rebuttable presumption of disentitlement to
continued alimony should follow from a Michoff marriage and, further, that there are
persuasive reasons for concluding that the presumption should be irrebuttable in cases where
an alimony-receiving spouse's claim to palimony has matured by reason of ripening support
and property rights attendant to a Michoff marriage. I dissent because the common law of this
state, per Michoff, 108 Nev. at 938, 840 P. 2d at 1124, requires that the marriage-like status
created by as-if-they-were-married cohabitation, of itself must be seen as changed
circumstances that must, at the very least, be considered by the family court in any alimony
modification proceeding.
It should be kept in mind that the words cohabitation and cohabiting are words of
particular legal significance that carry more meaning than merely living under the same roof.
Merely living with a person of the opposite sex does not constitute cohabitation. In re
Marriage of Thweatt, 157 Cal. Rptr. 826 (Cal. Ct. App. 3d 1979). To be cohabitants, it is not
necessary that the cohabiting parties hold themselves out as husband and wife. Id. at 828. To
be cohabiting, the parties must be engaged in a romantic or homemaker-companion
relationship that resembles the marital relationship, but without a formal marriage ceremony.
Id. Michoff recognizes the cohabiting status that arises out of one's being an unmarried
cohabitant[] and recognizes the right of one unmarried cohabitant to sue the other in family
court, "seeking one-half of the parties' assets."
__________

1
Western States Constr. v. Michoff, 108 Nev. 931, 840 P.2d 1220 (1992).
seeking one-half of the parties' assets. 108 Nev. at 933, 840 P.2d at 1221. In Michoff, this
court ruled that the remedies in Marvin
2
are available to unmarried cohabitants and that,
accordingly, adults who voluntarily live together, in addition to acquiring rights to be
supported by the other cohabitant (facetiously called palimony), may acquire property
rights during the relationship in accord with the law governing community property.
Michoff, 108 Nev. at 938, 840 P.2d at 1224.
According to Michoff, the laws of spousal support and the community property laws
of the state will apply by analogy, at some stage of extra-marital cohabitation. Id. (quoting
Hay v. Hay, 100 Nev. 196, 199, 678 P.2d 672, 674 (1984)). The Michoff right of an
unmarried cohabitant to seek[] one-half of the parties' assets rests on the parties' having
cohabited and thereby impliedly agreed to hold their property as though they were married.
Id. at 938, 840 P.2d at 1224. Although Michoff did not deal with palimony, because it
expressly adopted Marvin, Michoff cohabitants are in a position to prove a case that would
entitle them to recover both palimony as well as one-half of the [other] part[y's] assets. My
point is that Michoff cohabitants become vested with a right to sue for support and property
distribution benefits, and Michoff status necessarily has a significant bearing on the
alimony-paying spouse's obligation to support a former, but now cohabiting, spouse. It
cannot be denied that Michoff cohabitation gives rise to claims of implied agreements to
support and for property division at the termination of the cohabitation; thus, under Michoff,
when adults voluntarily live together, each is placed in a position in which he or she is
entitled to make legally-enforceable claims for support from the other and to make claims for
one-half of the parties' assets. Michoff cohabitations create a special legal status that
possesses certain, defined rights and liabilities that cannot be ignored.
As I have indicated above, cohabitation has been judicially recognized as being a
status-creating condition. In In re Marriage of Leib, 145 Cal. Rptr. 763 (Cal. App. 3d 1978),
the court recognized that cohabitation establishes a status and that such a status provides a
benefit or at least a potential benefit to each of the cohabiting spouses. The Leib court thus
ruled that such status, therefore, creates a change of circumstances so tied in with payment of
spousal support as to be significant enough by itself to require a re-examination of the issue
of whether a former spouse should be required to continue to support her now-cohabiting
ex-spouse.
The majority opinion tells us that [a]fter entry of the divorce decree [September,
1994], Valerie . . . moved to Reno with Chuck Maraden {"Chuck")."
__________

2
Marvin v. Marvin, 557 P.2d 672 (Cal. 1984).
decree [September, 1994], Valerie . . . moved to Reno with Chuck Maraden (Chuck).
Further, Valerie admitted that she was romantically involved with Chuck and cohabited with
him . . . . We know that the two were cohabiting as if they were married in May of 1996
when Ken's motion to modify alimony was denied, and there is no reason to suspect that they
are not cohabiting at this time, the point being that Valerie and Chuck are engaged in the
relatively permanent marriage-like cohabitation that, by its nature, necessarily gives rise to
the status I have referred to as a Michoff marriage. Under these circumstances, it cannot be
denied that each partner to the Michoff marriage is in a position to sue the other in family
court for Michoff/Marvin-sanctioned support payments and for one half of the parties'
assets in the form of community property by analogy. Michoff, 108 Nev. at 933, 840 P.2d
at 1221.
I appreciate the majority's reluctance, in the absence of a statute,
3
to create any kind
of legal presumption arising out of a Michoff marriage, but in my opinion, a Michoff
marriage, by the very terms of the Michoff case, creates a presumption of changed
circumstances because to say otherwise would be to say that a spouse is entitled to the
benefits of two marriages, a former marriage and the later, Michoff marriage. A Michoff
spouse is, presumably, in a position to lay claim to the right to support and to equal
property division of all property acquired during the Michoff marriage. As put in Leib, this is
enough by itself to require a re-examination of whether a former spouse should have to
continue to support a divorced spouse who has elected to engage in a Michoff marriage. Leib,
145 Cal. Rptr. at 771.
I argue that, at the very least, some judicial cognizance must be given to Michoff
marriages in support modification cases; and it would not be too difficult to argue, further,
that since no one is entitled to two alimony claims, establishment of a Michoff marriage
should terminate all previous rights to receive alimony. It certainly makes some sense to
argue that a Michoff marriage should be an absolute bar to receiving alimony from a previous
spouse. A Michoff bride or groom should not be able to have it both waysto have the right
to palimony plus one-half of the analogous community property from a current cohabitant on
top of having the right to receive alimony payments from a former, divorced spouse. I do not
intend to pursue this argument, however, and will be content to maintain that we should
follow California law and presume that cohabitation, a Michoff marriage, of itself,
constitutes changed circumstances for alimony-modification purposes.
__________

3
California has enacted a statute that codifies its common law and creates a rebuttable presumption,
affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a
person of the opposite sex. Cal. Fam. Code 4323 (West 1994).
riage, of itself, constitutes changed circumstances for alimony-modification purposes.
Perhaps, in today's world, the majority opinion may be right in recognizing an individual
freedom to choose to cohabit; still, I do not believe that we would impinge on that right if
we refused to permit a person to be entitled to two alimonies.
I agree with Leib that Michoff cohabitation gives rise to a need for a close
re-examination of a former spouse's duty to continue to make spousal support payments.
4
In my opinion, the family court erred in ruling that cohabitation was not a fact that should be
considered in proceedings seeking termination or modification of alimony. I would reverse
the judgment of the family court and remand with instructions that proof of a Michoff
marriage creates a rebuttable presumption of changed circumstances and entitlement to
termination or modification of alimony payments being made to a Michoff spouse.
__________

4
I think that it is worth noting that the majority's relying solely on the financial needs of the
alimony-receiving party in alimony modification proceedings ignores the true purpose of alimony and runs
contrary to the public policy goal of promoting lawful marriages. The purpose of alimony is to maintain the
standard of living that the recipient had enjoyed during the marriage. After remarriage, the recipient has no claim
against a former spouse for such maintenance. If we were to allow alimony recipients to continue to receive
alimony after remarriage, it would be allowing the alimony recipient to accrue benefits of marriage from
multiple partners. It seems to me that the present decision, allowing a participant in a Michoff marriage to
continue to receive alimony from a former spouse, could create a form of financial polygamy, thus providing a
powerful disincentive for lawful marriage. This gives strength to the argument that a Michoff marriage should
create an unrebuttable presumption that previous alimony rights should be terminated once a Michoff marriage
has been established. The majority appears not to be aware of the problems that inhere in the status created by a
Michoff marriage; and I should expect that due consideration be given by the court to the overall consequences
of a Michoff marriage. For example, one wonders if, by continuing to receive alimony, Ms. Callahan-Maraden
waived her right to palimony and to one-half of the pseudo-community property arising out of her Michoff
marriage. As things stand, no one knows the consequences of a Michoff marriage (other than that it creates by
implied contract rights in extra-marital cohabitants to sue each other in family court for palimony and one-half
of the community property by analogy). Michoff, obviously, has created a mess; and I think it is incumbent
upon the majority to clean up this mess. It has not done so and, in my opinion, has made matters worse.
____________
114 Nev. 432, 432 (1998) Focus Commercial Group v. Rebeil
FOCUS COMMERCIAL GROUP, INC., a Nevada Corporation, Appellant, v. STEVE
REBEIL, Individually, and as Agent for Gem Homes, Inc., a Nevada Corporation,
Respondent.
No. 28800
April 9, 1998 956 P.2d 123
Appeal from an order granting summary judgment in a contract action. Eighth Judicial
District Court, Clark County; Gene T. Porter, Judge.
Real estate broker sued property owner for a commission on the sale of land. The
district court granted summary judgment for owner. Broker appealed. The supreme court held
that: (1) exclusive listing agreement satisfied statutory requirement of providing a definite
termination date, and (2) material issues of fact precluded summary judgment.
John Peter Lee, Paul C. Ray, and Barney Ales, Las Vegas, for Appellant.
Nicholas J. Santoro, a Professional Corporation, and Tracey L. Heinhold, Las Vegas,
for Respondent.
1. Brokers.
Exclusive listing agreement for real estate satisfied statutory requirement of providing a definite termination date for the
agreement. First paragraph provided that [t]his employment and authority to sell shall be irrevocable until 12:00 Midnight on July 8,
1993, second paragraph stated that owner agreed to pay a commission to broker if a buyer was secured during the period of this
Agreement, and read together, the paragraphs provided July 8, 1993, as the termination date. NRS 645.320.
2. Judgment.
Material issues of fact as to whether broker and real property owner entered into an oral open listing agreement before the
expiration of their written exclusive listing agreement, and whether such agreement was in existence at the time of the sale of the
property, precluded summary judgment for owner in broker's breach of contract suit seeking a commission for the sale.
3. Judgment.
Material issue of fact as to whether real estate broker was the procuring cause of property owner's sale of the property precluded
summary judgment for owner in broker's breach of contract suit seeking a commission for the sale. Owner's contracted engineer
testified that broker was an important liaison during sales negotiations with the purchaser, and purchaser's director of land development
testified that broker was instrumental in effectuating the sale.
OPINION
Per Curiam:
This is an appeal from a grant of summary judgment in a breach of contract action
involving a real estate commission. On April 8, 1993, Steve Rebeil, president of Gem Homes,
Inc., entered into an exclusive listing agreement with Focus Commercial Group, Inc.,
whereby Rebeil granted Focus an irrevocable right to sell and market eighty acres of real
estate known as Hollywood Hills until July 8, 1993. In January 1994, approximately six
months after the agreement between Focus and Gem Homes had allegedly expired, Rebeil
entered into an agreement with a Las Vegas builder for the sale of Hollywood Hills.
Shortly thereafter, Focus initiated this lawsuit, claiming that Rebeil had secretly attempted
to solicit other sales agreements during the exclusive listing period in violation of the
exclusive listing agreement. Additionally, Focus claimed that pursuant to an oral open listing
agreement with Rebeil, Focus was the procuring cause of sales agreements that Gem Homes
eventually entered into and, as such, Focus was entitled to its six percent commission.
The district court granted Rebeil's motion for summary judgment by concluding as a
matter of law that the agreement was invalid because it did not contain a definite termination
date as required by NRS 645.320. Focus now appeals the district court's grant of summary
judgment to Rebeil and Gem Homes.
FACTS
On April 6, 1993, Gem Homes was the successful bidder for approximately eighty
acres of real estate located near the intersection of Alto and Hollywood streets in the northeast
submarket of Las Vegas. On April 8, 1993, Gem Homes entered into an exclusive listing
agreement with Focus' agent Brian Lee, whereby Focus was given the authority to market and
solicit buyers for the property, which was known as Hollywood Hills. The agreement, a
standard form exclusive listing agreement commonly used in the commercial real estate
industry, provided:
1. For and in consideration of the services to be performed by Focus Commercial
Group, Inc., herein referred to as Broker, Steve Rebeil, herein referred to as Rebeil,
hereby grants Broker the exclusive right to sell . . . the property situated within the
County of Clark, State of Nevada . . . commonly known as the 80 acre NWC of Alto
and Hollywood, effective April Sth, 1993 .
and Hollywood, effective April 8th, 1993 . . . . This employment and authority to sell
shall be irrevocable until 12:00 Midnight on July 8, 1993.
2. Rebeil hereby agrees to pay Broker six percent (6%) of the total purchase price as a
fee for professional services rendered, which fee shall be payable upon close of escrow
from proceeds, if a buyer is secured by Broker, his agent, broker and agents with whom
Broker will cooperate, or through any other source including Rebeil, during the period
of this Agreement, or during the subsequent ninety (90) days, to persons with whom
Broker has negotiated during this Agreement, or offered or presented Rebeil's property,
or who has inspected subject property during the term of the listing, provided the
Broker submits a list of said persons to Rebeil within ten (10) days of the expiration of
the term of this Agreement . . . .
According to Lee's affidavit, after entering into the exclusive listing agreement, Lee
distributed marketing packages to many of the major home builders in the Las Vegas valley
in an effort to promote the Hollywood Hills project. After distributing these packages, Lee or
Andrew Flaherty, Focus' co-owner and its corporate secretary, initiated personal follow-up
sales contacts with many of the home builders in order to provide additional marketing
information. Two of the builders with whom Lee met to discuss the Hollywood Hills project
were Plaster Development and Longford Homes of Nevada (Longford Homes).
In his affidavit, Lee stated that in a telephone conversation which took place prior to July
8, 1993, Rebeil and Lee entered into an oral agreement whereby Rebeil agreed to allow Lee
and Focus to continue their marketing efforts of the Hollywood Hills project after the July 8,
1993, expiration of the exclusive listing agreement. During this telephone conversation, Lee
stated that while the parties did not discuss whether the oral agreement was exclusive or
non-exclusive, it was his understanding that Focus retained the right to market the property
with potential buyers, and that if Lee brought any offers that were accepted by Rebeil, Focus
would be entitled to its six percent commission.
Focus brought a letter of intent from B.R. Homes for the purchase of Hollywood Hills
during the agreement's exclusivity period; however, Rebeil rejected this offer. On August 11,
1993, during the subsequent ninety-day window provided in Paragraph Two of the agreement,
Rebeil entered into a sales agreement with Watt Homes, Nevada, for the purchase of
Hollywood Hills.
1
Lee stated in his affidavit that Rebeil verbally entered into the
agreement with Watt Homes prior to July S, 1993, in violation of the agreement.
__________

1
While not evident from the record, this transaction apparently never materialized as evidenced by the fact
that Gem Homes sold one half of Hollywood Hills to Plaster Development in January 1994 and the remaining
half to Longford Homes in July 1994.
stated in his affidavit that Rebeil verbally entered into the agreement with Watt Homes prior
to July 8, 1993, in violation of the agreement. In spite of the fact that Lee and Focus had
previously attempted to market Hollywood Hills to Watt Homes, Rebeil allegedly excluded
Focus from final negotiations concerning the Gem HomesWatt Homes transaction.
Unaware of the transaction between Gem Homes and Watt Homes, Lee continued to
market Hollywood Hills throughout the fall of 1993. Because portions of Hollywood Hills
had marketing problems due to the presence of a tectonic fault, Lee determined that the best
marketing strategy would be to attract a reputable builder for the unaffected western half of
the project, thereby increasing the attractiveness of Hollywood Hill's eastern forty acres.
In November 1993, Lee learned that Plaster Development was interested in developing the
western portion of Hollywood Hills that did not have the fault problem. According to Lee's
affidavit, after discussing his marketing strategy with Rebeil and informing Rebeil of Plaster
Development's interest in acquiring the western portion of Hollywood Hills, Rebeil approved
of the proposed transaction and directed Lee to proceed with sales negotiations with Plaster
Development.
In an effort to coordinate the exchange of information, and to facilitate the transaction
between Gem Homes and Plaster Development, Lee arranged several meetings between key
personnel of the two companies. In one meeting, Greg Anderson, Rebeil's contracted
engineer, provided Plaster Development personnel with cost estimations for sewer, water, and
electric utilities necessary for lot improvements. In his deposition, Anderson stated that Lee
played a critical role in the proposed transaction by serving as a liaison between Plaster
Development and Gem Homes.
In addition to arranging meetings between Rebeil's engineer and key personnel from
Plaster Development, Lee also arranged for a meeting between Rebeil and Richard Plaster,
Plaster Development's principal, which took place on January 17, 1994. According to Lee,
throughout this time period, Rebeil instructed Lee to continue marketing Hollywood Hills to
Plaster Development.
On January 21, 1994, Gem Homes and Plaster Development entered into a purchase
agreement whereby Plaster agreed to purchase the western forty acres of the Hollywood Hills
project. In spite of the work that he had performed, Lee was excluded from these final
negotiations. Additionally, after learning of the transaction between Gem Homes and Plaster
Development, Flaherty contacted Rebeil by telephone to remind him that Focus was entitled
to a commission based on Lee's work in effectuating the sale.
was entitled to a commission based on Lee's work in effectuating the sale.
Bill Laubner, the director of land development for Plaster Development, testified in
his deposition that in December 1993 he met with Lee and expressed an interest, on behalf of
Plaster Development, in acquiring a portion of Hollywood Hills from Gem Homes. In a
subsequent deposition, Laubner testified that in his estimation, Lee was the procuring cause
broker of the Gem HomesPlaster Development transaction because of the significant
amount of work that Lee performed in effectuating the sale.
Rebeil's version of the events surrounding the Gem HomesPlaster Development
transaction varies considerably from that of Lee's and Flaherty's. Rebeil stated in his affidavit
that after Gem Homes became the successful bidder for Hollywood Hills, Gem Homes
retained the services of Focus for a period of ninety-days pursuant to an exclusive listing
agreement dated April 8, 1993. Rebeil further stated that after the term expired on July 8,
1993, Gem Homes decided to retain Hollywood Hills and develop the site itself because
Focus had failed in its attempts to procure a buyer for the project.
According to Rebeil, in January 1994, he was approached by real estate agent William
Gayler, who inquired as to whether Hollywood Hills was available for sale. After being told
that Gem Homes would be interested in selling Hollywood Hills, Gayler allegedly made a
market presentation to Laubner of Plaster Development. During this presentation, Laubner
allegedly told Gayler that Plaster Development would be interested in acquiring the western
half of Hollywood Hills and, as a result of Gayler's presentation, Gem Homes entered into a
sales agreement with Plaster Development for the sale of one-half of Hollywood Hills for
$8,000.00 per tentative mapped lot. Rebeil stated that the remaining one-half parcel of
Hollywood Hills was sold to Longford Homes in May 1994, due to the efforts of broker
Daniel Kramer, of Landcor Properties & Investments, Inc.
After both Gayler and Kramer were paid their respective commissions, Rebeil stated that
Lee advised both Gem Homes and Plaster Development that he was entitled to a commission
because of his work in effectuating the sale of Hollywood Hills. Rebeil stated that he denied
Lee's request because he felt Lee had nothing to do with the sale, and because in his
estimation Gayler and Kramer were the procuring cause brokers of the Gem HomesPlaster
Development transaction.
On August 3, 1994, Focus filed its complaint alleging that it had fulfilled the terms of
the agreement through its procurement of willing buyers who eventually purchased
Hollywood Hills for $3,736,000.00. Accordingly, Focus alleged that it was entitled to a
commission in the amount of $224,160.00.
a commission in the amount of $224,160.00. After Gem Homes failed to timely answer
Focus' complaint, a default judgment was entered against it on September 29, 1994. By court
order dated October 26, 1994, the default judgment on behalf of Focus was set aside based on
a showing of good cause by Rebeil and Gem Homes.
In spite of Rebeil's previous sworn statements wherein he indicated that the agreement
had expired by its own terms on July 8, 1993, Rebeil argued that the agreement between Gem
Homes and Focus was invalid because it did not contain a definite termination date as
required by NRS 645.320. Additionally, Rebeil denied the existence of an oral agreement.
The district court granted Rebeil's motion for summary judgment as to all claims on the sole
basis that the agreement was invalid as a matter of law because it did not contain a definite
termination date as required by NRS 645.320.
2
Focus now appeals the district court's order
granting Rebeil's motion for summary judgment.
DISCUSSION
The district court erred in concluding that the agreement was invalid due to the absence of a
definite termination date
[Headnote 1]
Focus argues that the agreement satisfies the requirements of NRS 645.320 because it
provides for a termination date of July 8, 1993, as evidenced by key language contained in the
agreement's first two paragraphs. We agree.
The last sentence of the first paragraph states [t]his employment and authority to sell shall
be irrevocable until 12:00 Midnight on July 8, 1993. In the agreement's second paragraph,
Rebeil agrees to pay Focus a six percent commission if a buyer is secured by Focus during
the period of this Agreement, or during the subsequent ninety (90) days. Focus argues that
by reading the two paragraphs in conjunction with one another, it is evident that the
agreement expired on July 8, 1993, and that it also provided for an additional ninety-day
period following July S, 1993, during which time the broker could receive a commission.
__________

2
NRS 645.320 requires that:
Every brokerage agreement which includes a provision for an exclusive listing must:
1. Be in writing.
2. Have set forth in its terms a definite, specified and complete termination.
3. Contain no provision which requires the client who signs the brokerage agreement to notify the
real estate broker of his intention to cancel the exclusive features of that listing after the termination of
the listing.
4. Be signed by both the client or his authorized representation and the listing agent or his authorized
representative in order to be enforceable.
also provided for an additional ninety-day period following July 8, 1993, during which time
the broker could receive a commission.
In response, Rebeil argues that the agreement is invalid pursuant to our holding in
Bangle v. Holland Realty Inv. Co., 80 Nev. 331, 393 P.2d 138 (1964). In Bangle, the buyer
purchased land known as Sunset Manor upon which Bangle had built ninety-seven
subdivision homes. Id. at 332, 393 P.2d at 138. Holland, a real estate broker, entered into an
exclusive listing agreement with Bangle which provided Holland with an exclusive right to
sell any houses which [Bangle] may build or cause to have built on property tentatively
known as Sunset Manor in West Las Vegas, Nevada, for a minimum commission of $400 a
house.' Id. at 332, 393 P.2d at 139. Of the ninety-seven homes that were eventually sold in
Sunset Manor, it was stipulated that Holland was directly responsible for the sale of
twenty-eight. Id. at 333, 393 P.2d at 139.
At the conclusion of trial, the jury awarded Holland $38,800 based solely on the express
language of the exclusive listing agreement. Id. On appeal, we reversed the jury's award by
concluding that the exclusive listing agreement was invalid because it lacked a definite
termination date as required by NRS 645.320. Id. at 334-35, 393 P.2d at 141.
Respondent's reliance on Bangle is misplaced. Based on a plain reading of the
agreement, we conclude that the agreement was valid because it sufficiently provided for an
expiration date of July 8, 1993. Unlike the agreement in Bangle, which failed for want of any
guideline as to duration, here, by reading the first and second paragraphs in conjunction with
one another, it is clear that the agreement provided for a termination date of July 8, 1993.
Accordingly, we conclude that the district court erred in holding as a matter of law that the
agreement was invalid because it lacked a definite termination date as required by NRS
645.320.
The district court erred in granting respondent's motion for summary judgment
[Headnote 2]
Focus argues that the district court erred in granting Rebeil's motion for summary
judgment because genuine issues of material fact were in dispute concerning the nature and
meaning of their written agreement, the existence, nature and effect of their subsequent oral
agreement, and whether Lee was the procuring cause of the transaction between Gem Homes
and Plaster Development. We agree.
NRCP Rule 56(c) provides that summary judgment shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and admissions of file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law."
rogatories, and admissions of file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.
Summary judgment is only appropriate when, after a review of the record viewed in a
light most favorable to the non-moving party, there remain no genuine issues of
material fact, and the moving party is entitled to judgment as a matter of law. All of the
non-movant's statements must be accepted as true, and a district court may not pass on
the credibility of affidavits. This court's review of an order granting summary judgment
is de novo.
Jones v. First Mortgage Co. of Nevada, 112 Nev. 531, 534, 915 P.2d 883, 885 (1996)
(citations omitted).
Focus argues that Lee and Rebeil entered into a separate, oral open listing agreement
prior to the expiration of their written agreement on July 8, 1993. After the expiration of the
exclusive listing agreement, Focus argues that it continued to market Hollywood Hills on an
open listing basis pursuant to Rebeil's instructions. Rebeil denies entering into a separate oral
agreement with Lee.
In Morrow v. Barger, 103 Nev. 247, 249, 737 P.2d 1153, 1154 (1987), Morrow, a licensed
real estate broker, entered into a written listing agreement in March 1979 with the Bargers for
the sale of the Bargers' Nevada ranch. Pursuant to this agreement, Morrow registered
Peterson, Carpenter, and Spratling as buyers with the Bargers. Id.
In December 1980, Morrow and the Bargers entered into another listing agreement
which expired by its terms on April 15, 1981. Id. When this listing agreement expired,
Morrow claimed that she and the Bargers orally agreed that she would continue to pursue the
sale of the ranch, with the Bargers assuring her that her interest would be protected.' Id. at
252, 737 P.2d at 1156. In March, 1982, the Bargers sold their ranch in a complex transaction
that, at various stages, involved Peterson, Carpenter, and Spratling. Id. at 250, 737 P.2d at
1154. Morrow then filed a complaint against the Bargers for her real estate commission,
arguing that the Bargers excluded her from final negotiations and that she was the procuring
cause of the sale of the Bargers' ranch. Id. at 249-50, 737 P.2d at 1154.
The district court granted the Bargers' motion for summary judgment after concluding that
the 1979 listing agreement did not create a valid exclusive listing agreement pursuant to NRS
645.320 because it lacked a definite termination date. Id. at 250, 737 P.2d at 1155.
Additionally, the district court concluded that no employment relationship was created by
the alleged oral agreement between the Bargers and Morrow. Id. at 251, 737 P.2d at
1155-56.
no employment relationship was created by the alleged oral agreement between the Bargers
and Morrow. Id. at 251, 737 P.2d at 1155-56. On appeal, we reversed the district court's grant
of summary judgment by holding that the significance of the alleged oral agreement upon the
1979 listing agreement was a material question of fact which precluded summary judgment.
Id. at 251, 737 P.2d at 1155.
Here, we conclude that based on the affidavits of Lee and Flaherty, material questions
of fact existed concerning whether Lee and Rebeil entered into an oral open listing
agreement, and whether such agreement was in existence at the time of the Gem
HomesPlaster Development transaction in January 1994. In light of our holding in Morrow,
and in construing the facts in favor of Focus, we conclude that the existence and terms of the
alleged oral agreement between Rebeil and Focus present material questions of fact which
render summary judgment inappropriate.
Focus further argues that its agent, Lee, was the procuring cause of the transaction between
Gem Homes and Plaster Development and thus it is entitled to a commission based on the
alleged oral agreement. In support of this argument, Focus relies on the testimony of
Anderson, Rebeil's contracted engineer, and Laubner, Plaster Development's director of land
development.
In his deposition taken on April 13, 1995, Anderson stated that Lee was an important
liaison between Plaster Development and Gem Homes during sales negotiations for
Hollywood Hills. Additionally, in his deposition taken on March 4, 1996, Laubner testified
that in negotiations for Hollywood Hills during January 1994, it was his understanding that
Lee was representing Rebeil and Gem Homes. Laubner added that in his estimation, Lee was
instrumental in effectuating Gem Homes' sale of Hollywood Hills to Plaster Development.
In Atwell v. Southwest Securities, 107 Nev. 820, 823, 820 P.2d 766, 767 (1991), we
reiterated that in order to be entitled to a real estate commission, a broker must show that (1)
an employment contract existed, and (2) the broker was the procuring cause of the sale. Id.
With respect to the second prong of this test, we concluded that [w]hether a broker's efforts
constitute the procuring cause' of a sale is a question of fact. Id. at 825, 820 P.2d at 769.
Because whether a broker was the procuring cause of a sale presented material questions of
fact, we concluded that the district court erred in granting Southwest's motion for summary
judgment. Id. at 826, 820 P.2d at 770.
[Headnote 3]
Here, as in Atwell, we conclude that the issue as to whether Focus' agent, Lee,
Focus' agent, Lee, was the procuring cause of the Gem HomesPlaster Development
transaction raises genuine issues of material fact. Accordingly, the district court erred in
granting Rebeil's motion for summary judgment.
CONCLUSION
We conclude that the exclusive listing agreement adequately satisfied the definite
termination requirement contained in NRS 645.320 and was therefore valid. Further, we
conclude that genuine issues of material fact exist concerning the nature and terms of the
alleged oral agreement and whether Focus was the procuring cause of the Gem
HomesPlaster Development transaction. Accordingly, we reverse the district court's order
granting respondent's motion for summary judgment and remand this case for trial.
____________
114 Nev. 441, 441 (1998) Barmettler v. Reno Air, Inc.
ANDREW BARMETTLER, Appellant, v. RENO AIR, INC., Respondent.
No. 27849
ANDREW BARMETTLER, Appellant, v. RENO AIR, INC., Respondent.
No. 28100
April 16, 1998 956 P.2d 1382
Appeal from summary judgment. Second Judicial District Court, Washoe County;
Steven R. Kosach, Judge.
Employee sued employer, alleging wrongful termination and violation of employer's
confidentiality policy regarding drug and alcohol treatment. The district court granted
summary judgment for employer. Employee appealed. The supreme court, Maupin, J., held
that: (1) evidence did not support claims for fraudulent misrepresentation, intentional
infliction of emotional distress, and negligent infliction of emotional distress; (2) tort of
negligent misrepresentation was inapplicable; and (3) employer's drug and alcohol policy did
not modify the employee's at-will status.
Affirmed.
Rose, J., and Springer, C. J., dissented in part.
Kevin J. Mirch, Reno, for Appellant.
Walther, Key, Maupin, Oats, Cox, Klaich & LeGoy, and Michael E. Malloy, Reno, for
Respondent.
1. Judgment.
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.
2. Judgment.
Party opposing summary judgment may not rely on the allegations of his pleadings to raise a material issue of fact, where the
moving party supports his motion with competent evidence.
3. Judgment.
Defendant's second motion for summary judgment was timely, though plaintiff characterized such motion as an untimely
motion, under local rules, for reconsideration of the same fact issues presented in the trial court's earlier partial summary judgment
for defendant, as rules of civil procedure allowed a defending party to move for summary judgment at any time and the case had
been more fully developed as of the time of the second motion. NRCP 56(b).
4. Master and Servant.
Employee's naked allegation that employer fraudulently induced him into accepting employment or seeking drug and alcohol
therapy did not support essential elements of his fraudulent misrepresentation claim, which was based on allegations that employer had
violated its written policy of retaining in strict confidence an employee's participation in any chemical dependency program.
5. Fraud.
To establish fraudulent misrepresentation, plaintiff has the burden of proving, by clear and convincing evidence: (1) a false
representation made by the defendant; (2) defendant's knowledge or belief that its representation was false or that defendant had an
insufficient basis of information for making the representation; (3) defendant intended to induce plaintiff to act or refrain from acting
upon the misrepresentation; and (4) damage to the plaintiff as a result of relying on the misrepresentation.
6. Damages.
Evidence did not support employee's claim against employer for intentional infliction of emotional distress, relating to
employer's alleged violation of its written policy of retaining in strict confidence an employee's participation in any chemical
dependency program. Employee did not show extreme and outrageous conduct with either the intention of, or reckless disregard for,
causing emotional distress, or that employee suffered severe or extreme emotional distress.
7. Damages.
The additional, minimal therapy that employee underwent, after employer allegedly violated its written policy of retaining in
strict confidence an employee's participation in any chemical dependency program, did not satisfy the physical injury or impact
requirement for the claim of negligent infliction of emotional distress against employer.
8. 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.
9. Fraud.
Employer's implementation of its written policy of retaining in strict confidence an employee's participation in any chemical
dependency program did not involve a business or commercial transaction, and thus, tort of negligent misrepresentation was
inapplicable to employee's claim that employer violated that policy.
Employer may dismiss at-will employee with or without cause as long as the dismissal does not offend public policy.
At-will employment relationship is rebuttable if the employee can prove by a preponderance of the evidence that a contract,
either express or implied, required termination for cause only.
Evidence did not support finding that employer's written drug and alcohol policy limited its ability to terminate an at-will
employee or constituted an express or implied contract of continued employment.
Employer's written drug and alcohol policy did not create an inherent ambiguity regarding express disclaimers, in employee
handbook, that the handbook did not create either an implied or express contract and that employees could be terminated at any time
for any reason due to their at-will status, and thus, handbook did not alter employee's at-will status.
14. Records.
Trial court did not violate rule prohibiting unsealing of arbitration award prior to final disposition, though court, in dismissing
employee's fraudulent misrepresentation claim, noted that employee failed to introduce evidence at arbitration which demonstrated that
employer intended to induce employee into relying on its written drug and alcohol policy, as there was no jury to contend with, and the
fact that employee sought trial de novo alerted trial court judge to the identity of the successful party at arbitration. NAR 20.
OPINION
Reno Air employed appellant Andrew Barmettler (Barmettler) from July 1992 to February 1993. In November of 1992, after
informing his supervisors that he was suffering from an alcohol problem, Barmettler admitted himself into a residential treatment facility.
Reno Air had previously adopted a written drug and alcohol policy which expressly stated that it would retain, in strict confidence, an
employee's participation in any chemical dependency program. This policy was distributed to all employees.
Barmettler alleges that his supervisor discussed the situation with a number of Reno Air employees and that, after returning to
work, he was jeered by a number of these co-workers. This allegedly caused him to contemplate suicide and seek additional
psychotherapy. Thereafter, Barmettler was terminated.

Reno Air claims to have terminated Barmettler for circulating rumors that two Reno
Air employees were having an illicit affair. Barmettler maintains that Reno Air terminated his
employment in retaliation for his complaints in connection with his supervisor's violations of
Reno Air's confidentiality policy.
Barmettler filed a complaint against Reno Air on April 24, 1994, alleging nine claims for
relief: (1) breach of contract; (2) breach of the implied covenant of good faith and fair
dealing; (3) negligence; (4) fraudulent misrepresentation; (5) negligent misrepresentation; (6)
lost wages; (7) wrongful termination; (8) intentional infliction of emotional distress; and (9)
negligent infliction of emotional distress. The case was assigned to an arbitrator on October
18, 1994.
On March 10, 1995, the district court granted summary judgment as to the following
five claims for relief: breach of contract, breach of covenant of good faith and fair dealing,
lost wages, negligent infliction of emotional distress, and wrongful termination.
The remaining four claims were arbitrated on June 5, 1995 (negligence, fraudulent
misrepresentation, negligent misrepresentation and intentional infliction of emotional
distress). Following a ruling in favor of Reno Air by the arbitrator, Barmettler filed a
Request for Trial De Novo. Reno Air then filed a motion for summary judgment as to the
four arbitrated claims for relief.
In its November 20, 1995 order, the district court granted summary judgment on all
four of the remaining claims. On December 22, 1995, the district court reduced its March 10
and November 20, 1995 orders to final judgment in favor of Reno Air. On January 31, 1996,
the district court entered a separate order granting attorney's fees in the amount of $3,000.00
pursuant to Nevada Arbitration Rule (NAR) 20(a). Barmettler appeals the summary
judgment rulings in appeal No. 27849,
1
and the award of attorney's fees in appeal No. 28100.
[Headnote 1]
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. Butler v.
Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663 (1985). In determining whether
summary judgment is proper, the nonmoving party is entitled to have the evidence and all
reasonable inferences accepted as true."
__________

1
Barmettler is not appealing the substance of the orders entering judgment on the claims for wrongful
termination, negligence, breach of the implied covenant of good faith and fair dealing, and lost wages. Thus,
although Barmettler has alleged that certain procedural defects led to the entry of these orders, the substance of
these claims is not addressed in this opinion.
inferences accepted as true. Wiltsie v. Baby Grand Corp., 105 Nev. 291, 292, 774 P.2d 432,
433 (1989). However, the nonmoving party is not entitled to build a case on the gossamer
threads of whimsy, speculation, and conjecture.' Collins v. Union Fed. Savings & Loan, 99
Nev. 284, 302, 662 P.2d 610, 621 (1983) (quoting Hahn v. Sargent, 523 F.2d 461, 469 (1st
Cir. 1975), cert. denied, 425 U.S. 904 (1976)).
[Headnote 2]
On appeal, this court is required 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). A party
opposing summary judgment may not rely on the allegations of his pleadings to raise a
material issue of fact where the moving party supports his motion with competent evidence.
Garvey v. Clark County, 91 Nev. 127, 130, 532 P.2d 269, 271 (1975).
Barmettler raises several procedural issues on appeal, each of which will be discussed
in turn.
Whether the district court erred in considering unauthenticated documents when it granted
partial summary judgment on March 10, 1995, as to five of Barmettler's claims
Barmettler contends that several exhibits
2
were not properly authenticated; therefore,
the district court erred in considering them in granting the first summary judgment motion.
Further, Barmettler requested Rule 11 sanctions against Reno Air for improper
authentication. We conclude that this argument is without merit because any authentication
defects were cured before the final disposition in the court below. Also, several of the
exhibits appear to have been self-authenticating in the context of these claims.
Whether the district court erred in entertaining Reno Air's November 20, 1995 motion for
summary judgment on the remaining claims litigated in arbitration
[Headnote 3]
As to Reno Air's second motion for summary judgment addressing the arbitrated
claims (negligence, fraudulent misrepresentation, negligent misrepresentation, intentional
infliction of emotional distress), Barmettler insists that the district court improperly
reconsidered the same factual issues presented in the first summary judgment motion
filed on December 23, 1994.
__________

2
Exhibit APersonnel Information; Exhibit BPlaintiff's Termination Notice; Exhibit CPlaintiff's
Application for Employment; Exhibit DPartial Deposition of Curtis Andrew Barmettler; Exhibit Ethe
Affidavit of Kevin Kilcourse (Director of Human Resources at Reno Air); Exhibit FEmployee Handbook;
Exhibit GReno Air Inc., Drug and Alcohol Policy.
emotional distress), Barmettler insists that the district court improperly reconsidered the same
factual issues presented in the first summary judgment motion filed on December 23, 1994.
Characterizing Reno Air's second motion for summary judgment as a motion for
reconsideration, Barmettler claims that, pursuant to Washoe District Court Rule 12(8),
3
the motion was untimely because it was not filed within ten days of the first order. In light of
NRCP 56(b), which allows a defending party at any time, [to] move with or without
supporting affidavits for a summary judgment in his favor . . . , and because the case had
been more fully developed as of the time the second motion was lodged, we conclude that
this argument must fail. Accordingly, there was no procedural impediment to Reno Air's
second motion for summary judgment on the arbitrated claims.
We now move to the merits of the summary judgment orders.
4

Fraudulent misrepresentation
[Headnote 4]
Barmettler alleges in his fourth claim for relief that Reno Air made fraudulent
representations concerning its drug and alcohol program. Barmettler claims Reno Air induced
him into accepting employment in July of 1992, and into entering an alcohol and drug
rehabilitation program in November of 1992.
[Headnote 5]
Under Nevada law, Barmettler has the burden of proving each and every element of
his fraudulent misrepresentation claim by clear and convincing evidence:
__________

3
Washoe District Court Rule 12(8) provides in part:
8. The rehearing of motions must be done in conformity with D.C.R. 13, Section 7. A party seeking
reconsideration of a ruling of the court, other than an order which may be addressed by motion pursuant
to N.R.C.P. 50(b), 52(b), 59 or 60, must file a motion for such relief within 10 days after service of
written notice of entry of the order or judgment, unless the time is shortened or enlarged by order. A
motion for rehearing or reconsideration must be served, noticed, filed, and heard as any other motion. A
motion for rehearing does not toll the 30-day period for filing a notice of appeal from a final order or
judgment.

4
As noted in n. 1, the negligence, breach of the implied covenant of good faith and fair dealing, wrongful
termination and loss of wage claims are not specifically addressed in the text of this opinion. Although these
claims are not the subject of this appeal, we conclude that the resolution of the negligent infliction of emotional
distress and negligent misrepresentation claims are dispositive of the negligence claim; that the resolution of the
breach of contract claim is dispositive of the breach of the implied covenant of fair dealing and the wrongful
termination claims; and that the resolutions in favor of Reno Air on the various substantive claims are dispositive
of the separate claim for lost wages.
clear and convincing evidence: (1) a false representation made by the defendant; (2)
defendant's knowledge or belief that its representation was false or that defendant has an
insufficient basis of information for making the representation; (3) defendant intended to
induce plaintiff to act or refrain from acting upon the misrepresentation; and (4) damage to
the plaintiff as a result of relying on the misrepresentation. Bulbman, Inc. v. Nevada Bell, 108
Nev. 105, 110-11, 825 P.2d 588, 592 (1992); Lubbe v. Barba, 91 Nev. 596, 599, 540 P.2d
115, 117 (1975). Further, [w]here an essential element of a claim for relief is absent, the
facts, disputed or otherwise, as to other elements are rendered immaterial and summary
judgment is proper. Bulbman, 108 Nev. at 111, 825 P.2d at 592.
Reno Air provided proof that, at arbitration, Barmettler failed to produce any evidence
demonstrating that Reno Air fraudulently induced him into accepting employment or seeking
drug and alcohol therapy. In the absence of proof to the contrary, Barmettler's naked
allegations on these issues were insufficient to raise a triable issue of fact. Again, it is
fundamental that the nonmoving party may not rest on the allegations of his pleadings to
successfully resist a motion brought under NRCP 56. Accordingly, summary judgment was
appropriate as to Barmettler's fraudulent misrepresentation claim.
Intentional infliction of emotional distress
[Headnote 6]
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).
We conclude that Barmettler has failed to establish either the first or second elements
of this cause of action. Accordingly, summary judgment as to this claim was warranted.
Negligent infliction of emotional distress
[Headnote 7]
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.
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).
[Headnote 8]
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.
We conclude that the district court correctly found that the additional minimal therapy
undergone by Barmettler did not satisfy the physical injury or impact requirement of
Chowdhry. Accordingly, Barmettler's argument is without merit.
Negligent misrepresentation
[Headnote 9]
Barmettler maintains that he relied on the promise of confidentiality as expressly
stated in Reno Air's Drug and Alcohol Policy when he sought employment with Reno Air. In
Bill Stremmel Motors, Inc. v. First National Bank of Nevada, 94 Nev. 131, 134, 575 P.2d
93S, 940 {197S), we adopted the Restatement {Second) of Torts 552 definition of the
tort of negligent misrepresentation:
134, 575 P.2d 938, 940 (1978), we adopted the Restatement (Second) of Torts 552
definition of the tort of negligent misrepresentation:
(1) One who, in the course of his business, profession or employment, or in any other
action in which he has a pecuniary interest, supplies false information for the guidance
of others in their business transactions, is subject to liability for pecuniary loss caused
to them by their justifiable reliance upon the information, if he fails to exercise
reasonable care or competence in obtaining or communicating the information.
The thrust of Reno Air's argument is that this tort only applies to business
transactions; thus, in the context that Reno Air implemented its Drug and Alcohol Policy, this
conduct does not fit squarely within a business or commercial transaction. We agree. Further,
beyond this threshold approach to the doctrine, the alleged misrepresentations here do not
give rise to this cause of action. Accordingly, Barmettler's claim must fail.
Breach of contract
A. The At-Will Relationship
[Headnotes 10, 11]
As a threshold matter, Barmettler was an at-will employee; therefore, Reno Air could
dismiss Barmettler with or without cause as long as the dismissal did not offend public
policy. Vancheri v. GNLV Corp., 105 Nev. 417, 421, 777 P.2d 366, 369 (1989). In Vancheri,
we also noted that an employee's subjective expectations cannot create a contract of
employment. Id. The at-will employment relationship is rebuttable if the employee can prove
by a preponderance of the evidence that a contract, either express or implied, required
termination for cause only. Southwest Gas Corp. v. Vargas, 111 Nev. 1064, 1071, 901 P.2d
693, 697 (1995) (citing American Bank Stationery v. Farmer, 106 Nev. 698, 701, 799 P.2d
1100, 1101-02 (1990)).
[Headnote 12]
Barmettler argues that, notwithstanding his at-will status, Reno Air's Drug and
Alcohol Policy placed limitations on its ability to terminate him. As support, Barmettler cites
Holmes v. Union Oil Co., 760 P.2d 1189 (Idaho Ct. App. 1988). In Holmes, a long-term
employee notified his employer of a second DUI arrest, fearing that the arrest would lead to
incarceration and, thus, termination. Id. at 1191. His employer offered to place him in a
residential alcohol treatment program with the condition that he abide by the company's
continuing rehabilitation plan following his release from the treatment center.
his release from the treatment center. Id. The employer also submitted a five-page letter to the
criminal court outlining its rehabilitation plan and reiterating that the employee's continued
employment was conditioned on compliance with the plan. Id. In reliance on the plan, the
criminal court suspended proceedings and placed the employee on court supervised probation
for eighteen months. Unfortunately, about seven months into the probationary period, the
criminal court revoked the probation for a technical violation of the conditions of probation.
In response, the company fired the employee. Id. at 1191-92. Following termination,
the employee filed suit alleging that the rehabilitation plan constituted an express or implied
contract of continued employment. Specifically, he asserted that, notwithstanding his at-will
status, the company's five-page letter to the judge who had agreed to the terms of his
probation, created a specified duration of employment or, at least, restricted the company's
ability to terminate. Id. at 1192.
The Holmes court concluded that the finder of fact could view the rehabilitation program
as creating a mutual understanding that employment would continue for at least eighteen
months absent a termination for cause or if the employee should quit his job. The court
reasoned that, although the letter clearly stated that the employee could be discharged for
violating its terms, it was unclear whether a technical violation of probation would also
constitute a violation of the terms of the letter and therefore grounds for discharge. Thus,
under the circumstances set forth in Holmes, the jury concluded that the at-will relationship
had been changed by the letter. Id. at 1193-94. The court, however, qualified its holding in a
footnote:
We do not hold or intimate that every job or training or rehabilitation program could
alter an employee's at-will status. This case involves a unique nexus between an
employee's participation in an employer-provided program and a grant of probation for
a specific period in a criminal case at the mutual request of the employer and employee.
Even in this unique circumstance, an employer desiring to maintain an at-will
relationship could make an express disclaimer of intent to limit potential reasons for
discharge or to create any expectation of continued employment for a certain duration.
The record before us contains no such disclaimer.
Id. Holmes has no applicability to the case at bar. Barmettler's discharge had nothing to do
with the breach of an express or implied covenant of continued employment created in
derogation of the at-will arrangement that existed when he undertook and continued
employment with Reno Air.
B. Disclaimers
[Headnote 13]
The first page of Reno Air's Employee Handbook contains a disclaimer that the
handbook merely serves as an informative tool and does not create either an implied or
express contract between the airline and its employees. The disclaimer also reminds Reno Air
employees that they may be terminated at any time for any reason due to their at-will status.
We recently noted that employee handbooks which contain disclaimers that tend to
contradict other promissory language in the handbooks are inherently ambiguous:
Thus, . . . the entire handbook, including any disclaimer, should be considered in
determining whether the handbook gives rise to a promise, an expectation and a benefit.
As with any question of fact, this is primarily a matter for the jury to decide. The
court should intervene to resolve the handbook issue as a matter of law only if the
handbook statements and the disclaimer, taken together, establish beyond any doubt
tha[t] an enforceable promise either does or does not exist.
Southwest Gas v. Vargas, 111 Nev. 1064, 1072, 901 P.2d 693, 697-98 (1995) (quoting
Fleming v. Borden, Inc., 450 S.E.2d 589, 596 (S.C. 1994) (citations omitted)).
We conclude that, when read together, Reno Air's Employee Handbook and its Drug
and Alcohol Policy do not create an inherent ambiguity with regard to Reno Air's express
disclaimer that an employee's at-will status retains its vitality. Nor has Barmettler satisfied his
burden of proof to the contrary. Accordingly, Barmettler's breach of contract claim was
properly dismissed via summary judgment.
Whether the district court erred by reviewing portions of the arbitration proceedings
[Headnote 14]
In ruling on Barmettler's fraudulent misrepresentation claim, the district court noted
that Barmettler failed to introduce evidence at the arbitration which demonstrated that Reno
Air intended to induce Barmettler into relying on its Drug and Alcohol Policy. Reaching this
argument did not, in and of itself, violate NAR 20 relating to disclosures of arbitration
awards. There was no jury to contend with and, as to any problem stemming from the trial
judge's evaluation of those proceedings, the fact that Barmettler sought trial de novo alerted
the judge as to the identity of the successful party at arbitration. Further, the failure to
provide proof at arbitration is relevant on either summary judgment or on motion to
strike all or part of a request for trial de novo.
failure to provide proof at arbitration is relevant on either summary judgment or on motion to
strike all or part of a request for trial de novo. Thus, the rule prohibiting unsealing of the
award prior to final disposition was not offended. Accordingly, we conclude that this
argument is without merit.
Attorney's fees
In appeal No. 28100, Barmettler argues that Reno Air's attorney's fees in the amount
of $3,000 are outrageous and excessive because no discovery, hearings, or motions were filed
or heard between the filing of the request for trial de novo and the issuance of the second
summary judgment order.
Reno Air notes that it incurred attorney's fees totalling approximately $6,835 which
reflected preparation fees for its second motion for summary judgment, as well as formal and
informal discovery.
A. Standard of Review
Recently, we determined that a district court's award of attorney's fees will not be
overturned absent a manifest abuse of discretion. Davidsohn v. Steffens, 112 Nev. 136, 911
P.2d 855 (1996). Likewise, we have explained that the grant of attorney's fees is within the
court's discretionary ambit. University of Nevada v. Tarkanian, 110 Nev. 581, 590, 879 P.2d
1180, 1187 (1994); County of Clark v. Blanchard Constr. Co., 98 Nev. 488, 492, 653 P.2d
1217, 1220 (1982).
B. Nevada Arbitration Rule 20(A)
NAR 20(A) creates a disincentive to relitigating an arbitration award. In the event of
an adverse judgment at the trial de novo proceedings, the party requesting trial de novo risks
paying the adverse party's attorney's fees.
Rule 20(A) provides in pertinent part:
Except as otherwise provided in this subsection, if the amount of the award in the trial
de novo does not either exceed the arbitration award made to the party requesting the
trial de novo, or reduce the liability imposed on that party by the arbitration award, the
party requesting the trial de novo must pay to the adverse parties all recoverable costs
and attorney's fees associated with the prosecution or defense 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.)
We conclude that the fee award in this case was mandatory. Accordingly, the district
court's award of attorney's fees must be affirmed.
Having concluded that each of Barmettler's claims is without merit, we accordingly
affirm the district court's ruling.
Young, J., concurs.
I agree that the district court's order granting summary judgment should be affirmed. I
address the dissent position that offering a drug rehabilitation program can change an at-will
employment to contractual employment. Neither the language of the employee handbook nor
the drug and alcohol policy, separately or together, make such a change. The employee's
status is expressly at-will. Furthermore, the public policy considerations are particularly
compelling for not penalizing companies which do institute drug and alcohol rehabilitation
programs. The law of this state should encourage such action. It is in the public interest, as
well as in Reno Air's interest, that employees who have substance abuse problems be helped
to overcome those problems. However, it is also in the public interest that Reno Air be free to
terminate its employees in critical positions and not be required to maintain them in their
positions even when there is only a suspicion that they cannot perform their duties safely and
effectively. Reno Air is free to enter into employment contracts, but we should not lightly
hold that they have inadvertently done so.
Rose, J., with whom Springer, C. J., joins, concurring in part and dissenting in part:
The claim of breach of contract presents factual issues that should have prevented the
district court from granting summary judgment against Barmettler on this issue.
1
The
majority opinion ignores our prior case law and substantially erodes an employee's right to
rely on the documents presented at the inception of employment that form the employment
contract.
A few days after commencing work for Reno Air, Barmettler received its employee
handbook and drug and alcohol policy. We have held that handbooks and statements of policy
or procedures received by an employee at or shortly after beginning employment can be
viewed as setting forth all or a portion of the contract of employment between the employer
and employee.
__________

1
While Barmettler has abandoned the issue of wrongful discharge on appeal, the facts and the law on this
issue are inextricably intertwined with his viable breach of contract claim.
of employment between the employer and employee. Southwest Gas Corp. v. Ahmad, 99
Nev. 594, 668 P.2d 261 (1983). Viewing these documents in a light most favorable to
Barmettler, a trier of fact could conclude that while the employment was, in general, at will,
it was expressly modified by Reno Air's drug policy. One could reasonably interpret the
policy as providing that: (1) an employee's participation in the drug program will be strictly
confidential, and (2) the employee cannot be terminated for reasons related to his or her
participation in the drug program. If one believes Barmettler's view of the facts, Reno Air
violated both contractual undertakings.
Barmettler states that his supervisors disclosed his participation in the drug program
to other employees and that a number of coworkers harassed him about his drug problem
when he returned to work after completing the program. A jury could find that Reno Air
breached its agreement to keep confidential an employee's participation in the company
sponsored drug program and award damages flowing from such breach. A jury could also
find that Barmettler was fired because he bitterly complained about the breach of
confidentiality and, thus, his termination flowed directly from the breach of contract.
Therefore, summary judgment should have been precluded on this claim.
Barmettler's claim that his at will status was modified by Reno Air's drug policy finds
support in the case of Holmes v. Union Oil Co., 760 P.2d 1189 (Idaho Ct. App. 1988). In
Holmes an employee entered an employer sponsored residential alcohol treatment program
and was required to abide by the employer's rehabilitation plan following release from the
treatment center. After release and resumption of employment, the employee violated one of
the terms of the rehabilitation plan and was fired. The employee brought suit on the basis that
the drug rehabilitation plan had modified his status as an at will employee and that he could
not be fired during his good faith participation in the drug rehabilitation plan.
The Holmes court concluded that the finder of fact could view the rehabilitation
program as creating a mutual understanding that employment would continue for the duration
of the drug rehabilitation plan absent a termination for cause or the employee quitting his job.
Id. at 1194. The court, however, qualified its holding in a footnote:
We do not hold or intimate that every job training or rehabilitation program could alter
an employee's at-will status. This case involves a unique nexus between an employee's
participation in an employer-provided program and a grant of probation for a specific
period in a criminal case at the mutual request of the employer and employee. Even in
this unique circumstance, an employer desiring to maintain an at-will relationship
could make an express disclaimer of intent to limit potential reasons for discharge
or to create any expectation of continued employment for a certain duration.
unique circumstance, an employer desiring to maintain an at-will relationship could
make an express disclaimer of intent to limit potential reasons for discharge or to create
any expectation of continued employment for a certain duration. The record presently
before us contains no such disclaimer.
Id. at 1194 n.1.
While the Holmes court substantially qualified its holding with the above quoted
language, the decision still stands as authority for the proposition that a company's drug
policy can modify an employee's at will status, as Barmettler asserts. The opinion also
points out that an employer has the power to clarify that participation in an employer
sponsored drug rehabilitation program in no way will modify the employee's at will status.
Reno Air could have drafted this proviso in its drug policy, but did not. Therefore, the finder
of fact could believe Barmettler's statement of the facts, find that his employment termination
flowed from his good faith participation in the company's drug program, and that such action
violated his contract of employment.
While I agree that the district court properly granted summary judgment on the rest of
Barmettler's claims, issues of fact were presented concerning his claim for breach of contract
and it was improper to dismiss this claim by summary judgment. Accordingly, I dissent to
that portion of the majority opinion that affirms the dismissal of this claim.
____________
114 Nev. 455, 455 (1998) Pray v. State
MARK PRAY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 28998
May 19, 1998 959 P.2d 530
Appeal from a judgment of conviction, entered 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; Don P. Chairez, Judge.
The supreme court held that: (1) defendant was not entitled to have victim's mother
excluded from courtroom; (2) trial court applied correct standard in denying motion for new
trial; (3) evidence supported conviction; and (4) defendant's failure to object to alleged
instances of prosecutorial misconduct at trial precluded review of issue.
Affirmed.
114 Nev. 455, 456 (1998) Pray v. State
Attorney, and James Tufteland, Chief Deputy District Attorney, Clark County, for
Respondent.
1. Criminal Law.
Rule providing that at request of party, witnesses shall be excluded so they cannot hear testimony of other witnesses, does not
apply to witnesses who testify only during penalty phase of trial. NRS 50.155.
2. Criminal Law.
Supreme court was not required to consider defendant's contention that was unsupported by legal authority.
3. Criminal Law.
Trial judges are presumed to know law and to apply it in making their decisions.
4. Criminal Law.
Even if trial court did not expressly indicate that it was applying totality of evidence standard in determining defendant's motion
for new trial, court's application of correct standard was presumed, where court heard evidence presented by both parties.
5. Criminal Law.
Supreme court will not overturn criminal conviction for lack of sufficient evidence so long as jury, acting reasonably, could have
been convinced of defendant's guilt beyond reasonable doubt by evidence that was properly before it.
6. Homicide.
Evidence, that defendant turned his vehicle around on highway median and fired six shots from large caliber handgun at driver's
compartment of victim's oncoming vehicle, supported finding of intent, as required for jury conviction of first degree murder.
7. Criminal Law.
Failure to make timely objections and to seek corrective instructions during trial waives defendant's right to raise prosecutorial
misconduct claims on appeal.
OPINION
Per Curiam:
Appellant Mark Pray (Pray) and his ex-wife, Marjorie Pray (Marjorie), were travelling north in an automobile on I-15 on
their way to Mesquite, Nevada, when, by their own account, they noticed that an Isuzu pickup truck seemed to be following them. In an
unsuccessful attempt to evade their pursuer, Pray began driving fast and executed a series of U-turns, crossing from the northbound to the
southbound lanes of I-15. Finally, Pray slammed on his brakes, turned onto the median, and fired six shots from his .357 caliber revolver at
the oncoming vehicle. One of the shots struck the driver of the vehicle, Peter Ghiglione, II (Ghiglione) in the head, killing him. Pray later
told the police that he believed the man following him in the Isuzu pickup was William Bud Baker (Baker). Baker had previously been
in a relationship with Marjorie.
114 Nev. 455, 457 (1998) Pray v. State
a relationship with Marjorie. According to Pray, he had a confrontation with Baker several
weeks before the shooting in which Baker had threatened him with a handgun. Pray stated
that he felt that Baker was going to harm Marjorie and him.
After the shooting, Pray and Marjorie drove around for several hours, then checked
into a motel in Pahrump. They then went to a bar and had several drinks. Pray and Marjorie
then drove toward Las Vegas. At one point during the drive, Pray became angry and struck
Marjorie, giving her a black eye. Pray told her to say that she hit her eye on the dashboard.
They later returned to the motel in Pahrump. At the motel, Pray thought that he saw one of
Baker's friends, a man named Angel. Pray got his pistol out of the truck and returned to their
room. Marjorie called motel security and then the police.
Officers of the Nye County Sheriff's Office arrived at the motel, and Pray informed
them of his fears. Pray and Marjorie were taken into protective custody. The officers searched
the area around the motel and found a person matching Angel's description. The officers soon
learned that this person was Las Vegas Metropolitan Police Officer Larry Huggins, who was
staying in Pahrump while participating in a police officer's golf tournament.
The police eventually questioned Pray about the Ghiglione shooting. Pray told the police
that he and Marjorie were on their way to Mesquite at the time of the shooting because he had
seen Baker lurking around their apartment in North Las Vegas. William Shouse (Shouse),
who was with Pray and Marjorie at their apartment, testified that he checked outside and did
not see Baker anywhere about. Shouse told Pray that Baker was not outside, but Pray did not
believe him. Shouse then called Baker's residence and awakened him, ascertaining that he
was, in fact, at home and not lurking near Pray's house. Shouse told Pray that Baker was at
home, but still Pray refused to believe him.
Marjorie testified that she told Pray that the pickup truck was not Baker's pickup
truck; it was too small. She also testified that she never saw the face of the man in the pickup
truck and never saw any weapon in the man's possession. Neither the man who subsequently
discovered Ghiglione's body nor the police found any weapon in the truck.
Pray and Marjorie admitted that prior to leaving their apartment, they had been smoking
crack cocaine and drinking. Shouse also testified that Pray was tweaking quite a bit at this
time. Shouse described tweaking as a crack-induced state of nervous paranoia. Shouse said
that tweaking is a sign that one has smoked too much crack cocaine. Marjorie testified that
Pray was a frequent tweaker.
At trial, Pray claimed justifiable homicide as a defense. He was found guilty of first
degree murder with use of a deadly weapon and sentenced to life with the possibility of
parole.
114 Nev. 455, 458 (1998) Pray v. State
found guilty of first degree murder with use of a deadly weapon and sentenced to life with the
possibility of parole.
DISCUSSION
[Headnotes 1, 2]
First, Pray contends that the district court erred in allowing Ghiglione's mother to sit
through the trial in violation of the exclusionary rule, NRS 50.155.
1
However, we have held
that the exclusionary rule does not apply to witnesses who testify only during the penalty
phase of the trial. Witter v. State, 112 Nev. 908, 921 P.2d 886 (1996). In this case,
Ghiglione's mother did not testify until the penalty phase of the trial. Accordingly, this
contention is without merit.
2

[Headnotes 3, 4]
Second, Pray contends that the district court failed to apply the totality of the
evidence standard in determining whether to grant Pray's motion for a new trial. Pray bases
his contention on the fact that at no time during the lengthy argument on the motion for a new
trial did the district court indicate that it was applying a totality of the evidence test. However,
trial judges are presumed to know the law and to apply it in making their decisions. Jones
v. State, 107 Nev. 632, 636, 817 P.2d 1179, 1181 (1991). In this case, the record shows that
the district court heard the evidence presented by both the defense and the State during the
argument on the motion. We conclude that Pray failed to show any reason why the
presumption of regularity should not be applied in this case. Accordingly, we conclude that
this issue is without merit.
Third, Pray argues that insufficient evidence existed to convict him of first degree murder
because there is nothing to support or even suggest that [he] meant to kill anyone when the
shots were fired in what he believed was an attempt to prevent injury to himself or Marjorie.
Pray further contends that the keystone cop nature of the entire chase mitigates against the
actions being first degree murder.
__________

1
NRS 50.155(1) provides: Except as otherwise provided in subsections 2 and 3, at the request of a party the
judge shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and he may make
the order of his own motion.

2
Pray also contends that it was error for the district court to allow Ghiglione's mother to be present in the
courtroom during the guilt phase of the trial because of the emotional impact her presence might have on the
jury. It does not appear that there was anything unusual about her behavior in the courtroom, and Pray cites no
authority for the proposition that family members of a victim may not observe trial proceedings. Therefore, we
need not consider this argument on appeal. See Cunningham v. State, 94 Nev. 128, 130, 575 P.2d 936, 937
(1978) (holding that contentions unsupported by legal authority need not be considered on appeal).
114 Nev. 455, 459 (1998) Pray v. State
[Headnote 5]
It is well settled that this court will not overturn a criminal conviction for lack of
sufficient evidence so long as the jury, acting reasonably, could have been convinced of the
defendant's guilt beyond a reasonable doubt by the evidence that was properly before it. Lay
v. State, 110 Nev. 1189, 1192, 886 P.2d 448, 450 (1994).
[Headnote 6]
In the present case, the State presented evidence that Pray turned his vehicle around
on the highway median and fired six shots from a large caliber handgun at the driver's
compartment of Ghiglione's oncoming vehicle. We conclude that from this evidence, a
reasonable jury could have found the intent required for first degree murder.
[Headnote 7]
Fourth, Pray contends that his conviction should be overturned because of
prosecutorial misconduct. We have long held that the failure to make timely objections and to
seek corrective instructions during trial waives the appellant's right to raise the issues during
appeal. See, e.g., Parker v. State, 109 Nev. 383, 391, 849 P.2d 1062, 1067 (1993); Dearman v.
State, 93 Nev. 364, 368, 566 P.2d 407, 409 (1977) (holding that [i]t is well established that
improper remarks made by the prosecutor in closing argument will not be considered on
appeal if not objected to at the time of trial). Here, Pray objected to none of the alleged
instances of misconduct at trial. Moreover, Pray does not show that the district court
committed plain error, nor does he raise contentions of constitutional dimension. See, e.g.,
Williams v. State, 113 Nev. 1008, 945 P.2d 438 (1997). Therefore, we will not consider this
issue on appeal.
We conclude that none of the issues which Pray raises on appeal has merit.
3

__________

3
Pray also argues that the jury instructions regarding deliberation and implied malice were constitutionally
infirm. However, we have previously rejected both these contentions. See Doyle v. State, 112 Nev. 879, 900,
921 P.2d 901, 915 (1996) (reaffirming the holding of Powell v. State, 108 Nev. 700, 838 P.2d 921 (1992)).
____________
114 Nev. 460, 460 (1998) McGervey v. State
CLEUS VINCENT McGERVEY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 29343
May 19, 1998 958 P.2d 1203
Appeal from a judgment of conviction pursuant to a jury verdict of two counts of
possession of a controlled substance and two counts of being under the influence of a
controlled substance. Appellant was sentenced pursuant to a habitual criminal statute to four
concurrent terms of life imprisonment with the possibility of parole. Third Judicial District
Court, Churchill County; Archie E. Blake, Judge.
The supreme court held that: (1) trial court did not abuse its discretion in deciding that
ankle restraints were necessary to detain defendant and to protect people present in
courtroom; (2) even assuming district court had abused its discretion in allowing defendant to
be shackled during trial, defendant was not prejudiced under the circumstances, and thus, any
error resulting from court's decision was harmless; (3) evidence was insufficient to sustain
conviction for possession of marijuana; (4) one of defendant's present convictions could not
be counted as his third prior felony for purposes of imposing habitual criminal sentence under
former statute; and (5) district court did not abuse its discretion in sentencing defendant as
habitual criminal.
James F. Sloan, Fallon, for Appellant.
Kevin L. Pasquale, District Attorney and Cheri K. Emm, Deputy District Attorney,
Churchill County, for Respondent.
1. Criminal Law.
District court did not abuse its discretion in deciding that ankle restraints were necessary to detain defendant and to protect
people present in courtroom where officers involved had been unable to control defendant in jail, and it was reasonable to assume that
they might encounter similar difficulties in courtroom. NRS 178.394.
2. Criminal Law.
Prior to penalty phase, restraint statute requires that court must find some immediate necessity to justify order that defendant be
shackled during trial. NRS 178.394.
3. Criminal Law.
Barring exceptional circumstances, criminal defendant has right to appear before jurors clad in apparel of innocent person.
4. Criminal Law.
In considering whether defendant should be shackled during trial, district court has right to take into consideration knowledge
acquired outside of formal evidence offered and admitted at trial.
5. Criminal Law.
Even assuming district court had abused its discretion in allowing defendant to be shackled during trial, defendant was not
prejudiced under the circumstances, and thus, any error resulting from court's decision was harmless, where defendant provided no
evidence suggesting that any juror knew that he was physically restrained, and district court took measures to assure that jurors would
not be able to see shackles.
6. Drugs and Narcotics.
Evidence was insufficient to sustain conviction for possession of marijuana where State produced no evidence to suggest that
defendant was more likely than other residents or visitors to have owned or exercised control over marijuana found in his girlfriend's
residence. A number of people had opportunity to leave marijuana in living room of residence, two of defendant's friends had visited
residence on night before defendant's arrest, presence of small amount of marijuana in one resident's bedroom suggested that marijuana
in living room may have belonged to her, and defendant's girlfriend admitted in guilty plea to possession of marijuana at issue. NRS
453.336.
7. Criminal Law.
Supreme court will not disturb verdict on appeal if it is supported by sufficient evidence.
8. Criminal Law.
Verdict is supported by sufficient evidence if any rational trier of fact could have found essential elements of crime beyond
reasonable doubt, after viewing evidence in light most favorable to prosecution.
9. Criminal Law.
One of defendant's present convictions could not be counted as his third prior felony for purpose of imposing habitual criminal
sentence under former statute, which required defendant to have previously been three times convicted of a felony. NRS 207.010(2).
10. Criminal Law.
Defendant's prior convictions for possession of cocaine and kidnapping and robbery were neither remote nor trivial, and thus,
district court did not abuse its discretion in sentencing defendant as habitual criminal, despite contention that present offenses were
relatively minor, where both of prior convictions occurred within last ten years and, with regard to current offense, defendant provided
no authority for suggestion that offense triggering habitual criminal statute must meet some threshold other than felony status. NRS
207.010.
OPINION
Per Curiam:
Cleus Vincent McGervey was arrested for a California parole violation and subsequently tested positive for marijuana and
methamphetamine in his urine. A small quantity of methamphetamine was found on McGervey's person during the booking process.
Officers then conducted a consensual search of McGervey's girlfriend's residence, where they discovered a small quantity of marijuana.
marijuana. Following a jury trial, McGervey was convicted of two counts of possession of a
controlled substance and two counts of being under the influence of a controlled substance,
was found to be a habitual offender pursuant to former NRS 207.010(2), and was sentenced
to four concurrent terms of life imprisonment with the possibility of parole. McGervey now
appeals, arguing that he was improperly shackled in the jury's presence, that insufficient
evidence supported his marijuana-related conviction for possession of a controlled substance,
and that the district court erred and abused its discretion in imposing habitual criminal
sentences pursuant to former NRS 207.010(2).
Restraint at trial
[Headnote 1]
McGervey argues that the district court abused its discretion in allowing McGervey to
be shackled during the trial, thereby violating his right to be clothed in an appearance of an
innocent person. During the trial, McGervey's ankles were shackled to brackets on the floor
beneath the table at which he and his counsel sat. An apron hung from the table's perimeter,
obstructing the jury's view of the shackles. McGervey also claims that a deputy sheriff was
seated near him during the trial, and stood near him during his testimony. McGervey was
escorted to and from the courtroom with his hands cuffed to a belt around his waist. The
jurors were not present when McGervey was escorted to and from the courtroom. McGervey
provides no evidence suggesting that any member of the jury saw his shackles or was
otherwise aware that he was shackled during the trial.
[Headnotes 2, 3]
McGervey relies on NRS 178.394, which prohibits any more restraint than is
necessary for [the defendant's] detention to answer the charge. Prior to the penalty phase,
NRS 178.394 requires that the court must find some immediate necessity to justify an order
that the defendant be shackled during trial. Grooms v. State, 96 Nev. 142, 605 P.2d 1145
(1980); Sefton v. State, 72 Nev. 106, 295 P.2d 385 (1956); State v. McKay, 63 Nev.118, 165
P.2d 389 (1946); cf. Canape v. State, 109 Nev. 864, 859 P.2d 1023 (1993). [B]arring
exceptional circumstances, a criminal defendant has the right to appear before his jurors
clad in the apparel of an innocent person. Grooms, 96 Nev. at 144, 605 P.2d at 1146
(citation omitted).
[Headnote 4]
In considering whether a defendant should be shackled during trial, the district court
has the right to take into consideration knowledge acquired outside of formal evidence
offered and admitted at trial."
knowledge acquired outside of formal evidence offered and admitted at trial. McKay, 63
Nev. at 158, 165 P.2d at 406-07. Immediately prior to commencement of the trial, the parties
met with the district court judge to discuss the State's proposal to shackle McGervey during
the trial. The prosecutor recounted an incident in which, on the date of McGervey's last court
appearance, he violently pounded the walls and yelled profanities until officers used an entire
can of pepper spray to subdue him. The district court also heard testimony from the jail
sergeant who supervised McGervey in jail pending trial for the present offense. The sergeant
testified that McGervey was difficult to control and had incited other inmates, making it
necessary to transfer him to the state prison for safe keeping pending commencement of the
trial. In addition, a police detective testified that McGervey, mistakenly believing the
detective to be another officer, threatened him at the jail, shouting, Woods, I'm going to get
you! Fuck you! Finally, the district court was aware that McGervey had recently absconded
from parole in California, suggesting that he was a flight risk, that he had been charged with
assaulting another inmate at a facility in Soledad, California, and that a fifteen-day
disciplinary lockdown had been imposed on him while he was in safe keeping at the Nevada
State Prison.
In addition to establishing a basis for the conclusion that the shackles were necessary,
the district court received assurances from the State that aprons would be affixed to the
counsel tables to prevent the jury from seeing McGervey's restraints and that the jury would
not be present when McGervey was escorted to and from the courtroom. The district court
judge also inspected the counsel tables himself, and concluded that the jurors would be
unable to see McGervey's ankle restraints.
[Headnote 5]
We conclude that, based on the foregoing considerations, the district court did not
abuse its discretion in deciding that the ankle restraints were necessary to detain McGervey
and to protect the people present in the courtroom. The officers involved had been unable to
control McGervey in the jail, and it was reasonable to assume that they might encounter
similar difficulties in the courtroom. Even if the district court had abused its discretion in
allowing McGervey to be shackled during the trial, we conclude that the error would have
been harmless. McGervey provides no evidence suggesting that any juror knew that he was
physically restrained, and the record indicates that the district court took measures to assure
that the jurors would not be able to see the shackles. Hence, we conclude that McGervey was
not prejudiced under the circumstances.
Marijuana possession
[Headnotes 6-8]
McGervey argues that his marijuana-related conviction for possession of a controlled
substance was not supported by sufficient evidence because the marijuana was found at the
home of his girlfriend, Rosie Olivas, and, McGervey claims, he does not reside at that home.
This court will not disturb a verdict on appeal if it is supported by sufficient evidence.
Dominguez v. State, 112 Nev. 683, 693, 917 P.2d 1364, 1371 (1996). A verdict is supported
by sufficient evidence if any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt, after viewing the evidence in the light most favorable to
the prosecution. Id. (citation omitted).
In order to convict McGervey of possession of the marijuana found at Olivas' residence,
the State was required to produce sufficient evidence that McGervey exercised control over
the marijuana. See NRS 453.336. To establish this element, the State presented (1) police
records indicating that 1.43 grams of marijuana were found on a living room table at the
Olivas residence on April 16, 1995, (2) the testimony of Rebecca Ferrel, who shared the
residence with Olivas, that she did not recall seeing the marijuana on the table when she left
the residence on April 14, 1995, (3) Olivas' testimony that she did not notice the marijuana on
the table when she went to bed in the early morning hours of April 16, 1995, and that
McGervey and two of his friends were in the residence at that time, (4) police records
indicating that McGervey briefly visited the residence in a blue Buick on April 16, 1995, and
(5) McGervey's urine test results indicating the presence of marijuana in his system.
McGervey claims that he does not reside at Olivas' home, and Olivas and a friend,
Sean McNevin, testified that McGervey does not reside with Olivas. The officers who
conducted surveillance of Olivas' home did not see McGervey enter or exit the home on April
13, 14, or 15, 1995. In addition, Olivas, in a separate proceeding, pleaded guilty to possession
of the marijuana at issue. A small quantity of marijuana was also found in Ferrel's bedroom.
We conclude that the State's evidence was not sufficient to establish that McGervey
exercised dominion and control over the marijuana at issue. A number of people had an
opportunity to leave the marijuana in the living room. Two of McGervey's friends had visited
on the night before McGervey's arrest, and Ferrel had a small amount of marijuana in her
bedroom, suggesting that the marijuana in the living room may have belonged to her.
Furthermore, Olivas did, in fact, admit in a guilty plea to possession of the marijuana at issue.
In light of these facts, we conclude that the State produced no evidence to suggest that
McGervey was more likely than the others to have owned or exercised control over the
marijuana.
conclude that the State produced no evidence to suggest that McGervey was more likely than
the others to have owned or exercised control over the marijuana. This court addressed a
similar situation in Sanders v. State, 110 Nev. 434, 874 P.2d 1239 (1994), in which a small
amount of cocaine was found in a motel room. Because many people had access to the motel
room, this court found that there was insufficient evidence to establish, beyond a reasonable
doubt, that the defendant knew of or exercised control over the cocaine. Similarly,
insufficient evidence supported McGervey's conviction for possession of the marijuana found
at Olivas' residence.
The habitual criminal sentences
McGervey contends that the district court erred in imposing the habitual criminal
sentences of former NRS 207.010(2) rather than former NRS 207.010(1) and, alternatively,
that the district court abused its discretion in imposing the sentences because McGervey's
previous convictions were stale and because his present convictions are for relatively minor,
nonviolent felonies. McGervey's two previous felony convictions, as considered by the
district court, were for possession of cocaine for sale and for kidnapping and robbery. Both
were California convictions, occurring in 1988 and 1990, respectively.
In the amended information by which McGervey was charged with each of the offenses
underlying his present convictions, the State charged McGervey with being a habitual
criminal as defined by NRS 207.010. Following the jury's verdict, the district court
imposed four concurrent life sentences based on its finding that McGervey is a habitual
offender pursuant to NRS 205.010(2). As NRS 205.010 relates to arson rather than
habituality, and as the information referred to NRS 207.010, we conclude that the district
court's intended reference was to former NRS 207.010(2). Former NRS 207.010(2)
1
provided, in pertinent part:
Every person convicted in this state of . . . any felony, who has previously been three
times convicted, whether in this state or elsewhere, of any crime which under the laws
of the situs of the crime or of this state would amount to a felony . . . shall be punished
by imprisonment in the state prison for life with or without possibility of parole.
__________

1
Former NRS 207.010 was amended in 1995, several months after McGervey was charged with the present
offenses, and was again amended in 1997. NRS 207.010 governs habitual criminals. McGervey would have
been subject to life sentences for only two prior felonies under NRS 207.012, which governs habitual felons;
however, NRS 207.012 was not adopted until the 1995 legislative session.
life with or without possibility of parole. If the penalty fixed by the court is life
imprisonment with the possibility of parole, eligibility for parole begins when a
minimum of 10 years has been served.
(Emphasis added.)
[Headnote 9]
McGervey argues that, because the State presented only two prior felony convictions
upon which to base a habitual criminal sentence, the district court erred in applying former
NRS 207.010(2). McGervey contends that the appropriate sentencing provision was former
NRS 207.010(1), which, with similar language, specified a sentence range of ten to twenty
years for habitual criminals with two prior felony convictions. Although McGervey presented
this argument at his sentencing, the State argued that, based on the operation of [NRS]
173.095, the present offense could be counted as a prior felony conviction under former
NRS 207.010, and, therefore, former NRS 207.010(2) was the appropriate provision. The
district court accepted the State's argument that one of the present convictions could be
counted as McGervey's third prior felony, invoking former NRS 207.010(2).
We conclude that the district court erred in accepting the State's construction of NRS
173.095. NRS 173.095 addresses amendment of an indictment and provides, in pertinent part,
that [t]he court may permit an indictment or information to be amended at any time before
verdict, and [i]f an indictment is found charging a primary offense upon which a charge of
habitual criminality may be based, the prosecuting attorney may file a notice of habitual
criminality with the court. This language should not be read to conflict with the clear
language of former NRS 207.010(2), requiring that a defendant must have previously been
three times convicted for the statute to apply. See Schneider v. State, 97 Nev. 573, 574, 635
P.2d 304, 305 (1981) (A person having three previous felony convictions is subject to a
criminal enhancement sentence of life imprisonment upon conviction of a fourth felony.).
Rather, NRS 173.095 simply allows a prosecutor to add a habitual criminal charge to an
indictment or information if the prosecutor discovers sufficient prior convictions to warrant a
habitual criminal sentence based on the current charge. In order for a primary offense to be
one upon which a charge of habitual criminality may be based, the prior convictions
requirement of former NRS 207.010 must already have been satisfied.
[Headnote 10]
McGervey next argues that the district court abused its discretion in sentencing him
as a habitual criminal because his prior convictions were stale and because the present
convictions are for relatively minor, nonviolent felonies.
tion in sentencing him as a habitual criminal because his prior convictions were stale and
because the present convictions are for relatively minor, nonviolent felonies. McGervey relies
on Sessions v. State, 106 Nev. 186, 789 P.2d 1242 (1990), in which the defendant was
sentenced to life without the possibility of parole for being a habitual criminal, following two
drug-related convictions. This court found that the district court abused its discretion in
imposing a habitual criminal sentence in that case because Sessions' previous convictions
were both over twenty years old and were for trivial offenses. Under former NRS 207.010(4),
the district court had discretion to dismiss counts brought under the habitual criminal statute.
The purpose of this section is to permit dismissal when the prior offenses are stale or trivial,
or in other circumstances where an adjudication of habitual criminality would not serve the
purposes of the statute or the interests of justice.' Id. at 190, 789 P.2d at 1244 (quoting
French v. State, 98 Nev. 235, 237, 645 P.2d 440, 441 (1982)).
McGervey was convicted of possession of cocaine for sale in 1988 and of kidnapping
and robbery in 1990. We conclude that, unlike Sessions, McGervey's prior convictions were
neither remote nor trivial. McGervey argues that the relatively minor nature of his present
offenses should also be considered; however, he provides no authority for the suggestion that
the offense triggering the habitual criminal statute must meet some threshold other than
felony status. Accordingly, we conclude that the district court did not abuse its discretion in
sentencing him as a habitual criminal pursuant to former NRS 207.010.
In conclusion, we believe that, although the district court did not abuse its discretion in
sentencing McGervey as a habitual criminal, the district court erred in imposing life sentences
with the possibility of parole pursuant to former NRS 207.010(2). Because McGervey had
only two prior felony convictions, former NRS 207.010(1), which addressed defendants who
have previously been twice convicted, was the appropriate provision. Under former NRS
207.010(1), habitual criminals may be sentenced to terms of ten to twenty years.
Accordingly, we reverse the marijuana-related conviction for possession of a
controlled substance, affirm the remaining convictions, and remand this case to the district
court with instructions to resentence appellant to terms of ten to twenty years as specified by
former NRS 207.010(1).
____________
114 Nev. 468, 468 (1998) Woods v. State
FREDERICK JEROME WOODS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 29856
May 19, 1998 958 P.2d 91
Appeal from a judgment of conviction, entered pursuant to a plea agreement, for one
count of drunk driving causing death and one count of drunk driving causing substantial
bodily harm. First Judicial District Court, Carson City; Michael E. Fondi, Judge.
The supreme court held that: (1) defendant was not entitled to withdraw his plea; (2)
defendant was estopped from challenging lawfulness of plea agreement; and (3) offenses of
felony driving under influence (DUI) of intoxicating liquor causing death and felony DUI
causing substantial bodily harm constituted multiple offenses, supporting imposition of
consecutive sentences for each count of felony DUI.
Affirmed.
William G. Rogers, Carson City, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Noel S. Waters, District
Attorney, Anne M. Langer, Chief Deputy District Attorney, Carson City, for Respondent.
1. Criminal Law.
District court may, in its discretion, grant defendant's motion to withdraw guilty plea for any substantial reason if it is fair and
just.
2. Criminal Law.
Defendant was not entitled to withdraw his plea of guilty to drunk driving causing death and drunk driving causing substantial
bodily harm since, based on totality of circumstances, which included fact that defendant did not assert credible claim of factual
innocence, defendant voluntarily, knowingly, and intelligently entered plea agreement, district court personally engaged defendant
regarding elements of offenses with which he was charged, and parties admitted that court's canvass was not deficient and there was no
discrepancy between canvass and written plea agreement. NRS 176.165.
3. Criminal Law.
Defendant was estopped from challenging lawfulness of plea agreement under statute that limits plea bargaining in cases of
driving under the influence, despite contention that State's decision to combine four original counts into two counts in agreement
rendered agreement unlawful under statute, where defendant had voluntarily entered into plea agreement and accepted its attendant
benefits. NRS 484.3795(2).
4. Criminal Law.
Offenses of felony driving under influence (DUI) of intoxicating liquor causing death and felony DUI causing substantial bodily
harm constituted multiple offenses, supporting imposition of consecutive sentences for each count of felony DUI, where there were
multiple victims.
114 Nev. 468, 469 (1998) Woods v. State
5. Double Jeopardy.
Court should normally presume that legislature did not intend multiple punishments for same offense absent clear expression of
legislative intent to contrary.
OPINION
Per Curiam:
Appellant Frederick Jerome Woods pleaded guilty to one count of felony driving under the influence of intoxicating liquor
(DUI) causing death, and one count of felony DUI causing substantial bodily harm, pursuant to NRS 484.3795. The district court accepted
the plea agreement, but prior to sentencing, Woods moved to withdraw his plea. The district court denied Woods' motion and sentenced
him to consecutive fifteen-year terms of imprisonment on each count.
Woods appeals arguing that the district court erred in denying his motion to withdraw the plea because Woods did not voluntarily,
knowingly, and intelligently enter the plea agreement. Woods also contends that, pursuant to NRS 484.3795(2), it was unlawful for the
State to dismiss two of the four original charges in exchange for his guilty plea; therefore, it was error for the district court to accept the
plea agreement. Woods further asserts that the district court erred by imposing consecutive sentences for the same act.
FACTS
On August 19, 1993, around 6:30 p.m., Woods was driving his Dodge Shelby east on U.S. Highway 50 West, near Carson City.
Alvin Costa sat in the passenger seat, Deborah Roberts sat in the center of the rear seat, and Woods' two minor nephews sat in the rear seat
on either side of Roberts. Woods lost control of his car and crashed into another vehicle which was travelling west on Highway 50. The
other vehicle was driven by Diane Richards, and Wilma Zamberlan was a passenger.
Costa and Roberts were killed in the accident; Roberts' body had remained in the rear center of the Dodge and Costa's body was found
outside, lying on part of the detached passenger door in the westbound lane. Woods' nephews were unharmed. Richards and Zamberlan
survived the accident, but sustained serious injuries. Woods was thrown from the Dodge and landed on the center line; he suffered head
injuries and was Care Flighted to the hospital where his blood alcohol content was found to be greater than 0.10 percent.
On November 12, 1993, the State filed a criminal complaint against Woods alleging four counts of felony DUI pursuant to NRS
4S4.3795 alleging as follows:
114 Nev. 468, 470 (1998) Woods v. State
NRS 484.3795 alleging as follows: Count IDUI causing the death of Costa; Count IIDUI
causing the death of Roberts; Count IIIDUI causing substantial bodily harm to Richards;
and Count IVDUI causing substantial bodily harm to Zamberlan. On May 17, 1994, due to
the head injuries suffered by Woods in the accident, his public defender, Diane Crow, moved
the district court for a competency examination. The court granted Crow's motion; Edward J.
Lynn, M.D. (Dr. Lynn), a doctor of psychiatry and neurology, subsequently examined Woods
and in a letter to Crow, dated July 6, 1994, concluded that Woods was competent to stand
trial. He understands the charges against him and is capable of assiting [sic] his attorney in
the preparation and execution of his defense. Dr. Lynn also reported that during the
interview Woods stated that Costa had been driving at the time of the accident.
At the August 25, 1995 preliminary hearing, Nevada Highway Patrol (NHP) Trooper
Allen Stout testified that based upon the physical evidence at the scene of the accident and
comparing the types of injuries sustained by Costa and Woods, Woods had been driving at
the time of the accident. Woods' nephews gave conflicting reports on the issue of whether
Woods had been driving at the time of the accident.
On January 18, 1996, the district court granted Crow funds to hire an expert accident
reconstructionist to prepare for Woods' trial. According to Crow, she told Woods that she
could not find any expert who was able to rebut Stout's conclusions. On August 13, 1996,
following negotiations, Woods entered into a written plea bargain with the State wherein he
agreed to plead guilty to two counts of felony DUI: Count IDUI causing the death of Costa
and Roberts; and Count IIDUI causing substantial bodily harm to Richards and Zamberlan.
On August 14, 1996, the district court accepted Woods' change of plea. Prior to
canvassing Woods, the district court noted that the defense had employed an accident
reconstructionist, a biodynamics engineer to assist in placing people in the Dodge, and a third
expert, referred to by Crow, who had taken samples from the Dodge and who had check[ed]
the seat belts. In the presence of Woods and his family, the district court inquired as to
whether Crow had been given adequate resources to fully investigate Woods' case. Crow
responded in the affirmative, stating that she had conferred with several experts and Woods'
family, and indicated that Woods and his family were fully aware of the extent of her
investigative efforts.
The court then reviewed the two counts of the third amended complaint with Woods and
asked him various questions. The court went through various provisions of the plea
memorandum, explained the elements of each crime, and advised Woods that the State
would have to prove each element beyond a reasonable doubt before Woods could be
convicted at trial.
114 Nev. 468, 471 (1998) Woods v. State
State would have to prove each element beyond a reasonable doubt before Woods could be
convicted at trial. The court also inquired as to whether Woods had been satisfied with his
representation by Crow, to which Woods responded affirmatively. The dialogue with Woods
continued:
COURT: Now, have you had an opportunity to your satisfaction to discuss with your
attorneys the possible defenses that may be imposed on these charges if you were to go
to trial?
WOODS: Yes, sir.
COURT: In light of that discussion and information which has been provided to you,
do you feel this negotiated plea is the best thing for you to do, all things considered?
WOODS: Yes, sir.
Continuing the canvass, the court reviewed the ranges of punishment and fines, and
told Woods that probation would not be available. Woods indicated that he understood that
the four counts had been combined into two and that the State could ask for up to fifteen
years' imprisonment on each count to run consecutively or concurrently. The court asked
Woods if he understood that he waived specific constitutional rights by pleading guilty and
reviewed those rights. Woods indicated that he understood each of the rights discussed by the
court:
COURT: Mr. Woods, is there anything about any of these rights you do not understand
that you would like to question me further about?
WOODS: No, sir.
COURT: Knowing you have those rights, do you still wish to voluntarily waive them
and ask me to accept your plea of guilty to th[ese] charge[s]?
WOODS: Yes, sir.
. . . .
COURT: Before you signed [the plea memorandum], did you have an opportunity to
read it thoroughly and discuss its entire contents with your attorney?
WOODS: Yes, sir.
. . . .
COURT: Mr. Woods, do you have any other questions about this process that has
taken place to date that you would like to ask me about?
WOODS: No, sir.
COURT: Do you still request then that I accept your guilty pleas to those two charges
and vacate the trial scheduled for next Monday?
WOODS: Yes, sir.
COURT: I'll accept the plea.
114 Nev. 468, 472 (1998) Woods v. State
On September 27, 1996, prior to sentencing, Woods filed a motion asking that Crow
be allowed to withdraw as his counsel. Crow's attached affidavit stated that Woods had
recently told her he was not happy with her representation, and he thought Crow had lied to
and withheld information from him. Woods told Crow that he intended to withdraw his guilty
plea and obtain new counsel. On October 18, 1996, Woods filed a motion to change his plea
to not guilty. He argued that his counsel had been deficient and that his plea had not been
voluntarily, knowingly, and intelligently entered.
In conjunction with his motion to withdraw his guilty plea, Woods attached a letter to the
district court in which he asserted that the State had lost audio tapes of his young nephews'
statements and, therefore, Crow should have moved for a dismissal of charges against him.
Woods also claimed that Crow had failed to pursue an NHP videotape of the accident scene,
and a videotape depicting his treatment at the hospital following his accident. Woods stated
that Crow had badgered him into saying only yes sir, no sir during his plea canvass, and
that Crow had threatened him with 140 years in prison if he did not plead guilty. Woods
contended that Crow had told him to lie to the probation officer during the pre-sentence
investigation and state that he had no memory of the accident. Woods also asserted that Crow
was aware of a phlebotomist who had seen seat belt marks on Woods' body; however, Crow
did not have this person testify. In conclusion, Woods stated that he had been coerced during
plea negotiations, and that he had a mentality of a sixteen-year-old at the time. Woods stated
that if he had received a copy of the preliminary hearing transcript he would not have entered
a guilty plea.
On October 28, 1996, the district court allowed Crow to withdraw as Woods' counsel
and appointed William Rogers as new defense counsel. At the December 3, 1996 hearing on
Woods' motion to withdraw his guilty plea, Woods, his motherMrs. Woodsand Crow
testified. Mrs. Woods testified that her son was like an eight-year-old since the accident and
had been rated at one hundred percent disability by Social Security. She asserted that Crow
had told Woods' family to lie and say that Woods had no recollection of the accident; Crow
had refused their request for a transcript of the preliminary hearing until after Woods had
signed the plea memorandum, and would not allow them to be present when Woods had
signed the agreement. According to Mrs. Woods, after signing the plea agreement, Woods
came out of Crow's office crying.
Woods then testified that he had lied, at Crow's behest, to parole and probation about
having no memory of the accident. He reiterated all of his complaints set forth in the letter
accompanying his motion to withdraw his plea.
114 Nev. 468, 473 (1998) Woods v. State
ing his motion to withdraw his plea. Additionally, he stated that because Crow's experts had
said that seat belts had not been used by the adult occupants of the Dodge, Crow had simply
ignored the statement by the phlebotomist who had seen seat belt marks on Woods shortly
after the accident. Finally, Woods testified that Crow had let all of the witnesses get away
who had seen the accident.
1
Woods contradicted his mother's testimony and stated that his
family had been present and had reviewed the plea agreement when he signed it.
Crow testified that she had explained to Woods that the most he could get if he went
to trial was 104 years, but that he would probably get a forty-year sentence. Crow told
Woods, while discussing the option of a plea bargain, that none of her experts had been able
to rebut NHP Trooper Stout's contention that Woods had been the driver. She stated that on
the day Woods signed the plea agreement, he was calm and that his family had been present;
Woods' wife apologized to Crow for previously being angry with Crow and gave Crow a hug.
Crow denied ever telling Woods to simply say yes sir or no sir during the district court
canvassing. Crow explained: My typical conversation with a client coming into Judge
Fondi's courtroom is Judge Fondi will ask yes or no type questions, but if they have questions
they should direct those to the Judge himself.
With regard to whether Crow told Woods to lie about his recollection of the accident for
the pre-sentence report, Crow testified: I advised Mr. Woods specifically not to lie, but if he
had no memory, he had no memory, and that is what he should tell them if that was the truth.
As to the videotapes, Crow asked NHP for a copy but was informed that a trooper had made
the video on his home video camera, and that the video was not available because the trooper
had either left the NHP or relocated. Crow asserted that she did not file a motion based upon
the lost NHP tape because Woods had accepted the plea and she did not believe that the
videotape had been intentionally destroyed or that its absence was prejudicial to Woods.
According to Crow, the trauma room tape had been routinely taped over, and she had
followed up on the phlebotomist's contention regarding seat belt marks; defense experts had
concluded that a seat belt had not been used by Woods.
__________

1
We note that this testimony seems to hurt, rather than help Woods as witnesses apparently told Woods'
family that he had been the one driving. Specifically, Woods testified:
[Crow] let all of my, the witnesses that drove my family through the accident scene and were present
when a trooper said to my mother, That is not your son on the pavement. He has been Care Flighted,
but yet they told her that I had been pulled from behind the wheel and that was me laying on the ground.
114 Nev. 468, 474 (1998) Woods v. State
that a seat belt had not been used by Woods. At the end of direct examination, Crow
maintained that Woods had understood the plea bargaining process and had voluntarily
entered a plea. She also asserted that she had never denied Woods' family a copy of the
preliminary transcript and had provided a copy at their first request, which was after Woods
had signed the plea agreement.
On cross-examination, Woods' new counsel (Rogers) asked Crow about Woods'
explanation of events given to Dr. Lynn during his 1994 competency examination wherein
Woods stated that he was a passenger at the time of the accident. Rogers asked: When in this
particular case did you realize that the Defendant had a memory of what had in fact occurred
in this case? Crow responded, I don't know if I ever gained that knowledge from Mr.
Woods. Following Crow's testimony, Rogers conceded that there had been no deficiency in
the judge's canvassing of Woods; Rogers had not been present during the canvassing but
nonetheless argued to the judge that Woods' answers had been extremely stilted . . . . While
they may be the right answers, they are almost robot in nature.
At the conclusion of the hearing, the district court judge denied Woods' motion to
withdraw his plea and stated: First of all, this Court, myself, the Judge of this Court, was
present throughout the process. I did not observe the Defendant to be robot like in his
responses [to the canvassing questions]. The judge noted that Woods' family had been
present during the August 1994 hearing in which Woods' plea was accepted: No objections
were made to the process. They seemed to be participating in it. The district court concluded
that the canvass had been proper and that Woods' plea had been knowingly, intelligently, and
voluntarily made.
Prior to sentencing, on December 6, 1996, Woods moved the court to set aside his
plea bargain as being unlawful pursuant to NRS 484.3795(2). Woods argued that in
consolidating the original four counts of the criminal complaint into the two-count plea
agreement, the State had violated NRS 484.3795(2), which limits the State's ability to dismiss
a felony DUI charge in exchange for a guilty plea. At the December 17, 1996 sentencing
hearing, the court denied Woods' motion to set aside the plea based upon NRS 484.3795(2).
The district court adopted the presentence report and the State's sentencing recommendation
of two fifteen-year consecutive sentences; the district court also assessed a fine of $2,000 on
each of the two counts.
Woods now appeals from his judgment of conviction arguing that the district court
erred in denying his motions to withdraw and set aside the plea agreement. He argues that his
plea was not voluntarily, knowingly, and intelligently entered, and that the plea agreement
was unlawful pursuant to NRS 4S4.3795{2).
114 Nev. 468, 475 (1998) Woods v. State
plea agreement was unlawful pursuant to NRS 484.3795(2). He further asserts that the district
court erred by imposing consecutive sentences based upon a single act.
DISCUSSION
The district court did not err in denying Woods' motion to withdraw his plea
[Headnotes 1, 2]
Except as otherwise provided in this section, a motion to withdraw a plea of guilty . . .
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.
A district court may, in its discretion, grant a defendant's motion to withdraw a guilty plea for
any substantial reason if it is fair and just. State v. District Court, 85 Nev. 381, 385, 455
P.2d 923, 926 (1969). Woods concedes that the canvass was textbook perfect, and we defer
to the district court judge who concluded that Woods' reactions were not robot-like;
however, this court has held that the district court must also look to the totality of the
circumstances and the entire record. Mitchell v. State, 109 Nev. 137, 140-41, 848 P.2d 1060,
1061-62 (1993).
In Mitchell, we concluded that, viewing the record as a whole, especially in light of
appellant's credible claim of factual innocence and the lack of prejudice to the state, the
district court abused its discretion in denying the motion to withdraw appellant's guilty plea.
109 Nev. at 141, 848 P.2d at 1062. In the instant case, Woods did not assert a credible claim
of factual innocence and, as evidenced by the transcript of the December 3, 1996 hearing on
Woods' motion, the district court properly considered the totality of the circumstances and the
entire record. Viewing the record as a whole, we conclude that Woods voluntarily,
knowingly, and intelligently entered the plea agreement.
Woods' reliance on Hanley v. State, 97 Nev. 130, 624 P.2d 1387 (1981), and Smith v.
State, 110 Nev. 1009, 1014, 879 P.2d 60, 63 (1994), is misplaced. Woods cites Hanley for the
proposition that a defendant must be personally addressed regarding his knowledge of the
elements of the crime and defense counsel's word' that the elements of the criminal offense
had been dutifully explained will not suffice. Id. at 135 n.3, 624 P.2d 1390 n.3. This court
has replaced Hanley's formally structured analysis of the plea canvass with a review of the
record as a whole to ensure, inter alia, that a defendant understood the true nature of the
charge against him.
114 Nev. 468, 476 (1998) Woods v. State
analysis of the plea canvass with a review of the record as a whole to ensure, inter alia, that a
defendant understood the true nature of the charge against him. Dressler v. State, 107 Nev.
686, 696 n.6, 819 P.2d 1288, 1294-95 n.6; Bryant v. State, 102 Nev. 268, 273, 721 P.2d 364,
367 (1986). Having reviewed the canvass and the plea memorandum, it is clear that the
district court personally engaged Woods regarding the elements of the offenses with which he
was charged.
In Smith, we addressed a situation where the plea memorandum was completely
inconsistent with the court's canvass. Smith, 110 Nev. at 1014, 879 P.2d at 63. Here the
parties have admitted that the canvass was not deficient and there was no discrepancy
between the canvass and the written plea memorandum. Therefore, the district court did not
abuse its discretion in denying Woods' motion to withdraw his guilty plea.
The district court did not err in denying Woods' motion to set aside the plea pursuant to NRS
484.3795(2)
[Headnote 3]
At the time of the accident, NRS 484.3795(2) provided:
No prosecuting attorney may dismiss a charge of violating the provisions of subsection
1 in exchange for a plea of guilty or nolo contendere to a lesser charge or for any other
reason unless he knows or it is obvious that the charge is not supported by probable
cause or cannot be proved at the time of trial. . . .
Woods contends that the State's decision to combine the four original counts into two counts
in the plea agreement rendered the plea bargain unlawful pursuant to NRS 484.3795(2). Thus,
Woods contends that the district court erred in accepting an unlawful plea agreement.
In Jenkins v. District Court, 109 Nev. 337, 849 P.2d 1055 (1993), the defendant was
charged with three alternate offenses in a single count: DUI causing death, reckless driving
causing death, and involuntary manslaughter. Id. at 338, 849 P.2d at 1056. The defendant
asked the district court for leave to plead no contest to the involuntary manslaughter charge
and asked it to dismiss the DUI and reckless driving charges. Id. The district court made the
State set forth all of the alternate offenses in separate counts and agreed to accept the
defendant's no contest plea to manslaughter, but refused to dismiss the remaining counts. Id.
at 339, 849 P.2d at 1056. The defendant filed a petition for a writ of prohibition arguing that
the district court erred in refusing to dismiss the remaining charges after accepting his no
contest plea. Id.
We denied the petition and stated, in relevant part:
114 Nev. 468, 477 (1998) Woods v. State
. . . [D]ismissing the felony DUI charge and accepting petitioner's plea of no contest
would destroy the intent of NRS 484.3795(2). The statutory language reflects a clear
legislative intent to prevent defendants from escaping a conviction for felony DUI by
pleading to a lesser charge. If the district court had agreed to accept petitioner's no
contest plea to involuntary manslaughter and dismiss the felony DUI charge, the intent
behind NRS 484.3795(2) would have been unlawfully circumvented.
Jenkins, 109 Nev. at 340, 849 P.2d at 1057 (footnote omitted) (emphasis added).
Jenkins is distinguishable from the instant case. Woods is not escaping a felony DUI
conviction for a lesser charge. More importantly, Woods voluntarily entered into the plea
agreement and accepted its attendant benefits. In People v. Webb, 230 Cal. Rptr. 755 (Ct.
App. 1986), the defendant argued that the trial court lacked jurisdiction to accept his plea
bargain because it violated a California statute that limits plea bargaining in cases of driving
under the influence. Id. at 761. The California appellate court concluded that the defendant
lacked standing to challenge the validity of the plea bargain, reasoning that [s]ince [the
statute] was not intended for the defendant's benefit, no public policy precludes estopping the
defendant from using that section as a shield after consenting to the acceptance of a plea
bargain. Id. at 763. On these facts, we conclude that Woods is now estopped from
challenging the lawfulness of the plea agreement under NRS 484.3795(2).
The district court did not err by imposing consecutive sentences
In Galvan v. State, 98 Nev. 550, 555, 655 P.2d 155, 157-58 (1982), we held that when
applying drunk driving statutes, multiple victims give rise to multiple offenses. In Galvan, a
case remarkably similar to the one at bar, the defendant was convicted of two counts of felony
DUI causing death, pursuant to NRS 484.3795. Id. at 551-52, 655 P.2d at 155. The defendant
received consecutive six-year sentences on the two counts. Id.
On appeal, the defendant urged this court to follow California case law holding that
violation of the drunk driving law constituted only one offense; therefore, only one sentence
could be imposed regardless of the number of victims. Id. at 554-55, 655 P.2d at 157. The
California case of People v. Lobaugh, 95 Cal. Rptr. 547 (Ct. App. 1971) reasoned:
. . . the fundamental concern of the state is not the outrage done the victims, but rather
the prevention of drunken driving and the punishment of those who so conduct
themselves. . . . [I]t is not the receiving of the injury that concerns the state, but the
causing of such injuries which the state seeks to minimize."
114 Nev. 468, 478 (1998) Woods v. State
concerns the state, but the causing of such injuries which the state seeks to minimize.
Id. at 549-50 (quoting People v. Chatham, 110 P.2d 704, 706 (Cal. Ct. App. 1941)).
In affirming the defendant's conviction and sentence, this court opined:
The California cases depart from the usual rule, long established in Nevada, that a
course of conduct resulting in harm to multiple victims gives rise to multiple charges of
the offense. See State v. Lambert, 9 Nev. 321 (1874).
Appellant urges us to apply the Lobaugh court's reasoning to NRS 484.3795 because
Nevada's statute is similar to California's. We fail to perceive that this is a compelling
reason to adopt the Lobaugh court's rationale. We believe that the Lobaugh court too
narrowly defines the public policy concerns underlying drunken driving statutes. We
are convinced that the state is concerned with both the causing and receiving of the
injuries which the legislature has sought to minimize. We therefore uphold the
conviction of the two felony counts.
Galvan, 98 Nev. at 555, 655 P.2d at 157-58.
[Headnotes 4, 5]
It is true that [a] court should normally presume that a legislature did not intend
multiple punishments for the same offense absent a clear expression of legislative intent to
the contrary. Talancon v. State, 102 Nev. 294, 300, 721 P.2d 764, 768 (1986). However, the
instant case does not involve a single offense; in Galvan we expressly held that multiple
victims give rise to multiple offenses under NRS 484.3795, and we have no desire to revisit
this holding. Accordingly, Woods' reliance on Talancon is misplaced. We conclude that,
pursuant to Galvan, the district court did not err by imposing consecutive sentences on
Woods for each count of felony DUI.
CONCLUSION
We conclude that Woods was estopped from challenging the lawfulness of the plea
agreement pursuant to NRS 484.3795(2), and that the district court did not err in denying
Woods' motion to withdraw his plea. We further conclude that there was no error in imposing
consecutive sentences for each of the two counts of felony DUI. Woods' conviction and
sentences are affirmed.
____________
114 Nev. 479, 479 (1998) Steese v. State
FREDERICK LEE STEESE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 27197
May 19, 1998 960 P.2d 321
Appeal from a judgment of conviction, pursuant to a jury trial, of one count each of
first degree murder with use of a deadly weapon, robbery with use of a deadly weapon,
burglary, and grand larceny. Eighth Judicial District Court, Clark County; James A. Brennan,
1
Senior Judge.
The supreme court, Young, J., held that: (1) defendant's confession to murder was
freely and voluntarily given; (2) alleged prosecutorial misconduct did not require new trial;
(3) police did not violate defendant's due process rights by failing to gather potentially
exculpatory evidence; (4) records of collect telephone calls allegedly made by defendant at
time of victim's murder were not Brady material; (5) photographic line-up shown to witness
was not impermissibly suggestive; (6) large kitchen knife used by defendant to fatally stab
victim was a deadly weapon for purposes of sentence enhancement statute; and (7)
disqualification of prosecutors on ground of conflict of interest was not required.
Affirmed.
Rose, J., and Springer, C. J., dissented.
Woodburn & Wedge and James William Erbeck, Las Vegas, for Appellant.
Attorney, James Tufteland, Chief Deputy District Attorney, and William D. Kephart, Deputy
1. Criminal Law.
A confession is admissible only if it is freely and voluntarily made.
2. Criminal Law.
Where the district court's determination that a confession is voluntary is supported by substantial evidence, supreme court will
not substitute its judgment for that of the district court.
3. Criminal Law.
Substantial evidence necessary to support determination that a confession is voluntary is that which a reasonable mind might
consider adequate to support a conclusion.
__________

1
Although the judgment of conviction was signed by Judge Brennan, the trial and all post-trial motions were
heard by the Hon. Don P. Chairez, Judge.
4. Criminal Law.
To determine the voluntariness of a confession, the court must look to the totality of the circumstances.
5. Criminal Law.
Among the factors to be considered in determining whether a confession was voluntarily given are the youth of the accused; his
lack of education or his low intelligence; the lack of any advice of constitutional rights; the length of detention; the repeated and
prolonged nature of questioning; and the use of physical punishment such as the deprivation of food or sleep.
6. Criminal Law.
Defendant's confession to murder was freely and voluntarily given, despite his alleged schizoid personality disorder, drug
withdrawal, lack of sleep, hunger, and a desire to please authority figures. Defendant was given snacks, coffee, and cigarettes
throughout the course of the interrogation, did not complain of hunger or weariness, and did not appear to be experiencing drug
withdrawal, and police had not made any promises to defendant if he confessed or made threats if he failed to do so.
7. Criminal Law.
Evidence at suppression hearing was insufficient to establish that defendant was spoon fed facts of murder case so that his
confession would fit those facts, making his confession involuntary. Although police told defendant that no plunger was found at scene
when he stated that he killed victim because victim was about to assault him with a toilet plunger and that victim's residence appeared
to be burglarized when defendant claimed he killed victim during fight over money, defendant also mentioned several details of which
police had not informed him, and which fit independently verified facts.
8. Criminal Law.
Alleged prosecutorial misconduct occurring when prosecutor overstated strength of State's case to potential alibi witness prior to
murder trial did not prejudice defendant and require new trial, where witness testified on defendant's behalf.
9. Criminal Law.
The district court's denial of a motion for new trial will not be reversed absent an abuse of discretion.
10. Criminal Law.
Requirement that new trial be granted when witness intimidation by a prosecutor results in a denial of the defendant's due
process right to a fair trial applies with equal force to cases where a prosecutor attempts to dissuade a witness from testifying by
misrepresenting the facts of the case. U.S. Const. amend. 14.
Bloodstained pair of blue jeans found under victim's bed by his sister and gold chain found in victim's van by his brother was
not constitutionally material evidence in murder case, and police thus did not violate defendant's due process rights by failing to gather
such evidence during murder investigation. Defendant's conviction was based primarily on his confession, as corroborated by known
physical evidence, and defendant failed to support his speculation that expert testing of blood on the jeans and hair and body fluids on
the chain may have exculpated him. U.S. Const. amend. 14.
Due process requires the State to preserve material evidence. U.S. Const. amend. 14.
Even if bloodstained pair of blue jeans found under victim's bed by his sister was constitutionally material in murder case,
evidence was insufficient to establish that the police acted in bad faith or were grossly negligent in failing to find the jeans, as required
to find due process violation; at least two police officers looked through victim's trailer for evidence, and jeans were discovered by
victim's family only after trailer was professionally cleaned. U.S. Const. amend. 14.
Evidence that alibi witness had previously identified defendant in a lineup was not material exculpatory evidence in murder
case, so that State's failure to disclose such evidence did not violate due process. Although defendant claimed he could have used
evidence to rehabilitate witness when witness was initially unable to identify defendant at trial, there was no reasonable probability that
result of trial would have changed had evidence been available, given strength of State's case. U.S. Const. amend. 14.
Due process requires the State to disclose material evidence favorable to the defense; evidence is material when there is a
reasonable probability that had the evidence been available to the defense, the result of the proceeding would have been different.
16. Criminal Law.
Records of collect telephone calls allegedly made by defendant at time of victim's murder were not Brady material that State was
required to disclose to defense. Defendant had knowledge of collect calls he allegedly made, and defense counsel could have
independently obtained the records through diligent investigation.
17. Criminal Law.
Brady does not require the State to disclose evidence which is available to the defendant from other sources, including diligent
investigation by the defense.
18. Criminal Law.
Substantial evidence supported finding that State had not pressured defense witness to avoid contact with defense counsel prior
to murder trial. Although witness stated in affidavit that prosecution had told him not to speak with defendant, defense counsel actually
spoke to witness before trial, and witness was subject to impeachment by showing of bias.
19. Criminal Law.
Supreme court will not set aside a district court's findings of fact unless such findings are not supported by substantial evidence.
20. Criminal Law.
Discrepancies between two witnesses' statements to police and their trial testimony did not establish that prosecutor improperly
caused witnesses to change their testimony in murder case.
21. Criminal Law.
In general, a defendant's failure to object or to request a curative jury instruction precludes appellate review of allegedly
improper comments by prosecutor.
22. Criminal Law.
In order for prosecutorial misconduct to constitute reversible error, it must be prejudicial and not merely harmless. Error is
harmless if supreme court concludes, without reservation, that the verdict would have been the same in the absence of error.
23. Criminal Law.
Prosecutor did not commit reversible misconduct in murder case by stating that a guilty verdict was the only one which this
community would condone.
24. Criminal Law.
Photographic line-up shown to witness was not impermissibly suggestive because defendant's photograph was the only one
which was labeled with a booking date.
25. Criminal Law.
Discrepancies between witness's description of person seen in murder victim's trailer and defendant's appearance at trial did not
require suppression of witness's in-court identification of defendant in murder prosecution. Any inconsistency was appropriately
resolved by jury's evaluation of witness's credibility.
26. Criminal Law.
Large kitchen knife used by defendant to fatally stab victim was a deadly weapon for purposes of sentence enhancement
statute. NRS 193.165.
27. Criminal Law.
At least some knives are inherently dangerous weapons for purposes of sentence enhancement statute. NRS 193.165.
28. Criminal Law.
Prosecutors' administration of photographic line-up to one witness, their investigative interview of another witness and alleged
attempt to dissuade a third witness from testifying did not create a conflict of interest that required prosecutors' disqualification in
murder prosecution. Prosecutors' activity did not go beyond bounds of necessary pretrial investigation and preparation.
29. Criminal Law.
Defendant was not prejudiced by conflict of interest created by prosecutors' administration of photographic line-up to one
witness, their investigative interview of another witness and alleged attempt to dissuade a third witness from testifying, so as to require
prosecutors' disqualification in murder prosecution; defendant had opportunity to cross-examine first witness about line-up, did not set
forth facts regarding nature of second witness's interview, and third witness testified for defense.
OPINION
By the Court, Young, J:
On June 4, 1992, Detective Norval Risenhoover (Risenhoover) of the North Las Vegas Police Department responded to a
report of a dead body at the Silver Nugget Camperland. Risenhoover entered a camping trailer and saw the body of a nude male stretched
across the floor in the doorway between the bedroom and the bathroom. The man's body had multiple stab wounds on the upper torso, head,
and neck. An orange towel was draped over the face. It appeared that a struggle had taken place. Bathroom fixtures had been broken and a
curtain valance in the bedroom had been pulled from the wall.
valance in the bedroom had been pulled from the wall. Blood was spattered throughout the
bathroom and had soaked through the mattress in the bedroom. There was a broken candle
and a candle base on the floor. In addition, the trailer was apparently ransacked. Cabinets had
been opened and their contents strewn about the bedroom, kitchen, and bathroom.
Risenhoover found an empty cabinet which appeared to have recently held a television set
and VCR.
Risenhoover determined that the body was that of Gerard Soules (Soules). Soules
had been discovered by his employer, Mike Hartzell (Hartzell), who was the entertainment
director for Circus Circus, the Excalibur, and the Luxor Hotel-Casinos. Soules performed a
fun and family oriented act at Circus Circus which involved dogs trained to perform tricks
in ballerina costumes. Soules was usually very dependable, so Hartzell became concerned
when he missed a performance. Hartzell went to the Silver Nugget Camperland, a trailer park
in North Las Vegas, and asked which space was rented by Soules. He knocked on Soules'
door and, when there was no answer, opened it. Hartzell noted that the windows to the trailer
were open, but that Soules' truck was gone. He heard dogs barking in the back of the trailer.
Immediately feeling that something was wrong, Hartzell closed the door and found the trailer
park manager and two security guards. The four returned to the trailer and discovered Soules'
body. One of the security guards notified the North Las Vegas Police Department.
Sandra Neilson (Neilson), a police identification technician, also responded to the
call. She took samples of blood, dusted for fingerprints, and photographed the crime scene.
On June 4, 1992, Risenhoover spoke with Michael Moore (Moore), one of Soules'
neighbors. Moore stated that he had seen Soules with two men, separately, on the night of
June 3, 1992. Moore described one of these men as 5'8" tall and 160-170 pounds, with
thinning reddish-brown hair. Moore recognized this man as someone who had been staying in
Soules' trailer for the previous two or three weeks. The other individual was younger and had
blonde hair. Moore saw the younger man leave on a motorcycle that evening, but he did not
see the first man leave.
On June 6, 1992, the manager of the trailer park notified Risenhoover that a letter arrived
addressed to Fred Burke, care of Gerard Soules. The police subsequently discovered that
Fred Burke was an alias used by appellant Frederick Lee Steese (Steese). The letter was
from Rick Rock (Rock) of Pocono Pines, Pennsylvania. On June 10, 1992, Risenhoover
contacted Rock. Rock informed Risenhoover that to his knowledge, Steese lived in Las
Vegas.
lived in Las Vegas. Risenhoover asked Rock to notify him if he heard from Steese. In
addition, Rock gave Risenhoover permission to open the letter. Rock later telephoned
Risenhoover and gave him the number of a pay phone in Indiana at which Steese could be
reached.
Steese was a self-described hobo: a drifter who travelled by hitchhiking, jumping
trains, and stealing trucks. He earned his living through a combination of odd jobs,
panhandling, and petty crimes. At one time, Steese had hitched a ride with Rock, and the two
apparently developed a sexual relationship.
On June 12, 1992, Risenhoover telephoned Steese at the number supplied by Rock.
Risenhoover informed Steese that he was investigating the murder of Soules. Steese asked
where and how Soules had been killed. Risenhoover told him that Soules had been stabbed
while in his home, but he did not tell Steese how many times Soules had been stabbed.
2
Steese told Risenhoover that he was a friend of Soules and had been living with him in Las
Vegas, but that he had left on friendly terms on June 4 or 5, 1992. Risenhoover then obtained
Steese's social security number and birth date. Steese told Risenhoover that he could be
reached through Rock. Steese then telephoned Rock.
After speaking with Steese, Rock called Risenhoover and told him that Steese had
called. Rock told Risenhoover that Steese had told him Soules had been stabbed over one
hundred times. Risenhoover took note of this because he had not told Steese the actual
number of stab wounds, nor had that information been in news reports of the crime. At trial,
Steese testified that he simply made up the number.
Steese testified that Rock advised him to return to Las Vegas in order to straighten this
out. Steese jumped a train from Indiana to Portage, Wisconsin. In Portage, he stole a semi
truck, which he drove to Nevada. Steese testified that during this trip, he kept himself awake
with speedballs, a mixture of cocaine and heroin. On June 18, 1992, at about 10:30 a.m.,
Steese was stopped for speeding near Alamo, Nevada, by two Nevada Highway Patrol
troopers. Trooper Joseph Lawrence (Lawrence) testified that Steese did not appear to be
under the influence of drugs or alcohol at the time. The two troopers discovered that the truck
was stolen and arrested Steese. In the cab of the truck, Lawrence found an address book with
Soules' address in it. Lawrence remembered that Soules' murder was being investigated, so he
notified the North Las Vegas Police Department. The highway patrolmen then took Steese to
the Clark County Detention Center.
__________

2
Soules had been stabbed numerous times; the coroner stopped counting at thirty-seven.
Steese was taken into custody by the North Las Vegas Police at about 3:30 p.m. that
day. Steese waived his Miranda rights and was interviewed by Risenhoover and James
Jackson (Jackson), another detective. Steese filled out a written questionnaire in which he
stated that he knew Soules, but that he did not have any information regarding Soules' death.
Jackson, who was trained in interpreting such questionnaires, noted a number of points at
which verbal cues indicated that Steese was attempting to deceive the detectives. Upon
further questioning, Steese stated that if he killed Soules, he did not remember. Shortly
thereafter, Steese admitted that he killed Soules, but it was because Soules had chained him
to the bed with dog leashes and was about to sodomize him with a toilet plunger.
Risenhoover pointed out that neither leashes nor a toilet plunger was found at the scene.
Steese next told the detectives that Soules owed him money, so he went to Soules' home to
collect it, and an argument about money escalated into a fight that left Soules dead.
Risenhoover pointed out that all the nightlights had been unplugged, indicating a burglary. At
that point, Steese admitted that he simply intended to rob Soules, but that Soules awoke
during the course of the burglary.
At 9:40 p.m., Steese began making a transcribed confession to Risenhoover and
Jackson. Steese stated that he had hitched a ride with Soules near the end of May 1992. The
two had dinner together that evening and formed a sexual relationship. Soules asked Steese if
he wanted to work as his assistant in the dog act. Steese accepted the offer. Soules introduced
Steese to Hartzell, who told Steese that he would need to obtain a sheriff's work card in order
to work at Circus Circus. Steese attempted to obtain this card, but his application was denied
due to a parole violation in Florida. Steese decided to move on, so Soules dropped him off at
a freeway exit ramp. Steese then purchased and drank a twelve-pack of beer. Intoxicated and
impecunious, Steese decided to return to Soules' trailer in order to steal his VCR.
When it became dark, Steese went to Soules' trailer. He entered and pulled out all the
nightlights in order to make the trailer completely dark. While removing the VCR, Steese
heard Soules stirring in the bedroom, so he grabbed an object that was round and heavy and
struck Soules' head with it. Soules ran into the bathroom and shut the door. Steese obtained a
knife from the kitchen, then rushed in there [the bathroom] and stabbed him in the chest and
stomach area, slicing him and he was quiet, he fell to the ground. During the confession,
Risenhoover asked Steese how many times he had stabbed Soules, to which Steese replied, I
don't know. Maybe 100.
Steese stated that he then covered Soules' face and searched throughout the trailer for
anything of value. He took a camera, a television set, and a VCR, as well as the knife he
used to stab Soules.
television set, and a VCR, as well as the knife he used to stab Soules. Steese loaded these
items into Soules' truck, which he drove toward Lake Mead. Steese stopped at a bait shop on
the way and sold the television set, VCR, and camera to someone for $100.00. Steese then
purchased another twelve-pack of beer at the bait shop. He took this beer to Lake Mead and
turned off the main road in order to dispose of the knife. The truck got stuck in a wash near
Lake Mead. Steese and some onlookers attempted to free the truck by using parts of dog
cages which were in the back of the truck. They were unable to free the truck, so Steese sat in
the truck and drank his beer. He then hitchhiked back to Las Vegas and from there jumped
trains to Cheyenne, Wyoming.
In Cheyenne, Steese stated that he met a man named Jerome who invited him to stay
with his grandparents in New Plymouth, Idaho. Steese stayed there for about one week, then
left. He made his way to Elkhart, Indiana, where he called Rock. Risenhoover first contacted
Steese in Elkhart.
Soules' truck and trailer were returned to his family, who flew to Las Vegas from
Michigan. Soules' brother discovered a gold chain in the truck. He told the police about this
chain, but they were not interested in seeing it. Soules' sister later found a pair of bloody jeans
rolled in a towel under the bed in the trailer. Because the police had not wanted the chain, she
assumed that they did not want the jeans either, so she disposed of them.
On October 6, 1992, Steese was charged by information with murder with the use of a
deadly weapon, burglary, and grand larceny of an automobile. On October 20, 1994, Steese
filed a motion to dismiss based upon alleged prosecutorial misconduct. He alleged that the
prosecutor attempted to dissuade a defense witness from testifying at the upcoming trial. On
November 3, 1994, the district court denied this motion.
A jury trial commenced on January 9, 1995. Steese made a motion in limine to suppress
his June 18, 1992 confession on the grounds that the circumstances of the police questioning
rendered the confession involuntary. A hearing on this motion was held on January 18, 1995.
Steese produced a psychiatrist's report which stated that he was of low-normal intelligence
and that he suffered from schizoid personality disorder. Risenhoover and Jackson were the
only witnesses at the hearing on the motion in limine. The detectives' testimony showed that
Steese was interrogated, with breaks, from 4 p.m. until 9:40 p.m., when he began making his
transcribed confession. During this time, neither detective remembered Steese expressing
hunger or weariness. He was provided with coffee, cigarettes, and snacks from a vending
machine. Neither Jackson nor Risenhoover noticed any symptoms of intoxication or drug
withdrawal. Based upon this hearing, the court denied Steese's motion to suppress his
confession.
The case proceeded to a jury trial. Steese attempted to prove an alibi placing him in
Idaho at the time of the killing. He produced a number of witnesses who testified in support
of this theory. Geronimo Coke Bouttier (Geronimo) testified that Steese was with him in
Idaho near the beginning of June 1992. When he first testified, Curtis Bouttier (Curtis),
Geronimo's brother, did not identify Steese as being the person in Idaho, but the next day
testified that Steese had indeed been in Idaho. Curtis explained that he had been confused and
self-conscious the previous day when he failed to identify Steese. Serena Bouttier (Serena),
Curtis and Geronimo's sister, testified that Steese was in Idaho; however, she also stated that
the person in Idaho had identified himself as Robert.
In addition, Steese presented documentary evidence, including employment and social
services applications, placing him in Idaho at the time of the murder. The State vigorously
contested the authenticity of these documents at trial. Steese's name was misspelled on some
of these documents. Experts in handwriting analysis testified that the documents were likely
forged. In addition, Steese's cellmate testified that Steese admitted to the killing and bragged
that his brother had set up an alibi for him in Idaho.
On March 1, 1995, the jury returned a verdict of guilty of first degree murder with use
of a deadly weapon, robbery with use of a deadly weapon, burglary, and grand larceny. On
April 21, 1995, the court entered a judgment of conviction and sentenced Steese. Steese
stipulated to two consecutive sentences of life without the possibility of parole in exchange
for the prosecution agreeing not to seek the death penalty. Pursuant to the stipulation, Steese
was sentenced to two consecutive life terms for the murder and to ten years for the burglary,
fifteen years for the robbery with an additional fifteen years for using a deadly weapon, and
ten years for grand larceny. The burglary, robbery, and larceny sentences ran consecutively to
the murder sentence.
On March 15, 1995, Steese filed a motion for a new trial or a directed verdict. The court
held a hearing on April 20, 1995, and denied the motion on May 28, 1995. On June 28, 1995,
Steese filed a motion to dismiss or, in the alternative, a new trial. Both these motions were
based upon allegations of prosecutorial misconduct, including intimidation of defense
witnesses and suppression of evidence. On September 1, 1995, the court held a hearing on
this motion. On February 23, 1996, the district court issued findings of fact, conclusions of
law, and an order denying this motion.
On April 21, 1995, Steese filed his notice of appeal from the judgment of conviction.
On April 1, 1996, Steese filed a notice of appeal from the district court's order denying his
second motion for a new trial. The State moved to consolidate these two appeals.
On April 12, 1996, this court ordered Steese to cure certain jurisdictional defects. On July 26,
1996, this court denied as moot the motion to consolidate, holding that Steese could state all
grounds for appeal in his appeal from the judgment of conviction.
DISCUSSION
[Headnotes 1-3]
First, Steese argues that his confession should have been suppressed because it was
not freely and voluntarily given. He contends that because of schizoid personality disorder,
drug withdrawal, lack of sleep, hunger, and a desire to please authority figures, his will was
overborne by the police interrogation. Steese also argues that the police spoon fed him the
facts of the case so that his confession would later be corroborated. We conclude that this
argument lacks merit.
A confession is admissible only if it is freely and voluntarily made. Passama v. State, 103
Nev. 212, 213, 735 P.2d 321, 322 (1987). Where the district court's determination that a
confession is voluntary is supported by substantial evidence, we will not substitute our
judgment for that of the district court. Brust v. State, 108 Nev. 872, 874, 839 P.2d 1300, 1301
(1989). Substantial evidence is that which a reasonable mind might consider adequate to
support a conclusion. Id. at 875, 839 P.2d at 1301.
[Headnotes 4, 5]
To determine the voluntariness of a confession, the court must look to the totality of
the circumstances. Passama, 103 Nev. at 214, 735 P.2d at 323. Among the factors to be
considered in determining whether a confession was voluntarily given are
the youth of the accused; his lack of education or his low intelligence; the lack of any
advice of constitutional rights; the length of detention; the repeated and prolonged
nature of questioning; and the use of physical punishment such as the deprivation of
food or sleep.
Id. (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226-27 (1973)). In Passama, we also
noted that promises made by the police to a suspect are crucial to a determination of
voluntariness. Id. at 215, 735 P.2d at 323.
In Passama, we concluded that the totality of the circumstances demonstrated that the
defendant's confession had not been freely and voluntarily given. The defendant in Passama
had been questioned for a number of hours, was of low-average intelligence, and had not been
provided with food or drink other than coffee. In our holding, we placed particular
importance on two facts: (1) that the sheriff interrogating the defendant had threatened to tell
the prosecutor if he did not cooperate; and
the prosecutor if he did not cooperate; and (2) the sheriff had provided the defendant with
certain facts central to the confession. Id. at 215-16, 735 P.2d at 324.
[Headnote 6]
Steese argues that the present case is directly analogous to Passama. We disagree.
Based upon a hearing, the district court found that the totality of the circumstances indicated
that Steese's confession was freely and voluntarily given. At this hearing, Risenhoover stated
that the defendant was given snacks, coffee, and cigarettes throughout the course of the
interrogation. Risenhoover did not recall Steese complaining of hunger or weariness. Steese
did not appear to be experiencing drug withdrawal at the time of the interrogation.
Significantly, no testimony at this hearing indicated that the police had either made any
promises to Steese should he confess or made threats should he fail to do so.
[Headnote 7]
Steese further maintains that he was spoon fed the facts of the case so that his
confession would fit those facts. When Steese told the police that he had killed Soules
because he was about to assault Steese with a toilet plunger, they pointed out that no plunger
was found at the scene. When Steese later said that he and Soules had an argument about
money which escalated into the murder, Risenhoover said that this was unlikely because all
the nightlights had been pulled out, indicating a burglary. While Risenhoover testified that he
or Jackson had told Steese that a broken blue candle was found at the scene, Jackson recalled
that Steese himself had first mentioned the candle.
However, in his confession Steese also mentioned a number of details of which the police
had not informed him. He stated that Soules was nude. He stated that he covered Soules' face.
He stated that he had taken a VCR, a TV, and a camera from the trailer, put them in Soules'
truck, and had then driven to Lake Mead, where the truck got stuck. He stated that he
attempted to free the truck by using parts from dog cages in the back of the truck. All these
statements fit independently verified facts. Therefore, we conclude that unlike in Passama,
the police in this case did not provide Steese with the key facts of his confession. Thus, we
conclude that the trial court's determination that Steese's confession was freely and
voluntarily given is supported by substantial evidence and that the court did not err in denying
Steese's motion to suppress his confession.
[Headnote 8]
Second, Steese contends that the district court erred in denying his motions to dismiss
and for a new trial on the grounds that the prosecution attempted to influence the
testimony of Nadine Pollock {"Pollock"), one of his alibi witnesses.
his motions to dismiss and for a new trial on the grounds that the prosecution attempted to
influence the testimony of Nadine Pollock (Pollock), one of his alibi witnesses.
Specifically, Steese contends that the prosecutor overstated the strength of the case to Pollock
prior to trial.
[Headnotes 9, 10]
The district court's denial of a motion for new trial will not be reversed absent an
abuse of discretion. Lightford v. State, 91 Nev. 482, 483, 538 P.2d 585, 586 (1975). In Rippo
v. State, 113 Nev. 1239, 1251, 946 P.2d 1017, 1025 (1997), we held that witness intimidation
by a prosecutor warrants a new trial if it results in a denial of the defendant's due process right
to a fair trial. Although the misconduct which Steese alleges here does not rise to the level of
intimidation, we conclude that the holding of Rippo applies with equal force to cases where a
prosecutor attempts to dissuade a witness from testifying by misrepresenting the facts of the
case.
On October 20, 1994, Steese filed a motion to dismiss based upon alleged prosecutorial
misconduct. Steese supported this motion with an affidavit in which Pollock stated that
William Kephart (Kephart), the prosecuting attorney, had telephoned her and asked her
why she was testifying for the defense, given the fact that Steese had confessed and that
Steese's fingerprints were on the murder weapon and all over Soules' home. In addition,
Pollock stated that Kephart told her that Steese was wanted for felonies in six states and that
witnesses had seen Steese commit the murder.
On November 3, 1994, the State filed its opposition to this motion. The State
supported its opposition with an affidavit by Kephart. In this affidavit, Kephart stated that he
had indeed spoken with Pollock and told her that Steese had confessed and that he was
wanted for felonies around the country. However, Kephart specifically recalled telling
Pollock that the murder weapon had not been found. Kephart also stated that he did not tell
Pollock that there were eyewitnesses to the murder. On November 3, 1994, the district court
issued an order denying Steese's motion. Steese again raised this argument in his motions for
a new trial, which the court also denied.
We conclude that the facts in the record do not support Steese's argument. The affidavit
testimony, while conflicting, was sufficient to support the district court's ruling. Furthermore,
Steese was not prejudiced by the prosecutor's alleged misconduct. Pollock testified at trial as
an alibi witness on Steese's behalf. Therefore, we conclude that the district court did not
abuse its discretion by denying Steese's motion to dismiss.
[Headnote 11]
Third, Steese argues that the police committed prejudicial misconduct by failing to
preserve material evidence. After Soules' truck and trailer were returned to his family, his
brother found a gold chain, which belonged to Soules, inside the truck. He informed the
police of this, but they were not concerned. Later, Soules' sister found a pair of
blood-soaked jeans wrapped in a towel underneath the bed in the trailer. Assuming that the
police had done their job, Soules' family simply disposed of the jeans.
[Headnote 12]
Due process requires the State to preserve material evidence. State v. Hall, 105 Nev.
7, 9, 768 P.2d 349, 350 (1989). However, this presupposes that the State has possession and
control of the evidence at issue. See March v. State, 859 P.2d 714, 716 (Alaska Ct. App.
1993) (holding that the State's duty to preserve evidence attaches at the time the State has
gathered and taken possession of the evidence). Here, the police never had control of this
evidence. Therefore, Steese is essentially arguing that the State denied him due process by
failing to gather evidence.
In Daniels v. State, 114 Nev. 261, 956 P.2d 111 (1998), we adopted New Mexico's
approach to claims of failure to gather evidence. In State v. Ware, 881 P.2d 679 (N.M. 1994),
the New Mexico Supreme Court set forth a two-part test for determining whether police
violate due process by failing to gather evidence. First, the evidence which the police failed to
gather must be constitutionally material. Evidence is material when there is a reasonable
probability that had the evidence been available to the defense, the result of the proceeding
would have been different. If the evidence is material, the second inquiry concerns the good
faith of the police. If the police acted in bad faith or were grossly negligent in failing to gather
the evidence, then the trial court may instruct the jury that the material evidence not gathered
from the crime scene would be unfavorable to the State. Id. at 685 (citing, inter alia, United
States v. Bagley, 473 U.S. 667, 682 (1985), and State v. McGill, 324 N.W. 2d 378 (Minn.
1982)).
[Headnote 13]
In the present case, we conclude that Steese has not shown that the gold chain and
bloody jeans were constitutionally material. Steese's conviction was based primarily upon his
confession, which was corroborated by the known physical evidence. Based upon this
evidence, the jury determined beyond a reasonable doubt that Steese had murdered Soules.
While Steese alleges in his brief that testing of the blood on the jeans may have exculpated
him, he has failed to point to any facts in the record which support this.
pated him, he has failed to point to any facts in the record which support this. We conclude
that Steese's naked speculation is insufficient to show that a different result was likely at trial
had the police located this evidence. Therefore, we conclude that this evidence was not
constitutionally material.
3

Steese makes an identical argument with regard to the gold chain which Soules'
brother found in Soules' truck. Steese argues that the jewelry possibly retained human hair
[and] body fluids subject to DNA testing. However, we conclude that the materiality
requirement of Ware is simply not met by Steese's naked speculation. Therefore, we conclude
that the police did not violate Steese's right to due process by failing to discover the bloody
jeans or to examine the gold chain.
[Headnote 14]
Fourth, Steese argues that the State violated his due process rights by failing to
produce certain allegedly exculpatory evidence. Specifically, Steese alleges that the State
failed to disclose that Curtis, one of his alibi witnesses, had previously identified him in a
photographic line-up.
In November 1994, Curtis was shown a photographic line-up, which included Steese and
his brother, Robert. Curtis identified Steese as being the person whom he had seen in Idaho in
the first part of June 1992. When asked at trial to identify the person from Idaho, Curtis was
at first unable to identify Steese. Steese argues that, had he known of the previous
photographic identification, he could have immediately rehabilitated Curtis, strengthening his
alibi defense.
[Headnote 15]
Due process requires the State to disclose material evidence favorable to the defense.
Brady v. Maryland, 373 U.S. 83, 87 (1963). Evidence is material when there is a reasonable
probability that had the evidence been available to the defense, the result of the proceeding
would have been different. Bagley, 473 U.S. at 678.
We conclude that there is no reasonable probability that had this evidence been
available to the defense at trial, the result at trial would have been different. The State's case
against Steese was strong.
__________

3
Moreover, even if material, there is no evidence that the police acted in bad faith or were grossly negligent
in failing to find the jeans. At least two police officers, Risenhoover and Neilson, looked through the trailer for
evidence and did not find the jeans. Indeed, Soules' family discovered the jeans only when the trailer was
professionally cleaned. At no point did Soules' family notify the police of the existence of this evidence. This
merely suggests that the police failed to search every dark corner of the trailer for evidence; it does not imply
they acted in bad faith or with gross negligence.
was strong. Steese's confession was well corroborated by the facts of the case. During his
confession, Steese stated that he had stabbed Soules over one hundred times; that Soules body
was nude; that he had covered Soules' face after the murder; that he had stolen Soules'
television, VCR, and camera; that he had driven away in Soules' truck; that the truck had
gotten stuck near Lake Mead; and that he had attempted to use dog cages to free the truck.
There is no indication in the record that Steese could have learned these facts from news
reports of the murder. All these statements were corroborated by the police investigation.
Furthermore, Steese's cellmate testified that Steese had told him that Steese's brother, Robert,
was in Idaho manufacturing an alibi. Serena testified that the person in Idaho had introduced
himself to her as Robert, which is the name of Steese's brother. Given the strength of this
evidence against Steese, we conclude that in all reasonable probability, the jury would have
reached the same verdict had Steese been aware of Curtis' previous identification. Therefore,
we conclude that the evidence at issue was not constitutionally material and that Steese's due
process rights were not violated by the State's failure to give Steese this evidence.
[Headnote 16]
Fifth, Steese argues that the district court erred by denying his motions to dismiss and
for a new trial on the grounds that the State had failed to disclose certain phone records which
allegedly placed Steese in Idaho at the time of the murder and had discouraged Rock from
speaking to the defense. Steese posits that the phone records showed that Steese had called
Rock from Nampa, Idaho, once on June 3, 1992 (the day of the murder) and three times on
June 5, 1992. Steese further alleged that the prosecution discouraged Rock from speaking
with defense counsel before trial, thereby preventing the defense from learning that Rock had
spoken with Steese on those days. Steese asserts that Rock would have testified that because
of Steese's accent and the content of the conversation, Rock was certain that he spoke with
Steese, and not his brother, on June 3 and 5, 1992.
Steese supported his motion in the district court with photocopies of the phone records and
a detailed affidavit by Rock. In this affidavit, Rock stated that he had been interviewed by
Kephart and Doug Herndon (Herndon), the prosecutors in this case. Rock told Kephart and
Herndon that he did not remember Steese telling him that Soules had been stabbed over 100
times. Rock asserted that the prosecutors became very upset with him at this point and a
yelling match occurred. Rock also stated that [a]lthough Kephart indicated that it was
technically OK for me to talk to defense counsel, he gave me rather clear indications that
it would be best if I did not."
OK for me to talk to defense counsel, he gave me rather clear indications that it would be best
if I did not.
Rock further averred that he had spoken with Steese on May 21, 1992, when Steese
gave him Soules' address. Rock then stated:
The next time I heard from [Steese] was when he called me collect from Nampa,
Idaho, early in the morning of June 5, 1992. . . . He said that he was with a girl, and that
he [and] the girl . . . had been out partying the night before.
. . .
In addition to the fact that I recognized [Steese's] voice, I know that the June 5, 1992
collect calls from Nampa were made by [Steese] because we talked about things that
only [Steese] and I would have knowledge of. Specifically, I remember [Steese]
apologizing for the fact that he had slept with and/or fooled around with the girl from
whose house he was calling. . . . There is no chance that anyone other than [Steese]
would have made comments of this nature to me.
. . .
In this affidavit, Rock seems to deny that Steese and he had a sexual relationship, stating that
[w]e contemplated the idea of having a relationship, yet we knew that it would probably not
work. However, the letter which Rock had written to Steese, in care of Soules, seems to
indicate that the two did, in fact, have such a relationship.
In the State's opposition to Steese's motion for a new trial, the State asserted that
neither Herndon nor Kephart made any attempt to discourage Rock from testifying at trial.
The State supported its arguments with affidavits by Herndon and Kephart, both of whom
stated that they had made no attempt to dissuade Rock from testifying or from speaking with
defense counsel.
On September 1, 1995, the district court heard oral argument on the motion. The court did
not hear additional testimony on the matter; it reached its decision based upon the record and
upon the affidavits submitted with the parties' briefs. On February 23, 1996, the court issued
findings of fact, conclusions of law, and an order denying Steese's motion.
Upon a thorough review of the affidavits and other documentary evidence, we
conclude that the district court did not err in denying Steese's motion for a new trial. First, the
phone records and Rock's affidavit testimony do not place Steese in Nampa, Idaho, on June 3,
1992. Rock testified that he recalled receiving a phone call from Steese on June 5, 1992, two
days after the murder. Although the phone records show another collect call to Rock on June
3, 1992, Rock explicitly stated in his affidavit that the phone call of June 5, 1992,
the phone call of June 5, 1992, was the first time he heard from Steese since receiving a
postcard on May 21, 1992.
[Headnote 17]
Furthermore, Brady does not require the State to disclose evidence which is available
to the defendant from other sources, including diligent investigation by the defense. Stockton
v. Murray, 41 F.3d 920, 927 (4th Cir. 1994); accord United States v. Davis, 787 F.2d 1501
(11th Cir. 1986). Here, Steese certainly had knowledge of the collect calls he allegedly made
to Rock. Through diligent investigation, defense counsel could have obtained the phone
records independently. Therefore, we conclude that the State did not violate Brady by failing
to provide these records to the defense.
4

[Headnotes 18, 19]
Steese additionally contends that the State pressured Rock to avoid contact with
defense counsel. After evaluating the evidence Steese presented to support his motion for a
new trial, the district court found that Rock had not been told to avoid speaking with Steese's
attorney. This court will not set aside a district court's findings of fact unless such findings are
not supported by substantial evidence. See Ford v. State, 105 Nev. 850, 854, 784 P.2d 951,
953 (1989).
Here, the district court's finding was based upon substantial evidence. In Rock's affidavit,
he stated that the prosecution indicated that Rock should not speak with defense counsel.
Both prosecutors who were working on the case executed affidavits in which they specifically
denied that any attempt had been made to persuade Rock not to speak to defense counsel. In
fact, defense counsel actually did speak with Rock prior to trial. However, for reasons which
are not clear, Rock terminated this conversation. Moreover, Rock was subject to
impeachment by a showing of bias; at the very least, Rock had tender feelings for Steese and
was likely his lover.
__________

4
Our dissenting colleagues argue that Rock's complete refutation of a police officer's statement at trial was
constitutionally material. At trial, Risenhoover testified, I had learned that [Steese] had said that Soules had
been stabbed over a hundred times. In his affidavit, Rock states that in January 1995, prior to trial, he told the
police that he did not remember Steese making this assertion. However, a witness' inability to recall a statement
made two and one-half years before is a far cry from a complete refutation of the fact that the statement had
been made.
The dissent also points out that Rock stated in his affidavit that all the collect phone calls he received in June
1993 were from Steese, and thus, the June 3 call must have been from Steese. However, this general assertion on
Rock's part contradicts his specific recollection that [t]he next time I heard from [Steese] was when he called
me collect . . . early in the morning of June 5, 1992. Therefore, we conclude that this statement only serves to
further undermine Rock's credibility.
was likely his lover. Rock could also have been impeached by a showing that he made a
number of conflicting statements throughout the course of the investigation. We conclude that
this evidence, though conflicting, substantially supports the district court's conclusion.
We conclude that given the strength of the State's case and the weakness of the
evidence and witness testimony at issue here, the outcome at trial would, in all reasonable
probability, have been the same even if the phone records and Rock's allegations had been
presented by the defense at trial.
[Headnote 20]
Sixth, Steese argues that the State somehow persuaded two witnesses, Moore and
Alexander Koulapaev (Koulapaev), to alter their testimony on the eve of trial. Steese bases
this contention upon certain discrepancies between the statements which Moore and
Koulapaev gave the police and the testimony of these witnesses at trial. However, Steese fails
to point to any evidence which suggests that the action on the part of the prosecutor caused
this change in testimony. Thus, Steese seems to imply that a change in testimony favoring the
State is prima facie evidence of witness tampering. Steese provides no legal authority to
support this position. Therefore, we need not consider this argument. See Cunningham v.
State, 94 Nev. 128, 130, 575 P.2d 936, 938 (1978).
Seventh, Steese argues that the prosecutor made certain comments during closing
argument which were so unfairly prejudicial as to constitute reversible error.
[Headnotes 21, 22]
The United States Supreme Court has noted that 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 reviewed in context. United States v. Young, 471 U.S. 1, 11 (1984). In
general, a defendant's failure to object or to request a curative jury instruction precludes
appellate review of such comments. Ross v. State, 106 Nev. 924, 928, 803 P.2d 1104, 1106
(1990). Furthermore, in order for prosecutorial misconduct to constitute reversible error, it
must be prejudicial and not merely harmless. Id. Error is harmless if this court concludes,
without reservation that the verdict would have been the same in the absence of error.
Witherow v. State, 104 Nev. 721, 724, 765 P.2d 1153, 1156 (1988).
[Headnote 23]
Steese asserts that the prosecutor committed reversible misconduct under Collier v.
State, 101 Nev. 473, 705 P.2d 1126 (1985), by stating that a guilty verdict was the only one
which this community would condone."
community would condone. We conclude that this case is distinguishable from Collier.
The prosecutor in Collier argued that prison doesn't rehabilitate, and implied that if
the defendant was not sentenced to death, he was likely to kill again, just as had Patrick
McKenna, a criminal of considerable local infamy. The prosecution also stated that keeping
Gregory Collier in prison for life at a cost to taxpayers of $35,000.00 per year isn't worth it,
(id. at 481, 705 P.2d at 1131), and that [i]f we are not angry with him, the implication is that
we are not a moral community (id. at 479, 705 P.2d at 1129). Furthermore, at one point the
prosecutor melodramatically turned to the defendant and stated, Gregory Alan Collier, you
deserve to die. Id. at 480, 705 P.2d at 1130. We concluded that the cumulative effect of
these statements was so prejudicial as to warrant reversal of the death sentence.
In the present case, the prosecutor's single reference to the community simply did not
approach the level of rhetorical excess discussed in Collier. Therefore, we conclude that this
comment did not constitute prosecutorial misconduct.
5

Eighth, Steese contends that his conviction was impermissibly based entirely upon his
uncorroborated confession. We conclude that this argument has no foundation in the record;
therefore, we need not reach the legal merits of the issue. As discussed above, Steese's
confession was well corroborated by all the facts which the police investigation had
previously revealed. Therefore, we conclude that this argument is factually meritless.
Ninth, Steese posits that the district court committed reversible error by allowing Moore to
testify that he had seen Steese with Soules on the night of the murder. Steese bases this
argument on the fact that Moore's descriptions of the people he saw with Soules on that
evening do not match Steese's appearance at the time of trial. Steese contends that Moore
identified him in court only because he had previously been shown a photographic line-up
which, he argues, was impermissibly suggestive. Steese further asserts that only after seeing a
photograph of Steese in this line-up was Moore able to identify him in court.
[Headnote 24]
Steese argues that the photographic line-up shown to Moore was impermissibly
suggestive because his photograph was the only one which was labeled with a 1992 booking
date. However, this court has held that mere disparity in the dates on photographs is not
sufficient to invalidate a photographic line-up."
__________

5
Steese argues that a number of other comments made by the prosecutor during closing argument constitute
misconduct. Because the defense failed make a contemporaneous objection to these comments at trial, we
decline to consider them on appeal. Ross, 106 Nev. at 928, 803 P.2d at 1106.
graphs is not sufficient to invalidate a photographic line-up. Lamb v. State, 96 Nev. 452,
454, 611 P.2d 206, 206 (1980). Therefore, we conclude that Moore's identification of Steese
in the photographic line-up was valid.
[Headnote 25]
Absent the argument that Moore's identification of Steese was based upon an invalid
photographic line-up, Steese's contention is essentially that Moore's in court identification of
Steese should have been suppressed because Steese did not match the description which
Moore gave to the police the day after the murder. Moore told police that he had seen Soules
with someone about 5'8"-5'9" tall, weighing 160-170 pounds, with thinning reddish or
brownish hair. When Steese was apprehended, he weighed 140 pounds, with a full head of
brown hair. Because of this disparity, Steese argues, Moore's identification was highly
suspect and should have been ruled inadmissible.
The weight and credibility of eyewitness testimony is solely within the province of the
jury. Wise v. State, 92 Nev. 181, 183, 547 P.2d 314, 315 (1976). Here, Steese was
presumably aware at the time of trial of Moore's description of the person accompanying
Soules. Steese had an opportunity to cross-examine Moore regarding the disparity between
Steese's appearance and the description he gave to the police. Therefore, we conclude that any
inconsistency created by Moore's identification of Steese was appropriately resolved by the
jury's evaluation of Moore's credibility.
[Headnote 26]
Tenth, Steese argues that the trial court erred in instructing the jury that a knife is a
deadly weapon for purposes of the sentence enhancement statute.
This court has held that a deadly weapon, for purposes of NRS 193.165, is any
instrumentality which is inherently dangerous. Zgombic v. State, 106 Nev. 571, 576, 798
P.2d 548, 551 (1990). A weapon is inherently dangerous if the weapon, when used in the
ordinary manner contemplated by its design and construction, will, or is likely to, cause a life
threatening injury or death. Id. In Zgombic, the court anticipated three categories of
weapons: ones which were dangerous as a matter of law, weapons which were not dangerous
as a matter of law, and those for which the question of inherent dangerousness had to be
submitted to the jury. Id. at 577, 798 P.2d at 551-52. The trial court in the present case
instructed the jury that a knife is a deadly weapon. Thus, the court implicitly determined that
the knife was, as a matter of law, an inherently dangerous weapon.
[Headnote 27]
We have never explicitly held that a kitchen knife like the one at issue here is an
inherently dangerous weapon. However, in Hutchins v. State, 110 Nev. 103, 111, 867 P.2d
1136, 1141 (1994), we held that scissors were not inherently dangerous because, in contrast
to knives, which are often designed as weapons and have been so used throughout history,
scissors are more analogous to tools . . . which are potentially harmful when misused. Id.
Therefore, we conclude that under Zgombic and Hutchins, at least some knives are inherently
dangerous weapons.
Steese stated in his confession that the knife which he used was a butcher's knife that you
use to cut meat [with a] blade length of five to seven inches. We conclude that a large
kitchen knife such as this is the type of knife to which Hutchins was referring. Therefore, we
conclude that the trial court did not err in instructing the jury that a knife is a deadly weapon
as a matter of law.
6

[Headnotes 28, 29]
Eleventh, Steese argues that Herndon and Kephart were potential witnesses in the case
and therefore ought to have been disqualified due to a conflict of interest. SCR 178 provides
that [a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a
necessary witness. Thus, if either Herndon or Kephart was likely to be a necessary witness,
he should have been disqualified.
Steese argues that the prosecutors were potential witnesses in three respects. First, as
discussed earlier in this opinion, he alleges that the prosecution team administered an
impermissibly suggestive photographic line-up to Moore. Steese argues that he could have
fully impeached Moore by calling either Herndon or Kephart as a witness to the
circumstances of the identification. Second, Steese claims that Kephart became a potential
witness when he conducted an investigative interview with Mary Clark (Clark), another
witness. Finally, Steese argues that Kephart became a witness when he allegedly attempted to
dissuade Pollock from testifying.
Upon a review of the record, we conclude that the activity at issue here did not go
beyond the bounds of necessary pretrial investigation and preparation. We decline to hold that
prosecutors should be disqualified on the basis of such investigation. Furthermore, we
conclude that Steese was not prejudiced by these alleged conflicts.
__________

6
We note that the rule enunciated in Zgombic was superseded in 1995 by a legislative modification of NRS
193.165(5) which provides a broader definition of deadly weapon than that of Zgombic. However, as Steese
was convicted under the previous statute, we apply the Zgombic test to this case.
alleged conflicts. Steese had an opportunity to cross-examine Moore as to the circumstances
of the photographic line-up. Neither Steese's brief nor the record sets forth any facts regarding
the nature of Kephart's interview of Clark; therefore, we are unable to evaluate whether he
was prejudiced by this. Finally, as discussed above, even if Kephart did attempt to dissuade
Pollock from testifying, this was clearly not prejudicial; Pollock testified as an alibi witness
for Steese. Therefore, we conclude that the trial court did not commit error by failing to
disqualify Kephart and Herndon.
Twelfth, Steese asserts that the district court erred by allowing witnesses to testify as
to a number of unspecified hearsay statements. However, Steese fails to name the witnesses
or show the location of these alleged hearsay statements by citing to the record. Furthermore,
Steese does not set forth the legal basis for his conclusion that these statements constituted
inadmissible hearsay. Therefore, we decline to consider this issue on appeal.
We conclude that none of Steese's arguments on appeal has merit. Therefore, we
affirm the judgment of the district court.
Shearing and Maupin, JJ., concur.
Rose, J., with whom Springer, C. J., joins, dissenting:
A strong showing has been made by the defense indicating that the State withheld
exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). Because of the
material nature of such evidence, I conclude that Steese's conviction should be reversed and
that he be afforded a new trial.
In Brady, the Supreme Court held that the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.
373 U.S. at 87. Evidence is material if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been
different. United States v. Bagley, 473 U.S. 667, 682 (1985). The Bagley Court further
concluded that a defendant's due process rights could be violated even where the defendant
did not request such evidence. 473 U.S. at 682. Further, once a reviewing court has identified
constitutional error pursuant to Bagley, a new trial is warranted without additional harmless
error analysis. Kyles v. Whitley, 514 U.S. 419, 435, 115 S. Ct. 1555, 1566 (1995).
During the days prior to trial, the State flew witness Richard Rock from his home in
Pennsylvania to Las Vegas to confer about his relationship and telephone calls with Steese.
After conferring with Rock, the deputy district attorneys sent him back to his home to secure
from the telephone company copies of his telephone records and return immediately with
them to Las Vegas.
home to secure from the telephone company copies of his telephone records and return
immediately with them to Las Vegas. This Rock did.
The telephone records were important because Steese claimed that he was in Idaho
when the murder occurred on the evening of June 3rd or early June 4th. Rock stated in his
affidavit that he had telephone conversations with Steese, who was in Idaho at about that
time. The deputies reviewed the telephone records, talked further with Rock, told him he was
not needed as a witness, and that he should return home. While Rock spoke briefly on the
telephone with Steese's defense counsel the night prior to his departure, Rock stated in his
affidavit that he was pressured to avoid any communication with Steese's defense counsel.
Both the prosecutor and Rock knew that the defense attorney wanted to speak with Rock.
Pressuring an important witness to avoid communicating with defense counsel, where the
State is seeking the death penalty, strikes me as unfair and sharp practice by the
prosecutors.
The State was obligated to disclose two items of information received from Rock.
First, the telephone records indicate that two collect telephone calls were placed from Nampa,
Idaho to Rock. One of the calls was placed on June 3rd and the other call was placed on June
5th. While Rock stated in his affidavit supporting the defense motion for a new trial that he
believed the first collect call he received from Steese in Idaho was on June 5th, he also stated
that I can say with a great degree of certainty that all of the collect calls which appear on my
phone bills for May and June of 1992 were made by Fred Steese, aka Fred Burke. (Emphasis
added.) This provided strong evidence that Steese was in Idaho at the time of the murder as
he claimed; however, the prosecutors sent the witness home without notifying the defense of
these facts or the telephone records. The State had the clear obligation to produce the phone
records for the defense because they were exculpatory and bolstered Steese's defense theory.
Assuming Rock told the prosecutors that the collect telephone calls were from Steese as he
declares in his affidavit, the State also had an obligation to present this exculpatory statement
to the defense.
The second item of information the State did not disclose to the defense also came from
Rock. This was Rock's statement that he did not recall Steese telling him that the victim had
been stabbed one hundred times, and that he did not convey this information to the Las Vegas
detectives. This was an important fact to the State because the detectives testified that Rock
told them that he had heard this from Steese, and Steese could have only received this
information from the crime scene itself, because the number of stab wounds was never
made public.
information from the crime scene itself, because the number of stab wounds was never made
public.
The State made much of the fact that Steese knew the victim had been stabbed
numerous times, although such information had never been made public. While testifying
during trial, Detective Jackson stated that I had learned that [Steese] had said that [the
victim] had been stabbed over a hundred times. Information pertaining to Rock's complete
refutation of this comment would have been extremely helpful to the defense in examining
the detective and, if necessary, calling Rock to disavow hearing this from Steese and telling it
to Detectives Jackson and Scroggin. In his affidavit, Rock specifically stated that he informed
the prosecutors that he had never made this comment and they became angry with him for so
doing.
While the deputy district attorneys generally refute the assertions that they did anything
improper, they do not specifically deny the above stated facts about the telephone calls and
the victim being stabbed one hundred times. Even if they were to refute these facts, the State
had an obligation to inform the defense of any exculpatory information received and, at the
very least, this included the telephone records and Rock's recantation of ever conveying the
one-hundred stabs information.
I conclude that excluding such evidence from the trial made the jury verdict unreliable
and uncertain as to what the result would have been had this information been produced, and
I would reverse. See Kyles, 514 U.S. 419, 115 S. Ct. 1555 (1995). At the very least, I would
remand this case for a full evidentiary hearing on the issues presented by the motion for a new
trial. When critical facts are in dispute, issues should be decided by testimony given under
oath and followed by cross-examination, not on affidavits. Rock's affidavit directly conflicted
with some of the statements made by the deputy district attorneys and it is unclear whether
Rock informed the deputies of all the facts stated in his affidavit. A remand for an evidentiary
hearing would ensure that all important facts were disclosed and the district judge could
assess the credibility of the witnesses and the strength of their factual assertions. Therefore, I
must respectfully dissent.
____________
114 Nev. 503, 503 (1998) Bolin v. State
GREGORY D. BOLIN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 29497
May 19, 1998 960 P.2d 784
Appeal from a judgment of conviction pursuant to a jury verdict of one count each of
first degree kidnapping, sexual assault, and first degree murder, and from a sentence of death.
Eighth Judicial District Court, Clark County; A. William Maupin, Judge.
The supreme court, Rose, J., held that: (1) there were sufficient similarities between
defendant's prior rape and kidnapping convictions and victim's murder to warrant admission
of defendant's prior bad acts for limited purpose of establishing identity; (2) one-on-one
identification made by witness at detention center was not unnecessarily suggestive and
unreliable; (3) information contained in search warrant affidavit provided substantial basis for
finding of probable cause which supported requested execution of serology kit; (4)
acquisition of second serology kit from defendant was constitutionally valid; (5) trial court's
admission of expert testimony that defendant's pubic hair was microscopically similar to
foreign pubic hair combings of victim was not manifestly wrong; (6) statistical probability
calculations used to determine significance of the DNA match were properly admitted; (7)
sexual aberration jury instruction was proper; (8) jury instruction, given pursuant to statute
defining reasonable doubt, was proper; (9) statutory aggravating circumstance for first degree
murder was constitutional; (10) trial court's failure to impose sentence on defendant's
noncapital offenses prior to penalty phase did not violate defendant's due process rights; and
(11) trial court did not abuse its discretion by allowing victim impact testimony.
Affirmed.
[Rehearing denied August 27, 1998]
Patricia M. Erickson, Las Vegas, for Appellant.
Attorney, James Tufteland, Chief Deputy District Attorney, Gary Guymon, Deputy District
1. Criminal Law.
Evidence of prior criminal behavior may be admitted to prove identity when that prior behavior demonstrates characteristics of
conduct which are unique and common to both the defendant and the perpetrator whose identity is in question. NRS 48.045(2).
114 Nev. 503, 504 (1998) Bolin v. State
2. Criminal Law.
Trial court's determination on admissibility of evidence of prior criminal behavior will not be overturned absent manifest error.
3. Criminal Law.
There were sufficient similarities between defendant's prior rape and kidnapping convictions and victim's murder in instant case
to warrant admission of defendant's prior bad acts for limited purpose of establishing identity; in both, young white women of similar
age, complexion, and build were abducted in their vehicles late at night, their wedding rings and other valuables taken, and their
vehicles used to secret them to remote locations where they were subjected to brutal sexual assaults. NRS 48.045(2).
4. Criminal Law.
One-on-one identification made by witness at detention center was not unnecessarily suggestive and unreliable, even though
witness saw defendant communicating with detectives who witness knew were conducting murder investigation, where this
observation occurred after witness identified defendant without any prompting and after seeing well over one hundred individuals in
detention center, and witness provided clear description of man that he saw at crime scene and that description was nearly identical to
defendant's appearance as depicted on video surveillance at victim's place of work on evening of murder.
5. Criminal Law.
Test applicable to identification is whether, in light of the totality of the circumstances, the identification was so unnecessarily
suggestive and conducive to irreparable mistaken identification that the defendant was denied due process of law. U.S. Const. amend.
14.
Since both searches and seizures must be conducted pursuant to a warrant, any intrusion found lacking such authorization is
presumptively unreasonable, subject only to a few well-delineated and established exceptions. U.S. Const. amend. 14.
Information contained in search warrant affidavit provided substantial basis for finding of probable cause which supported
requested execution of serology kit, in prosecution for kidnapping, sexual assault and murder. Affidavit contained witness' account of
seeing male resembling defendant leave site where victim was found, details of police interview with defendant wherein defendant
could not substantiate his whereabouts on night victim disappeared, and fact that defendant told police that on that night he was
dressed differently from how he was depicted on surveillance camera, and serology kit was needed to determine whether any blood on
victim or other trace evidence found at crime scene matched defendant's.
Acquisition of second serology kit from defendant was constitutionally valid, even though police officers did not obtain search
warrant for second serology kit, where kit was obtained within ten days after issuance of warrant for first kit, thus, within statutory time
period for executing and returning search warrant. U.S. Const. amend. 4; NRS 179.075(1).
9. Criminal Law.
District court's admission of expert testimony that defendant's pubic hair was microscopically similar to foreign pubic hair
combings from victim was not manifestly wrong, in prosecution for, inter alia, sexual assault, despite contention that
expert's conclusions were unreliable since testing procedures he employed allegedly yielded a 30.4 percent
error rate, where reliability of hair comparison analysis was testified to by expert and was even more firmly
established by defendant's own expert witness, who indicated that defendant could not be eliminated as
source of foreign pubic hair.
114 Nev. 503, 505 (1998) Bolin v. State
assault, despite contention that expert's conclusions were unreliable since testing procedures he employed allegedly yielded a 30.4
percent error rate, where reliability of hair comparison analysis was testified to by expert and was even more firmly established by
defendant's own expert witness, who indicated that defendant could not be eliminated as source of foreign pubic hair.
10. Criminal Law.
Determination of whether to admit evidence is within the sound discretion of the district court, and that determination will not
be disturbed unless manifestly wrong.
11. Criminal Law.
It is the jury's function, not that of the court, to assess the weight of the evidence and determine the credibility of witnesses.
12. Criminal Law.
Statistical probability calculations used to determine significance of the DNA match were properly admitted in prosecution for,
inter alia, sexual assault, despite contention that DNA analysis was flawed since calculations employed by various experts did not take
into account population subgroupings.
13. Criminal Law.
DNA results obtained through use of the PCR technique are admissible for use within the forensic context, since the
overwhelming weight of authority has established that DNA analysis utilizing the PCR technique is reliable and trustworthy for use
within forensic context.
14. Criminal Law.
DNA statistical probability calculations need not take into account genetic population substructure to be valid and admissible.
15. Criminal Law.
Jury instruction that evidence of other crimes is admissible as evidence of a specific emotional propensity for sexual
aberration was proper, in prosecution for kidnapping, sexual assault and murder, despite contention that phrase specific emotional
propensity for sexual aberration was vague and suggestive, where instruction was accurate statement of law.
16. Criminal Law.
District court did not err in refusing to give defendant's instruction on the purposes for which other crimes evidence may be
admitted where proposed instruction was substantially covered by another jury instruction.
17. Criminal Law.
In general, the district court does not err by refusing to give a jury instruction that is substantially covered by another instruction
provided to the jury.
18. Criminal Law.
A jury instruction is proper where it merely states the law rather than instructs the jury to find a presumed fact against the
accused.
19. Criminal Law.
Jury instruction, given pursuant to statute defining reasonable doubt, was proper since phrases abiding conviction of the truth,
and weighty affairs of life did not suggest higher degree of doubt than was required for acquittal under reasonable doubt standard.
NRS 175.211.
20. Homicide.
Statutory aggravating circumstance for first degree murder, describing circumstances of murder and requiring that the person
charged killed, or attempted to kill, the person murdered, was constitutional, despite contention that
aggravator failed to narrow class of death-eligible defendants.
114 Nev. 503, 506 (1998) Bolin v. State
killed, or attempted to kill, the person murdered, was constitutional, despite contention that aggravator failed to narrow class of
death-eligible defendants. NRS 200.033(4).
District court's denial of defendant's motion to impose sentence on defendant's non-capital offenses of sexual assault and
kidnapping prior to capital sentencing penalty phase did not violate defendant's due process rights, where extensive instruction
provided jury with fundamental understanding of defendant's potential sentencing. U.S. Const. amend. 14.
22. Homicide.
District court did not abuse its discretion by allowing victim impact testimony in capital sentencing hearing following
conviction for kidnapping, sexual assault and first degree murder, where witnesses adhered to court's admonishment to limit their
victim impact testimony to that of a general nature.
23. Homicide.
Evidence pertaining to the victim and the impact of the murder on the victim's family is relevant to the jury's decision as to
whether the death penalty should be imposed.
OPINION
Appellant Gregory Bolin was convicted of first degree kidnapping, sexual assault, and first degree murder and sentenced to
death. Bolin now appeals his conviction and sentence, arguing that: (1) the district court erred in admitting evidence of his prior rape and
kidnapping convictions, (2) the admission of a witness's one-on-one jailhouse identification deprived him of a fair trial, (3) the district
court erred in admitting serology evidence because the search warrant used to obtain such evidence was invalid, (4) the district court erred
in admitting hair analysis evidence and statistical DNA evidence, (5) the district court erred in denying Bolin's objections to certain jury
instructions, (6) the aggravating circumstance embodied in NRS 200.033(4) is unconstitutional, (7) the district court erred by not making a
habitual criminal determination and sentencing Bolin on the sexual assault and kidnapping convictions prior to the penalty phase, and (8)
the district court abused its discretion by allowing victim impact testimony. For the reasons set forth below, we reject Bolin's contentions
and affirm his conviction and sentence.
FACTS
On July 15, 1995, the body of Brooklyn Ricks (Ricks) was discovered at a residential construction site in Las Vegas. Up until
the time of her death, Ricks and her husband, Kerry, shared an apartment with Ricks' two sisters, Liberty and Brittany.
114 Nev. 503, 507 (1998) Bolin v. State
an apartment with Ricks' two sisters, Liberty and Brittany. Additionally, Ricks and her sisters
worked at B&R Videoa video rental storewhich was located a short distance from their
Las Vegas apartment in a nearby strip mall.
During the first week of July 1995, Ricks' sister, Liberty, opened a video rental
account for Bolin at B&R Video. Thereafter, Bolin returned to the store approximately every
other day, and on each occasion he asked Liberty on a date. Although Bolin was persistent,
Liberty declined each invitation. In addition to his interest in Liberty, Bolin also asked
Brittany on a date and asked Liberty whether Ricks would be interested in going on a date
with him. As with Liberty, neither Brittany nor Ricks agreed to date Bolin.
On July 14, 1995, Liberty was scheduled to work from 3:00 p.m. until midnight at B&R
Video. Because of a prior commitment that prevented her from working her entire shift, Ricks
agreed to go into work at 10:00 p.m. to complete Liberty's shift. At 9:45 p.m., Ricks left her
home in her 1974 gray Chevrolet pickup truck. At approximately 9:50 p.m., Bolin entered
B&R Video wearing a tight black tank top, light-colored shorts, and white tennis shoes.
Bolin's arrival and appearance were depicted on B&R Video's surveillance camera. At
approximately 10:00 p.m., Ricks arrived at B&R Video wearing a turquoise B&R Video polo
shirt and blue jeans. Additionally, Ricks was carrying a black backpack and was wearing her
wedding band, an opal ring, and a gold bracelet.
Shortly after 10:00 p.m., Liberty left B&R Video. Bolin exited the store at the same
time and walked towards the adjacent Albertson's grocery store. At approximately 12:10 a.m.,
Ricks and co-worker Tabitha Wharton departed B&R Video after completing routine closing
procedures. Wharton watched as Ricks got into her vehicle and drove past the Albertson's
grocery store towards Jones Boulevard. Wharton was the last person to see Ricks alive.
The following morning, carpenter Keith Sirvaag discovered Ricks' body at a residential
construction site in Las Vegas when he arrived for work at approximately 5:30 a.m. Upon
arriving at the construction site, Sirvaag noticed a gray, 1970's model Chevrolet or GMC
pickup truck parked along the right side of the dirt road leading into the project. After passing
the truck, Sirvaag continued a short distance further until he arrived in front of one of the
framed houses that he would be working on that day. While sitting in his truck approximately
forty feet from the house, Sirvaag noticed an African-American male inside the framed house
near the staircase. Sirvaag continued to watch as the man walked through the house and
exited through the garage.
114 Nev. 503, 508 (1998) Bolin v. State
After exiting the garage, the man walked in front of Sirvaag's truck at a distance of
approximately twenty feet, and was in his field of vision for approximately twenty to thirty
seconds. As the man approached Sirvaag's truck, Sirvaag noticed that he was wearing a dark
tank top and light-colored dress shorts. Sirvaag estimated that the man was approximately
thirty years old, six feet tall, and weighed about 220 to 230 pounds.
1
In addition to having a
very muscular build, Sirvaag noticed that the man had a tattoo located on his upper right arm.
However, Sirvaag did not get a good view of the tattoo's shape or form.
After the man walked past Sirvaag's truck, Sirvaag glanced back to the framed house from
where the man had departed and noticed something under the staircase. Approximately five to
ten seconds later, Sirvaag looked in his rearview mirror and saw the gray pickup truck depart
the construction site in a rapid and erratic manner. It appeared to Sirvaag that the same
African-American male who he had seen exit the house was driving the gray pickup truck.
Upon exiting his truck to begin work, Sirvaag heard a gagging noise emanating from
the framed house in which he had seen the African-American male. After hearing the noise
several more times, Sirvaag proceeded around the back of the house to investigate. Upon
entering the house through a rear doorway, Sirvaag noticed the body of a young woman lying
under the staircase.
Sirvaag approached the woman, who was still alive but unconscious, and noticed that she
had a gag in her mouth, her hands were tied behind her back, and her face and chest were
covered in blood. While the woman was unresponsive to his questions, Sirvaag nonetheless
told her to hang on and that he was going to run and get help. Sirvaag then ran to one of
the occupied homes in the construction site and called the police and emergency medical
personnel, who arrived at the scene within a matter of minutes. By the time Sirvaag returned
to the house to render assistance, the woman had died.
At approximately 7:00 a.m., Det. Morgan, of the Las Vegas Metropolitan Police
Department (LVMPD), conducted a twenty minute taped conversation with Sirvaag at the
crime scene wherein Sirvaag relayed the description of the suspect. At approximately 8:15
a.m., James Becvar, an investigator with the Clark County Coroner's Office, arrived at the
crime scene. In conducting his initial examination of the victim's body, Becvar observed that
the woman was wearing blue jeans and a turquoise polo shirt with a B&R Video logo. Becvar
observed that the victim had sustained several puncture wounds to her chest and left
breast.
__________

1
Bolin's actual height is 5'9 and his approximate weight is 200 pounds.
114 Nev. 503, 509 (1998) Bolin v. State
victim had sustained several puncture wounds to her chest and left breast.
After examining the victim's chest wounds, Becvar unbuttoned the victim's jeans in
order to perform a preliminary sexual assault examination. Without removing the victim's
jeans or underwear, Becvar observed that the woman's underwear had been turned inside out.
Additionally, a used sanitary napkin was found next to the victim's body. After Becvar's
initial examination, the woman's body was transported to the Clark County morgue for
identification.
Based on the B&R logo on the woman's shirt, detectives from LVMPD and Becvar
proceeded to B&R Video and learned that the victim found at the construction site matched
the physical description of Ricks, who had been missing since the previous evening. With this
information, Becvar proceeded to Ricks' apartment to confirm the victim's identity. Based on
photos and a physical description of Ricks provided by her husband, Becvar made the
preliminary conclusion that the victim at the construction site was indeed Ricks.
Knowing that Ricks was last seen alive at work, Becvar asked Ricks' two sisters if
anything strange had occurred at B&R Video during the previous few weeks. Ricks' sisters
informed Becvar that a man had recently been frequenting the video store and had persistently
asked them on dates. Based on the physical description of the man provided by Ricks' sisters,
Becvar thought that this individual could be the same man that Sirvaag had seen at the crime
scene shortly before Ricks' death. Additionally, Ricks' sister, Liberty, told Becvar that the
man had been at the video store the previous evening around 10:00 p.m. and that his
appearance was most likely depicted on B&R Video's surveillance camera.
Based on this information, Det. Morgan proceeded to B&R Video at approximately 11:00
a.m., took possession of the surveillance video from the previous night, and then proceeded to
Ricks' apartment to interview her family members and inspect the video. On the video, a
clean-shaven, muscular, African-American male wearing a black tank top, light-colored
shorts, and white tennis shoes entered B&R Video at approximately 9:50 p.m. on the night
Ricks was last seen alive. After watching the video, Det. Morgan concluded that the
African-American male on the tape matched Sirvaag's description of the man he had seen at
the construction site. Through his interview with Ricks' sister, Liberty, Det. Morgan learned
that the man on the surveillance video was named Gregory Bolin and that he had recently
opened a video rental account at B&R Video.
114 Nev. 503, 510 (1998) Bolin v. State
At approximately 12:30 p.m., Dets. Morgan and Tremel proceeded to the address
listed on Bolin's B&R Video rental account, which was located only a few minutes from
B&R Video. Bolin's father told them that the previous evening Bolin had left the house
between 9:00 and 10:00 p.m. and returned home at approximately 4:45 or 5:00 a.m. the next
morning. Dets. Morgan and Tremel then conducted a taped interview with Bolin at the Bolin
residence.
During the interview, Bolin stated that he had stopped by B&R Video at approximately
10:00 p.m., left shortly afterwards for the nearby Albertson's to purchase beer and doughnuts,
and then walked to a park where he met two individuals named Ronny and Robert. Bolin
added that the three of them then went to a party and that he returned home from this party at
dawn.
When questioned by Det. Morgan, Bolin was unable to provide either the last names
of Robert or Ronny or the location of the party. Additionally, while Det. Morgan knew
from his viewing of the B&R Video surveillance tape that Bolin had been dressed in a black
tank top, light-colored shorts, and white tennis shoes, Bolin stated that on the evening in
question, he was dressed in brown shorts, a white T-shirt, and brown sandals. Further, in
response to a question from Det. Morgan, Bolin stated that he had never been previously
arrested. Later that day, Ricks' gray 1974 Chevrolet pickup truck was found approximately
five blocks from Bolin's home with a bloody screwdriver inside.
After concluding the taped interview with Bolin, Det. Morgan and a deputy district
attorney began preparing an affidavit and search warrant to search Bolin's residence. In his
affidavit, Det. Morgan listed the items he hoped to obtain at Bolin's residence, including the
clothing that Bolin was seen wearing on the B&R Video surveillance tape, Ricks' wedding
ring and her black backpack, the keys to her gray pickup truck, and Bolin's photograph and
fingerprints. Additionally, Det. Morgan sought permission to administer a serology kit in
order to obtain samples of Bolin's blood, saliva, and hair for forensic testing. The search
warrant was signed later that day by a district court judge.
After Ricks' body was positively identified, Dr. Jordan, an assistant medical examiner
with the Clark County Coroner's Office, performed an autopsy. In performing the autopsy, Dr.
Jordan observed that Ricks had suffered multiple blunt traumas to the head, neck, and
extremities, along with approximately twelve puncture wounds to her left chest and back.
Additionally, Dr. Jordan observed that Ricks' jaw had been broken. Dr. Jordan concluded that
the blunt trauma wounds to Ricks' head and body were consistent with being struck with a
piece of lumber and her puncture wounds were consistent with being stabbed with a
screwdriver.
114 Nev. 503, 511 (1998) Bolin v. State
screwdriver. Dr. Jordan concluded that Ricks died as a result of numerous stab wounds to the
chest, some of which penetrated her left lung, and blunt trauma to the head. Dr. Jordan also
performed a sexual assault examination, during which he concluded that there were no signs
of anal or vaginal trauma.
On July 16, 1995, Dets. Morgan and Tremel, along with Sgt. Hefner and two
uniformed police officers, executed the search warrant at Bolin's residence. While searching
Bolin's bedroom, Det. Morgan found a light-colored pair of shorts and a blue tank top in
Bolin's closet. A pair of brown sandals belonging to Bolin were found downstairs near the
garage. Although Bolin had previously told Det. Morgan that he had never been arrested, Det.
Tremel found a Colorado prison inmate identification card in Bolin's room bearing Bolin's
name and picture.
During the search, Bolin denied owning a black tank top. However, while searching the
laundry room, Det. Tremel found a black tank top which belonged to Bolin. Although the
police thoroughly searched Bolin's bedroom, the garage, and the other rooms to which Bolin
had access, they did not find the white tennis shoes that Bolin was seen wearing on the B&R
Video surveillance tape. Additionally, the police were unable to find any of Ricks'
possessions.
At the conclusion of their search, Dets. Morgan and Tremel escorted Bolin to the
Clark County Detention Center (detention center) to take his photographs and fingerprints
and administer a serology kit. When drawing Bolin's blood for laboratory analysis, Det.
Tremel mistakenly used a DUI kit instead of the proper serological kit. Additionally, Det.
Morgan arranged to have Sirvaag conduct a walk-through identification session at the
detention center during the time that Bolin would be present.
While Dets. Morgan and Tremel were executing the search warrant at Bolin's residence,
Sirvaag arrived at the detention center to prepare for his walk-through identification session.
Sgt. Hefner conducted an interview with Sirvaag and informed him that some of the inmates
had been dressed in police uniforms and some undercover police officers had been placed in
the holding cells in order to test Sirvaag's memory. Additionally, Sirvaag drew two pictures
of the tattoo he saw on the right arm of the man at the construction site.
After conducting the interview, Sgt. Hefner escorted Sirvaag through the detention
center. During the identification procedure, Sirvaag observed six holding cells containing
approximately seventy inmates of various races in each cell. Additionally, Sirvaag observed
numerous people in the detention center's booking area. After approximately fifteen minutes,
Sirvaag proceeded to the detention center's main entrance area where Bolin, who was dressed
in casual attire, had just entered.
114 Nev. 503, 512 (1998) Bolin v. State
dressed in casual attire, had just entered. Because Sirvaag knew that Dets. Morgan and
Tremel were conducting the investigation into Ricks' death, they entered the detention center
separately from Bolin to ensure that Sirvaag would not be improperly influenced in his
attempts to identify a suspect.
After observing Bolin for several minutes, Sirvaag informed Sgt. Hefner that due to
Bolin's clean-shaven facial appearance, his neatly trimmed hairstyle, and his rather large
muscular build, Bolin resembled the man that he saw at the construction site. Dets. Morgan
and Tremel then took Bolin approximately twenty feet down an adjacent hallway for
photographing and fingerprinting. As Bolin was being photographed, Sirvaag observed him
with his shirt off, at a distance of approximately twenty feet, for about five to ten minutes.
Because of the presence of a tattoo on Bolin's upper right arm near his bicep, Sirvaag became
more convinced that Bolin was the man that he had seen at the construction site.
Although he identified many similarities between Bolin and the man he saw at the
construction site, Sirvaag told Sgt. Hefner that he was not completely certain that Bolin was
the same man. After completing the walk-through identification session, Sirvaag departed the
detention center at approximately 12:30 p.m. However, approximately one hour after his
departure, Sirvaag telephoned Sgt. Hefner and stated that he was ninety percent sure that the
man he saw at the detention center was the same person he saw leaving the crime scene.
On July 17, 1995, LVMPD criminalist Terry Cook analyzed the serological evidence
obtained from Bolin, along with the vaginal swabs taken from Ricks' body. His analysis of the
vaginal swabs detected a trace amount of semen protein P30. Additionally, Cook determined
that Ricks had been menstruating at the time of her death because the vaginal swabs taken
from her body were bloody.
Based on his knowledge and expertise, Cook knew that semen would not remain in the
vaginal cavity of a menstruating woman for more than three days. Consequently, Cook
concluded that the semen contained on the vaginal swabs taken from Ricks' body had to have
been deposited within a matter of hours, or at the very latest, within three days of her death.
2
However, because of the small quantity of semen obtained, Cook determined that the
specimen had little evidentiary value and could not be used to identify its donor.
__________

2
Because Ricks had been menstruating, her husband testified that they had not had sexual intercourse for
eight days prior to her death.
114 Nev. 503, 513 (1998) Bolin v. State
In addition to his analysis of the vaginal swabs, Cook analyzed the pubic hair samples
obtained from Ricks' pubic combings. While performing this process, Cook identified what
appeared to be a foreign pubic strand. To conclusively establish whether the strand was
foreign, Cook microscopically analyzed known samples of Ricks' pubic hair in order to
establish a range of comparison and then compared Ricks' pubic hair samples with the
apparent foreign pubic hair strand. Cook concluded that the lone pubic strand was indeed
foreign and dissimilar.
In his attempt to compare the foreign pubic hair sample with Bolin's pubic hair sample and
to conduct DNA analysis on Bolin's hair and blood samples, Cook discovered that Det.
Tremel had mistakenly used a DUI kit instead of the proper serological kit. Consequently,
Cook informed Det. Tremel of the mistake and stated that he needed a second serology kit
administered to Bolin in order to conduct scientific testing.
Because of the mistake, Sgt. Hefner contacted the district attorney's office to
determine the necessary procedural steps in order to seize a second set of serological samples
from Bolin. A representative of the district attorney's office informed Sgt. Hefner that the
search warrant that was issued on July 15, 1995 was still valid, and thus a second warrant was
not needed to obtain a second serology kit from Bolin.
Based on this information, Det. Tremel obtained a second serology kit from Bolin on July
18, 1995. During this procedure, samples of Bolin's blood, saliva, and head and pubic hair
were seized. Using evidence obtained in the second serology kit submitted by Det. Tremel on
July 18, 1995, Cook determined that the foreign pubic hair recovered from Ricks' body was
microscopically similar to the pubic hair strand obtained from Bolin.
On July 18, 1995, Bolin was arrested and charged with Ricks' murder. In the criminal
complaint, Bolin was charged with one count each of first degree kidnapping with use of a
deadly weapon, sexual assault with use of a deadly weapon, and murder with use of a deadly
weapon. On September 26, 1995, the State filed an information charging Bolin with the same
crimes, indicating its notice of intent to seek the death penalty. To support its intent to seek
the death penalty, the State listed five aggravators, including that the murder was committed
by a person under sentence of imprisonment; the murder was committed by a convicted
violent felon; the murder was committed while the perpetrator was engaged in the
commission of a first degree kidnapping and/or sexual assault; the murder was committed to
avoid or prevent a lawful arrest; and the murder involved torture, depravity of mind or the
mutilation of the victim.
114 Nev. 503, 514 (1998) Bolin v. State
On October 4, 1995, Bolin pleaded not guilty to all counts and waived his speedy trial
rights. On May 30, 1996, the State filed an amended information charging Bolin with Count I,
first degree kidnapping; Count II, sexual assault; and Count III, murder (open), and excluding
the deadly weapon enhancement.
Because the State sought to introduce evidence of Bolin's prior criminal history at trial in
order to demonstrate intent and motive, a Petrocelli hearing was conducted on June 3, 1996.
During this hearing, evidence of Bolin's prior criminal history, which consisted of a 1975
Colorado kidnapping and sexual assault for which Bolin had served nearly twenty years in
prison, was established through the testimony of the victims of these past crimes.
At Bolin's Petrocelli hearing, Renee Morriss (Morriss) testified that on April 15,
1975, she and her then husband John, were both Army nurses stationed in Aurora, Colorado.
After finishing their shift at approximately 11:00 p.m., the couple drove home together and
exited their car at the parking spot in front of their apartment. Two young males came out of
the bushes, one holding a .22 handgun, and told them to get back into the car. The older
looking male, who was approximately nineteen years old and who was later identified as
Bolin, ordered John to drive or he would shoot Morriss.
Immediately upon driving off, Bolin demanded money from the couple. While they did not
have any cash in their possession, John gave Bolin his wallet and watch, and Morriss handed
over her wedding ring. After driving approximately thirty minutes, Bolin forced John to stop
the car in a dark and secluded area and then forced him into the trunk of the car at gunpoint.
During the next six hours, Bolin and his accomplice brutally raped Morriss on several
occasions at gunpoint. Additionally, at one point in the evening, Bolin forced Morriss to drive
to her apartment so that Bolin and his accomplice could rob her and John of their valuables.
Morriss and John were eventually able to escape when Bolin forced her to drive to a
convenience store and cash a check for one hundred dollars. While Bolin and his accomplice
were occupied in the store, Morriss ran back to her vehicle, drove off, and contacted the
police.
Bolin was eventually apprehended and pleaded guilty to two counts of first degree
kidnapping and two counts of rape. Bolin spent the next thirteen years in a Colorado prison
before being paroled in July 1988. In February 1990, Bolin's parole was revoked, and he
consequently went back to prison for an additional five years. Bolin was finally released from
the Colorado prison system on June 29, 1995, approximately two weeks prior to Ricks'
murder.
114 Nev. 503, 515 (1998) Bolin v. State
At the conclusion of the Petrocelli hearing, the district court concluded that evidence
of Bolin's prior bad act was relevant to the crime charged, that it had been proven by clear and
convincing evidence, and that its probative value was not substantially outweighed by the
danger of unfair prejudice. Consequently, the district court concluded that evidence of Bolin's
prior bad acts were admissible at trial pursuant to NRS 48.045(2) to demonstrate identity,
plan, intent, similar modus operandi, and sexual aberration.
Bolin's trial commenced on June 10, 1996. During trial, the district court admitted
evidence of Bolin's 1975 rape and kidnapping convictions over Bolin's objections.
Additionally, LVMPD criminalist Cook testified that the foreign pubic hair found in Ricks'
pubic hair combings was microscopically similar to Bolin's pubic hair sample and concluded
that Bolin could not be excluded as the source of the foreign pubic strand.
In order to further narrow the number of possible individuals who could have been the
donor of the foreign pubic hair, the hair was analyzed by a molecular biologist with Cellmark
Diagnostics. The biologist testified that because of the size of the hair and the amount of
DNA available for testing, she was only able to perform a PCR
3
test instead of the more
narrowing RFLP
4
test. She concluded that one out of every 2600 African-Americans would
have hair root DNA similar to both the DNA found in Bolin's hair and the DNA found in the
foreign pubic hair found on Ricks' body.
Additionally, Bolin's expert witness, Lisa Marie Calandro, a forensic scientist with
Forensic Analytical Specialties, testified that PCR analysis was reliable for exclusionary
purposes. Calandro testified that she analyzed the DNA of Bolin and compared it to the DNA
found in the foreign pubic hair that was found in Ricks' pubic hair combings. Calandro
concluded that the DNA found in Bolin's pubic hair sample and the foreign pubic hair found
on Ricks' body could be found in only one in 2400 African-Americans.
__________

3
PCR stands for Polymerase Chain Reaction. See U.S. v. Hicks, 103 F.3d 837 (9th Cir. 1996). The PCR
technique involves three basic phases: First, a fragment of DNA is extracted from a sample of evidence.
Second, during the amplification phase, millions of copies of the fragment are created by mixing the sample with
enzymes, chemicals, and primers. Third, the finished product is tested for comparison with a known DNA
sample from a victim or suspect. Hicks, 103 F.3d at 845. Unlike the RFLP procedure, which is a much more
accurate test used to establish a statistical match, the PCR technique is generally used as an exculpatory tool to
exclude certain individuals as possible contributors to a particular sample. Id.

4
RFLP, which is the most widely used DNA analysis technique, stands for Restriction Fragment Length
Polymorphism. See Armstead v. State, 673 A.2d 221, 228 (Md. 1996). In this test, the biologist examines the
differences in sizes of fragments of DNA from one person to another and narrows the sample DNA to one
particular individual. For a more thorough explanation of the RFLP procedure, see Armstead, 673 A.2d at 228.
114 Nev. 503, 516 (1998) Bolin v. State
DNA found in Bolin's pubic hair sample and the foreign pubic hair found on Ricks' body
could be found in only one in 2400 African-Americans.
After obtaining the foregoing DNA statistical probability evidence, the State analyzed
the evidence by applying census statistics taken from the Las Vegas area. According to the
Clark County Department of Comprehensive Planning, the population of Clark County in
July 1995 was approximately 1,040,688 people. Out of this number, there were
approximately 98,865 African-Americans, of which approximately 21,111 were
African-American males between the ages of 20-44.
Bolin's expert witness, Dr. Thomas Carroll, a professor of economics specializing in
demographics, proffered slightly different statistical figures. Dr. Carroll testified that based
on a figure of 1,468,000 people in Clark County in 1995, 110,000 individuals were
African-American and from this number, there were approximately 21,682 African-American
males between the ages of 20-44.
Based on the DNA statistical probability evidence combined with the 1995 Clark
County census calculations, the State argued during closing argument that Bolin was one of
approximately nine individuals that could have committed Ricks' murder. The State obtained
this figure by dividing the number of 20-44 year-old African-American males in Clark
County in 1995 (approximately 22,000) by 2600 or 2400 (the figures which the parties
obtained from the DNA statistical probability evidence), resulting in a class of approximately
nine individuals, of which Bolin was a member, who could have been the donor of the
foreign pubic strand found in Ricks' pubic hair combings.
On July 15, 1996, the jury returned a verdict finding Bolin guilty of first degree
kidnapping, sexual assault, and first degree murder. During the penalty phase, Ricks'
husband, mother, and father were allowed to give victim impact testimony. At the conclusion
of the penalty phase, the jury found the following aggravators: that the murder was committed
by a person previously convicted of felonies involving violence, that the murder was
committed while the person was engaged in the commission of or an attempt to commit any
first degree kidnapping and/or sexual assault, and that the murder involved torture or
depravity of mind or mutilation of the victim. The jury found no mitigating circumstances.
After concluding that the aggravating circumstances outweighed any mitigating
circumstances, the jury sentenced Bolin to death.
On August 21, 1996, the State filed its notice of intent to seek punishment as a
habitual criminal. On September 30, 1996, the court entered its judgment and imposition of
sentence by adjudging Bolin guilty of first degree kidnapping, sexual assault, and murder
in the first degree.
114 Nev. 503, 517 (1998) Bolin v. State
ing Bolin guilty of first degree kidnapping, sexual assault, and murder in the first degree.
Additionally, the court adjudged Bolin a habitual criminal under Counts I and II and
sentenced him to life without the possibility of parole on both counts, with the terms to run
consecutively. Thereafter, the court signed the order and warrant of execution in open court
and granted Bolin's oral stay of execution. On October 29, 1996, Bolin filed a timely notice of
appeal. Bolin now appeals his conviction and sentence of death.
DISCUSSION
Guilt Phase
The district court did not err in admitting evidence of Bolin's prior rape and
kidnapping convictions
As previously indicated, the district court concluded that evidence pertaining to
Bolin's 1975 Colorado rape and kidnapping convictions was admissible to demonstrate
identity, plan, similar modus operandi, and intent pursuant to NRS 48.045(2). The district
court further concluded that evidence of Bolin's prior bad act was admissible pursuant to the
limited sexual aberration exception to NRS 48.045 set forth in Findley v. State, 94 Nev. 212,
577 P.2d 867 (1978), and McMichael v. State, 94 Nev. 184, 577 P.2d 398 (1978), overruled
on other grounds by Meador v. State, 101 Nev. 765, 711 P.2d 852 (1985).
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.
[Headnotes 1, 2]
We have established the following three prerequisites to the introduction of other bad
acts: (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. Walker v. State, 112 Nev. 819, 824, 921 P.2d
923, 926 (1996). See also NRS 48.035. Further, evidence of prior criminal behavior may be
admitted to prove identity when that prior behavior demonstrates characteristics of conduct
which are unique and common to both the defendant and the perpetrator whose identity is in
question. Coty v. State, 97 Nev. 243, 244, 627 P.2d 407, 408 (1981). The trial court's
determination will not be overturned absent manifest error.
114 Nev. 503, 518 (1998) Bolin v. State
absent manifest error. Petrocelli v. State, 101 Nev. 46, 52, 692 P.2d 505, 508 (1985).
Bolin argues that the district court erred in admitting evidence of his prior rape and
kidnapping convictions because the probative value of such evidence was substantially
outweighed by the danger of unfair prejudice. Further, Bolin argues that there were no unique
similarities or common characteristics of conduct between his 1975 rape and kidnapping
convictions and Ricks' murder which justified the admission of his prior bad acts.
Consequently, Bolin argues that the district court's admission of such evidence constituted
manifest error. In making this argument, Bolin relies primarily on our decision in Meek v.
State, 112 Nev. 1288, 930 P.2d 1104 (1996).
In Meek, we acknowledged that statements that the defendant made to the victim of the
crime for which he was convicted and the victim of an alleged prior bad act were similar, but
we explained that evidence of the prior bad act had been improperly admitted because
the prior act and the charged crime were otherwise fundamentally quite different. The
meeting by happenstance is too general a similarity to deserve much weight, if any. The
similarity of the sexual element in both cases is also quite general. Stated broadly
enough, similarities can be shown between many acts. The question is whether
significant similarities remain after the acts are considered in some detail. In the
charged crime, Meek met a woman on a bus in the morning, persuaded her to join him
at his home, and allegedly took advantage of her trust and sexually assaulted her. He
was accused of using intimidation, but not violence. In the alleged prior bad act, Meek
followed a woman late at night by stealth to her home, kidnapped her in her own car,
subjected her to direct and brutal violence, threatened to have sex and kill her, drove
with her aimlessly for a time, and then returned to her home. In view of the differences
between these acts, the similarities between them are insufficient to make the prior act
relevant to the charged crime.
Id. at 1294, 930 P.2d at 1108.
Relying on Meek, Bolin asserts that there were dissimilarities between his prior rape
and kidnapping convictions and Ricks' murder which rendered evidence of his prior bad acts
inadmissible. Bolin argues that in the Colorado case, Morriss and her husband were
confronted by Bolin and his accomplice, whereas in the instant case, there is no evidence
indicating whether Ricks' murderer acted alone or with an accomplice. Further, Bolin used a
gun in the Colorado case. In the instant case, Ricks was stabbed to death, and there was no
evidence that a gun was involved.
114 Nev. 503, 519 (1998) Bolin v. State
Additionally, unlike his 1975 prior bad acts, Bolin argues that the only evidence
indicating that Ricks had been sexually assaulted was the finding of one foreign pubic hair in
her pubic hair combings and the finding of a minute amount of semen in the vaginal swabs
taken from her body. However, in the Colorado case, Bolin subjected Morriss to digital
penetration, fellatio, and sexual intercourse. Lastly, Bolin argues that Ricks suffered severe
injuries including stab wounds to the chest and blunt trauma injury to the head. In the
Colorado case, Bolin argues that he did not inflict injuries of similar severity upon Morriss.
[Headnote 3]
Based on the foregoing, Bolin argues that his prior bad acts were dissimilar to the
crime for which he was charged and thus inadmissible. We disagree. First, we reject Bolin's
arguments that the evidence was insufficient to show that the acts committed against Ricks
included robbery and sexual assault. On the contrary, the evidence established these
similarities with the 1975 prior bad acts. We also note that although in 1975 Morriss did not
suffer lethal injuries, her treatment was brutal, and she escaped before Bolin could inflict
further harm upon her.
In Nester v. State of Nevada, 75 Nev. 41, 334 P.2d 524 (1959), the defendant was charged
with raping a woman in her North Las Vegas home. Evidence adduced at trial indicated that
during the commission of the crime, the assailant hit the woman in the face and told her to
shut up or I'll knock you out. Id. at 43, 334 P.2d at 525. The perpetrator then completed the
act of sexual assault without removing any of the woman's undergarments or his own
clothing. Id. During their inspection of the victim's home, the police determined that the
perpetrator had unscrewed the fuses from the fuse box to prevent the victim from turning on
her lights. Id.
During trial, the State presented evidence of a subsequent rape by the defendant for
the limited purpose of establishing the defendant's identity. The victim in the subsequent rape
testified that after she had driven approximately one block from her North Las Vegas
apartment, a man rose up from the back seat, placed his hands on her shoulders, and told her
to keep driving. Id. at 44, 334 P.2d at 526. A short while later, the man directed her to stop by
the side of the road and then jumped into the front seat and told her shut up or I'll knock you
cold. Id. at 44-45, 334 P.2d at 526.
Without removing any of his or her clothing, the assailant sexually assaulted the woman.
Id. at 45, 334 P.2d at 526. After being released, the woman returned to her apartment and
called the police. During their investigation, the police discovered the victim's front door light
and the floodlight in her courtyard had been unscrewed. Id. at 45, 334 P.2d at 526.
114 Nev. 503, 520 (1998) Bolin v. State
On appeal, the State argued that evidence of the subsequent sexual assault had been
properly admitted to establish identity because the two crimes were sufficiently similar. Id. at
48, 334 P.2d at 527-28. In concluding that the district court did not err in admitting evidence
of the subsequent sexual assault, we held:
While we are not willing to agree that all of the said elements of contended similarities
are of material or of any significance, we do believe that there was sufficient evidence
of similar characteristics of conduct between the assailant in each instance when faced
with a like situation, to identify them as one and the same person.
Id. at 55-56, 334 P.2d at 531-32.
Similarly, in Canada v. State, 104 Nev. 288, 290, 756 P.2d 552, 553 (1988), the
defendants were accused of committing the armed robberies of two bars. During one
defendant's separate trial for one of the armed robberies, the district court admitted evidence
of the other robbery for the limited purpose of establishing the defendant's identity pursuant
to NRS 48.045(2). Id. at 292, 756 P.2d at 553. In each robbery, an individual had entered the
bar, cased it, and then returned with more individuals to commit a brutal, straightforward
armed robbery.' Id. at 293, 756 P.2d at 554.
On appeal, the defendant asserted that the district court erred in admitting evidence of the
second armed robbery because there was nothing unique about the manner in which the two
robberies were committed. In rejecting this argument, we held:
This argument is singularly unconvincing. The many similarities between the two
crimes make evidence of the second highly probative of the identities of the
perpetrators of the first. These similarities include the following: both robberies took
place in deserted bars very late at night; in both robberies one of the perpetrators first
entered alone and ordered a beer in order to case the bar; in both robberies at least one
of the perpetrators wore a mask; and in both robberies the perpetrators were armed with
shotguns. Finally, the modus operandi common to the two robberies was unique in
comparison with other robberies in the manner in which the perpetrators savaged their
victims. We conclude that the difficulty in identifying the perpetrators coupled with the
high degree of similarity between the crimes made the evidence of [the] other robbery
more probative than prejudicial.
Id. at 293, 756 P.2d at 554-55.
Here, as in Nester and Canada, we conclude that there were sufficient similarities
between Bolin's 1975 rape and kidnapping convictions and Ricks' murder to warrant
admission of Bolin's prior bad acts for the limited purpose of establishing identity.
114 Nev. 503, 521 (1998) Bolin v. State
convictions and Ricks' murder to warrant admission of Bolin's prior bad acts for the limited
purpose of establishing identity. In 1975, Bolin abducted Morriss at approximately 11:00 p.m.
after she finished a late-night shift and drove home, and she escaped at approximately 5:00
a.m. the next morning. In the instant case, the perpetrator abducted Ricks sometime after
12:10 a.m. after she finished a late-night shift and began to drive home, and Bolin was seen
leaving her body at approximately 5:30 a.m. At the time of her abduction and rape, Morriss
was a twenty-year-old slender white female with blond hair who was 5'5 tall. Similarly, at
the time of her abduction and murder, Ricks was a twenty-one-year-old slender white female
with blond hair who was 5'7 tall.
In perpetrating the 1975 rape and kidnapping, Bolin ambushed Morriss and her
husband after they parked their car. In the instant case, evidence suggests that Ricks was
similarly ambushed. In 1975, Bolin robbed his victim of her wedding ring and other
valuables. In the instant case, Ricks' wedding ring and purse were taken from her person and
never recovered. In 1975, Bolin used Morriss' car to secret her to various remote locations
where he committed crimes against her inside and outside of the vehicle. In the instant case,
Ricks' vehicle was seen by Sirvaag at the location where her body was found, and her vehicle
was subsequently found approximately five blocks from Bolin's home with a bloody
screwdriver inside which matched Ricks' blood type. In 1975, after using Morriss' vehicle to
transport her to a remote location, Bolin subjected Morriss to repeated acts of brutal sexual
assault, bruising her spine, legs, and back. In the instant case, after the perpetrator used Ricks'
vehicle to transport her to a remote location, evidence indicates that she was sexually
assaulted and repeatedly stabbed, her skull was crushed, and her jaw was broken.
An analysis of the similarities between these two crimes reveals a common identity. In
both, young white women of similar age, complexion, and build were abducted in their
vehicles late at night, their wedding rings and other valuables taken, and their vehicles used to
secret them to remote locations where they were subjected to brutal sexual assaults. Because
of the similarities between the two crimes, we conclude that the district court did not err in
admitting evidence of Bolin's prior rape and kidnapping convictions for the purpose of
establishing identity pursuant to NRS 48.045(2).
5

__________

5
We limit our holding solely to the propriety of admitting evidence of Bolin's prior bad acts for the purpose
of establishing identity pursuant to NRS 48.045(2). Consequently, we decline to address Bolin's arguments that
his prior convictions were improperly admitted on other grounds such as intent, plan, similar modus operandi, or
sexual aberration.
114 Nev. 503, 522 (1998) Bolin v. State
The district court did not err in allowing the admission of the one-on-one identification
made by Sirvaag
[Headnote 4]
Bolin argues that the one-on-one identification made by Sirvaag at the detention
center was unnecessarily suggestive and unreliable. Specifically, Bolin argues that Sirvaag's
identification was unnecessarily suggestive because Bolin was the only muscular
African-American male asked to remove his shirt during the identification procedure and
because Sirvaag saw Bolin communicating with Dets. Morgan and Tremel, whom Sirvaag
knew were conducting the Ricks' murder investigation. Additionally, Bolin argues that the
State had an obligation to employ a less suggestive identification procedure, such as a photo
or a physical line-up. Bolin further asserts that Sirvaag was an unreliable witness, as
evidenced by Sirvaag's inability during trial to provide the jury with descriptions of Dets.
Morgan and Tremel even though he had met with both detectives on numerous occasions.
[Headnote 5]
The applicable test is whether, in light of the totality of the circumstances, the
identification was so unnecessarily suggestive and conducive to irreparable mistaken
identification that the defendant was denied due process of law. Stovall v. Denno, 388 U.S.
293, 301-02 (1967). In Bias v. State, 105 Nev. 869, 871, 784 P.2d 963, 964 (1989), we
explained that the test enunciated by the Court in Stovall involved a two-fold inquiry: (1)
whether the procedure is unnecessarily suggestive and (2) if so, whether, under all the
circumstances, the identification is reliable despite an unnecessarily suggestive identification
procedure.
We conclude that the identification procedure employed by the LVMPD at the detention
center was not unnecessarily suggestive. On the day of the identification procedure at the
detention center, Bolin was escorted into the facility wearing normal, casual attire,
accompanied by a uniformed officer whom Sirvaag had never met. While Sirvaag had
observed well over one hundred individuals of various races in the detention center up to that
point, Sirvaag indicated to Sgt. Hefner that Bolin bore a resemblance to the man he saw at the
crime scene. Further, Sirvaag made his identification of Bolin without any prompting.
Although Sirvaag observed Dets. Morgan and Tremel question and photograph Bolin,
this activity took place only after Sirvaag identified Bolin to Sgt. Hefner. Furthermore,
Sirvaag provided a clear description of the man that he saw exit the framed house at the crime
scene and that description was nearly identical to Bolin's appearance as depicted on the B&R
Video surveillance tape. Sirvaag's inability to provide the jury with descriptions of Dets.
Morgan and Tremel, in light of the fact that Sirvaag was confronted by numerous
detectives in a short amount of time after he became a witness to this crime, is not
dispositive.
114 Nev. 503, 523 (1998) Bolin v. State
Dets. Morgan and Tremel, in light of the fact that Sirvaag was confronted by numerous
detectives in a short amount of time after he became a witness to this crime, is not
dispositive. Based on the foregoing, we conclude that the district court did not err in
admitting evidence pertaining to Sirvaag's detention center identification of Bolin.
The district court did not err in allowing the admission of the serology evidence
obtained from the searches and seizures executed upon Bolin on July 16, 1995, and
July 18, 1995
[Headnote 6]
The Fourth Amendment to the United States Constitution, made applicable to the
states through the Fourteenth Amendment, forbids unreasonable searches and seizures. U.S.
Const. amend. IV. Because both searches and seizures must be conducted pursuant to a
warrant, any intrusion found lacking such authorization is presumptively unreasonable,
subject only to a few well-delineated and established exceptions. Centanni v. Eight Unknown
Officers, 15 F.3d 587, 590 (6th Cir. 1994). In Schmerber v. California, 384 U.S. 757, 766-768
(1966), the United States Supreme Court recognized that intrusive procedures into the human
body for the purpose of acquiring blood samples constituted searches within the ambit of the
Fourth Amendment and were thus subject to its stringent probable cause requirements.
1. The information contained in the affidavit for search warrant provided a
substantial basis for a finding of probable cause
[Headnote 7]
Bolin argues Det. Morgan's July 15, 1995 affidavit for search warrant did not provide
a sufficient basis for probable cause which would support the requested execution of a
serology kit. While Det. Morgan's affidavit for search warrant indicated that a homicide had
been committed, Bolin argues that there were no facts to substantiate that a sexual assault had
occurred which justified the seizure of blood, saliva, and samples of Bolin's head and pubic
hair.
In his application and affidavit for search warrant, Det. Morgan recounted Sirvaag's entire
account of what transpired when Sirvaag arrived at the construction site on the morning of
Ricks' murder. In addition to Sirvaag's account, Det. Morgan included the details of his
interview with Bolin wherein Bolin could not substantiate his whereabouts on the night of
July 14, and the fact that Bolin told police that on that night he was dressed in a white
T-shirt, brown shorts, and sandals, although this directly contradicted his appearance as
depicted on the B&R Video surveillance camera.
114 Nev. 503, 524 (1998) Bolin v. State
dressed in a white T-shirt, brown shorts, and sandals, although this directly contradicted his
appearance as depicted on the B&R Video surveillance camera. Further, because of the
extensive amount of blood at the crime scene, Det. Morgan indicated a need to execute a
serology kit on Bolin in order to determine whether any blood on the victim or other trace
evidence found at the crime scene, such as hair, matched Bolin's.
In Wright v. State, 112 Nev. 391, 396, 916 P.2d 146, 149 (1996) (quoting Keesee v.
State, 110 Nev. 997, 1002, 879 P.2d 63, 66 (1994)), we reiterated that on appeal, the proper
standard of review is whether the evidence viewed as a whole provided a substantial basis
for the magistrate's finding of probable cause.' Based on the totality of the evidence, we
conclude that the information contained in the affidavit for search warrant provided a
substantial basis for a finding of probable cause. Consequently, we conclude that the seizure
of Bolin's blood, saliva, and hair samples was constitutionally valid.
2. The recovery of serology evidence from Bolin on July 18, 1995, was a
constitutionally valid search
[Headnote 8]
In relevant part, NRS 179.075(1) provides that [t]he warrant may be executed and
returned only within 10 days after its date. On July 15, 1995, the district court authorized the
search of Bolin's residence and the execution of a serology kit on Bolin. On July 16, 1995,
Dets. Morgan and Tremel served and executed the search warrant at Bolin's residence. On the
same date, blood was drawn from Bolin; however, Det. Tremel mistakenly used a DUI kit
instead of the proper serological kit. After a representative of the district attorney's office
informed the police that the July 15, 1995 search warrant was still valid, Det. Tremel
obtained a second serology kit from Bolin on July 18, 1995, during which additional samples
of Bolin's blood and saliva, along with samples of his head and pubic hair, were seized.
Bolin argues that the State failed to properly obtain a search warrant for the recovery of the
second serology kit from him on July 18, 1995. Further, because none of the exceptions
necessary for a warrantless search applied, Bolin argues that the search was unconstitutional
and, consequently, any evidence derived therefrom must be suppressed. In support of his
argument, Bolin relies on Barlow v. Ground, 943 F.2d 1132, 1134 (9th Cir. 1991), wherein
police withdrew two samples of the defendant's blood, the first sample without a search
warrant, but the second sample with a valid search warrant. The Ninth Circuit concluded that
the police violated the Fourth Amendment by drawing the first blood sample from the
defendant without a search warrant. Id. at 1137.
114 Nev. 503, 525 (1998) Bolin v. State
In response, the State argues that the second serology kit obtained from Bolin on July
18, 1995, constituted a valid search because it occurred within the ten-day time period
provided by NRS 179.075. In further support for its argument, the State relies on our
conclusion in Smithart v. State, 86 Nev. 925, 478 P.2d 576 (1970). In Smithart, the defendant
argued that a search warrant was defective because it was not executed immediately after its
issuance. Id. at 929, 478 P.2d at 579. We held that the warrant was valid because it was
served within the ten-day statutory time limit prescribed by NRS 179.075(1). Id.
In the instant case, we conclude that Bolin's argument is belied by the plain language of
NRS 179.075(1). Further, Bolin's reliance on Barlow is misplaced. Unlike the situation in that
case, where police obtained the first sample of the defendant's blood without a search warrant,
here, the serological kit executed on Bolin on July 16, 1995, was supported by a valid search
warrant that had been signed by the district court the previous day. Accordingly, based on a
plain reading of NRS 179.075 and our holding in Smithart, we conclude that the acquisition
of the second serology kit from Bolin on July 18, 1995, was constitutionally valid because it
was obtained within the ten-day statutory time period prescribed by NRS 179.075(1).
The district court did not err in allowing the admission of testimony regarding the
examination of Bolin's hair and testimony regarding the statistical probability of DNA
evidence
1. The district court did not err in allowing testimony regarding the examination of
Bolin's hair samples
[Headnote 9]
Bolin argues that Cook's testimony that Bolin's pubic hair was microscopically
similar to the foreign pubic hair found in the pubic hair combings of Ricks was irrelevant
and unreliable as scientific evidence. Bolin argues that Cook's conclusions were unreliable
because the testing procedures Cook employed allegedly yielded a 30.4 percent error rate.
Further, Bolin argues that Cook's findings were unreliable because he took no notes detailing
his examination findings, which is contrary to the practice of other forensic experts who find
note taking a necessary component to hair comparison analysis.
[Headnotes 10, 11]
The determination of whether to admit evidence is within the sound discretion of the
district court, and that determination will not be disturbed unless manifestly wrong. Petrocelli
v. State, 101 Nev. 46, 52, 692 P.2d 503, 508 (1985). Further, it is the jury's function, not
that of the court, to assess the weight of the evidence and determine the credibility of
witnesses."
114 Nev. 503, 526 (1998) Bolin v. State
function, not that of the court, to assess the weight of the evidence and determine the
credibility of witnesses. McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992).
The reliability of hair comparison analysis was testified to by Cook and was even
more firmly established by Bolin's own expert witness, who indicated that Bolin could not be
eliminated as the source of the foreign pubic hair found in the pubic combings taken from
Ricks' body. Based on the testimony of both witnesses, which established hair comparison
analysis as a reliable exculpatory tool, we conclude that the district court's admission of such
evidence was not manifestly wrong.
2. The district court did not err in admitting DNA statistical probability evidence
[Headnote 12]
Bolin argues that the statistical probability calculations used to determine the
significance of the DNA match were neither trustworthy nor reliable and thus should not have
been admitted at trial. Specifically, Bolin argues that the DNA analysis in the instant case was
flawed because the calculations employed by the various experts did not take into account
population subgroupings.
In support of his argument that DNA statistical probability calculations must include
population subgroupings for accuracy, Bolin relies on People v. Pizzaro, 12 Cal. Rptr. 2d
436, 452 (Ct. App. 1992), and Commonwealth v. Lanigan, 596 N.E.2d 311, 315-16 (Mass.
1992), wherein both courts concluded that because of the possibility of significant genetic
subgroupings within the larger heterogenous Caucasian, African-American, and Hispanic
populations, DNA statistical probability calculations that did not account for such population
substructure were flawed.
In Armstead v. State, 673 A.2d 221 (Md. 1996), the Maryland Court of Appeals
considered a similar challenge to the reliability of DNA statistical probability calculations. In
Armstead, the court recognized the scientific debate that existed until 1992 concerning
whether genetic substructures within the larger heterogenous populations could cause
considerable DNA variations in those subpopulations. Id. at 237. However, the court
indicated that by 1993, based on the publication of several prominent empirical studies, such
debate had effectively ended because studies confirmed that
[e]stimates of the likelihood of occurrence of a DNA profile using each of the major
population group data bases (e.g. Caucasian and Black) provide a greater range of
frequencies than would estimates from subgroups of a major population category.
114 Nev. 503, 527 (1998) Bolin v. State
quencies than would estimates from subgroups of a major population category.
Comparisons across major population groups provide reasonable, reliable, and
meaningful estimates of DNA profile frequencies without forensically significant
consequences.
Id. at 238 (quoting U.S. Dep't of Justice, VNTR Population Data: A Worldwide Study, 6
(1993)) (emphasis added). Additionally, the court noted that:
Subdivision, either by ethnic group or by U.S. geographic region, within a major
population group does not substantially affect forensic estimates of the likelihood of
occurrence of a DNA profile . . . . Estimated frequencies among regional groups and
several subgroups of a major population category are similar. . . . The most appropriate
approach, therefore, is to estimate the likelihood of occurrence of a particular DNA
profile in each major group. . . . [B]ased on empirical data, there is no demonstrable
need for employing alternative approaches . . . to derive statistical estimates. . . .
[F]requency data from major population groups provide valid estimates of DNA
profile frequencies without significant consequences for forensic inferences.
Id. at 238-39 (quoting B. Budowle et al., The Assessment of Frequency Estimates of Hae
III-Generated VNTR Profiles in Various Reference Databases, 39 J. Forensic Sci. 319, 349
(1994)) (emphasis added).
In concluding that DNA statistical probability calculations did not need to account for
genetic substructuring within the larger heterogenous populations, the Maryland Court of
Appeals held:
Since the majority of scientists now believe that the effects of population substructuring
are relatively insignificant, it has become unnecessary to develop data for very small
population subgroups.
Id. at 240.
We note that the authority on which Bolin relies predates all of the scientific studies
cited by the Maryland Court of Appeals in Armstead. While in 1992 there may have been
scientific debate concerning the effects of population substructures on DNA statistical
probabilty analysis, recent empirical studies have demonstrated that such population
substructuring does not affect the validity of DNA statistical probability calculations based on
one of the major population groups. See Armstead, 673 A.2d at 235-40. Accordingly, we
reject Bolin's contention that the DNA probability evidence in the instant case was flawed
because the various experts did not take into account population substructure.
114 Nev. 503, 528 (1998) Bolin v. State
[Headnotes 13, 14]
This court has repeatedly assessed the admissibility of scientific evidence in terms of
trustworthiness and reliability. Santillanes v. State, 104 Nev. 699, 704, 765 P.2d 1147, 1150
(1988). Because the overwhelming weight of authority has established that DNA analysis
utilizing the PCR technique is reliable and trustworthy for use within the forensic context, see
United States v. Hicks, 103 F.3d 837, 844-47 (9th Cir. 1996), cert. denied, 520 U.S. 1193,
117 S. Ct. 1483 (1997); United States v. Beasley, 102 F.3d 1440, 1444-48 (8th Cir. 1996),
cert. denied, 520 U.S. 1246, 117 S. Ct. 1856 (1997); State v. Lyons, 924 P.2d 802, 804-14
(Or. 1996); People v. Pope, 672 N.E.2d 1321, 1325-28 (Ill. App. Ct. 1996); State v. Gentry,
888 P.2d 1105, 1117-18 (Wash. 1995), we hold that DNA results obtained through the use of
the PCR technique are admissible for use within the forensic context. Further, based on the
weight of scientific authority, we hold that DNA statistical probability calculations need not
take into account genetic population substructure to be valid and admissible. Accordingly, the
district court did not err in admitting DNA statistical probability evidence.
6

The district court did not err in denying Bolin's objections to certain jury instructions
[Headnotes 15, 16]
During trial, the district court overruled Bolin's objection to Instruction No. 21
7
, and
rejected his proposed instruction E.
8
On appeal, Bolin argues that the district court erred
in overruling his objection to Instruction No. 21 because language from that instruction
which reads "specific emotional propensity for sexual aberration" is vague and suggestive
of Bolin's prior criminal conduct to show bad character.
__________

6
Bolin also asserts that the district court erred when it allowed a photo of Ricks, taken when she was alive, to
be admitted into evidence. Bolin argues that the photo was not relevant to the crime and that its probative value
was substantially outweighed by the danger of unfair prejudice. The decision to admit evidence is within the
district court's sound discretion and will not be disturbed on appeal unless manifestly wrong. Petrocelli v.
State, 101 Nev. 46, 52, 692 P.2d 503, 508 (1985). The photo was introduced to identify Ricks, and to establish
the color of her hair in order to distinguish her hair from the foreign hair found on her body. We conclude that
the district court did not err in admitting this photograph.

7
Jury Instruction No. 21 provided:
Evidence of a person's character or a trait of his character or evidence of other crimes, wrongs or acts,
is not admissible for the purpose of proving that he acted in conformity therewith on a particular
occasion.
However, such evidence is admissible for other purposes, such as proof of motive, intent, knowledge,
or identity, and as evidence that the person possesses a specific emotional propensity for sexual
aberration.

8
Bolin's proposed Jury Instruction E provided:
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 be admissible for other purposes such as proof of
motive, intent, plan, or identity.
114 Nev. 503, 529 (1998) Bolin v. State
appeal, Bolin argues that the district court erred in overruling his objection to Instruction No.
21 because language from that instruction which reads specific emotional propensity for
sexual aberration is vague and suggestive of Bolin's prior criminal conduct to show bad
character.
[Headnotes 17, 18]
In general, the district court does not err by refusing to give a jury instruction that is
substantially covered by another instruction provided to the jury. Ford v. State, 99 Nev. 209,
211, 660 P.2d 992, 993 (1983). Further, a jury instruction is proper where it merely states the
law rather than instructs the jury to find a presumed fact against the accused. Id. at 215, 660
P.2d at 995.
In McMichael v. State, 94 Nev. 185, 189, 577 P.2d 398, 401 (1978), overruled on other
grounds by Meador v. State, 101 Nev. 765, 711 P.2d 852 (1985), we concluded that in sex
crimes generally a more liberal judicial attitude exists in admitting evidence of prior and
subsequent proscribed sexual conduct. Additionally, in Findley v. State, 94 Nev. 213, 215,
577 P.2d 867, 868 (1978), we stated that [e]vidence showing that an accused possesses a
specific emotional propensity for sexual aberration is relevant, and outweighs the prejudicial
possibility that a jury might convict for general rather than specific criminality.
Based on our review of the two jury instructions, we conclude that Bolin's proposed
Instruction E was substantially covered by Jury Instruction 21. Further, we conclude that
Instruction No. 21 accurately instructed the jury on the law of this state. Accordingly, we
conclude that the district court did not err in overruling Bolin's objections to Instruction No.
21 and rejecting Bolin's proposed Instruction E.
[Headnote 19]
Additionally, Bolin argues that the district court erred in overruling his objections to
Instruction No. 18, which was the reasonable doubt instruction given pursuant to NRS
175.211.
9
On appeal, Bolin argues that Instruction No. 1S is unconstitutional because the
word "actual," and the phrases "abiding conviction of the truth," and "weighty affairs of
life" suggest a higher degree of doubt than is required for acquittal under the reasonable
doubt standard.
__________

9
Instruction No. 18 provided:
The Defendant is presumed innocent until the contrary is proved. This presumption places upon the
State the burden of proving beyond a reasonable doubt every material element of the crime charged and
that the Defendant is the person who committed the offense.
A reasonable doubt is one based on reason. It is not mere possible doubt but is such a doubt as would
govern or control a person in the more weighty affairs of life. If the minds of the jurors, after the entire
comparison and consideration of all the evidence, are in such a condition that they can say they feel an
abiding conviction of the truth of the charge, there is not a reasonable doubt. Doubt to be reasonable must
be actual, not mere possibility or speculation.
If you have a reasonable doubt as to the guilt of the Defendant, he is entitled to a verdict of not guilty.
114 Nev. 503, 530 (1998) Bolin v. State
appeal, Bolin argues that Instruction No. 18 is unconstitutional because the word actual,
and the phrases abiding conviction of the truth, and weighty affairs of life suggest a
higher degree of doubt than is required for acquittal under the reasonable doubt standard. We
disagree.
This court has repeatedly held that jury instructions on reasonable doubt given
pursuant to NRS 175.211 are constitutional. Milton v. State, 111 Nev. 1487, 1492, 908 P.2d
684, 687 (1995) (footnote omitted). Pursuant to this standard, the jury was properly
instructed, and we decline Bolin's invitation to reconsider our position on this issue.
Accordingly, the district court did not err overruling Bolin's objection to Instruction No. 18.
Penalty Phase
The aggravating circumstance contained in NRS 200.033(4) is constitutional
[Headnote 20]
The aggravating circumstance contained in NRS 200.033(4) provides, in relevant part:
The murder was committed while the person was engaged . . . in the commission of or
an attempt to commit or flight after committing or attempting to commit, any robbery,
sexual assault, arson in the first degree, burglary . . . and the person charged:
(a) Killed or attempted to kill the person murdered.
Bolin argues that this aggravator is unconstitutional because it fails to narrow the class of
death-eligible defendants.
Our prior decisions have consistently upheld the constitutional validity of NRS
200.033(4). See, e.g., Atkins v. State, 112 Nev. 1122, 1134, 923 P.2d 1119, 1127 (1996), cert.
denied, 520 U.S. 1126, 117 S. Ct. 1267 (1997). We decline Bolin's invitation to revisit this
issue; consequently, we conclude that Bolin's argument is without merit.
Bolin was properly sentenced
[Headnote 21]
Bolin argues that his due process rights were violated when the district court denied
his motion to be sentenced on the sexual assault and kidnapping charges prior to the penalty
hearing.
10
In support of his argument,
__________

10
Bolin also argues that his constitutional rights were violated when the State, in arguing for the death
penalty, commented on his future dangerousness and his failure to become rehabilitated during his
approximately twenty years of incarceration for other offenses. Specifically, Bolin argues that in rebutting the
State's future dangerousness argument, he should have been
114 Nev. 503, 531 (1998) Bolin v. State
support of his argument, Bolin relies on Russell v. State, 607 So. 2d 1107, 1118-19 (Miss.
1992), wherein the Mississippi Supreme Court vacated the defendant's death sentence after
concluding that due process mandated that the habitual offender status of a defendant be
determined prior to the capital penalty hearing.
During the penalty phase, the district court instructed the jury regarding the sentencing
of Bolin's non-capital offenses as follows:
In the present case, you have also convicted the defendant of the crimes of sexual
assault and kidnapping. This Court shall consider a sentence atthis Court
shallstrike that. This Court shall conduct a sentencing hearing and impose a sentence
on those crimes. Prior to the sentencing hearing on those crimes, the State has indicated
that it will file a motion which requests this Court find that the defendant is a habitual
criminal. If this Court does find that the defendant is a habitual criminal, then the
sentence which will be imposed for each crime, sexual assault and kidnapping, shall be
life with or life without the possibility of parole.
If this Court imposes a sentence of life with the possibility of parole, the defendant
will be required to serve at least 20 years in prison before he is eligible to be considered
for parole. If this Court imposes a sentence of life without the possibility of parole, the
defendant will not be eligible for parole.
In the event that the Court does not find the defendant to be a habitual criminal, then
the possible sentence for first degree kidnapping is life imprisonment with eligibility
for parole when a minimum of five years have been served or a definite term of 15
years with eligibility of parole beginning when a minimum of five years has been
served. The possible sentence for sexual assault is life imprisonment with eligibility for
parole when a minimum of 10 years has been served or a definite sentence of 25 years
with eligibility of parole beginning when a minimum of 10 years has been served.
The sentences to be imposed for the commission of sexual assault and kidnapping
may be ordered to run concurrently to each other or consecutively to each other.
__________
allowed to instruct the jury that life without the possibility of parole meant that he would never have an
opportunity to return to free society. We conclude that this argument is without merit. Based on our review of
the record, we conclude that the jury was adequately informed of the meaning of life without the possibility of
parole as evidenced by the trial testimony of the Chairman of the Nevada State Parole Board and through
defense counsel's closing arguments during the penalty phase. Further, [i]n capital cases . . . the defendant's
future dangerousness is a consideration on which the State may rely in seeking the death penalty. Simmons v.
South Carolina, 512 U.S. 154, 175, 114 S. Ct. 2187, 2200 (1994) (O'Connor, J., concurring in judgment).
114 Nev. 503, 532 (1998) Bolin v. State
assault and kidnapping may be ordered to run concurrently to each other or
consecutively to each other. The sentences to be imposed for the commission of sexual
assault and kidnapping, may also be ordered to run consecutiveto run
concurrentlystrike that. May also be ordered to run concurrent. I'm going to read the
sentence over again.
The sentences to be imposed for the commission of the sexual assault and kidnapping
may also be ordered to run concurrently or consecutively to the sentence you impose for
first degree murder.
In People v. Rodriguez, 914 P.2d 230, 281 (Colo. 1996), the Colorado Supreme Court
concluded that the trial court's failure to impose sentence on the defendant's non-capital
offenses prior to the penalty phase did not violate the defendant's due process rights because
the submitted jury instructions provided the jury with a fundamental understanding of the
defendant's potential sentencing. As in Rodriguez, we hold that the extensive instruction
quoted above provided the jury with a fundamental understanding of Bolin's potential
sentencing. Accordingly, we conclude that Bolin was properly sentenced and that the district
court did not err in denying Bolin's motion to be sentenced on the sexual assault and
kidnapping charges prior to the penalty hearing.
The district court did not abuse its discretion by allowing victim impact testimony
[Headnote 22]
Bolin argues that the district court abused its discretion in admitting victim impact
testimony during the penalty hearing because the probative value of such testimony was
substantially outweighed by the danger of unfair prejudice. Three people offered victim
impact testimony during the penalty phase: Ricks' husband, mother, and father. After
cautioning the prosection to limit victim impact testimony to a general nature, Ricks' mother
testified as follows:
Q Did you share a special relationship with your daughter [Ricks]?
A Yeah, we did. She was my clown.
Q What do you mean by that statement?
A She was funny. When she was little, it was like she was on a stage all the time.
She could always make you laugh and I always thought she would outgrow it when she
got a little older. Fortunately for us, she never did.
Q Were there other qualities or attributes of [Ricks] that you distinctly remember of
her from your recollection?
114 Nev. 503, 533 (1998) Bolin v. State
A There's a lot of neat things about [Ricks]. She was cute and smart and lovable and
funny. She was just a delightful person to be around. She had lots of friends. Her sisters
were two of her best friends. Everybody that met her, enjoyed her.
Q Can you describe the loss, as it relates to you as a mother?
A I could tell you all the words, the sadness and the depression, and the anger, and
the pain, but unless you've been there, you can't. It hurts and I miss her. And its been a
year. It hasn't gotten any easier.
She was 21 years old, but she was still my baby. I have fears for my other girls now
that I didn't have before. My need to protect them is almost overbearing sometimes. It's
made changes in all of our lives that can't be fixed no matter what goes on in the
courtroom or any place else. It can't be fixed.
Q As you thought about [Ricks] in the course of her life, did she have a contribution
to society?
A Yes she did. Other than just being a joy to be around, she was a CNA, a certified
nurse's assistant, which she enjoyed and registered to start school in August to be a
surgical assistant. Not even the technical things she would have learned and been able
to do, but the support that she could give people, a genuine caring about other people
and who knows how many people she would have had contact with that she could have,
could have given something to them.
Q Any other thoughts that you have about [Ricks] that you wish to share?
A I wish everybody could have known her. I talk to her and tell her about the babies
and what they are doing. I miss being able to hold her. We're a pretty huggy family and
not being able to hold her is hard. She's going to be missed by lots of people.
Q Thank you.
Ricks' husband provided the following victim impact testimony:
Q The specific area that I want you to give some thoughts on is can you tell us a little
bit about [Ricks'] personal character?
A My wife was a loving person, a caring wife, a best friend, kind of person that
ifyou know, I remember one Christmas time we didn't have any money to buy each
other presents and somehow she found a way to get me some presents.
114 Nev. 503, 534 (1998) Bolin v. State
presents and somehow she found a way to get me some presents. That's the kind of
human being she was.
She was full of life. (Witness crying.)
She was full of life. That's what kind of person she was.
Q Can you tell us or have you prepared your thoughts on a little bit about the impact
of this crime as it's related to you and your family?
A It's turned my life upside down. I'm upset at myself because going through all this,
I'm so naive and I think everybody is naive on the face of this earth because you don't
know what you have until it's gone . . . .
. . . .
Q Is there a loss to society?
A A tremendous loss to society, tremendous loss to society. My wife is beautiful on
the inside and a beautiful person on the outside.
Additionally, Ricks' father discussed his tremendous loss as a parent and described his
daughter as beautiful, intelligent, and sensitive.
[Headnote 23]
Evidence pertaining to the victim and the impact of the murder on the victim's family
is relevant to the jury's decision as to whether the death penalty should be imposed. Lane v.
State, 110 Nev. 1156, 1165-1166, 881 P.2d 1358, 1365 (1994), cert. denied, 514 U.S. 1058,
115 S. Ct. 1444 (1995), vacated in part on other grounds by Lane v. State, 114 Nev. 299, 956
P.2d 88 (1998). Based on our review of the victim impact testimony, wherein the witnesses
adhered to the district court's admonishment to limit their victim impact testimony to that of a
general nature, we conclude that the district court did not abuse its discretion in allowing the
victim impact testimony of Ricks' family members.
CONCLUSION
Because of the similarities between Bolin's 1975 rape and kidnapping of Morriss and
Ricks' murder, we conclude that the district court did not err in admitting evidence of Bolin's
prior bad acts for the purpose of establishing Bolin's identity pursuant to NRS 48.045(2).
Further, we conclude that Sirvaag's one-on-one identification of Bolin at the detention center
was not unnecessarily suggestive. Consequently, we conclude that the district court did not
err in allowing the admission of this evidence.
We additionally conclude that the searches and seizures executed upon Bolin on July 16,
1995, and July 18, 1995, were constitutionally valid. Therefore, the district court did not err
in allowing the admission of evidence obtained as a result of these searches.
114 Nev. 503, 535 (1998) Bolin v. State
allowing the admission of evidence obtained as a result of these searches.
Because of the established reliability of hair comparison analysis, we conclude that
the district court did not err in allowing the admission of serologist Cook's testimony
regarding his examination of Bolin's hair. Additionally, because of the weight of authority
recognizing the reliability of the PCR method of DNA analysis, along with the scientific
authority indicating that there is no need for DNA statistical probability calculations to
account for genetic population substructuring, we conclude that the district court did not err
in admitting the proffered DNA statistical probability evidence.
Further, we conclude that the district court did not err in overruling Bolin's objections to
numerous jury instructions. Additionally, we reaffirm the constitutionality of the aggravating
circumstance codified at NRS 200.033(4). Lastly, we conclude that Bolin was properly
sentenced and that the district court did not abuse its discretion in allowing the proffered
victim impact testimony.
Based on the foregoing, we affirm Bolin's conviction and sentence of death.
11

Springer, C. J., and Shearing and Young, JJ., concur.
____________
114 Nev. 535, 535 (1998) State Farm Mut. v. Comm'r of Ins.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and STATE FARM
FIRE AND CASUALTY COMPANY, Appellants and Cross-Respondents, v.
COMMISSIONER OF INSURANCE OF THE STATE OF NEVADA, DIVISION OF
INSURANCE OF THE STATE OF NEVADA, Respondent and Cross-Appellant.
No. 28359
May 19, 1998 958 P.2d 733
Appeal and cross-appeal from orders made with regard to State Insurance
Commissioner rulings on judicial review. Eighth Judicial District Court, Clark County;
Gerard J. Bongiovanni, Judge.
District court affirmed determination of Commissioner of Insurance requiring
automobile insurer to modify its chargeable accident rule as part of its rate increase
application. Insurer appealed, and Commissioner cross-appealed from another portion of
order. The supreme court held that: (1) insurer's rate structure regarding chargeable
accidents was reasonable in absence of properly promulgated rule setting at fault
accidents as those in which insured was at least 51 percent negligent, and
__________

11
structure regarding chargeable accidents was reasonable in absence of properly promulgated
rule setting at fault accidents as those in which insured was at least 51 percent negligent, and
(2) Insurance Division engaged in improper rule making in violation of notice and hearing
requirements of Administrative Procedures Act (APA).
Reversed.
Pearson, Patton, Shea, Foley & Kurtz, P.C., Las Vegas, for
Appellants/Cross-Respondents.
Frankie Sue Del Papa, Attorney General, and Edward T. Reed, Deputy Attorney
General, Carson City, for Respondent/Cross-Appellant.
1. Statutes.
Administrative construction of a statute is a question of law which is subject to independent appellate review.
Unlike appeals from administrative factual adjudications, which are subject to a substantial evidence standard, an
administrative agency's legal determinations are accorded less deference on appeal.
3. Statutes.
Where a statute has no plain meaning, a court should consult other sources such as legislative history, legislative intent, and
analogous statutory provisions.
4. Insurance.
Automobile insurer could validly subject insureds who were 50 percent at fault with regard to policy claim to premium
surcharge absent regulation to contrary based on reasonable construction of statute prohibiting increase in premiums, cancellation or
nonrenewal for accident in which insured was not at fault. NRS 687B.385.
5. Insurance.
Division of Insurance engaged in rule-making in violation of Administrative Procedures Act (APA) when it ordered automobile
insurer to change its chargeable accident rule to preclude premium surcharge against insureds found 50 percent at fault for accidents as
condition to approval of otherwise proper rate increase. Division's interpretation of statute prohibiting surcharges against insureds not
at fault for accident involved statement of general applicability that effectuated agency policy and thus required notice and hearing
for its promulgation. NRS 233B.038, 687B.385.
Interpretive ruling by an administrative agency is merely a statement of how the agency construes a statute or a regulation
according to the specific facts before it, rather than rule of general applicability.
OPINION
Per Curiam:
State Farm Mutual Automobile Insurance Company and State Farm Fire and Casualty Company {"State Farm")
appeal from a district court order affirming a determination of the Commissioner of Insurance relative to State
Farm's calculation of liability insurance premiums.
Farm Fire and Casualty Company (State Farm) appeal from a district court order affirming
a determination of the Commissioner of Insurance relative to State Farm's calculation of
liability insurance premiums. We are asked to determine whether, in the absence of regulatory
action, State Farm's interpretation of the at-fault rules set forth in NRS 687B.385 was
reasonable. We conclude that it was and, accordingly, we reverse the decision of the district
court.
STATEMENT OF FACTS
In 1987, the Nevada legislature enacted NRS 687B.385, which prohibits cancellation,
non-renewal or increase in insurance premiums due to claims for which the insured was not
at fault. From the time that NRS 687B.385 was enacted, State Farm interpreted the at
fault language in the statute as referring to accidents in which its insureds were fifty percent
or more at fault. Thus, State Farm developed a rule, known as the chargeable accident rule,
whereby it could impose a surcharge pursuant to NRS 687B.385 if a policyholder was fifty
percent or more at fault for an auto accident. The reasonableness of State Farm's chargeable
accident rule is at issue in this case.
On July 13, 1993, State Farm filed requests with respondent, the Division of Insurance,
1
for automobile insurance rate increases, seeking overall premium rate hikes of 1.8 percent
and 4.9 percent. Thereafter, Charles Knaus, Division of Insurance actuary, advised State Farm
that its rate filings were complete, and that he would recommend approval of the proposed
rate increases.
However, on February 16, 1994, Knaus advised State Farm that the requested rate
increases would be disapproved pursuant to NRS 686B.050(1), the Nevada Insurance Code
provision prohibiting excessive premium rates.
Prior to this point in time, the Division had not contested the validity of State Farm's
definition of chargeable accident. Further, no regulation defining the term had been
promulgated. Accordingly, State Farm requested an explanation for the denial of its rate
increase based on its existing chargeable accident rule.
In response, the Division explained that it had consistently interpreted the meaning of
fault in NRS 687B.385 to mean negligence exceeding fifty percent of the total causal
negligence in connection with an accident. Thus, it concluded that State Farm's practice of
surcharging drivers who were only fifty percent at fault violated NRS 687B.385.
__________

1
The Commissioner of Insurance and the Division of Insurance are hereinafter collectively referred to as the
Division except where it is necessary to distinguish between the Commissioner and the Division.
Subsequently, a hearing officer agreed with the Division's position that it could reject
State Farm's rate increase request. On December 1, 1994, the Commissioner of Insurance
issued an order affirming the hearing officer's decision.
On January 20, 1995, State Farm filed a petition for judicial review of the Commissioner's
order in district court. State Farm's petition challenged that portion of the Commissioner's
order which conditioned approval of State Farm's automobile insurance rate increase on
modification of its chargeable accident rule.
On February 1, 1995, the district court granted State Farm's request for a temporary
restraining order staying enforcement of the Commissioner's order as to the chargeable
accident rule. The district court also permitted State Farm to implement its rate increase.
On November 5, 1995, the district court entered an order affirming the Commissioner's
determination. The district court held that the Commissioner had the authority to require State
Farm to (1) modify its chargeable accident rule as part of the rate increase application
proceeding, and (2) to require State Farm to modify its definition of chargeable accident to
apply to insureds who were more than fifty percent at fault in an accident. Finally, the district
court required State Farm to rescind the previously approved and implemented rate increase
and refund the overage to its policyholders if it failed to prospectively modify its chargeable
accident rule within thirty days of the order.
On January 29, 1996, the district court granted State Farm's motion to delete the
portion of the order requiring State Farm to rescind or refund its rate increases unless it
complied with the Commissioner's order. State Farm timely appealed and the Division
cross-appealed.
2

On February 26, 1996, shortly after the notices of appeal were filed, the Commissioner
adopted an amendment to the Nevada Administrative Code Section 690B.230(2). This
amended regulation provides that an insurer's definition of chargeable accident may only
include those accidents for which the insured is more than fifty percent at fault. On April 30,
1996, State Farm filed a separate action for declaratory relief in the district court of Clark
County, Nevada, to determine the validity of the amended regulation.
__________

2
The Division cross-appealed the district court's order granting State Farm's NRCP 52(b) motion to alter and
to amend the original judgment. The amended order deleted the paragraphs in the original judgment tying State
Farm's rate increase to the implementation of the modified chargeable accident rule and requiring State Farm to
refund the rate increase amount to its policyholders if the rule was not implemented within thirty days. The
court's holding herein renders the Division's cross-appeal moot.
On September 4, 1997, the district court, in the separate action, rendered summary
judgment in favor of State Farm, issuing a declaratory judgment order that the Division's
amended regulation was invalid. The district court also entered a permanent injunction
enjoining the Division and all persons with notice of this order and judgment from
enforcing the provisions of NAC 690B.230(2), the amended regulation.
On September 12, 1997, this court issued an order granting State Farm's motion to take
judicial notice of the judgment entered by the district court in the declaratory judgment
action. Although we have taken judicial notice of the declaratory judgment, it does not impact
our decision in this matter.
DISCUSSION
Standard of Review
[Headnotes 1, 2]
The administrative construction of a statute is a question of law which is subject to
independent appellate review. Unlike appeals from administrative factual adjudications,
which are subject to a substantial evidence standard, an administrative agency's legal
determinations are accorded less deference on appeal. 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). Accordingly, this court considers the district
court's interpretation of NRS 687B.385 de novo.
In its order affirming the decision of the Commissioner of Insurance, the district court
in this matter found that, with regard to the validity of the Division's chargeable accident rule:
4. The Commissioner had authority to consider the issue of the chargeable accident
rule (NRS 687B.385) as part of the rate request pursuant to NRS 686B.100, which
allows the Commissioner to require the filing of supporting data which may include
[a]ny other relevant matters required by the Commissioner. . . . NRS 686B.100(1)(d).
5. An insurer's chargeable accident rule is relevant to an insurer's rate increase request
because a surcharge is an increase in rates . . . .
6. The Division interpretation of NRS 687B.385, which requires that an insured must
be over 50 percent at fault before he may be surcharged for an accident, is a reasonable
interpretation of the statute, which based upon the legislative history and what the
statute was trying to accomplish, is not open to varying interpretations.
Accordingly, the district court ordered that the rate increase conditionally approved by the
Division be permanently approved upon modification of State Farm's chargeable accident
rule and compliance with Nevada law "requiring over fifty percent liability before an
insured may be surcharged pursuant to NRS 6S7B.3S5 . . . ."
conditionally approved by the Division be permanently approved upon modification of State
Farm's chargeable accident rule and compliance with Nevada law requiring over fifty
percent liability before an insured may be surcharged pursuant to NRS 687B.385 . . . .
State Farm maintains that it has never disputed the Commissioner's authority to
consider its chargeable accident rule pursuant to NRS 686B.100, as part of a rate increase
proceeding.
3
Instead, State Farm raises only two claims on appeal: first, that its chargeable
accident rule is based on a proper construction of the at fault provision in NRS 687B.385
and that the Division's interpretation is erroneous; and second, that the Division engaged in
rulemaking in violation of NRS 233B of the Administrative Procedures Act, when it ordered
State Farm to change its chargeable accident rule as a condition to approval of its otherwise
proper rate increase request.
For the reasons set forth below, we conclude that, in the absence of a regulation
promulgated by the Division pursuant to NRS 687B.385, State Farm's rate structure for
chargeable accidents was reasonable. We also conclude that the Division engaged in improper
rule making in violation of the notice and hearing requirements of the Administrative
Procedures Act (APA).
4

Statutory Construction
[Headnote 3]
The well-settled rule 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 court are not permitted to
search for its meaning beyond the statute itself.
Erwin v. State of Nevada, 111 Nev. 1535, 1538, 908 P.2d 1367, 1369 (1995) (quoting Charlie
Brown Constr. Co. v. Boulder City, 106 Nev. 497, 503, 797 P.2d 946, 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.
__________

3
NRS 686B.100 provides that the Commissioner may require an insurer to submit supporting data regarding
its rates. Subsections (1)(a), (b) and (c) list specific categories of data that must be provided; these include an
insurer's definition of chargeable accident. Subsection (1)(d) is a catchall provision that authorizes the
Commissioner to require the insurer to provide data on any other relevant matter.

4
In so concluding, we do not suggest that the Division's chargeable accident rule is per se unreasonable. As
we decide the instant case in the absence of any regulation construing NRS 687B.385, we reserve the question of
the validity of the Division's subsequently promulgated regulation for a future date.
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 (1994).
Having considered the parties arguments as well as the statutory language itself, we
conclude that the term at fault is reasonably susceptible to varying interpretations. See
Hotel Employees v. State, Gaming Control Bd., 103 Nev. 588, 591, 747 P.2d 878, 879
(1987). This lack of plain meaning leaves room for judicial construction. Accordingly, this
court considers the legislative history and intent underlying the statute.
1. Legislative History
The exact meaning of at fault is not stated in the legislative history. However,
discussions held at the legislative hearings demonstrate concern about the at fault language
in the statute; specifically, how to determine which party was at fault in a motor vehicle
accident.
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. Although there is no express definition of the term at fault, there is also no
indication that the legislature believed that only one person could be considered at fault in an
accident. Accordingly, we consider whether the at fault provision in the NRS 687B.385 is
related to a determination of fault in the tort liability context.
2. Legislative IntentStatutes in Pari Materia
[Headnote 4]
State Farm argues that NRS 687B.385 should be construed consistently with NRS
41.141, Nevada's comparative negligence statute. The meaning of a statute may be
determined by referring to laws which are in pari materia. See Goldstein v. State, 803
S.W.2d 777, 788 (Tex. App. 1991). Statutes may be said to be in pari materia when they
relate to the same person or things, to the same class of persons or things, or have the same
purpose or object. Id. State Farm contends that NRS 687B.385 and NRS 41.141 are clearly
in pari materia, as each statute invokes the concept of fault.
NRS 41.141 provides, in pertinent part:
1. In any action to recover damages for death or injury to persons or for injury to
property in which comparative negligence is asserted as a defense, the comparative
negligence of the plaintiff .
negligence is asserted as a defense, the comparative negligence of the plaintiff . . . does
not bar a recovery if the negligence was not greater than the negligence . . . of the
parties to the action against whom recovery is sought.
Under NRS 41.141, a plaintiff who is fifty percent at fault is not barred from recovery, but his
damages are reduced by his own percentage of negligence. See Moyer v. United States, 593 F.
Supp. 145 (D. Nev. 1984). Thus, in a two-party car accident, a defendant whose negligence
constituted fifty per cent of the total causal negligence in connection therewith, is liable to the
plaintiff for fifty percent of her damages.
State Farm argues that the Nevada legislature had NRS 41.141 in mind when it
incorporated the phrase at fault into NRS 687B.385. In support of this proposition, State
Farm suggests that NRS 41.141 codifies Nevada's well-settled policy to impose civil liability
on a person who is fifty percent at fault in causing an accident. This means that in a given
accident, two equally at fault parties, both covered by liability insurance, are liable to each
other with their respective insurers having to pay damages to the opposing party.
Accordingly, State Farm maintains that a specific definition of at fault' in NRS 687B.385
was not required, because an insured's liability for negligence or fault was already defined in
NRS 41.141.
5

We conclude that, in the absence of a regulation to the contrary, State Farm reasonably
construed the at fault provision in NRS 687B.385 consistently with NRS 41.141. It is clear
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.
In the context of a claim against an insured based on the operation of an automobile,
the insured's liability or fault is determined by the laws of negligence. Under NRS 41.141, a
defendant who is fifty percent at fault is legally liable to the plaintiff for fifty percent of the
plaintiff's damages. Therefore, absent a regulation based on a reasonable construction of
NRS 6S7B.3S5, an insured who is fifty percent at fault with regard to a claim under the
policy may be validly subject to an increase in his policy premium or other adverse actions
such as non-renewal or cancellation.
__________

5
As a practical matter, State Farm concedes that the number of claims in which an insured will actually be
exactly fifty percent negligent is small. The former advocate for insurance customers, who was a party to this
litigation at its inception, argued in opposition to State Farm's request for a stay of the Commissioner's order that
the chances of anyone in this state having a truly fifty/fifty fault situation that would require State Farm to go
through these onerous changes they claim they are going to experience is very slim. Although State Farm is
aware that the actual impact of the chargeable accident rule issue is minor, State Farm maintains that its rule is
the correct interpretation of the statute and it objects to being coerced into accepting the Division's incorrect
interpretation.
absent a regulation based on a reasonable construction of NRS 687B.385, an insured who is
fifty percent at fault with regard to a claim under the policy may be validly subject to an
increase in his policy premium or other adverse actions such as non-renewal or cancellation.
Accordingly, we reverse the district court.
Rule Making
[Headnote 5]
Having interpreted NRS 687B.385, we turn to consider whether the Division engaged
in improper rule making in violation of the notice and hearing requirements of the APA when
it compelled State Farm to modify its definition of a chargeable accident for purposes of
implementing an insurance rate hike.
The APA was adopted to establish minimum procedural requirements, such as notice and
hearing, for all rule making by non-exempt state government agencies. The notice and
hearing requirements are not mere technicalities; they are essential to the adoption of valid
rules and regulations. See Public Serv. Comm'n v. Southwest Gas, 99 Nev. 268, 273, 662
P.2d 624, 628 (1983) (stressing the importance of following the APA).
When an agency takes certain action not expressly noticed as rule making, the issue
becomes whether the agency is engaging in rule making such that the APA safeguards for
promulgating regulations apply or whether the agency is merely making an interpretive
ruling.
[Headnote 6]
The Nevada APA defines a regulation as an agency rule, standard, directive or
statement of general applicability which effectuates or interprets law or policy, or describes
the organization, procedure, or practice requirements of an agency. NRS 233B.038. By
contrast, an interpretive ruling is merely a statement of how the agency construes a statute or
a regulation according to the specific facts before it. See General Motors Co. v. Ruckelshaus,
742 F.2d 1561, 1565 (U.S. App. D.C. 1985) (holding that an interpretive rule in the federal
context means a rule that simply states what the administrative agency construes a statute to
mean, and only reminds affected parties of existing legal duties).
This court has addressed the distinction between regulations and interpretive rulings in
a number of cases, including those cited by the parties. Of particular note is this court's
decision in Public Service Comm'n v. Southwest Gas Corp., 99 Nev. 268, 273, 662 P.2d 624,
628 (1983). There, the Public Service Commission (PSC) attempted to use a utility rate
increase proceeding as a forum for imposing new "rate design" requirements affecting the
manner in which public utilities charged various categories of customers.
ing as a forum for imposing new rate design requirements affecting the manner in which
public utilities charged various categories of customers. In holding that the PSC was engaging
in rule making, this court stated:
Although the order changing Southwest's rate designee is directed to Southwest only, it
certainly has general applicability which affects other gas utilities and their
customers. . . . The order is of such major policy concern and of such significance to all
utilities and consumers that it cannot be characterized as a simple adjudication in a
contested case thus outside of the statutory definition of a regulation.
Id.; see NRS 233B.038(1).
In other cases, this court has not hesitated to invalidate agency actions in which the
agency was formulating a rule of policy or general application and not merely making an
interpretive ruling according to the facts before it. See Las Vegas Transit v. Las Vegas Strip
Trolley, 105 Nev. 575, 780 P.2d 1145 (1989) (agency's adoption of new definition of
trolley should have been subject to formal rule making proceeding); State Bd. of Equal. v.
Sierra Pac. Power, 97 Nev. 461, 634 P.2d 461 (1981) (agency should have complied with
procedural rule making requirements in adopting new method or formula for calculating
property taxes).
We conclude that the Division has engaged in rule making in violation of NRS 233B.
First, we conclude that the Division's definition of chargeable accident was a statement of
general applicability that effectuated agency policy on surcharging Nevada insureds. Thus,
the Division should have followed the rule making procedures in APA. As we have
determined, the term at fault in NRS 687B.385 has no plain meaning. NRS 687B.385 on its
face does not necessarily compel an interpretation that an insured be at least fifty-one percent
at fault. The Division's interpretation effectuates its unilateral policy that, for these purposes,
only one individual can be considered at fault in an auto accident. This determination
affects not only State Farm and its insureds, but any Nevada insurance company operating
pursuant to a chargeable accident rule. As such, the Division's chargeable accident rule falls
within the ambit of an agency regulation that implicates the Nevada Administrative
Procedures Act. The district court erred in concluding otherwise.
We therefore reverse the district court's decision in this matter.
___________
114 Nev. 545, 545 (1998) Union Pac. R.R. Co. v. Harding
UNION PACIFIC RAILROAD COMPANY, a Foreign Corporation,
Appellant/Cross-Respondent, v. LARRY J. HARDING, Individually,
Respondent/Cross-Appellant.
No. 28867
May 19, 1998 958 P.2d 87
Appeal from an order of the district court granting respondent's motion to dismiss
appellant's third-party complaint, and cross-appeal from the district court's certification of
dismissal as to one of multiple parties. Eighth Judicial District Court, Clark County; Joseph
S. Pavlikowski, Judge.
Railroad, as defendant in wrongful death action, filed third-party indemnity and
contribution claim against two of its employees. The district court granted employees' motion
to dismiss. Railroad appealed. The supreme court held that the federal Railway Labor Act
(RLA) preempted railroad's indemnity and contribution claim.
Affirmed.
Raleigh, Hunt & McGarry, Las Vegas, for Appellant/Cross-Respondent.
Galatz, Earl & Bulla, Las Vegas; Fogel, Feldman, Ostrov, Ringler & Klevens, Santa
Monica, California, for Respondent/Cross-Appellant.
1. Contribution; Indemnity; States.
Federal Railway Labor Act (RLA) preempted railroad's third-party indemnity and contribution claim against two of its
employees, who were involved in train collision for which railroad was being sued for wrongful death. Railroad and employees
disagreed as to whether collective bargaining agreement (CBA) provision stating that conductors would not be obliged to pay fines for
loss or damage to equipment applied to civil damages, and RLA's mandatory dispute resolution procedures would conclusively resolve
the disagreement by interpreting the CBA. 45 U.S.C. 153.
2. Labor Relations; States.
Federal Railway Labor Act (RLA) preempts state law claims only where the claim is dependent on the interpretation of a
collective bargaining agreement (CBA). 45 U.S.C. 153.
Appellate court may affirm a correct result even if the reasoning of the lower court is not clear.
OPINION
Per Curiam:
This case arises out of a collision between two freight trains near Caliente, Nevada.
near Caliente, Nevada. Three employees of appellant/cross-respondent Union Pacific
Railroad Company (UPRR) were injured in the accident, and another was killed. The estate of
the deceased employee sued UPRR for damages; UPRR in turn filed a third-party complaint
against two of the employees involved in the collision, Roger J. Sullenberger and
respondent/cross-appellant Larry J. Harding, seeking indemnity and contribution.
Sullenberger filed a cross-complaint against UPRR pursuant to the Federal Employers'
Liability Act (FELA), 45 U.S.C. 51 (1994).
Sullenberger joined in Harding's motion to dismiss UPRR's third-party complaint on
the grounds that it was preempted by FELA and/or the Railway Labor Act, 45 U.S.C. 151
(1994). The district court granted Harding's motion and dismissed UPRR's complaint as to
Harding and Sullenberger. UPRR filed a motion for certification of final partial judgment as
to third-party defendant Harding, pursuant to NRCP 54(b), and the motion was granted.
UPRR now appeals the district court's dismissal of its third-party complaint against Harding.
Harding cross-appeals the district court's certification of its order granting dismissal of
UPRR's third-party complaint against Harding as final. We conclude that the district court
properly dismissed UPRR's third-party complaint against Harding because it lacked
jurisdiction under the Railway Labor Act.
FACTS
On January 12, 1995, an eastbound Union Pacific freight train collided head-on with a
westbound Southern Pacific freight train near Caliente, Nevada. At the time of the accident,
both trains were manned by UPRR employees; Sullenberger and Harding were engineer and
conductor, respectively, of the Union Pacific train, and Michael Allen Smith and Robert A.
Franklin were engineer and conductor, respectively, of the Southern Pacific train. All four
UPRR employees were injured in the accident, and Smith died from his injuries.
On February 16, 1995, Smith's widow and estate filed a wrongful death suit against UPRR.
On June 7, 1995, UPRR filed a third-party complaint against its employees, Sullenberger and
Harding, seeking contribution and indemnification with regard to Smith's suit, along with
indemnification for damages caused to Southern Pacific's train and for UPRR's lost profits
and damaged property caused by the accident. UPRR alleged that Sullenberger and Harding,
who had been controlling the eastbound Union Pacific train at the time of the accident, had
failed to heed a stop signal prior to the accident; had the eastbound train stopped, the
westbound Southern Pacific train would have been able to enter and clear a siding, thus
passing the eastbound train without incident.
and clear a siding, thus passing the eastbound train without incident.
On August 23, 1995, Harding filed a motion to dismiss UPRR's third-party complaint.
Harding's motion alleged that the district court lacked jurisdiction because the federal
Railway Labor Act preempted, and because FELA prohibited, UPRR's third-party claims
which allegedly seek over $5,000,000 in damages. On August 31, 1995, Sullenberger joined
in Harding's dismissal motion. On October 23, 1995, Sullenberger filed a counterclaim
against UPRR for personal injuries incurred in the accident, pursuant to FELA. Harding filed
a FELA action against UPRR in California state court, which was still pending as of January
1997.
On November 6, 1995, the district court granted Harding's motion to dismiss UPRR's
third-party complaint as to both Harding and Sullenberger; the district court did not specify
the basis for its decision. On January 8, 1996, UPRR moved the district court for certification
of final, partial judgment as to third-party defendant Harding, pursuant to NRCP 54(b).
Harding, joined by Smith's widow and estate, opposed UPRR's certification motion.
Notwithstanding, on May 15, 1996, the district court determined that there was no just reason
to delay entry of final judgment on UPRR's third-party complaint against Harding, and
granted UPRR's certification motion.
Subsequently, UPRR filed a timely notice of appeal from the district court's dismissal
and final certification of UPRR's third-party complaint against Harding. Harding filed a
timely notice of cross-appeal from the district court's order granting certification of a final,
partial judgment in this matter as to UPRR's third-party complaint against Harding.
DISCUSSION
Because Harding's cross-appeal questions the jurisdiction of this court to consider the
substantive issues on appeal, it will be disposed of first. [A] certification of finality pursuant
to NRCP 54(b) based on the elimination of a party will be presumed valid and will be upheld
by this court absent a gross abuse of discretion. Mallin v. Farmers Insurance Exchange, 106
Nev. 606, 611, 797 P.2d 978, 981-82 (1990). In this case, we conclude that the district court's
order granting certification did not constitute a gross abuse of discretion. Therefore, we will
now consider the merits of this appeal.
[Headnote 1]
Harding asserts that deciding the merits of UPRR's third-party claims will necessarily
require interpretation and application of a collective bargaining agreement {CBA), thus the
Railway Labor Act {RLA), preempts UPRR's third-party complaint.
collective bargaining agreement (CBA), thus the Railway Labor Act (RLA), preempts
UPRR's third-party complaint. Harding is a member of the United Transportation Union
(UTU). Rule 103 of the UPRR-UTU CBA provides:
LOSS OR DAMAGE TO EQUIPMENT:
Rule 103: Conductors will not be obliged to pay fines for loss or damage to equipment.
Harding and UPRR dispute the meaning of the word fine. UPRR argues that the ordinary
meaning of the word has a penal connotation, whereas Harding argues that civil damages may
constitute a fine. Because there is a question as to the interpretation of fine, Harding
contends that UPRR's third-party complaint involves the type of dispute which must be
resolved through the mandatory procedures of the RLA.
The RLA explains that a minor dispute (as opposed to a major dispute which
relates to the formation and negotiation of a CBA and is resolved through mandatory
bargaining) grows out of grievances or out of the interpretation or application of agreements
covering rates of pay, rules, or working conditions. 45 U.S.C. 153, First (i). The first step
in resolving a minor dispute is through the railroad company's resolution procedures; if the
dispute cannot be settled internally, it goes before binding arbitration set by the National
Railroad Adjustment Board (NRAB). See Consolidated Rail Corp. v. Railway Labor
Executives' Assn., 491 U.S. 299, 302 (1989). Following the NRAB's issuance of a decision,
either party may seek judicial review (albeit the scope of that review is quite limited). See
Kulavic v. Chicago & Illinois Midland Ry. Co., 1 F.3d 507, 513 (1994).
[Headnote 2]
In Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 260 (1994), the Court stated that a
minor dispute under the RLA exists where an allegedly breached duty is rooted firmly in the
CBA, and any attempt to assess liability here inevitably will involve' interpretation of
the collective bargaining agreement. 512 U.S. at 260 (quoting Allis-Chalmers Corp. v. Lueck,
471 U.S. 202, 218 (1985)). The distinguishing feature of a [minor dispute] is that the dispute
may be conclusively resolved by interpreting the existing [CBA]. Consolidated Rail, 491
U.S. at 305; see also Magnuson v. Burlington Northern, Inc., 576 F.2d 1367, 1369-70 (9th
Cir. 1978) (holding that a minor dispute exists and the RLA preempts state law where
conduct at issue has a not obviously insubstantial' relationship to the labor contract).
Stated another way, the RLA preempts state law claims only where the claim is dependent on
the interpretation of a collective bargaining agreement.
collective bargaining agreement. Hawaiian Airlines, 512 U.S. at 261.
The Supreme Court has noted that the RLA preemption standard is virtually identical
to the pre-emption standard the Court employs in cases involving 301 of the LMRA.
1
Hawaiian Airlines, 512 U.S. at 260. In MGM Grand Hotel v. Insley, 102 Nev. 513, 518, 728
P.2d 821, 824 (1986), we stated:
Section 301 [of the LMRA] does not necessarily preempt every state law claim
asserting a right that relates in some way to a provision in a collective bargaining
agreement, or that relates more generally to the parties to such an agreement.
See also Lopez v. Continental Can Co., Inc., 961 F.2d 147, 149 (9th Cir. 1992). However, in Insley we also
stated that: A tort action brought in state court which would require the court to interpret the meaning or scope
of a term in the employment contract would also be preempted. 102 Nev. at 517, 728 P.2d at 824.
[Headnote 3]
In the case before us, we believe that preemption is appropriate. The application or
interpretation of Rule 103 of the UPRR-UTU CBA is substantially involved in this case; if
the language of the rule encompasses civil damages, it would appear that Rule 103 of the
UPRR-UTU CBA conclusively resolves the matter. Therefore, we conclude that the district
court properly dismissed UPRR's state law claims against Harding on the basis of RLA
preemption.
2
Because we affirm the district court's order on this ground, we need not reach
the issue of FELA preemption.
CONCLUSION
We conclude that provisions of the UPRR-UTU CBA are substantially implicated by
UPRR's third-party complaint against Harding. Therefore, UPRR's third-party complaint
constitutes a minor dispute under the RLA and must be resolved pursuant to the mandates of
that federal statute.
__________

1
LMRA is an abbreviation for the Labor Management Relation Act; section 301 (codified as 29 U.S.C.
185 (1973)) provides federal court jurisdiction over controversies involving collective bargaining agreements
and also authorizes federal courts to fashion a body of federal law for the enforcement of these agreements.
Loewen Group Intern. Inc. v. Haberichter, 65 F.3d 1417, 1421 (7th Cir. 1995).

2
We note that although it did not provide its reasons for granting dismissal, the issue of RLA preemption was
before the district court. We may affirm a correct result even if the reasoning of the lower court is not clear. Cf.
Rosenstein v. Steele, 103 Nev. 571, 575, 747 P.2d 230, 233 (1987).
the mandates of that federal statute. Because UPRR's state law claims were preempted by the
RLA, the district court properly dismissed its complaint as to Harding.
____________
114 Nev. 550, 550 (1998) Ramirez v. State
GUILLERMO RAMIREZ, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 28984
May 19, 1998 958 P.2d 724
Appeal from a judgment of conviction pursuant to a jury verdict of guilty on two
counts of sexual assault of a minor under fourteen years of age, and one count of lewdness
with a minor under fourteen years of age. Third Judicial District Court, Lyon County; Archie
E. Blake, Judge.
The supreme court, Rose, J., held that: (1) investigating officer's testimony, as to
conclusions in investigatory medical report of physician who did not testify at trial and who
had examined the victim, was hearsay; (2) admission of the hearsay testimony, together with
trial court's improper vouching for physician's credentials and the accuracy of physician's
examination, violated Sixth Amendment Confrontation Clause; and (3) Confrontation Clause
violation was not harmless.
[Rehearing denied September 24, 1998]
Robert Bennett, Fernley, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Robert Estes, District
Attorney, and Eileen Barnett and John Paul Schlegelmilch, Deputy District Attorneys, Lyon
County, for Respondent.
Sixth Amendment's guarantee of the right of an accused to confront accusatory witnesses is a fundamental right that is made
obligatory on the states by the Fourteenth Amendment. U.S. Const. amends. 6, 14.
2. Criminal Law.
Because of their shared emphasis on cross-examination, the hearsay rule and the Sixth Amendment Confrontation Clause are
designed to promote similar values, and both share the goal of excluding evidence that is unreliable. U.S. Const. amend. 6; NRS
51.035.
3. Criminal Law.
To satisfy the requirements of the Sixth Amendment Confrontation Clause, if the state seeks to introduce hearsay statements
against a criminal defendant, either such evidence must bear adequate indicia of reliability by falling within a
firmly rooted hearsay exception or the state must demonstrate that the statement possesses particularized
guarantees of trustworthiness.
criminal defendant, either such evidence must bear adequate indicia of reliability by falling within a firmly rooted hearsay exception or
the state must demonstrate that the statement possesses particularized guarantees of trustworthiness. U.S. Const. amend. 6; NRS
51.035.
4. Criminal Law.
Hearsay evidence that does not fall within a firmly rooted hearsay exception is presumptively inadmissible for Confrontation
Clause purposes, and it necessarily follows that hearsay which fails to qualify for any hearsay exception must also be presumptively
unreliable and inadmissible. U.S. Const. amend. 6; NRS 51.035.
5. Criminal Law.
Defendant preserved for appeal contention that he was denied Sixth Amendment right to confront accusatory witness when trial
court allowed investigating officer to offer hearsay testimony as to ultimate factual conclusions of examining physician's investigatory
medical report regarding sexual abuse allegations, as defendant objected to state's question to officer as to which physician had
performed the medical examination and objection was made at critical juncture of officer's testimony. U.S. Const. amend. 6; NRS
51.035.
6. Criminal Law.
Defendant did not make knowing and intelligent waiver of his Sixth Amendment Confrontation Clause rights by failing to
vociferously object to all of investigating officer's hearsay testimony as to ultimate factual conclusions of examining physician's
investigatory report regarding sexual abuse allegations, as it would be unreasonable to find such waiver in light of supreme court's
willingness to address constitutional error sua sponte. U.S. Const. amend. 6; NRS 51.035.
7. Criminal Law.
Investigating officer's testimony as to examining physician's investigatory medical report regarding sexual abuse allegations
constituted hearsay. Report was written assertion that was neither introduced into evidence nor made by the physician while testifying
at trial, and report was offered for truth of assertion that defendant had in fact sexually abused the victim, and not merely to show that
physician's performance of the medical examination was the reason officer commenced his investigation. NRS 51.035, 51.045.
8. Criminal Law.
Residual hearsay exception is not a firmly rooted hearsay exception for Confrontation Clause purposes, and thus, hearsay
evidence admitted solely pursuant to residual exception violates criminal defendant's Confrontation Clause rights where state fails to
rebut presumption of unreliability and inadmissibility. U.S. Const. amend. 6; NRS 51.075.
9. Criminal Law.
Trial court's admission of investigating officer's hearsay testimony as to conclusions in examining physician's investigatory
medical report regarding sexual abuse allegations, together with trial court's improper vouching for physician's credentials and the
accuracy of physician's examination, violated Confrontation Clause, and error was not harmless. State did not attempt to rebut
constitutional presumption of unreliability and inadmissibility, and jury was given erroneous impression that physician had confirmed
that sexual assault had occurred. U.S. Const. amend. 6; NRS 51.035.
10. Criminal Law.
Trial error that rises to the level of constitutional magnitude requires that a criminal defendant's conviction be
reversed on appeal unless such error was harmless beyond a reasonable doubt.
that a criminal defendant's conviction be reversed on appeal unless such error was harmless beyond a reasonable doubt.
OPINION
Appellant Guillermo Ramirez was convicted, pursuant to a jury verdict, of two counts of sexual assault of a minor under the age
of fourteen and one count of lewdness with a minor under the age of fourteen, for the sexual assault of his five-year-old daughter. On the
two counts of sexual assault, Ramirez was sentenced to two consecutive life sentences, each with parole eligibility after ten years. On the
lewdness count, Ramirez was sentenced to six years of imprisonment to run concurrently with the life sentences.
On appeal, Ramirez argues that he was denied his Sixth Amendment right to confront an accusatory witness when the district court
allowed the investigating officer to testify as to the ultimate factual conclusions of the examining physician's medical report which was not
in evidence, and where the examining physician was not present for cross-examination. Further, Ramirez argues that the district court
compounded this constitutional error by improperly vouching for the credibility and qualifications of the examining physician in response
to a juror's written question. For reasons discussed below, we conclude that Ramirez's Sixth Amendment right of confrontation was
infringed upon and, accordingly, we reverse his conviction and remand for a new trial.
1

FACTS
Maureen Ramirez (Maureen) and Ramirez were married on June 14, 1986, and their
daughter, Jane
2
, was born on March 14, 1989. During 1994 and 1995, Maureen worked the
nightshift at Carson Tahoe Hospital and Ramirez worked during the day in Reno. As a result
of their work schedules, they shared child care responsibilities and Ramirez routinely watched
Jane and the couple's son at night while Maureen was at work.
Jane began kindergarten in September of 1994 as a happy, outgoing, well-adjusted girl. In
the fall, Jane's teacher and family noticed changes in her behavior. Jane's kindergarten teacher
noticed that she became sullen, quiet, and had trouble getting along with the other
children.
__________

1
Because we conclude that Ramirez's conviction warrants reversal solely on this issue, we do not address his
additional assignments of error.

2
To protect her identity, the daughter will hereinafter be referred to as Jane.
noticed that she became sullen, quiet, and had trouble getting along with the other children. In
January of 1995, Jane spent the night at the home of one of Maureen's adult cousins. That
night, Jane repeatedly cried for no reason. Maureen retrieved Jane and put her to sleep on the
sofa at home. When Maureen tried to awaken Jane to put her in bed, Jane allegedly screamed
[n]o, no, no, no, curled up in a ball, and did not want to be touched. Although Maureen did
not know what was wrong with Jane, she decided that she no longer wanted Ramirez to watch
their children because he routinely drank alcohol while watching them.
Because of increasing marital strife and concern for Jane's well-being, in February
1995, Maureen decided to send Jane to live with Teresa Cruse, Maureen's adult cousin and
Jane's godmother. At that time, Cruse lived in New York State and was in her third year of
law school at Cornell University. After Jane moved to New York, Maureen filed for divorce
and requested legal and physical custody of Jane and her brother. The divorce became final
on May 9, 1995; Ramirez was granted supervised visitation.
In January 1996, approximately one year after Jane moved to New York to live with
Cruse, Jane tried to kiss Cruse with her mouth open. When Cruse explained that was not
appropriate, Jane asked Cruse if she knew what a French kiss was. Cruse replied that she did
not know and asked Jane if she knew. Jane replied that's when someone kisses you and they
put their tongue in your mouth. Jane added, My dad did that to me but I didn't do that to
him. When Cruse asked Jane when he did this to her, Jane became embarrassed and said,
Well Auntie [Cruse] . . . I was very hungry and I would do anything for food. Jane also
explained that [s]he didn't want to get beer in her, that she didn't like beer . . . in reference
to kissing her father after he had been drinking. Jane also told Cruse that her father had
touched her genitals with his fingers on numerous occasions. Later, while shopping with
Cruse, Jane pointed to a Vaseline jar and described how her father would use Vaseline when
he touched her.
Based on this information, Cruse attempted to make a local police report, but was
directed to the Lyon County Police Department. Eventually, Cruse spoke with Deputy
Musgrave of the Lyon County Police Department. Deputy Musgrave commenced an
investigation. He obtained a written statement from Cruse and arranged for Detective Lance
Saunders of the Cherry Hill, New Jersey District Attorney's Office to interview Jane.
Detective Saunders in turn arranged for Dr. Finkel, a New Jersey physician specializing in
osteopathy, to examine Jane. The results of this examination were inconclusive.
examination were inconclusive. In Nevada, Deputy Musgrave interviewed Maureen and other
witnesses.
After Deputy Musgrave's preliminary investigation, Ramirez was arrested and charged
with one count of sexual assault of a minor under fourteen years of age, a class A felony, in
violation of NRS 200.366. Ramirez was also charged with two counts of lewdness with a
minor under the age of fourteen years, a class B felony, in violation of NRS 201.230. After
arresting Ramirez, Deputy Musgrave conducted an initial interview during which Ramirez
denied ever touching Jane's genitals. Next, an official from the Nevada Division of
Investigations interviewed Ramirez. During this second interview, Ramirez continued to deny
touching Jane's genitals. Ramirez was interviewed a third time, again by Deputy Musgrave,
during which Ramirez admitted to touching Jane on the legs, buttocks, stomach and arms to
apply moisturizing medication for Jane's dry skin condition.
At the preliminary hearing held on March 7, 1996, Maureen, Cruse and Jane testified.
Based on the testimony at this hearing, the State requested that the court dismiss the second
charge of lewdness and add a second charge of sexual assault to the complaint; the Justice of
the Peace granted this request. Consequently, Ramirez was bound over for trial on two counts
of sexual assault of a minor under fourteen years of age and one count of lewdness with a
minor under the age of fourteen.
At trial, the State's first witness was Deputy Musgrave. Throughout his testimony,
Deputy Musgrave made repeated references to the report of Dr. Finkel, who had conducted a
mental and physical examination of Jane at the request of the Cherry Hill, New Jersey District
Attorney's Office. Dr. Finkel's report was never introduced into evidence, nor did Dr. Finkel
testify during Ramirez's trial. Nonetheless, in response to a question pertaining to what
information his investigation had uncovered, Deputy Musgrave testified:
The typewritten reports I received from Lance Saunders, detective, who originated the
case for me from [sic] in Cherry Hill, the medical reports received from Dr. Finkel all
indicated to me that, in fact, a sexual abuse had transpired, and that Mr. Ramirez was a
very strong suspect in same.
On cross-examination, in response to defense counsel's question as to the impetus for
continuing his investigation, Deputy Musgrave responded that [t]he informationthe initial
information provided by Ms. Cruse was followed up by an interview through the Cherry Hill
prosecutor's office as well as a physical and psychological interview by the child sexual
assault unit of the prosecutor's office."
prosecutor's office. Further, on redirect by the State, the following colloquy took place:
Q. And on thatAfter that initial interview, you took steps, didn't you take steps to
verify what was being told to you?
A. Yes, sir.
Q. Significant steps, in fact?
A. Yes, sir.
Q. And investigator Saunders from the Cherry Hill Prosecutor's Office interviewed
[Jane], right?
A. Yes.
Q. On videotape?
A. Yes.
Q. Was there anybody else in the room except for investigator Saunders and [Jane]?
A. Negative.
Q. He sent her to a doctor?
A. Yes, sir.
Q. Did the doctor interview her?
A. Yes, sir, doctor
Mr. Pederson: Objection, Your Honor, this calls for knowledge not within this
witness' personal knowledge. He was not back in New Jersey.
The Court: Well, he can certainly state as far as an investigator goes, as far as the
investigative process, if indeed something took place, and that was within the realm of
whatever.
Mr. Pederson: He asked specifically who was in the room.
The Court: Well, I think that was the question before, but in any event he can state
whether he knows if a medical or some kind of doctor examination took place.
By Mr. Shelegelmilch:
Q. And you had that happen.
A. Yes.
Q. And then you testified that was from a doctor Martin Finkel?
A. Yes.
Q. And you reviewed his stuff, his report?
A. Yes.
Q. All part of your investigation?
A. Yes.
Q. Okay. And at the end of the investigation, or during the process of the
investigation, you requested a warrant?
A. Yes.
Q. Why.
A. The information led me to believe that I had probable cause that a felony had, in
fact, taken place, and that Mr. Ramirez was, in fact, the suspect in that felony.
During a recess following Deputy Musgrave's testimony, the jury submitted a note to
the judge which asked whether Jane had in fact been examined by a doctor. The judge
responded that Dr. Finkel, the New Jersey doctor, conducted a complete physical and mental
examination of [Jane]. Dr. Finkel is an osteopath in New Jersey, who has conducted physical
and mental examinations of sexually abused persons and conducted that in [Jane's] case.
When the trial resumed, the State presented numerous other witnesses including Jane, Dr.
Elizabeth Richitt, a clinical psychologist who had also examined Jane, Jane's kindergarten
teacher, and Cruse. During her testimony, Jane described how her father would rub her pubic
area when her mother was not home. In demonstrating her father's actions on a teddy bear,
Jane testified that it kind of hurt. Jane testified that she recalled that Ramirez put his finger
inside her and that she pretended to be asleep while Ramirez abused her. Jane also testified
that while Ramirez was touching her he said, I hate my wife. Jane further testified that her
father touched her more times than she knew how to count and that the touching began at
about the time that she started kindergarten, in August of 1994 and ended sometime after
Christmas, 1994. Jane concluded her direct testimony by saying that she was happier living
with Cruse, away from her father.
Following Jane's testimony, Cruse took the stand. Cruse testified as to the
circumstances surrounding Jane's initial disclosure of abuse. Pursuant to the court's grant of
the State's motion in limine, Cruse's testimony included many hearsay statements made by
Jane, describing incidents of sexual abuse. After Cruse's testimony, Maureen testified on
behalf of the State. Lastly, Ramirez took the stand in his defense and testified that he had
never touched Jane inappropriately.
The jury returned a verdict of guilty on all three counts. For each count of sexual
assault, Ramirez received two consecutive life sentences with the possibility of parole after
ten years. For the single count of lewdness, Ramirez was sentenced to a term of six years, to
run concurrently with the two life sentences.
Ramirez now appeals.
DISCUSSION
Ramirez argues that portions of Deputy Musgrave's testimony and the Judge's
response to the written jury question constituted inadmissible hearsay, the admission of
which violated his Sixth Amendment right to confront witnesses against him.
inadmissible hearsay, the admission of which violated his Sixth Amendment right to confront
witnesses against him. Specifically, Ramirez contends that Deputy Musgrave's repeated
references to Dr. Finkel's examination, along with the judge's commentary as to its
thoroughness, so strongly suggested that the physical examination factually confirmed sexual
assault, that Dr. Finkel effectively testified as a witness on behalf of the State. Consequently,
Ramirez argues that the State was able to proffer the expert opinion of Dr. Finkel as to the
ultimate issue without being subjected to the scrutiny of cross-examination, in violation of his
Sixth Amendment right to confrontation. We agree.
[Headnote 1]
The Sixth Amendment to the United States Constitution provides that [i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him. U.S. Const. amend. VI. The Sixth Amendment's guarantee of the
right of an accused to confront accusatory witnesses is a fundamental right that is made
obligatory on the states by the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 403
(1965). Further, the United States Supreme Court has held that [c]onfrontation means more
than being allowed to confront the witness physically. Our cases construing the
[confrontation] clause hold that a primary interest secured by it is the right of
cross-examination.' Davis v. Alaska, 415 U.S. 308, 315 (1974) (quoting Douglas v.
Alabama, 380 U.S. 415, 418 (1965)).
[Headnote 2]
Because of their shared emphasis on cross-examination, the hearsay rule and the
Confrontation Clause are designed to promote similar values and both share the goal of
excluding evidence that is unreliable. California v. Green, 399 U.S. 149, 155 (1970). While
both are designed to avoid similar evils, they are not identical in scope; the Confrontation
Clause [e]mbodies notions of individual rights far broader than the technical hearsay rules.'
State v. Apilando, 900 P.2d 135, 139 (Haw. 1995) (quoting O. Weinstein, Coy v. Iowa:
Reconciling a Defendant's Right to Confrontation with a Child-Witness' Interest in Avoiding
Undue Psychological Trauma, 23 Loy. L.A. L. Rev. 415, 437 (1989)). Because the hearsay
rule and the Confrontation Clause are not co-extensive, the Supreme Court has held that the
Confrontation Clause bars the admission of some evidence that would otherwise be
admissible under an exception to the hearsay rule. Idaho v. Wright, 497 U.S. 805, 814
(1990).
[Headnote 3]
To satisfy the requirements of the Confrontation Clause, if the State seeks to introduce
hearsay statements against a criminal defendant, such evidence must bear adequate indicia
of reliability by either falling within a firmly rooted hearsay exception, or the State must
demonstrate that the statement possesses particularized guarantees of trustworthiness.
defendant, such evidence must bear adequate indicia of reliability by either falling within a
firmly rooted hearsay exception, or the State must demonstrate that the statement possesses
particularized guarantees of trustworthiness. Ohio v. Roberts, 448 U.S. 56, 66 (1980). If the
statement does not fall within a firmly rooted hearsay exception, the statement is
presumptively unreliable and inadmissible for Confrontation Clause purposes.' Idaho v.
Wright, 497 U.S. 805, 818 (1989) (quoting Lee v. Illinois, 476 U.S. 530, 543 (1986)). To
rebut this presumption of inadmissibility, the State must demonstrate that the statement bears
particularized guarantees of trustworthiness based on the totality of circumstances that
surround the making of the statement and that render the declarant particularly worthy of
belief. Id. at 820.
[Headnote 4]
If hearsay evidence that does not fall within a firmly rooted exception is
presumptively inadmissible for Confrontation Clause purposes, it necessarily follows that
hearsay which fails to qualify for any exception must also be presumptively unreliable and
inadmissible. As noted by Professor Bartels:
[W]henever . . . a hearsay statement by a non-testifying declarant that does not come
within any exception to the hearsay ruleis admitted against a criminal defendant,
there is presumptively a Confrontation Clause violation, subject only to the
prosecution's ability to meet its burden of showing that the circumstances under which
the statement was made gave it adequate particularized guarantees of trustworthiness.
Robert Bartels, The Hearsay Rule, the Confrontation Clause, and Reversible Error in
Criminal Cases, 26 Ariz. St. L.J. 967, 975 (1994).
In United States v. Tran Trong Cuong, 18 F.3d 1132, 1135 (4th Cir. 1994), the Fourth
Circuit was confronted with a situation where hearsay evidence, which did not fall within any
exception to the hearsay rule, was admitted against a criminal defendant. During trial, the
government called as an expert medical witness Dr. MacIntosh, who testified that another
medical doctor, Dr. Stevenson, had prepared a report after reviewing some of the defendant's
medical files on several of the defendant's patients. Id. Dr. MacIntosh vouched for Dr.
Stevenson's qualifications and testified that Dr. Stevenson's conclusions and findings were
similar with his own. Id. Dr. Stevenson did not testify during the defendant's trial nor was his
report admitted into evidence. Id. at 1143.
The Fourth Circuit determined that Dr. MacIntosh had served as an improper conduit
for inadmissible hearsay. Id. at 1143-44.
Because Dr. Stevenson's report was prepared at the request of the prosecution in anticipation
of litigation, the report constituted inadmissible hearsay which did not fall under any
exception to the hearsay rule. Id. at 1143-44. Accordingly, because of the government's
failure to rebut the presumption of unreliability and inadmissibility, the court reversed the
defendant's conviction by holding:
MacIntosh's testimony as to Stevenson's findings and his credentials was given in an
effort to convince the jury of the accuracy and reliability of MacIntosh's opinions, and
also to put before the jury Stevenson's opinion as to the defendant's actions without
subjecting Stevenson to cross-examination. This is unfair to the defendant as it denies
his fundamental right to cross-examination . . . .
Id. at 1144.
Similarly, in United States v. Check, 582 F.2d 668, 669 (2d Cir. 1978), the
government sought to introduce the out-of-court statements of a drug transaction intermediary
through the trial testimony of an undercover agent, without subjecting the intermediary to the
rigors of cross-examination. In Check, an undercover agent attempted to purchase narcotics
from the defendant through the assistance of an intermediary. Id. at 670.
Eventually, the defendant was arrested and charged with illegal narcotics distribution. Id.
at 670. At the defendant's trial, the intermediary refused to testify; thus, in order to introduce
the contents of the numerous conversations between the undercover agent and the
intermediary which incriminated the defendant, the government carefully limited the
undercover agent's testimony to what he had said to the intermediary and avoided any
testimony pertaining to what the intermediary had told him. Id. at 675.
The Second Circuit concluded that portions of the undercover agent's testimony
constituted inadmissible hearsay because such testimony was a transparent attempt to
incorporate into the officer's testimony information supplied by the informant who did not
testify at trial. Id. at 679. Because the court determined that the jury may well have been
influenced against the defendant, the court reversed his conviction by concluding:
Thus, by incorporating [the intermediary's] hearsay into [the undercover agent's]
testimony, the government received the benefit of having, in effect, an additional
witness against [the defendant] while simultaneously insulating from cross-examination
that witness, a witness whom we can safely assume would have been subjected to a
scathing, and perhaps effective, cross-examination by defense counsel.
Id. at 683.
[Headnotes 5, 6]
Turning to the case at hand, in light of the foregoing discussion, we address first the
State's contention that because Ramirez failed to make a timely objection to Deputy
Musgrave's testimony at trial, he is barred from asserting that his right of confrontation was
violated on appeal. While Ramirez's defense counsel was hardly vigilant in preserving errors
for appellate review through the use of timely and well-founded objections, we note that
Ramirez made one objection in response to the State's question of Deputy Musgrave as to
which doctor had performed Jane's medical examination. Because of Ramirez's objection at a
critical juncture of Deputy Musgrave's testimony, we conclude that he properly preserved his
constitutional issues for review by this court. Further, in light of our willingness to address
constitutional error sua sponte, Sterling v. State, 108 Nev. 391, 394, 834 P.2d 400, 402
(1992), we conclude that it would be unreasonable to hold that Ramirez made a knowing and
intelligent waiver of his Sixth Amendment Confrontation Clause rights by failing to
vociferously object to all of Deputy Musgrave's problematic testimony.
[Headnote 7]
The State argues that the objectionable portions of Deputy Musgrave's testimony did
not constitute hearsay because he did not testify as to the specific findings and conclusions
made by Dr. Finkel. In this regard, the State argues that Deputy Musgrave merely testified to
the fact that Dr. Finkel had performed a medical examination and that this was the reason he
commenced an investigation. Upon closer examination of the record on appeal, we do not
believe that Deputy Musgrave's testimony was as benign as the State suggests.
During trial, Deputy Musgrave stated that in addition to the reports received from
Detective Saunders, the medical reports received from Dr. Finkel . . . indicated to me that, in
fact, a sexual abuse had transpired, and that Mr. Ramirez was a very strong suspect in same.
(Emphasis added.) Further in his testimony, Deputy Musgrave stated that the information
[Dr. Finkel's medical findings and Detective Saunder's reports] led me to believe that I had
probable cause that a felony had, in fact, taken place, and that Mr. Ramirez was, in fact, the
suspect in that felony. (Emphasis added.)
NRS 51.035 defines hearsay as a statement offered in evidence to prove the truth of
the matter asserted. NRS 51.045 defines a statement as an oral or written assertion; or . . .
[n]onverbal conduct of a person, if it is intended by him as an assertion. When scrutinized
pursuant to these standards, Dr. Finkel's written report constituted a hearsay statement which
was artfully introduced through Deputy Musgrave's testimony in order to establish that
Ramirez had, in fact, sexually assaulted his daughter.
artfully introduced through Deputy Musgrave's testimony in order to establish that Ramirez
had, in fact, sexually assaulted his daughter. Dr. Finkel's medical report constituted a written
assertion that was neither introduced into evidence nor made by the declarant while testifying
at trial. Contrary to the State's assertion that Deputy Musgrave merely testified that Dr. Finkel
had performed a medical examination on Jane, the only relevance of Deputy Musgrave's
foregoing testimony was to demonstrate that Dr. Finkel's findings confirmed that Ramirez
had, in fact, sexually assaulted Janethat is, to prove the truth of the matter asserted.
The district court, without Ramirez's express consent on the record, compounded the
problem by answering the jury's question by stating that Dr. Finkel was experienced in
conducting physical and mental examinations of sexually abused persons and had
conducted a complete physical and mental examination of Jane. With Deputy Musgrave's
improper testimony, combined with the district court judge's vouching for the credentials and
thoroughness of Dr. Finkel's examination, the jury was clearly given the impression that Dr.
Finkel confirmed that a sexual assault had occurred.
3

Because Dr. Finkel was not present to testify and be cross-examined at Ramirez's trial, the
only means by which Dr. Finkel's findings could come before the jury was via an established
exception to the hearsay rule, which in this case is lacking. While it might appear that Dr.
Finkel's findings could be introduced pursuant to NRS 51.115 as a statement made for
purposes of medical diagnosis or treatment, we have previously maintained in the child
sexual assault context that when examinations at the instigation of law enforcement personnel
are investigatory in nature, the results are generally inadmissible for a lack of trustworthiness.
See Felix v. State, 109 Nev. 151, 193-94, 849 P.2d 220, 249 (1993).
[Headnote 8]
Similarly, Dr. Finkel's findings could not be introduced pursuant to the residual
exception codified at NRS 51.075
4
because the United States Supreme Court deemed
Idaho's similar residual exception not to be firmly rooted for Confrontation Clause
purposes and thus, evidence admitted pursuant to that exception violated a criminal
defendant's Confrontation Clause rights where the State failed to rebut the presumption
of unreliability and inadmissibility.
__________

3
While Dr. Finkel's report was not contained in the record on appeal, both parties suggest in their appellate
briefs that Dr. Finkel's examination was, at best, inconclusive as to whether Jane had been sexually assaulted.
Thus, not only had the jury been exposed to Dr. Finkel's medical report which was not in evidence, the jury was
left with the erroneous impression that such report had, in fact, confirmed that Jane was sexually assaulted.

4
1. 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
United States Supreme Court deemed Idaho's similar residual exception not to be firmly
rooted for Confrontation Clause purposes and thus, evidence admitted pursuant to that
exception violated a criminal defendant's Confrontation Clause rights where the State failed
to rebut the presumption of unreliability and inadmissibility. See Idaho v. Wright, 497 U.S.
805, 817 (1989).
[Headnote 9]
What we are left with in this case are patently inadmissible hearsay statements that
were used to prove the truth of the matter asserted against a criminal defendant. Our review
of the record reveals that the State did not attempt to rebut the constitutional presumption of
unreliability and inadmissibility by showing that Dr. Finkel's findings bore particularized
guarantees of trustworthiness. Accordingly, our task is to determine whether the introduction
of Dr. Finkel's findings, in violation of Ramirez's Sixth Amendment Confrontation Clause
rights, requires reversal of his conviction and a new trial. After a thorough examination of the
record, we conclude in the affirmative.
[Headnote 10]
Trial error that rises to the level of constitutional magnitude requires that a criminal
defendant's conviction be reversed on appeal unless such error was harmless beyond a
reasonable doubt. Chapman v. California, 386 U.S. 18, 24 (1967). Here, we cannot declare a
belief that the introduction of Dr. Finkel's findings, through the testimony of Deputy
Musgrave and in combination with the improper vouching by the district court judge, was
harmless beyond a reasonable doubt. To the contrary, the jury placed significant weight on
Deputy Musgrave's testimony, which indicated that Dr. Finkel had factually confirmed sexual
assault, as evidenced by the jury's written question to the district court judge asking the judge
to confirm that Dr. Finkel had, in fact, performed an examination on Jane.
By using Deputy Musgrave as an improper conduit for Dr. Finkel's findings, the State was
able to introduce damaging and severely prejudicial inadmissible hearsay against a criminal
defendant. In effect, the State acquired an additional, and highly credible, expert witness
against Ramirez without affording Ramirez the opportunity to cross-examine Dr. Finkel to
expose weaknesses in his conclusions or impeach his qualifications. Nor was it proper for
the district court to vouch for the qualifications of Dr. Finkel in response to the jury's
written question.
__________
not likely to be enhanced by calling the declarant as a witness, even though he is available.
2. The provisions of NRS 51.085 to 51.305, inclusive, are illustrative and not restrictive of the exception
provided by this section.
was it proper for the district court to vouch for the qualifications of Dr. Finkel in response to
the jury's written question. In this case, the Statenot the district courthad the evidentiary
burden of establishing a sufficient foundation as to Dr. Finkel's qualifications had it sought to
introduce Dr. Finkel as an expert witness. Such improper vouching by the district court
cannot be countenanced by this court.
By introducing Dr. Finkel's findings through Deputy Musgrave's testimony, in
combination with the district court's improper vouching for Dr. Finkel's qualifications and
credibility, the jury was significantly influenced by a witness who was not subjected to
cross-examination, in violation of Ramirez's Sixth Amendment Confrontation Clause rights.
We cannot say that these errors were harmless beyond a reasonable doubt. Accordingly, based
on the foregoing, we vacate the trial court's judgment and sentence and remand this case for a
new trial.
I would affirm the conviction of Guillermo Ramirez on two counts of sexual assault
of a minor under fourteen years of age and one count of lewdness with a minor under fourteen
years of age.
I do not agree that the statements of Deputy Musgrave or the district court, which indicated
that Dr. Finkel examined the victim, violated the hearsay rule or the confrontation clause.
Introducing Dr. Finkel's statements regarding his findings would have violated the hearsay
rule and given the defendant the right to confront Dr. Finkel; however, neither Deputy
Musgrave nor the district court did so. The fact that the victim underwent a medical
examination in New Jersey was introduced solely as one of the reasons why Deputy
Musgrave continued his own investigation and filed charges. Since the State did not introduce
Dr. Finkel's statements into evidence, he thus was not a witness against the defendant and did
not trigger the defendant's right of confrontation. Dr. Finkel did not become a witness solely
because other witnesses acknowledged his involvement in the case.
Furthermore, introducing the fact that an examination had been conducted does not
constitute the plain error necessary to trigger this court's review, in light of the fact that the
defendant did not object to its introduction at trial. Failure to object below generally
precludes review by this court. . . . Sterling v. State, 108 Nev. 391, 394, 834 P.2d 400, 402
(1992). This court will, however, address plain error and constitutional error sua sponte.
Id. Plain error is defined as error so unmistakable that it reveals itself from a casual
inspection of the record. Patterson v. State, 111 Nev. 1525, 1530, 907 P.2d 984, 987 (1995).
Not only did the defendant fail to object to the statements regarding Dr. Finkel's examination
of the victim, but also, defense counsel first mentioned the examination. In fact, defense
counsel told the jury the results of the examination, even though they were never introduced
into evidence. In defense counsel's opening statement, he said: That little girl went to see a
doctor. There is no evidence of any penetration, she is still a virgin. There is [sic] no tears.
There is no physical evidence that this woman, this little girl was ever harmed in any way. In
light of this defense statement to the jury, the introduction of evidence by the prosecution of
the simple fact that an examination occurred certainly was not plain error.
Even if introduction of evidence that an examination had occurred had violated the
hearsay rule, that error would have been harmless in this case. Ample evidence proved that
Ramirez committed the crimes charged. The victim's testimony was clear, consistent, and
corroborated by: (1) the changes in her behavior that coincided with the time of the assault,
(2) the spontaneous nature of her initial revelations, (3) the level of her sexual knowledge,
inappropriate for her age, but consistent with her allegations, and (4) her ability to identify the
substance defendant used during the assaults.
There is no basis for reversing these convictions.
____________
114 Nev. 564, 564 (1998) Duff v. Lewis
TYRONE G. DUFF, Appellant, v. RICHARD W. LEWIS, Respondent.
No. 29581
May 19, 1998 958 P.2d 82
Appeal from an order of the district court granting a motion to dismiss brought under
NRCP 12(c). Second Judicial District Court, Washoe County; Deborah A. Agosti, Judge.
Former husband who had unsuccessfully sought modification of custody order in
post-divorce proceeding brought negligence action against court-appointed psychologist, who
had issued report recommending that former wife be given custody of children. The district
court granted psychologist's motion for judgment on the pleadings. Husband appealed, and
the supreme court held that absolute quasi-judicial immunity operated to protect psychologist
from husband's suit.
Affirmed.
114 Nev. 564, 565 (1998) Duff v. Lewis
Martin G. Crowley, Reno; Stafford Frey & Cooper and Marcus Nash, Seattle,
Washington, for Appellant.
Jones Vargas and Albert F. Pagni and Eric W. Lerude, Reno, for Respondent.
1. Pleading.
Motion for judgment on the pleadings is designed to provide means of disposing of cases when material facts are not in dispute,
and judgment on merits can be achieved by focusing on content of pleadings. NRCP 12(c).
2. Pleading.
Defendant will not succeed on motion for judgment on the pleadings if there are allegations in plaintiff's pleadings that, if
proved, would permit recovery. NRCP 12(c).
3. Pleading.
Motion for judgment on the pleadings has utility only when all material allegations of fact are admitted in pleadings and only
questions of law remain. NRCP 12(c).
4. Torts.
Whether quasi-judicial immunity exists for court-appointed psychologist is question of law.
5. Judges.
Common law doctrine of absolute judicial immunity extends to all persons who are an integral part of judicial process.
6. Judges.
Purpose behind grant of absolute immunity under common law to persons who are integral part of judicial process is to preserve
independent decision-making and truthfulness of critical judicial participants without subjecting them to fear and apprehension that
may result from threat of personal liability.
7. Physicians and Surgeons.
Psychologist who was appointed by court to perform psychological assessments on children of marriage in connection with
post-divorce custody proceedings, and who had recommended that children be placed in custody of former wife, was protected by
absolute quasi-judicial immunity from suit in which former husband asserted negligence claims. Psychologist's evaluations and
recommendations aided court at least to some extent, and services were performed pursuant to court order.
OPINION
Per Curiam:
Appellant Tyrone G. Duff (Duff) and his ex-wife, Yolanda Foster (Yolanda), have been divorced since December 1988. Per
their marital settlement, Yolanda received custody of their two sons, Cameron and Aaron. At the time of the divorce, Cameron and Aaron
were six and three years old, respectively. The district court gave Duff visitation rights.
Yolanda remarried to William Foster (William) in 1989.
114 Nev. 564, 566 (1998) Duff v. Lewis
William is a five-time felon,
1
with a history of violent behavior and alleged sexual assault.
In May 1990, during a visitation, Duff purportedly noticed inappropriate sexual
behavior by the two children. Duff arranged for Cameron and Aaron to be evaluated by a
marriage and family therapist. The therapist opined that the children had been sexually
abused and reported the matter to the Washoe County Department of Social Services (Social
Services). Social Services contacted the Reno Police Department, which then began an
investigation in conjunction with the Washoe County Sexual Abuse Investigation Team
(SAINTS).
On November 15, 1990, pursuant to a motion from Duff, the district court entered a
protective order, awarding temporary physical custody of the children to Duff. On December
20, 1990, while the investigation was pending, Duff filed a motion to modify the decree of
divorce, requesting permanent custody of Cameron and Aaron.
The SAINTS' investigation results indicated that the boys showed behavioral and
physical signs of sexual molestation. On February 8, 1991, based on the findings of the
SAINTS' investigation, the district court master reported that Cameron and Aaron had, by a
preponderance of the evidence, been victims of sexual molestation and that William was
more likely than not the perpetrator. The court master recommended that Cameron and
Aaron remain with Duff pending the outcome of the police investigation.
On June 5, 1991, based on the court master's recommendation, the district court renewed
the temporary custody of the children to Duff, granted strictly supervised visitation of the
children to Yolanda, and prohibited any contact whatsoever between William and the
children. The order was to remain in effect for one year or the time of the final outcome of the
police investigation, whichever came first.
On July 12, 1991, after a motion to reconsider from William and Yolanda, the district
court entered an order amending the order of June 5, 1991. By this second order, Yolanda was
granted physical custody of the children every other weekend. However, William was still
prohibited from having any contact at all with the children, or being any closer than five
hundred yards from where the children may be. The protective order was to be in effect until
February 1992.
In October 1991, the Reno Police Department closed the investigation, and the
Washoe County District Attorney's Office refused to proceed with a criminal complaint.
__________

1
William's convictions include attempted homicide, aggravated assault, battery causing substantial bodily
harm, and two drug offenses.
114 Nev. 564, 567 (1998) Duff v. Lewis
On April 21, 1993, in connection with the custody proceeding, the district court
appointed respondent Richard W. Lewis (Lewis) to perform psychological assessments on
the children. The assessments included testing, scoring, and evaluation of test results as well
as clinical interviews and observations of Duff and Yolanda. In its order, the district court
stated that Lewis was free to follow any procedure he deems appropriate and is free to
contact [Duff, Yolanda, William, Cameron, and Aaron] to obtain such information as he
deems appropriate to aid in his evaluation. The district court further stated that Duff,
Yolanda, and William were restrained from contacting Lewis concerning the case. This
restriction also applied to any agent of the parties, including any person who may have been
retained by the parties to provide counseling and/or therapy to the minor children, any prior
independent therapist and/or any other person having had previous contact on a professional
basis with the children or the parties. Lewis' fees were to be jointly paid by Duff and
Yolanda.
In the course of his evaluation, Lewis evaluated Duff, Yolanda, and the children. On July
6, 1993, while testifying at the children's custody hearing, Lewis recommended that Duff
temporarily lose custody of the children as well as his right to visitation. Lewis also
recommended that the children be placed in the custody of Yolanda and William.
On July 26, 1993, the district court adopted Lewis' recommendations in its findings of
fact and conclusions of law. The district court found that Duff suffered from mixed
personality disorder with many narcissistic and paranoid personality characteristics. The
district court also found that Duff was physically and economically impaired as a result of
stress and his substantial intake of prescription medications. The district court further found
that Duff's testimony was unreliable and motivated by a rage against Yolanda and William,
and that in spite of [William's] criminal record, there is no evidence that he ever perpetrated
any child abuse or that he fit the profile of a pedophile. The district court restored permanent
physical custody of the children to Yolanda and directed Lewis to monitor the progress of
Duff's psychotherapy.
Duff complained about Lewis to the Nevada State Board of Psychological Examiners (the
Board). Pursuant to Duff's complaint, the Board conducted an investigation into Lewis'
handling of the custody proceeding. On May 20, 1995, a hearing was held before the Board.
On July 20, 1995, the Board entered its findings of fact and conclusions of law. The Board
stated that Lewis' evaluation of Duff was deficient for the following reasons: (1) Lewis did
not inform the district court how Duff's medications might affect his performance on the
psychological tests; (2) Lewis' selective reporting of psychological findings left the
impression that Duff was of substandard intelligence; and
114 Nev. 564, 568 (1998) Duff v. Lewis
impression that Duff was of substandard intelligence; and (3) Lewis failed to avoid
misleading the district court when he did not explain that Duff fell within the average range
of intellectual functioning. Accordingly, the Board ordered that Lewis be issued a private
letter of reprimand and that he pay $4,000.00 for the cost of the disciplinary proceedings.
On July 21, 1995, the following day, Duff filed a complaint against Lewis, seeking
damages for Lewis' alleged negligence. On September 1, 1995, Duff filed an amended
complaint in which he incorporated the Board's findings and alleged that he was denied
custody and forced to seek psychological care as a result of Lewis' professional negligence.
On July 19, 1996, Lewis filed a motion for judgment on the pleadings, pursuant to NRCP
12(c). On August 1, 1996, Duff filed his opposition to Lewis' motion. On October 30, 1996,
the district court granted Lewis' motion for judgment on the pleadings, concluding that Lewis
enjoyed quasi-judicial immunity.
On November 18, 1996, Duff filed his notice of appeal.
DISCUSSION
Duff argues that the district court erred in granting Lewis' motion for judgment on the
pleadings. Lewis counters that even if Duff's factual allegations are true, Duff's claim cannot
stand as a matter of law because Lewis is protected by quasi-judicial immunity. This court
has not previously addressed 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.
[Headnotes 1-4]
It is well established that a motion under NRCP 12(c) is designed to provide a means
of disposing of cases when material facts are not in dispute and a judgment on the merits can
be achieved by focusing on the content of the pleadings. Bernard v. Rockhill Dev. Co., 103
Nev. 132, 135, 734 P.2d 1238, 1241 (1987). Moreover, a defendant will not succeed on a
motion under Rule 12(c) if there are allegations in the plaintiff's pleadings that, if proved,
would permit recovery. Id. at 136, 734 P.2d at 1241. A motion under this rule has utility
only when all material allegations of fact are admitted in the pleadings and only questions of
law remain. Id. Whether quasi-judicial immunity exists for a court-appointed psychologist is
a question of law. See Lavit v. Superior Court, 839 P.2d 1141, 1144 (Ariz. Ct. App. 1992).
[Headnotes 5, 6]
The common law doctrine of absolute immunity extends to all persons who are an
integral part of the judicial process. See Briscoe v. LaHue, 460 U.S. 325, 335 (1983). The
purpose behind a grant of absolute immunity is to preserve the independent
decision-making and truthfulness of critical judicial participants without subjecting them
to the fear and apprehension that may result from a threat of personal liability.
114 Nev. 564, 569 (1998) Duff v. Lewis
behind a grant of absolute immunity is to preserve the independent decision-making and
truthfulness of critical judicial participants without subjecting them to the fear and
apprehension that may result from a threat of personal liability. See Imbler v. Pachtman, 424
U.S. 409, 422-24 (1976). Absolute immunity is thus necessary to assure that judges,
advocates, and witnesses can perform their respective functions without harassment or
intimidation. Butz v. Economou, 438 U.S. 478, 512 (1978). Additional reasons for allowing
absolute judicial immunity include: (1) the need to save judicial time in defending suits; (2)
the need for finality in the resolution of disputes; (3) to prevent deterring competent persons
from taking office; (4) to prevent the threat of lawsuit from discouraging independent action;
and (5) the existence of adequate procedural safeguards such as change of venue and
appellate review. Lavit, 839 P.2d at 1144 (citing Grimm v. Arizona Bd. of Pardons &
Paroles, 564 P.2d 1227, 1231-32 (Ariz. 1977)).
These policy reasons apply equally to court-appointed officials such as psychologists
and psychiatrists who assist the court in making decisions. Without immunity, these
professionals risk exposure to lawsuits whenever they perform quasi-judicial duties.
Exposure to liability could deter their acceptance of court appointments or color their
recommendations.
Id. (citing Seibel v. Kemble, 631 P.2d 173, 180 (Haw. 1981)). Indeed, [i]mmunity removes
the possibility that a professional who is delegated judicial duties to aid the court will become
a lightning rod for harassing litigation.' Id. (quoting Acevedo v. Pima County Adult
Probation Dept., 690 P.2d 38, 40 (Ariz. 1984)).
Like the case at bar, Lavit involved an underlying child custody dispute. Pursuant to a
recommendation from the wife's attorney, both the husband and the wife entered a written
stipulation to contact a psychologist to assist in resolving a child custody dispute. Id. at 1142.
After evaluating all the parties, the psychologist recommended that the wife be awarded
custody. The district court adopted the stipulation, incorporated the psychologist's
recommendations into the dissolution decree, and awarded custody to the wife. Id. at 1143.
The husband then sued the psychologist for alleged negligent evaluation. The psychologist
moved for summary judgment on the grounds of quasi-judicial immunity. The district court
denied his motion for summary judgment, and the psychologist filed an interlocutory appeal.
Id. at 1142. The Arizona Court of Appeals reversed, holding that the psychologist was
entitled to absolute immunity for his role in the child custody determination. His activities
[were] protected because (1) at least to some extent, his evaluations and recommendations
aided the trial court in determining child custody, and
114 Nev. 564, 570 (1998) Duff v. Lewis
aided the trial court in determining child custody, and (2) his services were performed
pursuant to a court order. Id. at 1146 (footnote omitted).
In Lythgoe v. Guinn, 884 P.2d 1085, 1086 (Alaska 1994), a court-appointed
psychologist was sued for negligence by a parent who lost a custody dispute. Under the terms
of the order appointing the psychologist, the parties were to share the psychologist's costs and
fees. After evaluating the parties, the psychologist recommended that the husband receive
custody of the child. The psychologist's report was subsequently stricken after an in camera
review of her qualifications and the credibility of her testimony. The wife sued the
psychologist for, inter alia, negligent investigation, misrepresentation of statements made by
third parties, and failure to perform to the state's minimum professional standards for
psychologists. The trial court granted the psychologist's motion to dismiss for failure to state
a claim upon which relief may be granted, finding that the psychologist's actions fell within
the scope of quasi-judicial immunity. Id. The Supreme Court of Alaska affirmed the trial
court's decision, holding that the psychologist served as an arm of the court' and performed
a function integral to the judicial process.' Id. at 1088 (quoting Seibel, 631 P.2d at 179).
[Headnote 7]
There is no material factual distinction between Lythgoe and the present case. Here,
the district court expressly appointed Lewis to assist in the custody determination by
evaluating the children, following any procedure he deemed appropriate, and contacting any
party whom he felt necessary. Lewis did so. As in Lythgoe, Duff and Yolanda split the
responsibility for paying Lewis' fees. Lewis, even in light of his reprimand by the Board, was
serving as an arm of the court and performed a function integral to the judicial process.
See Lythgoe, 884 P.2d at 1088. Further, it has been held that [t]he psychologist who is
mediating a child custody dispute, whether by court appointment or not, is not an advocate for
either parent, even if paid by them. Howard v. Drapkin, 271 Cal. Rptr. 893, 902 (Ct. App.
1990).
The court-appointed psychologist performs a valuable and integral function in assisting
courts in evaluating cases such as the one now before us. We recognize that [t]he sine qua
non of the exercise of [the court-appointed professional's discretion] is the freedom to act in
an objective and independent manner. Lythgoe, 884 P.2d at 1089. Exposure to liability
could deter their acceptance of court appointments or color their recommendations. Lavit,
839 P.2d at 1444. Indeed, such exposure could produce a chilling effect upon acceptances of
future court appointments. Seibel, 631 P.2d at 180.
Moreover, there are adequate procedural remedies and safeguards that hold
court-appointed professionals accountable for their actions.
114 Nev. 564, 571 (1998) Duff v. Lewis
guards that hold court-appointed professionals accountable for their actions. First, and most
obvious, is the adversarial process of cross-examination and the opportunity to bring to the
judge's attention any alleged deficiencies in the evaluation. Lythgoe, 884 P.2d at 1091.
Second, the complaining party is free to seek appellate review or . . . request a modification
of the [trial court's] order.' Id. (quoting LaLonde v. Eissner, 539 N.E.2d 538, 542 (Mass.
1989)). Third,
[a]lthough appellees would not be civilly liable for the consequences of their alleged
negligent acts, the court is able to insure that its agents will be accountable for their
conduct and actions. The court, in its discretion, has the authority to impose or
recommend that numerous sanctions be imposed for negligent conduct. Some of the
sanctions that could be imposed include appointing another doctor to serve on the
panel, prohibiting the doctor from further service to the court and reporting that doctor's
behavior to the medical boards for further action.
Id. (quoting Seibel, 631 P.2d at 177 n.8.).
Therefore, we hold that Lewis is 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.
2,3
Lavit, 839 P.2d at 1146 (footnote omitted).
Accordingly, we affirm the order of the district court.
__________

2
Although this is the first time we have addressed this issue, other jurisdictions have overwhelmingly granted
quasi-judicial immunity to persons performing duties similar to Lewis'. See, e.g., Williams v. Rappeport, 699 F.
Supp. 501 (D. Md. 1988), aff'd, 879 F.2d 863 (4th Cir.), cert. denied, 493 U.S. 894 (1989) (court-appointed
psychologist and psychiatrist in custody action); Bartlett v. Weimer, 268 F.2d 860 (7th Cir. 1959), cert. denied,
361 U.S. 938 (1960) (court-appointed physicians in evaluating a person's mental condition); Moses v.
Parwatikar, 813 F.2d 891 (8th Cir.), cert. denied, 484 U.S. 832 (1987) (same as Bartlett); Myers v. Morris, 810
F.2d 1437 (8th Cir.), cert. denied, 484 U.S. 828 (1987) (therapists in child sexual abuse case); Burkes v. Callion,
433 F.2d 318 (9th Cir. 1970) (same as Bartlett); Doe v. Hennepin County, 623 F. Supp 982 (D. Minn. 1985)
(psychologist selected by parents to assist court in custody action); Howard, 271 Cal. Rptr. 893 (psychologist
selected and paid by parents to assist court in child custody dispute); Seibel, 631 P.2d 173 (court-appointed
psychiatrist in custody action); LaLonde, 539 N.E.2d 538 (same as Seibel); Linder v. Foster, 295 N.W. 299
(Minn. 1940) (same as Bartlett); Delcourt v. Silverman, 919 S.W.2d 777 (Tex. App. 1996), cert. denied, 520
U.S. 1213, 117 S. Ct. 1698 (1997) (same as Seibel).

3
Lewis also argues that no doctor-patient relationship existed and, as such, he owed no duty of care to Duff.
However, our holding on the issue of quasi-judicial immunity is dispositive, and therefore, we decline to address
this issue.
____________
114 Nev. 572, 572 (1998) Love v. Love
MICHAEL E. LOVE, Appellant, v. CATHERINE L. LOVE, Respondent.
No. 29729
May 19, 1998 959 P.2d 523
Appeal from (1) an order granting respondent's motion for modification of child
support, and (2) an order denying appellant's motion for summary judgment and finally
resolving a complaint challenging paternity. Second Judicial District Court, Washoe County;
Charles M. McGee, Judge.
Former husband sought to set aside stipulation in divorce decree that he was father of
his former wife's child, and wife sought increased child support. The district court denied
husband's motion for summary judgment and increased husband's child support obligation.
Husband appealed. The supreme court, Shearing, J., held that: (1) genuine issue of material
fact as to whether wife fraudulently concealed her child's parentage precluded dismissal, on
res judicata grounds, of husband's summary judgment motion; (2) results of deoxyribonucleic
acid (DNA) test did not compel finding of husband's non-paternity; (3) trial court did not
abuse its discretion in modifying husband's child support obligation; (4) child's educational
expenses, within meaning of marital settlement agreement, included private school tuition;
and (5) trial court abused its discretion in granting statutory attorney fees to wife based upon
sealed attorney billing statements.
Affirmed in part, reversed in part, and remanded.
Ronald J. Logar, Reno, for Appellant.
Silverman & Decaria, Reno, for Respondent.
1. Divorce.
Trial court's order denying husband's motion for summary judgment to establish that he was not the father of wife's child and to
set aside divorce decree insofar as it related to child custody, support and maintenance was appealable, though an order denying a
motion for summary judgment was ordinarily not final and appealable, as trial court's order in effect finally resolved husband's
complaint challenging paternity. NRAP 3A.
2. Divorce.
It is generally accepted that decisions as to the paternity of a child, litigated pursuant to a divorce decree, are res judicata as to
subsequent proceedings between the parties.
3. Divorce.
Decision of paternity in adjudication incident to divorce decree will not operate as res judicata where extrinsic
fraud existed in the adjudication.
114 Nev. 572, 573 (1998) Love v. Love
not operate as res judicata where extrinsic fraud existed in the adjudication.
4. Judgment.
Where a claim is fraudulently advanced and that fraud is so successful that the other party is not aware that he has a particular
claim or defense, this may be a sufficient basis for equitable relief from the judgment.
5. Judgment.
That which keeps one party away from court by conduct preventing a real trial on the issues is extrinsic fraud and forms a
sufficient basis for equitable relief from the judgment.
6. Judgment.
Genuine issue of material fact as to whether wife fraudulently concealed her child's parentage precluded summary judgment
dismissal, on res judicata grounds, of husband's motion to set aside stipulation in divorce decree that he was the child's father.
Statutory scheme for determining paternity clearly reflects the legislature's intent to allow nonbiological factors to become
critical. NRS 126.051.
Legislature's primary interest in enacting statutory scheme for determining paternity was in ensuring that children are supported
by their parents, and not by welfare. NRS 126.051.
Legislature has the power to decide that the results of biological tests do not conclusively determine a paternity action. NRS
126.051.
Under statutory scheme for determining paternity, district court is not compelled to determine, on basis of deoxyribonucleic acid
(DNA) test, that a man is or is not a child's father as a matter of law. NRS 126.051, 126.121.
11. Divorce.
Trial court did not abuse its discretion in modifying former husband's child support obligation to $1,800 per month, which
exceeded statutory cap. Husband's wealth had increased, husband had vastly greater wealth than wife, and child's expenses had
increased because child became a teenager, though child's needs might not have exceeded the cap and wife might not have been paying
her share of child's expenses. NRS 125B.070.
12. Parent and Child.
District court has limited discretion to deviate from child support guidelines. NRS 125B.070.
13. Husband and Wife.
Educational expenses, within meaning of marital settlement agreement obligating husband to pay all of child's reasonable and
necessary educational expenses, included private school tuition, though child had attended public school for several years.
14. Contracts.
Where language in a document is clear and unambiguous on its face, the court must construe it based on this plain language.
15. Divorce.
Awarding of statutory attorney fees to either party in divorce, if those fees are in issue under the pleadings, is
within the sound discretion of the district court.
114 Nev. 572, 574 (1998) Love v. Love
those fees are in issue under the pleadings, is within the sound discretion of the district court. NRS 125.150(3).
16. Divorce.
Trial court abused its discretion in granting statutory attorney fees to wife in divorce case based upon sealed attorney billing
statements of wife's attorney, as trial court's use of sealed statements precluded husband from disputing the amount and legitimacy of
the award. NRS 125.150(3).
OPINION
Appellant Michael E. Love (Michael) and respondent Catherine L. Love (Catherine) were married on September 17, 1981.
Seven months later, on April 24, 1982, a child (the child) was born. Two years after the child's birth, the parties entered into a marital
settlement agreement, which was incorporated into a decree of divorce entered on May 22, 1984. Under the settlement agreement, Michael
agreed to pay $1,200 per month in child support until the child reached first grade, and $800 per month thereafter. Michael also agreed to
pay all reasonable and necessary medical, dental and educational expenses for the child. At the time of the divorce, Michael was in
bankruptcy proceedings.
In December 1993, Michael had blood drawn from himself and the child, then eleven years old, for DNA analysis. A DNA
analysis laboratory reported that Michael was excluded from being the child's biological father.
Michael's financial circumstances greatly improved after the divorce. In February 1995, Catherine filed a motion to increase
child support and for judgment on arrears. Catherine requested that the district court increase child support to $2,000 per month, and order
Michael to pay the cost of private school tuition and other educational expenses.
Michael then filed a complaint against Catherine seeking to establish that he had no responsibility to pay child support based upon his
allegation that she had fraudulently misrepresented that the child was his. The district court consolidated Catherine's motion and Michael's
action.
In August 1995, a second DNA test confirmed that Michael was not the child's biological father. In September 1995, Michael
filed a motion for summary judgment to establish that he was not the child's biological father and to set aside the judgment and decree of
divorce insofar as they related to child custody, support and maintenance. Catherine opposed the motion, arguing, inter alia, that a genuine
issue of material fact existed regarding whether Michael was misled into believing that he was the child's father.
114 Nev. 572, 575 (1998) Love v. Love
whether Michael was misled into believing that he was the child's father. Catherine asserted
that Michael was aware of the single occasion on which she had sexual intercourse with
another potential father, because Michael had participated.
On February 2, 1996, the district court filed an order denying Michael's motion for
summary judgment. The order stated:
A divorce decree that establishes paternity of a child is a final determination of
paternity. Harris v. Harris, 95 Nev. 214, 591 P.2d 1147 (1979). . . . In this case, the
parties' divorce decree was entered on May 22, 1984 and established paternity. Thus,
the issue of paternity of [the child] is res judicata as to Plaintiff or Defendant in this or
any future proceeding.
[Headnote 1]
On November 25, 1996, the district court filed a written order directing Michael to
pay child support of $1,800 per month and to pay educational costs including tuition. The
district court also granted attorney fees and costs to Catherine. Michael appeals from this
order and from the order denying his motion for summary judgment, which resolved his
complaint contesting paternity.
1

Michael argues that Catherine fraudulently concealed the child's parentage, and therefore,
he is not barred by res judicata from challenging paternity. He contends that he did not
challenge paternity during the original divorce proceedings because he had no reason to
suspect that he was not the child's father at that time. Michael also contends that the district
court erred in denying his motion for summary judgment because DNA tests prove as a
matter of law that he has no legal responsibility for the child.
Catherine argues that the district court properly decided that Michael was barred by
res judicata from relitigating the paternity issue. She also asserts that she did not fraudulently
conceal the child's paternity.
[Headnotes 2, 3]
It is generally accepted that decisions as to the paternity of a child, litigated pursuant
to a divorce decree, are res judicata as to subsequent proceedings between the parties. See
Donald M. Zupanec, Annotation, Effect, in Subsequent Proceedings, of Paternity Findings or
Implications in Divorce or Annulment Decree or in Support or Custody Order Made
Incidental Thereto, 7S A.L.R. 3d S46, S53 {1977) {Supp. 1997) {citing cases holding
same).
__________

1
Although an order denying a motion for summary judgment is ordinarily not a final, appealable order, see,
e.g., Taylor Constr. Co. v. Hilton Hotels, 100 Nev. 207, 678 P.2d 1152 (1984), here, the district court's order in
effect finally resolved Michael's complaint challenging paternity and is therefore appealable. See NRAP 3A.
114 Nev. 572, 576 (1998) Love v. Love
Decree or in Support or Custody Order Made Incidental Thereto, 78 A.L.R. 3d 846, 853
(1977) (Supp. 1997) (citing cases holding same). Indeed, in Harris v. Harris, 95 Nev. 214,
217, 591 P.2d 1147, 1148-49 (1979), this court stated:
It is generally held that an adjudication incident to a divorce decree concerning the
paternity of a child is res judicata as to the husband or wife in any subsequent
proceeding . . . . Here the paternity issue was pleaded, litigated, and determined in the
district court at the original proceedings in 1975. The issue was not novel to these
proceedings. Respondent was provided the opportunity at that time to present his
evidence, and the decision was against him . . . . We hold that as between the parties a
divorce decree establishing the paternity of a child is a final determination which
precludes relitigation of the question of paternity.
(Citation omitted.)
[Headnotes 4, 5]
However, Michael alleges that he was misled into believing that he was the father of
the child. A decision of paternity will not operate as res judicata where extrinsic fraud existed
in the original proceeding. Where a claim is fraudulently advanced and that fraud is so
successful that the other party is not aware that he has a particular claim or defense, this may
be a sufficient basis for equitable relief. Villanon v. Bowen, 70 Nev. 456, 471, 273 P.2d 409,
416 (1954). That which keeps one party away from court by conduct preventing a real trial on
the issues is extrinsic fraud and forms a sufficient basis for equitable relief from the
judgment. Libro v. Walls, 103 Nev. 540, 543, 746 P.2d 632, 634 (1987); Villanon, 70 Nev. at
471, 273 P.2d at 416; Savage v. Salzman, 88 Nev. 193, 195, 495 P.2d 367, 368 (1972); Colby
v. Colby, 78 Nev. 150, 153-154, 369 P.2d 1019, 1021 (1962); Murphy v. Murphy, 65 Nev.
264, 271, 193 P.2d 850, 854 (1948).
In Libro, 103 Nev. at 541, 746 P.2d at 633, a husband did not challenge paternity during
divorce proceedings. After the husband paid child support for thirteen months, blood tests
conclusively established that he was not the child's father. The district court ruled that the
husband could not raise non-paternity as a defense to a judgment for child support arrearages.
Id. This court reversed, noting that the wife's failure to notify her husband that he might not
be the child's father prevented him from having a fair opportunity to litigate paternity in the
divorce proceedings. Id. at 543, 746 P.2d at 634.
Michael did not challenge paternity during the original divorce proceedings. In fact,
the district court's judgment was based upon a stipulation between the parties whereby they
entered into a settlement agreement.
114 Nev. 572, 577 (1998) Love v. Love
settlement agreement. This judgment would ordinarily have a res judicata effect between the
parties, precluding them from relitigating the issue. Willerton v. Bassham, 111 Nev. 10, 16,
889 P.2d 823, 826 (1995).
[Headnote 6]
However, we conclude that res judicata does not necessarily bar Michael from
proving nonpaternity because of the possible presence of extrinsic fraud in the original
proceeding. A genuine issue of material fact exists as to whether Catherine fraudulently
concealed the child's parentage; therefore, disposition by summary judgment is unwarranted.
On remand, the district court must, as a threshold matter, determine whether the original
judgment was procured by fraud.
Michael argues that the DNA analysis proves as a matter of law that he has no legal
responsibility for the child. We have not previously discussed the weight to be given to a
DNA analysis in a paternity action. The Nevada legislature addresses paternity in NRS
126.051, which sets forth rebuttable presumptions of paternity. NRS 126.051 states, in
pertinent part:
1. A man is presumed to be the natural father of a child if:
(a) He and the child's natural mother are or have been married to each other and the
child is born during the marriage . . . .
(b) He and the child's natural mother were cohabiting for at least 6 months before the
period of conception and continued to cohabit through the period of conception.
(c) Before the child's birth, he and the child's natural mother have attempted to marry
each other by a marriage solemnized in apparent compliance with law, although the
attempted marriage is invalid . . . .
(d) While the child is under the age of majority, he receives the child into his home
and openly holds out the child as his natural child.
(e) Blood tests made pursuant to NRS 126.121 show a probability of 99 percent or
more that he is the father.
. . . .
3. A presumption under this section may be rebutted in an appropriate action only by
clear and convincing evidence. If two or more presumptions arise which conflict with
each other, the presumption which on the facts is founded on the weightier
considerations of policy and logic controls. The presumption is rebutted by a court
decree establishing paternity of the child by another man.
. . . .
114 Nev. 572, 578 (1998) Love v. Love
[Headnotes 7, 8]
NRS 126.051 does not set forth conclusive presumptions of paternity. Instead, as set
forth in section 3, the presumptions enumerated in section 1 may be rebutted. This statutory
scheme clearly reflects the legislature's intent to allow nonbiological factors to become
critical in a paternity determination. See In re Marriage of Freeman, 53 Cal. Rptr. 2d 439, 447
(Ct. App. 1996) (California statute made clear that biology is not the predominant
consideration in determining parental responsibility once a child has reached his or her third
year of life.). Thus, where factors conflict, as they may here, the district court must use its
discretion to apply considerations of policy and logic to the relevant evidence.
2

In Michael H. v. Gerald D., 491 U.S. 110 (1989), a California statute provided that the
issue of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively
presumed to be a child of the marriage. The United States Supreme Court held that this
statute did not infringe upon the due process rights of a natural father seeking to establish
paternity, whose blood tests indicated a 98.07% probability of paternity. Id. at 118-30; see
also Dawn D. v. Superior Court, No. S060966, 1998 WL 154536, at *1 (Cal. Apr. 6, 1998).
[Headnotes 9, 10]
Thus, the legislature has the power to decide that the results of biological tests do not
conclusively determine a paternity action. Nowhere in our statutory scheme does the
legislature state that the results of a DNA test compel a district court to determine, as a matter
of law, that a man is or is not a child's father. See NRS 126.051; NRS 126.121.
Here, pursuant to NRS 126.051(3), the DNA test results create a presumption that conflicts
with the presumption of paternity arising from the fact that Michael was married to the child's
mother, apparently cohabited with her for one year prior to the child's birth, and held the child
out as his own for a number of years. If, on remand, the district court concludes that the
judgment was procured by fraud, then the court must determine which presumptions are
founded on the weightier considerations of policy and logic as required by NRS
126.051(3).
[Headnote 11]
Michael further argues that the district court improperly increased child support to
$1,800 monthly without a hearing, making findings that are not supported by evidence.
__________

2
The history of NRS 126.051 shows that the legislature's primary interest was in ensuring that children are
supported by their parents, and not by welfare. Minutes of the Assembly Judiciary Comm., 60th Leg. (Nev.,
March 13, 1979).
114 Nev. 572, 579 (1998) Love v. Love
making findings that are not supported by evidence. Michael argues that the district court
improperly based its decision upon his increased wealth. Michael contends that his current
monthly payment exceeds the cap set forth in NRS 125B.070, and argues that Catherine has
failed to produce evidence that the child's needs exceed the cap.
[Headnote 12]
A district court has limited discretion to deviate from child support guidelines set
forth in NRS 125B.070.
3
Anastassatos v. Anastassatos, 112 Nev. 317, 320, 913 P.2d 652,
654 (1996). Any deviation from the formula set forth in NRS 125B.070 must be based upon
the factors provided under NRS 125.080(9).
4
Id. at 320, 913 P.2d at 654. Greater weight . . .
must be given to the standard of living and circumstances of each parent, their earning
capacities and the relative financial means of parents' than to any of the other factors.
Barbagallo v. Barbagallo, 105 Nev. 546, 551, 779 P.2d 532, 536 (1989).
In Herz v. Gabler-Herz, 107 Nev. 117, 808 P.2d 1 (1991), the district court found that
appellant had vastly greater wealth than respondent. This court held that the district court did
not abuse its discretion in ordering an upward departure from the statutory formula based on a
factor other than increased need. Id. at 119, 808 P.2d at 1; accord Chambers v. Sanderson,
107 Nev. 846, 822 P.2d 657 (1991).
__________

3
NRS 125B.070 provides in part:
1(b) Obligation for support means the amount determined according to the following schedule:
(1) For one child, 18 percent; . . . of a parent's gross monthly income, but not more than $500 per
month per child for an obligation for support . . . unless the court sets forth findings of fact as to the basis
for a different amount pursuant to subsection 6 of NRS 125B.080.

4
NRS 125B.080(9) states:
The court shall consider the following factors when adjusting the amount of support of a child upon
specific findings of fact:
(a) The cost of health insurance;
(b) The cost of child care;
(c) Any special educational needs of the child;
(d) The age of the child;
(e) The responsibility of the parents for the support of others;
(f) The value of services contributed by either parent;
(g) Any public assistance paid to support the child;
(h) Any expenses reasonably related to the mother's pregnancy and confinement;
(i) The cost of transportation of the child to and from visitation if the custodial parent moved with the
child from the jurisdiction of the court which ordered the support and the noncustodial parent remained;
(j) The amount of time the child spends with each parent;
(k) Any other necessary expenses for the benefit of the child; and
(l) The relative income of both parents.
114 Nev. 572, 580 (1998) Love v. Love
In the present case, the district court based its order to increase child support upon the
vast difference in the parties' financial resources and the increased expenses of a teenager.
Michael argues that Catherine is not paying her share of the child's expenses. This
argument is without merit.
Child support is not calculated as a supplement to the presumably inadequate means of
the custodial parent. NRS 125B.070 specifies a parent's duty of child support according
to the parent's means rather than according to the child's needs. Although the ultimate
policy objective may be the welfare of the child, the legislative scheme implements this
policy by focusing the court's attention upon a parent's statutory duty to provide a fixed
percentage of his income as support.
Lewis v. Hicks, 108 Nev. 1107, 1113, 843 P.2d 828, 832 (1992). We conclude that the
district court properly considered Michael's financial circumstances in departing from the
statutory child support formula.
The court made its decision without a hearing. However, the parties do not dispute
that Michael's earnings are much greater than Catherine's, and Michael stipulated that he
could pay any reasonable amount of child support. We conclude that the district court did not
abuse its discretion in departing from the statutory child support formula and ordering a
modification of child support to $1,800 per month based on the factors stated by the court.
[Headnote 13]
Michael also argues that the district court abused its discretion in ordering him to pay
for private school without first holding an evidentiary hearing. The parties' marital settlement
agreement stated in part:
(2) As and for additional child support, HUSBAND shall pay all reasonable and
necessary medical, dental and educational expenses of the minor child from the date of
execution of this Agreement and continuing thereafter until such time as HUSBAND's
obligation to support said child shall cease.
Michael contends that because the term educational expenses in the parties' marital
settlement agreement is unclear, he should be permitted to introduce parol evidence that the
parties did not intend educational to include private education.
[Headnote 14]
Where language in a document is clear and unambiguous on its face, the court must
construe it based on this plain language. Southern Trust v. K & B Door Co., 104 Nev.
564,763 P.2d 353 {19SS).
114 Nev. 572, 581 (1998) Love v. Love
(1988). We perceive no ambiguity in the marital settlement agreement regarding this issue so
as to require an evidentiary hearing. Tuition clearly falls within the term educational
expenses. The agreement does not state that reasonable and necessary . . . educational
expenses cannot include private school tuition. The fact that the child attended public school
for several years does not alter the provision. Accordingly, we conclude that the district court
did not err in declining to hold a hearing on this issue. We further conclude that the district
court properly exercised its discretion in ordering Michael to pay private school tuition.
Michael argues that the district court abused its discretion in awarding attorney fees,
and in permitting Catherine to submit a sealed statement of attorney fees. Michael contends
that NRS 18.010(2)(b)
5
only permits an award of attorney fees to a prevailing party, which
Catherine was not. Michael contends that the court did not find that his action was brought
without reasonable grounds or that he acted to harass Catherine.
Michael contends that he should be afforded an opportunity to dispute fees related to a
bogus claim which may be included in the sealed statements. Catherine argues that the billing
statements contained privileged information; therefore, the district court properly reviewed
them in camera.
[Headnote 15]
The district court's order and judgment did not state the basis for its award of attorney
fees and costs. In the present case, NRS 18.010(2)(b) is not the only statute that could have
served as a basis for the fees. NRS 125.150(3) states:
Whether or not application for suit money has been made under the provisions of NRS
125.040, the court may award a reasonable attorney's fee to either party to an action for
divorce if those fees are in issue under the pleadings.
See Leeming v. Leeming, 87 Nev. 530, 490 P.2d 342 (affirming award of attorney fees for
post-judgment motion in divorce action); cf. Korbel v. Korbel, 101 Nev. 140, 696 P.2d 993
(1985). Such an award is within the sound discretion of the district court.
__________

5
NRS 18.010(2) states, in pertinent part:
2. 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, counterclaim,
cross-claim or third-party complaint or defense of the opposing party was brought without reasonable
ground or to harass the prevailing party.
114 Nev. 572, 582 (1998) Love v. Love
district court. Fletcher v. Fletcher, 89 Nev. 540, 543-44, 516 P.2d 103, 104 (1973).
[Headnote 16]
However, because the billing statements were sealed and the district court reviewed
them in camera, this court is unable to assess the validity of the award of attorney fees. We
conclude that to grant attorney fees based upon sealed billing statements unfairly precluded
Michael from disputing the amount and legitimacy of the award. We, therefore, reverse the
award of attorney's fees and remand with instructions to the district court to allow Michael to
review and dispute expenses contained within the billing statement.
The district court erred in concluding that paternity was conclusively established on the
basis of res judicata without a factual determination as to whether the original judgment was
procured by fraud. Therefore, we reverse the order of the district court resolving appellant's
paternity complaint, and remand this matter to the district court for further proceedings
consistent with this opinion. Pending the district court's further decisions, we perceive no
abuse of discretion in the district court's continuing to require Michael to pay increased child
support and private tuition.
I agree that res judicata does not bar Mr. Love from denying paternity; however, I
dissent from this court's requiring him to pay child support and tuition under the
circumstances of this case.
____________
114 Nev. 582, 582 (1998) Dotson v. State
CHIRQUINTA MARIE DOTSON, Appellant v. THE STATE OF NEVADA, Respondent
No. 28371
May 19, 1998 958 P.2d 81
Appeal from a district court order dismissing appellant's post-conviction petition for a
writ of habeas corpus and recommending the forfeiture of up to sixty days of appellant's good
time credits. Third Judicial District Court, Churchill County; Mario G. Recanzone, Judge.
Inmate filed post-conviction petition for writ of habeas corpus. The district court
denied the petition and recommended the forfeiture of prisoner's "good time" credits.
forfeiture of prisoner's good time credits. Inmate appealed. The supreme court held that
credit forfeiture statute relating to frivolous claims by inmates is inapplicable to
post-conviction habeas corpus actions.
Affirmed in part, reversed in part, and remanded with instructions.
Paul Drakulich, Public Defender and John S. Hill, Deputy Public Defender, Churchill
County, for Appellant.
Frankie Sue Del Papa, Attorney General, Julie A. Slabaugh, Deputy Attorney General
and Todd J. Dressel, Deputy Attorney General, Carson City; Kevin L. Pasquale, District
Attorney, Churchill County, for Respondent.
Prisons.
Statute, providing that inmate who is found by the court to have filed frivolous or improper pleading or motion forfeits good
time credits earned before the commission of the offense or act, is inapplicable to post-conviction habeas corpus actions, as the statute
is expressly limited to civil cases. NRS 209.451(1)(d), (2), (3).
OPINION
Per Curiam:
On July 26, 1995, the district court convicted appellant, pursuant to a guilty plea, of one count of possession of a controlled
substance, a violation of NRS 453.336. The district court sentenced appellant to serve six years in the Nevada State Prison. Appellant did
not file a direct appeal.
On December 29, 1995, appellant filed in the district court a proper person post-conviction petition for a writ of habeas corpus. On
January 8, 1996, without appointing counsel, conducting an evidentiary hearing, or receiving a response from the state, the district court
dismissed appellant's petition. The district court further determined, pursuant to NRS 209.451(1)(d)(2) and NRS 209.451(1)(d)(3), that
appellant had presented frivolous claims.
1

__________

1
NRS 209.451(1)(d) provides that, if an offender:
In a civil action, in state or federal court, is found by the court to have presented a pleading, written
motion or other document in writing to the court which:
(1) Contains a claim or defense that is included for an improper purpose, including, without
limitation, for the purpose of harassing his opponent, causing unnecessary delay in the litigation or
increasing the cost of the litigation;
(2) Contains a claim, defense or other argument which is not war-ranted by existing law or by
a reasonable argument for a change in existing law or a change in the interpretation
of existing law; or
Accordingly, the district court recommended that the Director of the Department of Prisons
order the forfeiture of up to sixty days of appellant's good time credits, if such credits had
accrued. This appeal followed.
Appellant does not challenge the district court's determination to dismiss her habeas
corpus petition. Rather, appellant claims that the district court erred in recommending the
forfeiture of her good time credits. We agree.
We conclude that NRS 209.451(1)(d) is inapplicable to NRS chapter 34 post-conviction
habeas corpus actions. The credit forfeiture provisions of NRS 209.451(1)(d) are expressly
limited to civil cases. We have repeatedly held that a post-conviction habeas corpus
proceeding cannot be characterized as either civil or criminal for all purposes. See, e.g., Beets
v. State, 110 Nev. 339, 341, 871 P.2d 357, 358 (1994) (citing Hill v. Warden, 96 Nev. 38, 40,
604 P.2d 807, 808 (1980)). Accordingly, had the legislature intended NRS 209.451(1)(d) to
apply to state habeas corpus actions, we believe that the legislature would have explicitly
made such a provision in the statute.
A review of the legislative history of NRS 209.451(1)(d) supports our conclusion.
This law, which was proposed as Assembly Bill 106, was designed to curb frivolous civil
rights actions and other civil lawsuits filed by prisoners. See Hearing on A.B. 106 Before the
Assembly Judiciary Comm., 68th Leg. (Nev., February 15, 1995); Hearing on A.B. 106
Before the Assembly Ways and Means Comm., 68th Leg. (Nev., April 3, 1995); Hearing on
A.B. 106 Before the Senate Judiciary Comm., 68th Leg. (Nev., May 22, 1995). The primary
proponents of the law, the attorney general's office and the Department of Prisons, both
indicated that such suits were consuming scarce resources.
2
See id. Accordingly, the law was
proposed to deter prisoners from filing such lawsuits. The law was not designed to deter
prisoners, who are often afforded limited legal assistance and resources, from seeking
post-conviction relief pursuant to NRS chapter 34.
__________
ranted by existing law or by a reasonable argument for a change in existing law or a change in the
interpretation of existing law; or
(3) Contains allegations or information presented as fact for which evidentiary support is not available or
is not likely to be discovered after further investigation, he forfeits all deductions of time earned by him
before the commission of that offense or act, or forfeits such part of those deductions as the director
considers just.
(Emphasis added.) The legislature enacted these provisions in 1995 as Assembly Bill No. 106. 1995 Nev. Stat.,
ch. 142, 1, at 210-11.

2
At the committee hearings, a representative from the Department of Prisons provided examples of costly,
frivolous inmate lawsuits that the legislation was designed to deter. See, e.g., Hearing on A.B. 106 Before the
Assembly Judiciary Comm., 68th Leg. (Nev., February 15, 1995). These included inmate lawsuits filed against
the Department of Prisons challenging the conditions of confinement and a suit filed against a company that had
contracted with Prison Industries to market its products. See id.
prisoners, who are often afforded limited legal assistance and resources, from seeking
post-conviction relief pursuant to NRS chapter 34.
3

For the reasons set forth above, we conclude that the district court erred in
recommending the forfeiture of appellant's good time credits. Accordingly, we remand this
matter, and we direct the district court to vacate the portion of its order recommending the
Director of the Department of Prisons to reduce appellant's good time credits. We affirm the
portion of the district court's order dismissing appellant's habeas corpus petition.
____________
114 Nev. 585, 585 (1998) Hardy & Hardy v. Wills
HARDY & HARDY, Appellant v. JOHN WILLS, Respondent
No. 25369
May 19, 1998 958 P.2d 78
Appeal from an order of the district court declaring respondent Wills' savings account
funds exempt from execution and ordering appellant to return garnished funds. Eighth
Judicial District Court, Clark County; Jeffrey D. Sobel, Judge.
After workers' compensation recipient claimed his savings account funds were exempt
from execution as disability compensation, law firm filed motion to determine claim of
exemption from execution, in order to retain the funds that had been paid to it in partial
satisfaction of default judgment against recipient. The district court declared funds exempt
from execution and ordered law firm to return garnished funds. Law firm appealed. The
supreme court held that savings account funds did not remain exempt from execution under
workers' compensation statute after compensation check was paid to worker and negotiated
by him.
Muije & Varricchio, Las Vegas, for Appellant.
John Wills, Las Vegas, in Proper Person.
Question of whether workers' compensation funds remain exempt from attachment, garnishment and execution
under workers' compensation statute after compensation check is paid to worker and negotiated by him
was question of statutory construction, and as such, was reviewed de novo.
__________

3
In a post-conviction habeas corpus action, pursuant to NRS chapter 34, a prisoner may only challenge the
judgment of conviction or sentence in a criminal case, or the computation of time the prisoner has served
pursuant to a judgment of conviction. See NRS 34.720; see also Bowen v. Warden, 100 Nev. 489, 686 P.2d 250
(1984) (stating that a petitioner may not challenge the conditions of confinement in a petition for a writ of habeas
corpus).
from attachment, garnishment and execution under workers' compensation statute after compensation check is paid to worker and
negotiated by him was question of statutory construction, and as such, was reviewed de novo. NRS 616C.205.
Savings account funds of workers' compensation recipient did not remain exempt from attachment, garnishment and execution
under workers' compensation statute after compensation check was paid to worker and negotiated by him, and thus, such funds could
be used to satisfy default judgment against him. NRS 616C.205.
3. Statutes.
Words in statute will be given their plain meaning unless doing so violates spirit of act.
Compensation that is payable is money that is due or is to be paid, under workers' compensation statute exempting such
compensation from attachment, garnishment and execution; it is not money that has been paid. NRS 616C.205.
5. Statutes.
It is ordinarily presumed that legislature, by deleting express portion of law, intended substantial change in law.
OPINION
Per Curiam:
Respondent John Wills retained the law firm of Hardy & Hardy in June 1991 to help him recover workers' compensation
benefits for a job-related injury. Wills agreed to pay the firm 25% of the gross amount recovered, unless he terminated the representation
before recovering benefits or receiving or accepting a settlement offer. In the event that Wills terminated the representation before
recovering benefits or receiving or accepting a settlement offer, he agreed to pay for all services rendered at the firm's prevailing hourly rate
plus out-of-pocket costs.
In September 1991, Wills was offered $40,664.68 to settle his claim. Wills rejected the offer, and fired Hardy & Hardy. The firm
subsequently billed Wills $10,253.37: $10,161.17 as its fee (25% of the settlement offer), plus out-of-pocket costs of $92.20. Wills refused
to pay the bill, so the firm filed an action against Wills in October 1992. Wills' failure to answer resulted in the entry of a default judgment
against him in February 1993 for the principle amount of $10,253.37, plus pre-judgment interest of $1,743.07, costs of $255.00, and
attorney's fees of $2,560.00.
On June 7, 1993, the district court clerk issued writs of execution and garnishment, which were immediately served on Wills'
credit union. The credit union responded on June 8, 1993, and delivered to the sheriff a check for $118.32, the entire balance of Wills'
savings account. On June 9, 1993, the sheriff endorsed the check and delivered it to counsel for Hardy & Hardy.
endorsed the check and delivered it to counsel for Hardy & Hardy.
On June 15, 1993, Wills filed an affidavit claiming his savings account consisted of
disability compensation, exempt from execution under NRS 616.550. Wills subsequently
moved to set aside the default judgment. The district court denied the motion in December
1993.
1

Meanwhile, in October 1993, Hardy & Hardy filed a motion to determine claim of
exemption. In support of its motion, the firm submitted an affidavit of the attorney
representing it, asserting Wills testified in July 1993 at a show cause/contempt proceeding
that it was his routine practice, upon receipt of his monthly SIIS disability income check, to
take that check to a casino for cashing at a paycheck wheel, and at some subsequent date,
deposit any funds remaining into his bank account at the credit union. Based on the cashing
of the SIIS check and the subsequent deposit of remaining funds in a general account, the
firm argued the funds lost their exempt status.
The district court disagreed. In February 1994, the court declared Wills' savings
account funds exempt from execution and ordered Hardy & Hardy to return the garnished
funds to the sheriff. Hardy & Hardy timely appealed.
[Headnote 1]
We are asked to decide whether workers' compensation funds remain exempt from
attachment, garnishment and execution under NRS 616C.205 (formerly NRS 616.550) after
the compensation check is paid to the worker and negotiated by him. The question is one of
statutory construction, which we review de novo. Nyberg v. Nev. Indus. Comm'n, 100 Nev.
322, 324, 683 P.2d 3, 4 (1984).
When the writ of execution was issued in this case, former NRS 616.550 provided, in
relevant part:
compensation payable under this chapter, whether determined or due, or not, is not,
before the issuance and delivery of the check, assignable, is exempt from attachment,
garnishment and execution, and does not pass to any other person by operation of law.
The statute was amended in 1993 and redesignated NRS 616C.205, but the language relevant
to this appeal was not changed. The definition of compensation also has not changed in any
significant way.
__________

1
Wills appealed from the district court's order denying his motion to set aside the default judgment. This
court dismissed his proper person appeal on March 31, 1997.
in any significant way. Former NRS 616.045 was amended and redesignated NRS 616A.090;
however, both versions provide
Compensation' means the money which is payable to an employee or to his dependants
as provided for . . ., and includes benefits for funerals, accident benefits and money for
rehabilitative services.
Although the exemption statute has existed since 1913, this court has interpreted it
only once. In Dunseath v. Industrial Commission, 52 Nev. 104, 282 P. 879 (1929), an injured
worker's attorney sought to compel the commission to pay him $600 out of the worker's
award. The attorney alleged that amount was the agreed compensation for his services in
securing a larger award for the worker than had been allowed by the commission. The district
court dismissed the case after concluding the contract for compensation of the attorney out of
the award money was void under the exemption statute. This court affirmed, concluding the
compensation awarded by the judgment was within the scope of the exemption statute, which
mandated payment of the award only to the claimant. Regarding the validity of the contract,
this court held the worker and his attorney were not prohibited by the [exemption statute]
from contracting for the payment of an attorney fee to the latter, but from agreeing that it
should be paid out of the award.
2
Id. at 111, 282 P. at 880. Dunseath does not address the
issue presently before us.
Cases from other states that have addressed the issue are in conflict, based in large part on
variations in statutory language and individual legislative history. See Jay M. Zitter,
Annotation, Validity, Construction, and Effect of Statutory Exemptions of Proceeds of
Workers' Compensation Awards, 48 A.L.R. 5th 473, 18, at 534-47 (1997). The opinions in
some of the cases support a broad exemption that provides maximum protection to injured
workers by covering the bank deposits or property into which compensation proceeds have
been converted.
3
We do not believe that our legislature intended such a broad exemption,
however.
__________

2
The posture of the case on appeal is such that the issue is not before us; thus, we do not decide whether the
Hardy & Hardy retainer agreement violates the Dunseath prohibition against providing for payment of an
attorney's fee out of a compensation award.

3
For example, in the case relied upon by the district court, Billingslea v. Tartell, 35 S.E.2d 89 (W. VA.
1945), the court held money received as workers' compensation retained its exemption after it was delivered to
the claimant and deposited in a bank. The court noted the claimant had no practical way of collecting his
compensation other than to cash the check and no reasonable way to safeguard it except by leaving it on deposit.
The court reasoned the compensation money did not lose its exemption by being deposited in the bank because it
had not been spent, invested or commingled,
As it was originally enacted, the statutory exemption provided:
No money paid, or payable, under this act out of the state insurance fund shall, prior to
the issuance and delivery of the warrant therefor, be capable of being assigned; nor
shall the same be ever taken in execution, or attached or garnished, nor shall the same
pass to any other person by operation of law. Any such assignment or charge shall be
void.
1913 Nev. Stat., ch. 111, 28, at 148.
In the next legislative session, the section 28 exemption was amended so that the
relevant portion read:
Compensation payable under this act, whether determined or due, or not, shall not,
prior to the issuance and delivery of the warrant therefor, be assignable; shall be exempt
from attachment, garnishment, and execution, and shall not pass to any other person by
operation of law; . . .
1915 Nev. Stat., ch. 190, 10, at 291.
As amended, money or compensation paid is no longer included in the exemption,
and the exemption is no longer permanent. In 1947 the exemption was repealed, re-enacted
and recodified, but the 1915 changes to which we refer were retained and remain to this day.
1947 Nev. Stat., ch. 168, 66, at 592-93, and 100, at 604; NRS 616C.205 (formerly NRS
616.550).
[Headnotes 2-5]
Given the language and history of the exemption statute, we are unable to construe it
to exempt compensation once it has been paid to a worker. It is well settled that words in a
statute will be given their plain meaning unless doing so violates the spirit of the act. McKay
v. Bd. of Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 441 (1986). Compensation that is
payable is money that is due or is to be paid; it is not money that has been paid. It is
ordinarily presumed that the legislature, by deleting an express portion of a law, intended a
substantial change in the law. Id. at 650, 730 P.2d at 442. The legislature removed an
exemption for money paid, and we may not recreate that exemption.
We note the Supreme Court of Oregon, construing similar statutory language and
legislative history in McCabe v. Fee, 568 P.2d 661 (Or. 1977), reached the same result that
we reach today. Furthermore, the Oregon court observed that an exemption for compensation
before it is paid to the worker serves a reasonable purpose: it protects employers, insurers,
and the state workers' compensation fund from the necessity of dealing with
garnishments by injured workers' creditors, while providing the workers some protection
by assuring that compensation benefits will reach them intact so they can control the
immediate disposition of the money.
__________
and had not lost its identity. Id. at 94. Though the opinion makes an appealing policy argument in support of a
broader exemption, we leave to the legislature the decision whether to broaden Nevada's exemption statute.
purpose: it protects employers, insurers, and the state workers' compensation fund from the
necessity of dealing with garnishments by injured workers' creditors, while providing the
workers some protection by assuring that compensation benefits will reach them intact so
they can control the immediate disposition of the money. Id. at 662.
We therefore reverse the order of the district court declaring Wills' savings account
funds exempt from execution and ordering Hardy & Hardy to return the garnished funds to
the sheriff, and remand this matter to the district court for further proceedings consistent with
this opinion.
____________
114 Nev. 590, 590 (1998) Crump v. District Court
THOMAS W. CRUMP, Petitioner, v. THE FIRST JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, In and For Carson City, and THE HONORABLE MICHAEL
R. GRIFFIN, District Judge, Respondents, and THE STATE OF NEVADA, Real
Party in Interest.
No. 32020
May 19, 1998 958 P.2d 1200
Original petition for a writ of certiorari or in the alternative a writ of mandamus or in
the alternative a writ of prohibition. First Judicial District Court, Carson City; Michael R.
Griffin, Judge.
Defendant's conviction of first degree murder was affirmed by the supreme court, 102
Nev. 158, 716 P.2d 1387 (1986). Defendant filed his second petition for post-conviction
relief in county of his incarceration. The district court denied petition without evidentiary
hearing, and the supreme court remanded for hearing in same county and denied defendant's
motion for rehearing on proper county for remand. After the district court in Carson City
denied defendant's motion for change of venue on remand, defendant petitioned for writ of
certiorari or in alternative writ of mandamus or prohibition. The supreme court held that: (1)
district court could constitutionally retain jurisdiction over petition following defendant's
transfer to prison in another district, and (2) change of venue was not appropriate where nine
years had elapsed between filing of petition and motion to change venue.
Petition denied.
Steven G. McGuire, State Public Defender, and James P. Logan, Deputy Public
Defender, Carson City, for Petitioner.
Frankie Sue Del Papa, Attorney General, and Julie A. Slabaugh, Deputy Attorney
General, Carson City; Noel S. Waters, District Attorney, Carson City, for Real Party in
Interest.
1. Habeas Corpus.
Having once properly exercised jurisdiction over a habeas proceeding, a district court may retain jurisdiction despite a transfer
of the habeas petitioner to a prison outside the court's judicial district. Const. art. 6, 6, cl. 1.
2. Criminal Law.
Where petitioner was incarcerated in judicial district at time he filed his second post-conviction relief petition, court in that
judicial district could retain jurisdiction over petition despite petitioner's subsequent transfer to another judicial district. Const. art. 6,
6, cl. 1.
3. Criminal Law.
Post-conviction relief petitioner was not entitled to extraordinary relief in form of writ of mandamus or writ of prohibition to
effect change of venue from judicial district of his incarceration at time that petition was filed to judicial district in which he was
incarcerated after prison transfer, as court was entitled to retain jurisdiction and more than nine years elapsed between filing of petition
in district and motion to change venue. Const. art. 6, 6, cl. 1.
OPINION
Per Curiam:
On April 25, 1984, petitioner Thomas Wayne Crump was convicted in the Eighth Judicial District Court, Clark County,
pursuant to a jury verdict, of one count of first degree murder with use of a deadly weapon and one count of robbery with use of a deadly
weapon. Crump was sentenced to death. This court affirmed his conviction and death sentence. Crump v. State, 102 Nev. 158, 716 P.2d
1387, cert. denied, 479 U.S. 871 (1986).
On October 28, 1986, Crump filed a proper person petition for post-conviction relief in the Eighth Judicial District Court. Pursuant to
NRS 177.345(1), the district court was required to appoint counsel to represent Crump upon a showing that he was indigent.
1
Therefore, on November 4, 1986, the district court appointed Barbara Schubel to represent
Crump. On April 14, 1987, the district court denied Crump's petition, and this court
dismissed the appeal from the district court's order. Crump v. State, Docket No. 18226 (Order
Dismissing Appeal, August 31, 1988).
__________

1
In 1991, NRS 177.345 was amended to make appointment of counsel discretionary. 1991 Nev. Stat., ch.
556, 19, at 1754. On January 1, 1993, this provision was repealed. 1991 Nev. Stat., ch. 44, 31, at 92.
On August 31, 1989, while incarcerated in the Nevada State Prison in Carson City,
Crump filed in the First Judicial District Court, Carson City, his second post-conviction
petition. This petition, requesting a writ of habeas corpus, alleged, inter alia, ineffective
assistance of Schubel, his first post-conviction petition counsel. On March 26, 1990, Crump
filed a supplement to his petition. On May 17, 1990, Crump filed an addendum to the
supplement to the petition. Four years later, on July 6, 1994, Crump filed a second addendum
to the supplement. In the meantime, on September 30, 1989, only one month after filing his
petition, Crump was transferred to the new death row facilities at Ely State Prison in White
Pine County.
On July 21, 1994, the state filed a motion to dismiss Crump's petition, and on August 30,
1994, Crump opposed the motion. On November 7, 1995, the First Judicial District Court
granted the state's motion and dismissed Crump's petition without holding an evidentiary
hearing. Crump appealed to this court.
On February 26, 1997, this court issued an opinion, remanding this case to the First
Judicial District Court where Crump's second post-conviction petition was originally properly
filed on August 31, 1989. This court ordered the district court to hold an evidentiary hearing
on the issue of ineffective assistance of Crump's first post-conviction petition counsel,
Schubel. Crump v. Warden, 113 Nev. 293, 304, 934 P.2d 247, 254 (1997). On March 14,
1997, Crump filed a petition for rehearing, contending that this court erred by remanding his
case to the First Judicial District Court. He argued for the first time that because provisions of
NRS Chapter 34 and Article 6, Section 6, Clause 1 of the Nevada Constitution changed,
effective 1993, this court should have remanded this case to the Eighth Judicial District
Court, where he was convicted.
On December 17, 1997, this court issued an order denying rehearing, rejecting Crump's
argument that pursuant to NRS 34.738(1),
2
the Eighth Judicial District Court had sole
jurisdiction over these proceedings. We concluded that because NRS 34.738 only applied to
petitions filed on or after January 1, 1993, it did not apply to Crump's August 31, 1989
petition. See 1991 Nev. Stat., ch. 44, 32, at 92. In that order, we did not address how Article
6, Section 6, Clause 1 of the Nevada Constitution applies in this case. Crump v. Warden,
Docket No. 27937 (Order Denying Rehearing, December 17, 1997).
On January 16, 1998, Crump moved the First Judicial District Court to change venue
to the Eighth Judicial District Court.
__________

2
NRS 34.738(1) states in part: A petition that challenges the validity of a conviction or sentence must be
filed with the clerk of the district court for the county in which the conviction occurred.
Court to change venue to the Eighth Judicial District Court. After arguments, on February 9,
1998, the district court denied the motion.
On March 24, 1998, Crump filed the instant petition for a writ of certiorari or in the
alternative a writ of mandamus or in the alternative a writ of prohibition. In his petition,
Crump asserts that the Nevada Constitution requires his case to be remanded to the Eighth
Judicial District Court, where he was convicted, because he is no longer incarcerated in
Carson City and was not convicted there.
Our initial inquiry is whether extraordinary relief is available to review the challenged
order. Crump's instant petition challenges the First Judicial District Court's jurisdiction,
claiming specifically that the court exceeded its jurisdiction by denying Crump's motion to
change venue and that the court lacks jurisdiction to conduct the required evidentiary hearing
and rule on his post-conviction petition. Further, as an order denying a motion to change
venue in a criminal case is not an order subject to an interlocutory appeal, Crump alleges that
he has no plain, speedy, and adequate legal remedy. See Mazzan v. Warden, 112 Nev. 838,
843 n.2, 921 P.2d 920, 922 n.2 (1996). Crump argues that his only remedy at law would be to
proceed with the evidentiary hearing in the First Judicial District Court and if he loses, raise
the change-of-venue issue as one claim in his appeal to this court. This, he contends, is no
remedy at all. Assuming that this court may appropriately exercise its discretion to entertain
this original petition for extraordinary relief, we conclude that such relief is not warranted and
therefore deny the instant petition.
Crump alleges in the petition that the First Judicial District Court lacks jurisdiction to
conduct an evidentiary hearing and rule on his second post-conviction petition. His argument
relies on the Nevada Constitution, Article 6, Section 6, Clause 1, which reads in part:
The District Courts and the Judges thereof shall also have power to issue writs of
Habeas Corpus on petition by, or on behalf of any person who is held in actual custody
in their respective districts, or who has suffered a criminal conviction in their respective
districts and has not completed the sentence imposed pursuant to the judgment of
conviction.[
3
] Accordingly, Crump argues that this court erred by remanding the
proceedings on his second post-conviction petition to the First Judicial District
Court, where he was not convicted and where he is no longer held in custody.
__________

3
In 1989, prior to the constitutional amendment effective January 1, 1993, this provision granted district
courts the power to issue a writ of habeas corpus only on behalf of a person held in actual custody in their
respective districts. Nev. Const. art. VI, 6, cl. 1 (1989). Consequently, Crump's argument that the First
Judicial District Court lost jurisdiction could have been raised as early as September 30, 1989, when he
transferred prisons.
Accordingly, Crump argues that this court erred by remanding the proceedings on his second
post-conviction petition to the First Judicial District Court, where he was not convicted and
where he is no longer held in custody. Rather, Crump insists that the proper venue for his
second post-conviction petition is in the Eighth Judicial District Court, where he was
convicted on April 25, 1984.
Crump concedes that on August 31, 1989, he was required to file his second
post-conviction petition in the First Judicial District Court and that such filing was proper.
4
However, Crump urges us to adopt a narrow reading of our state constitution which would
divest the First Judicial District Court of jurisdiction over Crump's second post-conviction
petition once he was transferred to the new death row facilities in White Pine County on
September 30, 1989. Crump implores us to ratify his interpretation even though jurisdiction
in the First Judicial District Court was proper when the petition was filed one month earlier
and the First Judicial District Court presided over the proceedings for more than eight years.
[Headnotes 1, 2]
We conclude that having once properly exercised jurisdiction over a habeas
proceeding, a district court may retain jurisdiction despite a transfer of the habeas petitioner
to a prison outside the court's judicial district. This reading of the Nevada Constitution
promotes judicial economy and prevents unnecessary delay and waste of state resources.
Accordingly, we hold that the First Judicial District Court may retain jurisdiction over
Crump's second post-conviction petition despite his subsequent transfer to White Pine
County.
[Headnote 3]
The First Judicial District Court and the attorneys in this case are familiar with the
issues and facts of the post-conviction petition. Changing venue at this point in time, after
nine years have already elapsed since Crump filed his second post-conviction petition, and
where Crump failed to assert this contention until recently would create more unnecessary
delay and would not serve the ends of justice.
__________

4
In 1989, NRS 34.730(1) read in part: A petition for a writ of habeas corpus . . . must be . . . filed with the
clerk of the district court for the county in which the petitioner is in actual custody. (Emphasis added.) In 1991,
the Nevada Legislature eliminated the requirement that the petition for habeas relief be filed where the petitioner
is in custody. 1991 Nev. Stat., ch. 44, 12, at 79. Instead, the legislature enacted NRS 34.738, effective for
petitions filed on or after January 1, 1993, requiring the petition to be filed where the petitioner was originally
convicted. 1991 Nev. Stat., ch. 44, 6, at 76.
would not serve the ends of justice.
5
Accordingly, we deny Crump's petition for a writ of
certiorari or in the alternative a writ of mandamus or in the alternative a writ of prohibition.
6

____________
114 Nev. 595, 595 (1998) Gallagher v. City of Las Vegas
JAMES GALLAGHER, Appellant, v. CITY OF LAS VEGAS, Respondent.
No. 29354
CITY OF LAS VEGAS, Appellant, v. WILLIAM SORENSEN, Respondent.
No. 29615
May 19, 1998 959 P.2d 519
Appeal from an order of the district court affirming the denial of occupational disease
benefits to appellant Gallagher, a retired firefighter with heart disease (Docket No. 29354).
Appeal from an order of the district court affirming an award of occupational disease benefits
to respondent Sorensen, a retired firefighter with heart disease (Docket No. 29615). Eighth
Judicial District Court, Clark County; Sally L. Loehrer and A. William Maupin, Judges.
Firefighter who was disabled by heart disease after his retirement petitioned for
judicial review after his request for occupational disease benefits was denied. In separate
case, city petitioned for judicial review after benefits were granted to another retired
firefighter who developed heart disease after retiring. The district court denied petitions, and
appeal was taken. The supreme court held that firefighters were entitled to benefits under
statute establishing conclusive presumption that a firefighter's heart disease arose out of and
in the course of employment if certain conditions are met.
Reversed and remanded with instructions (Docket No. 29354); and affirmed
(Docket No. 29615).
Nancyann Leeder, General Counsel, Nevada Attorney for Injured Workers, Carson
City, for Appellant Gallagher and Respondent Sorensen.
__________

5
We grant the state's April 21, 1998 motion for leave to file an answer to Crump's petition for a writ of
certiorari. We direct the clerk of this court to file the state's answer, received on April 21, 1998.

6
McGroarty & Lane, Chtd. and Jason M. Burk, Las Vegas, for City of Las Vegas.
Veteran firefighters who were disabled by heart disease after they retired were entitled to occupational disease benefits under
statute establishing conclusive presumption that a firefighter's heart disease arose out of and in the course of employment if certain
conditions are met, where firefighters were employed in full-time continuous, uninterrupted and salaried occupations in state as
firefighters for more than five years before they were disabled. NRS 617.457(1).
Construction of a statute is a question of law, which supreme court reviews de novo. NRS 233B.135(3)(d).
3. Statutes.
When a statute is capable of two or more reasonable but inconsistent interpretations, it is ambiguous and supreme court must
determine what the legislature intended by its enactment.
4. Statutes.
The leading rule of statutory construction is to ascertain the legislature's intent, and to accomplish that goal supreme court may
examine the context and spirit of the statute in question, together with the subject matter and policy involved.
5. Statutes.
Supreme court's interpretation of statute should be in line with what reason and public policy would indicate the legislature
intended, and should avoid absurd results.
The primary purpose of Nevada's workers' compensation laws is to provide economic assistance to persons who suffer disability
or death as a result of their employment.
OPINION
Per Curiam:
[Headnote 1]
In these appeals, we are asked to decide whether veteran firefighters who are disabled by heart disease after they retire are
entitled to occupational disease benefits under NRS 617.457(1), which establishes a conclusive presumption that a firefighter's heart
disease arose out of and in the course of employment if certain conditions are met. Based on the history and language of the statute, and the
public policy underlying its enactment, we conclude that appellant Gallagher and respondent Sorensen may invoke the conclusive
presumption to establish their claims for benefits.
FACTS
Gallagher, Docket No. 29354. The City of Las Vegas employed appellant James Gallagher as a firefighter on a
full-time, continuous, uninterrupted, salaried basis from February 1962 until June 30, 1992, when he retired.
employed appellant James Gallagher as a firefighter on a full-time, continuous, uninterrupted,
salaried basis from February 1962 until June 30, 1992, when he retired. During his
employment, Gallagher underwent mandatory annual physical examinations, none of which
revealed any heart disease. Nevertheless, in 1991 Gallagher felt unwell. He attributed being
tired all the time to his demanding work schedule, but was concerned about recurring pain in
his side, shoulder and jaw. Gallagher reviewed his 1991 physical with his family doctor, who
explained that everything appeared normal. Gallagher passed his next mandatory physical in
early 1992, but was still experiencing pain along the back of his arm and in his jaw, shoulder
and side. In addition, he was experiencing some shortness of breath. Gallagher had planned to
retire on January 1, 1993, but when the City offered him an early retirement, he immediately
accepted it and retired on June 30, 1992.
On January 31, 1994, Gallagher suffered a heart attack and learned he had coronary
artery disease. He underwent angioplasty to increase blood flow in his right coronary artery.
In February 1994, Gallagher submitted a claim for benefits. The City, a self-insured
employer, denied the claim. The denial of benefits was upheld on review by a hearing officer
and an appeals officer, who both concluded that Gallagher did not qualify for the conclusive
presumption of coverage provided by NRS 617.457(1) and did not prove a causal connection
between his heart disease and his employment. The district court denied Gallagher's petition
for judicial review, and Gallagher appeals.
Sorensen, Docket No. 29615. The City of Las Vegas employed respondent William
Sorensen as a firefighter on a full-time, continuous, uninterrupted, salaried basis from
November 1957 until June 1992, when he retired. Sorensen also took and passed mandatory
annual physical examinations. In June 1982 Sorensen experienced chest pains at work, with
pain in his left arm and other symptoms of a heart attack, for which he sought emergency
care. A cardiologist examined Sorensen, had him take a stress treadmill test and placed him
on a 24-hour heart monitor; the tests revealed an irregular heartbeat, but no evidence of heart
disease.
1
Although Sorensen experienced intermittent exercise-induced chest pain for some
time before he retired, and his 1990-1992 treadmill tests suggested possible arterial blockage,
follow-up thallium stress tests revealed no evidence of heart disease.
__________

1
After the 1982 incident, Sorensen submitted a claim to the State Industrial Insurance System (SIIS) for
reimbursement of his medical expenses under NRS 617.457. SIIS denied the claim. The hearing officer and
appeals officer who reviewed the denial affirmed it because there was no evidence that Sorensen had heart
disease. The agency decision was not appealed and is not now at issue.
follow-up thallium stress tests revealed no evidence of heart disease. After he retired,
Sorensen underwent physical examinations in December 1992 and December 1993, which
were also negative for heart disease.
On February 15, 1994, Sorensen suffered a severe angina attack. An
electrocardiogram administered the following day yielded normal results, but because
Sorensen was still in pain, his family doctor referred him to a cardiologist. When additional
tests indicated arterial blockage, Sorensen was taken by ambulance to Sunrise Hospital.
Catheterization revealed severe artery disease: the left main artery, which supplies two of
three main arteries, was narrowed and severely diseased and a right artery was totally
blocked. Sorensen was taken directly to an operating room for 5-vessel bypass surgery. On
February 22, 1994, Sorensen submitted a claim for medical benefits. The City denied the
claim. On review, a hearing officer upheld the denial of benefits, but an appeals officer
reversed. The appeals officer concluded both that Sorensen qualified for the conclusive
presumption of coverage provided by NRS 617.457(1), and that he proved a causal
connection between his heart disease and his employment. The district court denied the City's
petition for judicial review, and the City appeals.
DISCUSSION
NRS 617.358 requires a person seeking compensation for an occupational disease to
establish by a preponderance of the evidence that the disease arose out of and in the course of
employment. The legislature has created an exception to this requirement, however, for
firefighters and police officers with heart disease when certain conditions are met. NRS
617.457 provides, in pertinent part:
1. Notwithstanding any other provisions of this chapter, diseases of the heart of a
person who, for 5 years or more, has been employed in a full-time continuous,
uninterrupted and salaried occupation as a fireman or police officer in this state before
the date of disablement are conclusively presumed to have arisen out of and in the
course of the employment.
The primary issue in these appeals is whether the presumption of NRS 617.457(1)
applies to a firefighter who was once employed in the occupation on a full-time continuous,
uninterrupted and salaried basis for five years or more, but is no longer so employed at the
time of disablement.
The City contends NRS 617.457(1) is plain and unambiguous, and that these retired
firefighters are not entitled to the presumption because they were not employed as
firefighters for nearly two years immediately preceding disablement.
tion because they were not employed as firefighters for nearly two years immediately
preceding disablement. Pointing out that there would be coverage under the firefighters'
interpretation of the statute for a firefighter who is employed when he is twenty and quits
when he is twenty-five, then develops heart disease when he is sixty, the City asserts the
legislature could not have intended that result. Thus, the City argues the statute should be
read to require five years of service immediately preceding disablement.
The retired firefighters also contend the statute is plain and unambiguous, but they
interpret it to mean that the presumption applies after retirement, as long as the conditions
have all been met before the date of disablement. They point out there is no language in the
statute requiring service immediately preceding the date of disablement, although the
legislature clearly knows how to draft such a condition: a 1987 amendment to NRS 617.457
contained such language in its conditions of coverage, albeit in a different context, but a 1989
amendment deleted it.
2
The firefighters argue this court cannot insert words that the
legislature chose to leave out.
[Headnotes 2, 3]
Construction of a statute is a question of law, which we review de novo. NRS
233B.135(3)(d); State, Dep't of Mtr. Vehicles v. Lovett, 110 Nev. 473, 476, 874 P.2d 1247,
1249 (1994). When a statute is capable of two or more reasonable but inconsistent
interpretations, it is ambiguous and we must determine what the legislature intended by its
enactment. McKay v. Bd. of Supervisors, 102 Nev. 644, 649, 730 P.2d 438, 442 (1986). We
conclude that NRS 617.457(1) is ambiguous; either of the proffered interpretations is a
plausible reading of the requirement that the firefighter for 5 years or more . . . has been
employed . . . before the date of disablement.
[Headnotes 4, 5]
In determining which interpretation is correct, we are guided by well-established
principles of statutory construction. The leading rule is to ascertain the legislature's intent,
and to accomplish that goal we may examine the context and spirit of the statute in question,
together with the subject matter and policy involved. Id. at 650-51, 730 P.2d at 443. Our
interpretation should be in line with what reason and public policy would indicate the
legislature intended, and should avoid absurd results. Id. at 649, 730 P.2d at 442; Moody
v. Manny's Auto Repair, 110 Nev. 320, 325, S71 P.2d 935, 93S {1994).
__________

2
The statute was amended in 1987 to establish a presumption of coverage that could be rebutted by showing
that the person suffered from the same ailment sometime during the 5-year period immediately preceding
employment. (Emphasis added.) 1987 Nev. Stat., ch. 587, 1, at 1424. The statute was amended in 1989 to
create a conclusive presumption of coverage. 1989 Nev. Stat., ch. 480, 2, at 1021.
lature intended, and should avoid absurd results. Id. at 649, 730 P.2d at 442; Moody v.
Manny's Auto Repair, 110 Nev. 320, 325, 871 P.2d 935, 938 (1994).
[Headnote 6]
The primary purpose of Nevada's workers' compensation laws is to provide economic
assistance to persons who suffer disability or death as a result of their employment. SIIS v.
Jesch, 101 Nev. 690, 693-94, 709 P.2d 172, 175 (1985). Though claimants must ordinarily
establish a causal connection between their disability and their employment, the legislature
has expanded occupational disease coverage for firefighters and police officers who develop
certain diseases, such as heart disease, by relieving them from the burden of proving a causal
connection between their employment and their disease.
3
The City asserts that medical
experts disagree whether individuals in these occupations are at increased risk of developing
heart disease, but it is not for us to weigh the medical evidence; the legislature has accepted
the existence of such a causal connection and has incorporated it in NRS 617.457(1).
In considering whether these retired veteran firefighters are included within the scope of
NRS 617.457(1), we find it helpful to trace the evolution of the statute from its initial form to
its present form. When NRS 617.457(1) was enacted in 1969, it required a firefighter seeking
coverage for occupational heart disease to prove total permanent or partial disability or death
that was caused by extreme overexertion in times of stress or danger, and that arose out of
and in the course of ten years or more of firefighting as an occupation.
4
NRS 617.457(1) was
amended in 1973 to cover additional individuals whose occupations involve certain specified
kinds of stresses and to reduce the minimum required period of employment to five years.
5
Additional amendments in 1981 and 1983 limited coverage to firefighters and police officers,
but defined police officers in NRS 617.135 to include the individuals previously listed
separately in NRS 617.457, and eliminated the requirement that disability be total.
6

In 1987, the legislature reversed the burden of proof by revising NRS 617.457(1) to
create a presumption that heart diseases of firefighters and police officers, caused by
exposure to noxious gases, fumes or smoke, or extreme overexertion, stress or danger
and resulting in disability, are compensable unless it could be proved the person suffered
from the ailment sometime during the five-year period immediately preceding
employment.
__________

3
In addition to the heart disease statute at issue, NRS 617.455(5) creates a virtually identical conclusive
presumption that lung diseases are occupational diseases of firefighters and police officers employed in their
occupations for five years or more before disablement, and NRS 617.453 creates a rebuttable presumption that
cancer is an occupational disease of firefighters.

4
1969 Nev. Stat., ch. 340, 1, at 592.

5
1973 Nev. Stat., ch. 504, 1, at 768.

6
1981 Nev. Stat., ch. 339, 2, at 623-24, and ch. 438, 2 and 7, at 850-52; 1983 Nev. Stat., ch. 197, 9, at
459.
firefighters and police officers, caused by exposure to noxious gases, fumes or smoke, or
extreme overexertion, stress or danger and resulting in disability, are compensable unless it
could be proved the person suffered from the ailment sometime during the five-year period
immediately preceding employment.
7
Finally, in 1989, the legislature eliminated the list of
causative factors and abandoned the rebuttable presumption in favor of the conclusive
presumption found in the current version of NRS 617.457(1).
8

Each amendment of the statute following its adoption thirty years ago has expanded,
rather than limited, coverage for firefighters who develop heart disease. We conclude that it
would be inconsistent with the purpose and history of NRS 617.457(1) to deny Gallagher and
Sorensen, thirty-and thirty-five-year veterans of the Las Vegas Fire Department, the benefit of
the statute's application because they did not discover their heart disease until some months
after they retired. Given the language of the statute, and the spirit and policy behind it (and
similar statutes) declaring certain diseases of firefighters and police officers to be
presumptively occupation-related, the City's interpretation is unreasonable.
9

In determining that Gallagher did not qualify for the statutory presumption, the district
court also relied upon the NRS 617.457(3)
10
requirement that firefighters submit to annual
physical examinations during their employment. The court concluded this element of
coverage cannot legally be satisfied once a firefighter retires. The statute, however, merely
requires annual exams during employment. The evidence shows that Gallagher did, in fact,
submit to a physical examination, including an examination of the heart, . . . on an annual
basis during his employment and thus satisfied the requirements of NRS 617.457(3).
CONCLUSION
Because Gallagher and Sorensen were employed in full-time continuous,
uninterrupted and salaried occupations as firefighters in this state for more than five years
before they were disabled, their heart diseases are conclusively presumed to have arisen
out of and in the course of their employment. NRS 617.457{1).
__________

7
1987 Nev. Stat., ch. 587, 1, at 1424.

8
1989 Nev. Stat., ch. 480, 2, at 1021.

9
If the legislature believes some limitation is necessary, it may amend the statute to terminate application of
the presumption at some definite point. See SIIS v. Jesch, 101 Nev. 690, 695 n.2, 709 P.2d 172, 176 n.2 (1985);
NRS 617.453(3).

10
NRS 617.457(3) reads: Except as otherwise provided in subsection 4, each employee who is to be covered
for diseases of the heart pursuant to the provisions of this section shall submit to a physical examination,
including an examination of the heart, upon employment, upon commencement of coverage and thereafter on an
annual basis during his employment.
in this state for more than five years before they were disabled, their heart diseases are
conclusively presumed to have arisen out of and in the course of their employment. NRS
617.457(1). Gallagher and Sorensen are therefore entitled to occupational disease benefits as
a matter of law. We need not decide whether substantial evidence supports the appeals
officers' determinations that Gallagher did not, and that Sorensen did, prove a causal
connection between disease and employment. Accordingly, we reverse the order in
Gallagher's appeal, Docket No. 29354, and remand to the district court for further
proceedings consistent with this opinion. We affirm the order in Sorensen's appeal, Docket
No. 29615.
11

____________
114 Nev. 602, 602 (1998) Smith's Food & Drug Cntrs. v. Bellegarde
SMITH'S FOOD & DRUG CENTERS, INC., Appellant, v. ARGENTINE BELLEGARDE,
Respondent.
No. 27883
May 28, 1998 958 P.2d 1208
Appeal from judgment entered pursuant to jury award of punitive damages arising
from claims for false imprisonment and battery. Eighth Judicial District Court, Clark County;
Joseph T. Bonaventure, Judge.
Customer who suffered personal injuries when she was sprayed with pepper spray
and handcuffed while detained for investigation of shoplifting brought intentional tort suit
against store and its employees. Following jury trial, the district court entered judgment on
jury verdict awarding compensatory damages against each defendant and imposing punitive
damages only against store. Store appealed. The supreme court held that: (1) jury's refusal to
impose punitive damages against employees did not preclude award against store; (2)
employer's punitive damage liability for malicious acts of its agents and employees was to be
determined under complicity liability rule; and (3) evidence was sufficient to support award
of punitive damages against store for malicious and oppressive acts of its employees based on
acting manager's authorization or ratification of those acts.
Affirmed.
Barker, Gillock, Koning & Brown and Jerry S. Busby, Las Vegas, for Appellant.
__________

11
114 Nev. 602, 603 (1998) Smith's Food & Drug Cntrs. v. Bellegard
Sabbath & Associates, Chtd., Las Vegas, for Respondent.
1. Damages.
Issue of whether plaintiff has presented sufficient evidence of malice in fact to support punitive damages instruction is question
of law for trial court.
2. Damages.
Punitive damages award lies soley within discretion of jury, which is not required to award punitive damages, even if it finds
that defendant's acts were oppressive or malicious.
3. Principal and Agent.
Punitive damages cannot be assessed against principal for agent's tortious acts unless conduct of agent would warrant
assessment of such damages against him.
Jury's specific refusal to impose punitive liability against store employees implicated in alleged malicious or oppressive conduct
in detaining and handcuffing customer whom they erroneously suspected of shoplifting did not foreclose punitive liability against store
as jury was not asked to make special finding as to whether employees acted with malice but simply asked whether any of defendants
should be subject of punishment.
5. False Imprisonment.
Finding, in tort suit alleging false imprisonment against store and its employees, that employees acted maliciously and
oppressively in confining customer as suspected shoplifter was supported by evidence that employees confined customer to small room
for lengthy period of time, sprayed her with pepper spray, and handcuffed her for lengthy period.
6. Corporations; Master and Servant.
Any act or omission of corporate officer or employee within the scope of his employment is, as matter of law, act or omission of
such corporation.
Employer may be liable for punitive damages for acts or omissions of its agents if, but only if, (a) principal or managerial agent
authorized doing and manner of act; (b) agent was unfit and principal or managerial agent was reckless in employing or retaining him;
(c) agent was employed in managerial capacity and was acting in scope of his employment; or (d) principal or managerial agent of
principal ratified or approved act.
Substantial evidence supported award of punitive damages against store for its complicity in actions of its employees that
resulted in customer's injuries during detention for suspected shoplifting where all actions taken by store employees, including spraying
customer with pepper spray and handcuffing her, were authorized or ratified by store through its acting manager.
OPINION
Per Curiam:
This is an appeal from an order denying appellant's motion for judgment notwithstanding jury verdict or, in the
alternative, for new trial.
judgment notwithstanding jury verdict or, in the alternative, for new trial. The primary claim
of error is addressed to the district court's refusal to strike an award of punitive damages
against a corporate defendant where the jury failed to impose punitive liability on corporate
employees. We affirm.
FACTS
On October 19, 1989, respondent Argentine Bellegarde (Bellegarde), a twenty-four
year old Haitian immigrant, was accused of shoplifting by employees of a Smith's Food &
Drug Center (Smith's) in Las Vegas. The store in question was the nationwide leader
among Smith's outlets in shoplifting losses. Sheila Holoubek (Holoubek), normally a key
manager in charge of cashiers, was acting as temporary store manager at the time of the
incident. Holoubek was not formally trained in company procedures for detecting and
handling shoplifters. Prior to assuming her responsibilities on the day in question, her only
instructions had been to inform a manager upon observation of shoplifting activity.
At some point during her shift, Holoubek thought she saw Bellegarde place a pack of
chewing gum in her purse. About forty-five minutes later, Holoubek, a security guard and
several box boys confronted Bellegarde in the parking lot of the store, at which time
Holoubek requested permission to search Bellegarde's purse. Bellegarde, who was
accompanied by a friend, agreed on the condition that police be called to witness the search.
Bellegarde and the friend were then escorted to an upstairs office inside the store.
Although police initially refused Holoubek's request to respond to the scene, the
dispatcher instructed Holoubek to search the purse and call back if the package of chewing
gum was located. During this time, Bellegarde's friend left the room to make a separate call to
the authorities. Bellegarde remained behind in the room with Holoubek, the security guard
and two other Smith's employees, Brett Wood (Wood) and Robert Peterson (Peterson).
The security guard, Jeffrey Qualls (Qualls), then attempted to take the purse from
Bellegarde, who was sitting in a chair with the purse clutched to her body. Encountering
resistance, Qualls sprayed Bellegarde with pepper spray and then, along with Wood and
Peterson, placed her in handcuffs.
The chewing gum was never found. A second call to police resulted in their formal
intervention, after which Qualls attempted to remove the handcuffs. Because the key to the
handcuffs became jammed in the lock, a locksmith was required to effect removal.
effect removal. Bellegarde was then taken by ambulance to a local hospital for treatment of an
irritated left eye and a swollen wrist.
Bellegarde originally brought suit solely against Smith's, in which she lodged claims
of assault and battery, false imprisonment, unlawful detention, violations of NRS 598.030(3),
intentional infliction of emotional distress, slander per se, negligence and negligent infliction
of emotional distress. The district court subsequently allowed Bellegarde to amend her
complaint to add Qualls, Holoubek, Peterson and Wood as party defendants. Claims for
punitive damages were lodged against each of the individual defendants and the corporation.
During trial, Bellegarde dropped her causes of action alleging violations of NRS
598.030(3), slander per se, negligence, and negligent infliction of emotional distress. The
claims ultimately presented to the jury were restricted to those involving intentional
misconduct.
The jury returned verdicts of $500.00 in compensatory damages against each
defendant. By special interrogatory as to whether the conduct of the defendants, or any of
them, warranted the imposition of punitive damages, the jury determined that the claim for
punitive liability should go forward only as to Smith's. See NRS 42.005. Thus, the jury
refused to consider the claim against the individual defendants.
Smith's objected to the special verdict findings on the ground that the imposition of
punitive liability against a corporate principal could not be reconciled with the exoneration of
the employees who were implicated in the alleged malicious conduct. The district court
denied Smith's request for renewed deliberations to resolve the inconsistency or for entry of
judgment notwithstanding the verdict.
Following bifurcated proceedings, the jury awarded punitive damages against Smith's
in the amount of $65,000.00. The district court thereafter denied a renewed motion for
judgment notwithstanding the verdict or, in the alternative, for new trial. Smith's appeals.
DISCUSSION
Standard of Review
On review of a denial of a motion for judgment notwithstanding the verdict, this court
will view the evidence in a light most favorable to the nonmovant, and that party must be
given the benefit of every reasonable inference from any substantial evidence supporting the
verdict. NEC Corp. v. Benbow, 105 Nev. 287, 290, 774 P.2d 1033, 1035 (1989). Further,
[t]he decision to grant or deny a motion for a new trial rests within the sound discretion of
the trial court and will not be disturbed on appeal absent palpable abuse."
discretion of the trial court and will not be disturbed on appeal absent palpable abuse.
Pappas v. State, Dep't Transp., 104 Nev. 572, 574, 763 P.2d 348, 349 (1988).
Legal Foundation to Sustain the Award of Punitive Damages Against Smith's
We are asked to decide whether, as a matter of law, a jury's specific refusal to impose
punitive liability against corporate employees implicated in malicious or oppressive conduct
forecloses punitive liability against the corporate employer.
[Headnote 1]
Punitive damages under NRS 42.005 may be awarded when it is proven by clear and
convincing evidence that the defendant has been guilty of oppression, fraud or malice,
express or implied. The trial court is responsible to determine, as a matter of law, whether
the plaintiff has offered substantial evidence of malice, in fact, to support a punitive damage
instruction. Wickliffe v. Fletcher Jones of Las Vegas, 99 Nev. 353, 356, 661 P.2d 1295, 1297
(1983). Thus, the district court is charged in the first instance with determining whether
instructions on punitive damages are warranted. Nevada Cement Co. v. Lemler, 89 Nev. 447,
451, 514 P.2d 1180, 1182 (1973).
[Headnote 2]
Once instructed, the jury is not required to award punitive damages, even if it finds
that a defendant's acts were oppressive or malicious. Such awards lie solely within the
discretion of the jury. See Nevada Cement, 89 Nev. at 451, 514 P.2d at 1182. We will not
disturb an award of punitive damages unless the trial record lacks substantial evidence to
support it. First Interstate Bank v. Jafbros Auto Body, 106 Nev. 54, 56, 787 P.2d 765, 766
(1990).
The district court instructed on two separate theories of punitive liability, to wit: liability
under the doctrine of respondeat superior (vicarious liability) (jury instruction no. 36)
1
,
and complicity liability (jury instruction no. 34).
2
On appeal, Smith's contends that
respondeat superior liability, otherwise known as the "vicarious liability rule," was the
only theory under which Smith's could be assessed punitive damages.
__________

1
Jury instruction no. 36 provided:
Smith's Food and Drug Centers 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 his authority or
employment is in law the act or omission of such corporation.
This instruction, by itself, does not refer to punitive damages. However, the arguments of the parties on appeal
are based on the assumption that the instruction governs the imposition of punitive liability, if any, under a
vicarious liability theory.

2
Jury instruction no. 34 provided:
Punitive damages may be awarded against an employer for acts of
On appeal, Smith's contends that respondeat superior liability, otherwise known as the
vicarious liability rule, was the only theory under which Smith's could be assessed punitive
damages. Smith's argues that, because its employees were exonerated on the punitive damage
claims, Smith's should be exonerated as well.
Exoneration of the Agents for Punitive Liability
The district court below submitted a special interrogatory to the jury asking the
following:
Does the conduct of Defendants, or any of them, warrant the imposition of punitive or
exemplary damages?
The jury responded in the negative as to each of the employees and in the affirmative as to
Smith's. Smith's contends the jury's responses constitute specific findings that the conduct of
the employees was not malicious or oppressive, thus precluding an assessment of punitive
damages against Smith's. We disagree.
[Headnotes 3, 4]
Generally, punitive damages cannot be assessed against a principal for an agent's
tortious acts unless the conduct of the agent would warrant assessment of such damages
against him. However, the refusal of the factfinder to award punitive damages against an
employee does not necessarily compel the conclusion that the employee's acts were without
malice. Browand v. Scott Lumber Co. Inc., 269 P.2d 891, 895 (Cal. Ct. App. 1954). The jury
in this case was asked only whether any of the defendants should be the subject of
punishment. It was not asked to make a specific finding as to the nature of the acts of the
employees involved in this misadventure. Simply stated, the refusal to punish is not
tantamount to a finding that no malicious or oppressive conduct was proved. Whether any
defendant merits punishment is within the sound discretion of the jury.
[Headnote 5]
Substantial evidence in this case suggests that the malice of the employees would
have justified the imposition of punitive damages against them.
3
The acting manager of the
store and other employees confined Bellegarde to a small room for a lengthy period of time
on the erroneous suspicion that she had stolen a package of chewing gum.
__________
employees if you find by preponderance of the evidence that the employer authorized or ratified the
conduct which is found to be oppressive, malicious, or fraudulent, or if the employer had advance
knowledge and consciously disregarded or authorized or ratified an act of oppression, fraud or malice.

3
It was unnecessary for Bellegarde to amend her complaint to join the individual employees as party
defendants to insure the viability of the punitive damage claim against Smith's. A special interrogatory regarding
the behavior of the employees would have been sufficient to lay a foundation for punitive liability against
Smith's.
employees confined Bellegarde to a small room for a lengthy period of time on the erroneous
suspicion that she had stolen a package of chewing gum. Thereafter, employees seized her
purse, sprayed her with pepper spray and placed her in handcuffs. They did not remove the
handcuffs for over thirty minutes. As a result, Bellegarde sustained personal injuries requiring
hospitalization. Giving her the benefit of every reasonable inference from any substantial
evidence supporting the verdict, we conclude that the jury could have found that the conduct
of Smith's employees was malicious or oppressive, even though the jury decided not to
punish the individual employees.
4

Employer's Punitive Damages Liability for Malicious Acts of Its Agents
[Headnote 6]
Having concluded that the jury could have found that employees of Smith's acted
maliciously or oppressively, we now consider whether Smith's could be held liable for their
misconduct. It is well settled that a corporation can act only through its agents. Edwards v.
Carson Water Co., 21 Nev. 469, 485 (1893). Any act or omission of a corporate officer or
employee within the scope of his employment is, as a matter of law, the act or omission of
such corporation. Id.
Courts have long recognized the imposition of vicarious liability for punitive damages as a
deterrent to tortious misconduct. See Goddard v. Grand Trunk Ry., 57 Me. 202, 223-24
(1869). In Nevada, with regard to an employer's liability for punitive damages for the acts or
omissions of its agents, this court's punitive damages jurisprudence suggests that two parallel
rules of recovery exist in Nevada; to wit, the so-called vicarious liability and complicity
liability rules. See Ramada Inns v. Sharp, 101 Nev. 824, 711 P.2d 1 (1985); Forrester v. S.P.
Co., 36 Nev. 247, 134 P. 753 (1913). In Ramada Inns we summarized these rules as follows:
__________

4
With regard to the issue raised by the refusal of the jury to punish the individual employees, we note that
Holoubek and Qualls were not employed by Smith's at the time of trial. Under these circumstances, we conclude
that the jury could have reasonably determined that little or no deterrent value would be gained by the imposition
of punitive damages against these former employees. Additionally, the record suggests that the other individual
defendants, Peterson and Wood, were not aware of the events preceding the primary confrontations and were
merely passive participants in this affair. Thus, rather than punish the employees, the jury had the option of
singling out Smith's for punishment to deter future misconduct of this kind.' Guaranty Nat'l Ins. Co. v.
Potter, 112 Nev. 199, 208, 912 P.2d 267, 273 (1996) (quoting Ace Truck & Equipment Rentals Inc. v. Kahn,
103 Nev. 503, 510, 746 P.2d 132, 137 (1987)).
Appellant hotel contends that punitive damages may not be assessed against an
employer for an act of his employee unless the employer either (1) authorized the act or
(2) ratified or approved of the act resulting in an award of punitive damages. See
Restatement (Second) of Torts 909 (1979). This is otherwise known as the
complicity theory. Respondent, on the other hand, maintains that an employer is
vicariously liable for acts of an employee which give rise to an award of punitive
damages if the employee was acting within the scope of his employment. See Forrester
v. S.P. Co., 36 Nev. 247, 134 P. 753 (1913). This is known as the vicarious liability
rule.
Id. at 825, 711 P.2d at 2. Rather than favor one rule of recovery to the exclusion of the other,
we held in Ramada that substantial evidence existed to support the jury's verdictpunitive
damages against the appellant corporation for the acts of its employeesunder either the
complicity theory or the vicarious liability rule. Ramada, 101 Nev. at 825, 711 P.2d at 2.
Accordingly, we did not resolve the conflict between these rules.
In Forrester v. S.P. Co., 36 Nev. 247, 134 P. 753 (1913), this court was engaged in a
discourse representative of the early stages of the development of our punitive damage law. In
Forrester, this court imposed punitive liability on a railway company for the use of excessive
force by its agent in ejecting the plaintiff from its train. We concluded that punitive liability
was appropriate because the train agent, in taking up the ticket and ordering the removal of
Forrester from the train, was acting within the line of special authority which the company
had given him to take up tickets and have passengers removed. 36 Nev. at 282, 134 P. at
763. The Forrester court noted that punitive liability may be imposed upon the principal if
the agent, in doing the act which he is deputed to do, does it in such a manner as would
render him liable for exemplary damages, his principal is likewise liable.' Id. at 284, 134 P.
at 764 (quoting Rucker v. Smoke, 16 S.E. [40], 37 S.C. [371] [(1892)]) (emphasis added)).
This suggests a rule of strict imputation of vicarious liability for punitive damages, tacitly
reaffirmed in Ramada.
Although the railway company had not specifically authorized or ratified its employee's
improper conduct, the Forrester court also noted that, even [i]f it were admitted for the
purposes of this case that . . . punitive damages cannot be recovered from a principal . . . for
the act of the agent when the principal did not direct or ratify the act, it is still apparent that
the jury could allow punitive damages [in this case.] 36 Nev. at 282, 134 P. at 763. The court
noted that: By giving the train agent special authority to eject passengers and take up
tickets, and allowing him extra compensation for invalid tickets taken up, and by refusing,
after such notice and request for transportation, to give relief from [the train agent's]
oppressive and wrongful acts in ejecting Forrester from the train, the company may be
deemed to have ratified the act of their agent.
By giving the train agent special authority to eject passengers and take up tickets, and
allowing him extra compensation for invalid tickets taken up, and by refusing, after
such notice and request for transportation, to give relief from [the train agent's]
oppressive and wrongful acts in ejecting Forrester from the train, the company may be
deemed to have ratified the act of their agent.
Id. Accordingly, Forrester is also the progenitor of our case authority on the subject of
complicity liability for punitive damages.
Both Forrester and Ramada have been interpreted as adopting a rule of strict
imputation for punitive damages liabilitya pure vicarious liability rule, wherein any
malicious act of an agent is automatically imputed to the principalas well as a rule of
complicity liabilitya more conservative approach necessitating authorization or ratification
by the principal.
5
This is demonstrated by the fact that, in this case, the jury was instructed
on both theories of liability.
[Headnote 7]
We take this opportunity to clarify this aspect of our punitive damages jurisprudence.
We now exclusively embrace the Restatement (Second) of Torts 909 (1977) approach with
regard to an employer's liability for punitive damages for the acts or omissions of its agents:
6

Section 909. Punitive Damages Against a Principal.
Punitive damages can properly be awarded against a master or other principal because
of an act by an agent if, but only if,
(a) the principal or a managerial agent authorized the doing and the manner of the act,
or
(b) the agent was unfit and the principal or a managerial agent was reckless in
employing or retaining him, or
(c) the agent was employed in a managerial capacity and was acting in the scope of
employment, or
(d) the principal or a managerial agent of the principal ratified or approved the act.
We conclude that the Restatement (Second) of Torts (1977) approach, or "complicity
theory," strikes the proper balance between protecting the public and ensuring that
punitive damages are awarded because of an employer's own wrongful conduct.
__________

5
Most recently, this court reinstated an award of punitive damages pursuant to the complicity theory of
liability in Cerminara v. California Hotel and Casino, 104 Nev. 372, 760 P.2d 108 (1988).

6
See J. Ghiardi & J. Kirchner, Punitive Damages Law and Practice, ch. 24, at 36-39 (1987) (twenty-one
states follow traditional respondeat superior rules, and nineteen follow the complicity rule embodied in the
Restatement (Second) of Torts 909).
approach, or complicity theory, strikes the proper balance between protecting the public
and ensuring that punitive damages are awarded because of an employer's own wrongful
conduct.
The Restatement (Second) of Torts (1977) approach is consistent with jury instruction
no. 34, given in the district court with regard to proof of authorization or ratification by
Smith's.
7
Accordingly, we now analyze this case pursuant to the complicity theory of
liability.
[Headnote 8]
Complicity liability for punitive damages in this case was certainly justified based on
the actions of Holoubek, the acting manager of the store. In determining whether an agent
acts in a managerial capacity, [the key] is to look to what the individual is authorized to do by
the principal and to whether the agent has discretion as to what is done and how it is done.
Job titles . . . should be of little importance. J. Ghiardi and J. Kirchner, Punitive Damages
Law and Practice, ch. 24, at 15 (1987), cited with approval in Cerminara, 104 Nev. at 378,
760 P.2d at 111. First, Holoubek was unaware of any written policies or guidelines regarding
shoplifters. Second, she was not trained in procedures for handling such problems. Third, she
was given the discretion to determine what is done and how it is done. Finally, the
measures taken by Qualls, the security guard, were taken at Holoubek's instruction in
accordance with the chain of command. Further, Smith's never punished or reprimanded the
employees involved in the incident with Bellegarde. Even at trial, Smith's defended the
actions of Holoubek and Qualls as reasonable and appropriate. Interpreting the evidence in a
light most favorable to Bellegarde, we conclude that the jury could have reasonably
determined that all of the acts were either authorized or ratified by Smith's through its
managing agent, Holoubek.
Accordingly, the district court's judgment is affirmed.
__________

7
While jury instruction no. 34 does not include managerial agent language, we conclude that it is an
accurate statement of the law provided in Restatement (Second) of Torts 909. Further, the requisite exercise of
managerial authority in this case is subsumed in the jury's finding that Smith's authorized or ratified Holoubek's
conduct.
____________
114 Nev. 612, 612 (1998) Skiba v. State
CHRISTOPHER MARK SKIBA, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 28285
May 28, 1998 959 P.2d 959
Appeal from a judgment of conviction of one count of battery with a deadly weapon
and one count of battery causing substantial bodily harm, pursuant to a jury verdict. Fourth
Judicial District Court, Elko County; Jack B. Ames, Judge.
The supreme court, Shearing, J., held that: (1) final argument observation by
prosecuting attorney that defendant lied did not merit reversal of defendant's convictions, and
(2) felony conviction for battery causing substantial bodily harm was redundant to felony
conviction for battery with deadly weapon.
Affirmed in part, vacated in part.
Young, J., and Springer, C. J., dissented in part.
Lockie & Macfarlan, Elko, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Gary D. Woodbury, District
Attorney, Roger R. Harada, Deputy District Attorney, Elko County, for Respondent.
1. Criminal Law.
Final argument observation by prosecuting attorney that defendant lied, although violative of court's prior admonitions with
regard to rhetorical excess at final argument, did not merit reversal of defendant's convictions for battery with deadly weapon and
battery causing substantial bodily harm, where evidence against defendant was overwhelming. Three people testified defendant
proceeded toward them and struck one of them with beer bottle without provocation and defendant's friend testified that defendant had
asked him to give false testimony.
2. Criminal Law.
Felony conviction for battery causing substantial bodily harm was redundant to felony conviction for battery with deadly
weapon where both charges arose from defendant's single act of hitting victim with broken bottle causing substantial bodily harm. NRS
200.481(2)(b), (e).
3. Criminal Law.
Redundancy does not, of necessity, arise when a defendant is convicted of numerous charges arising from a single act.
OPINION
This case arises from an altercation at the Branding Iron Saloon (Branding Iron) in Elko during the early morning hours of
September 17, 1994.
114 Nev. 612, 613 (1998) Skiba v. State
hours of September 17, 1994. The trial of this matter was marked by varying accounts of the
incident.
On the evening of September 16, 1994, Billy McKenzie (McKenzie) and five of his
friends had been drinking at the Branding Iron. McKenzie and appellant, Christopher Mark
Skiba (Skiba), each testified that the other initiated a confrontation inside the bar at
approximately 2:00 a.m. on September 17, 1994.
According to the State's evidence, security intervened and escorted McKenzie and two of
his friends out of the establishment through the front door. As they were leaving, they passed
police officers entering the building. One of the officers testified that the fight had apparently
ended before his arrival.
According to McKenzie, the three men walked toward the parking lot where their car
was parked. Their intention was to leave the area. In the meantime, Skiba exited through the
rear of the building and proceeded around to the front. There, according to the State's
evidence, he sought the assistance of three associates, picked up a broken beer bottle and
proceeded toward McKenzie in the parking lot. Skiba struck McKenzie with an upward thrust
of the broken beer bottle, cutting McKenzie's left cheek and eyeball.
1

Skiba testified that, after the confrontation in the bar, he feared McKenzie would seek
further retribution against him and that he sought the assistance of friends as he approached
the front of the building. Thus, because he was outnumbered, he thought he was in immediate
danger.
Skiba claims that he was, in fact, headed home in the direction of the parking lot when
he was confronted by the very men he was trying to avoid. Out of fear, he picked up an
unbroken beer bottle. When his adversaries approached, he hit McKenzie in the face with the
bottle in self-defense.
The trial jury returned a guilty verdict of one count of battery with a deadly weapon and
one count of battery causing substantial bodily harm. Skiba was sentenced to five years and
fours years, respectively, on each count, in the Nevada State Prison. Both sentences were
suspended, and he was placed on probation. Skiba appeals.
DISCUSSION
[Headnote 1]
During closing arguments, the prosecutor summed up the evidence against Skiba,
emphasizing that the State's evidence was consistent.
__________

1
This was the single act which gave rise to the criminal charges against Skiba.
114 Nev. 612, 614 (1998) Skiba v. State
consistent. The prosecutor also discussed the inconsistencies in Skiba's evidence, particularly
his testimony. In this context, the prosecutor stated, The defendant is lying.
In Ross v. State, 106 Nev. 924, 926 n.3, 803 P.2d 1104, 1105 n.3 (1990), in reference
to a defense witness, during closing arguments the prosecutor stated, I'm telling you here
now this woman was lying for her husband. This court held that the prosecutor's statement
was improper and required reversal:
[T]he prosecutor's remarks unfairly undermined the defense theory by improperly
impugning a critical defense witness. It can be inferred that these remarks were fresh in
the jurors' minds as they entered the jury room and commenced their deliberations. In
addition, the imprimatur of the prosecutor's office added force and legitimacy to the
prosecutor's argument to the jury. It is the jury's function to determine guilt or
innocence. Absent these errors, it cannot be said with sufficient confidence that the jury
would have reached the same verdict.
Id. at 928, 803 P.2d at 1106 (footnote omitted) (emphasis added).
Additionally, in Witherow v. State, 104 Nev. 721, 724, 765 P.2d 1153, 1155 (1988),
we held that characterization of a witness's testimony as a lie is improper and amounts to an
opinion as to the veracity of a witness in circumstances where veracity might well have
determined the ultimate issue of guilt or innocence. . . . [I]t was for the jury, and not the
prosecutor, to say which witnesses were telling the truth.' (quoting Harris v. United States,
402 F.2d 656, 658 (D.C. Cir. 1968)).
The critical factual issue in this case was whether Skiba had been the aggressor in the
parking lot or had acted only in self-defense when striking McKenzie in the face with a
broken or unbroken beer bottle. McKenzie and two of his friends testified that Skiba
proceeded directly toward them with the broken beer bottle in his hand and struck McKenzie
without any immediate provocation. On the other hand, Skiba testified that he was trying to
avoid McKenzie and his friends, but directly encountered them as he entered the parking lot.
Out of fear, he picked up the bottle and struck McKenzie when approached by his
adversaries.
Evidence also indicates that Skiba had asked his friend, Avery Fagerberg
(Fagerberg), to back him up in the fight. According to Fagerberg, although Skiba was the
aggressor, Skiba had asked Fagerberg to give false testimony to the contrary. Further, not
only was Skiba's testimony contradicted by every other witness to the parking lot altercation,
his description of the events inside the Branding Iron was also vigorously disputed.
In summary, the evidence against Skiba was overwhelming. We therefore hold that the
final argument observation by the prosecuting attorney that the defendant lied, although
violative of our prior admonitions with regard to rhetorical excess at final argument,
Witherow, 104 Nev. at 724, 765 P.2d at 1155, does not merit reversal of Skiba's
conviction.
114 Nev. 612, 615 (1998) Skiba v. State
of our prior admonitions with regard to rhetorical excess at final argument, Witherow, 104
Nev. at 724, 765 P.2d at 1155, does not merit reversal of Skiba's conviction.
[Headnotes 2, 3]
Skiba next contends that his convictions for battery with a deadly weapon and battery
causing substantial bodily harm,
2
both pursuant to NRS 200.481,
3
are redundant.
In Albitre v. State, 103 Nev. 281, 738 P.2d 1307 (1987), defendant caused the death of two
people while driving under the influence of alcohol. She was charged and convicted of two
counts of causing the death of another while driving a vehicle while intoxicated (DUI), two
counts of involuntary manslaughter, and two counts of causing the death of another by
reckless driving. Id. at 282, 738 P.2d at 1308. This court held that defendant was properly
convicted of the DUI charges but that the involuntary manslaughter and reckless driving
convictions were redundant to the legitimate counts. Id. at 284, 738 P.2d at 1309.
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.
__________

2
NRS 0.060 defines substantial bodily harm as:
1. Bodily injury which creates a substantial risk of death or which causes serious, permanent
disfigurement or protracted loss or impairment of the function of any bodily member or organ; or
2. Prolonged physical pain.

3
NRS 200.481 states in pertinent part:
1. As used in this section:
(a) Battery means any willful and unlawful use of force or violence upon the person of
another.
. . . .
2. [A] person convicted of a battery . . . shall be punished:
. . . .
(b) If the battery is not committed with a deadly weapon, and substantial bodily harm to the
victim results, for a category C felony as provided in NRS 193.130.
. . . .
(e) If the battery is committed with the use of a deadly weapon, and:
(1) [F]or a category B felony by imprisonment in the state prison for a minimum term
of not less than 2 years and a maximum term of not more than 10 years, and may be further punished by a
fine of not more than $10,000.
(Emphasis added.)
114 Nev. 612, 616 (1998) Skiba v. State
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. (emphasis added). In the instant matter, such a limiting instruction was offered, but was
erroneously denied by the lower court. We hold that, under these limited circumstances, the
two convictions arising from Skiba's single act of hitting McKenzie with a broken beer bottle
causing substantial harm, gives rise to the same redundancy contemplated in Albitre.
4

Accordingly, we hereby affirm Skiba's conviction under NRS 200.481(2)(e) and
vacate the conviction imposed under NRS 200.481(2)(b). We have reviewed Skiba's other
contentions on appeal and find them to be without merit.
Rose, J., concurs.
I agree with the majority that Skiba may only be convicted of one charge of battery.
While I also agree that the remaining conviction should not be disturbed on appeal, I write
separately because, in my view, the prosecuting attorney's final argument observation that
the defendant lied, without more, did not go beyond the realm of permissible advocacy. But
cf. Witherow v. State, 104 Nev. 721, 765 P.2d 1153 (1988). I perceive no difference between
a simple argument that a party or a witness has lied or, on the other hand, demonstrating to a
jury through inferences from the record that a defense witness's testimony is palpably untrue.
Ross v. State, 106 Nev. 924, 927, 803 P.2d 1104, 1106 (1990).
Absent some flagrant violation, such as a prosecutor clearly and specifically injecting his
or her own credibility into the proceedings by indicating his or her personal beliefs (i.e., I
wouldn't be here if I didn't believe the victim in this case), attorneys should be able to argue
that a witness has lied or has spoken truthfully.
1, 2
Thus, I believe that a simple argument
regarding truth or falsity of a witness's testimony does not merit reversal, even in a close case,
which this is not.
3

__________

4
Consistent with prior authority, we note that redundancy does not, of necessity, arise when a defendant is
convicted of numerous charges arising from a single act.

1
Ross is correct in noting the impropriety of such arguments as, I'm telling you now this woman is lying for
her husband.' Ross v. State, 106 Nev. 924, 927, 803 P.2d 1104, 1106 (1990). This is because such statements
clearly inject the credibility of the prosecuting attorney into the case.

2
See Collins v. State, 87 Nev. 436, 439, 488 P.2d 544, 545 (1971) (holding that statements made in closing
argument, when made as a deduction or conclusion from evidence introduced at trial, are permissible).

3
Given their holdings, I must concede that the disposition I now suggest would mark a qualified retreat from
Ross and Witherow.
114 Nev. 612, 617 (1998) Skiba v. State
Young, J., concurring in part, dissenting in part, joined by Springer, C. J.:
I concur with my fellow justices that Skiba can be tried on only one of the charges of
battery. However, because the prosecutor committed such gross misconduct, a harmless error
analysis is inappropriate under the narrow circumstances of this case, contrary to the holding
in the plurality opinion.
The prosecutor told the jury, both as a fact and as a conclusion, that Skiba lied to them
on the stand, under oath. Ross v. State, 106 Nev. 924, 927, 803 P.2d 1104, 1106 (1990).
These statements are clearly error in this state, as well as in other jurisdictions. Id.; Witherow
v. State, 104 Nev. 721, 724, 765 P.2d 1153, 1155 (1988); see also Harris v. United States,
402 F.2d 656, 657-58 (D.C. Cir. 1968); State v. Stringer, 897 P.2d 1063, 1071-72 (Mont.
1995); State v. Arlington, 875 P.2d 307, 325 (Mont. 1994); Smallwood v. State, 907 P.2d
217, 229 (Okla. Crim. App. 1995); Williams v. State, 658 P.2d 499, 500 (Okla. Crim. App.
1983).
In Harris, cited in Witherow, the United States Court of Appeals for the District of
Columbia held that a prosecutor's statement that a defendant lied on the stand is highly
improper. The court explained that the defendant's testimony is a lie only if the jury accepts
all the government witnesses' testimony and rejects the defendant's testimony. Harris, 402
F.2d at 657-58. While many strong adjectives may be used to persuade the jury to return a
verdict of guilt, it was for the jury, and not the prosecutor, to say which witnesses were
telling the truth. Id. at 658. The court held that the prosecutor may not divert the focus of the
jury's consideration of the case from the facts in evidence to the attorney's personal
evaluations of the weight of the evidence. Id. at 659.
The plurality opinion at least acknowledges that such statements are highly improper. The
concurring opinion, however, inexplicably proposes to overrule governing authority in this
state and hold that the unforgivable comments by the prosecutor are not even error at all.
Unlike the concurrence, I do not propose to ignore the principles of stare decisis; I merely
propose to extend an already existing precedent.
Ross and Witherow pertain to highly improper comments by the prosecutor about
defense witnesses. In the current matter, the prosecutor utterly annihilated the credibility of
the defendant. I conclude that stating that a defendant lied on the stand is even more
egregious than a statement that a defense witness lied. Not only is a testifying defendant's
credibility at issue, so is his guilt. A jury may disregard a defense witness's testimony without
holding it against the defendant. Thus, utilizing a mere harmless error standard in such a
situation, as is employed by this court, is appropriate with regard to the credibility of a
non-defendant witness.
114 Nev. 612, 618 (1998) Skiba v. State
witness. However, when the jury is told that the defendant, himself, is the perjurer, I find it
extremely difficult to imagine that the jury could easily disregard his testimony without
permitting the alleged unlawful act of lying under oath from influencing the verdict.
Additionally, I firmly believe that stating that the defendant is a liar is a particularly
inflammatory and prejudicial method of conveying to the jury inconsistencies and
discrepancies in the evidence.
Moreover, unlike many cases where a defendant takes the stand and testifies only as to
his version of events, Skiba also testified as to his state of mind. In order to disprove the only
element of battery at issue in the trial, whether or not Skiba hit Mckenzie in self-defense,
Skiba testified as to his reasonable belief of immediate harm. The veracity and credibility of
Skiba's testimony was especially crucial to dispute the State's evidence that this was not
self-defense.
Although the State presented numerous witnesses to prove that Skiba did not act in
self-defense, it is the quality, not the quantity, of evidence upon which a jury relies in
rendering its verdict. Jury instruction no. 14 specifically stated, It is lawful for a person who
is being assaulted to defend himself from attack if, as a reasonable person, he has grounds for
believing and does believe that bodily injury is about to be inflicted upon him. (Emphasis
added.) If the jury believed Skiba, it would have acquitted him because the State would have
failed to meet its burden that Skiba did not act in self-defense. See Barone v. State, 109 Nev.
778, 780, 858 P.2d 27, 29 (1993) (holding that in proving a case of battery, the State has the
burden of proving the defendant did not act in self-defense). I conclude that informing the
jury at closing arguments that Skiba's testimony about his belief of immediate harm is a lie is
insufficient to meet the State's burden under Barone.
Accordingly, in a situation where the state of mind of the defendant is the ultimate
issue in the case, the defendant testifies, and the prosecutor informs the jury that the
defendant lied on the stand, I believe this court should reverse the conviction and not use a
mere harmless error standard. I conclude that using a harmless error standard too often may
give free reign to prosecutors to continue the misconduct at issue. I fear, especially in cases of
particularly gross misconduct, as the present matter, such a standard will encourage other
prosecutors to repeat this egregious error in the future.
1

__________

1
Further, a holding that calling a defendant a liar on the stand is mere harmless error (or worse yet, no error
at all) may violate a defendant's Fifth
114 Nev. 612, 619 (1998) Skiba v. State
I feel that the prosecutors in this state need a stern reminder of their role as
representatives of the people. [A prosecutor] has no obligation to win at all costs and serves
no higher purpose by so attempting. Bruno v. Rushen, 721 F.2d 1193, 1195 (9th Cir. 1983).
Indeed, a prosecutor's interest in a criminal case is not that it shall win a case, but that justice
be done . . . . But, while he may strike hard blows, he is not at liberty to strike foul ones. It is
as much his duty to refrain from improper methods calculated to produce a wrongful
conviction as it is to use every legitimate means to bring about a just one. Berger v. United
States, 295 U.S. 78, 88 (1934) (emphasis added).
I further remind Nevada prosecutors: It can be inferred that [the prosecutor's improper
remarks that the defense witness lied] were fresh in the jurors' minds as they entered the jury
room and commenced their deliberations. In addition, the imprimatur of the prosecutor's
office added force and legitimacy to the prosecutor's argument to the jury. Ross, 106 Nev. at
928, 803 P.2d at 1106 (footnote omitted).
Due to the severe impact an accusation of lying under oath has on a criminal
defendant who testified as to his state of mind at the time of the relevant incident, I must
conclude that the prosecutor's comment in this case constitutes more than mere harmless error
and requires reversal of Skiba's conviction.
____________
114 Nev. 619, 619 (1998) Oade v. State
BLAKE OADE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 28297
May 28, 1998 960 P.2d 336
Appeal from a judgment of conviction entered pursuant to a jury verdict of two counts
of committing fraudulent acts involving gaming. Second Judicial District Court, Washoe
County; Mills Lane, Judge.
The supreme court, Springer, C. J., held that: (1) trial judge's inappropriate comments
prejudiced defendant's right to fair trial, and (2) comments were plain error warranting
reversal.
__________
Amendment right to testify on his own behalf. What defendant would ever choose to testify at their trial knowing
that the prosecutor could permissibly disparage him in such a particularly inflammatory way? What competent
defense counsel would allow his client to testify under such a threat?
114 Nev. 619, 620 (1998) Oade v. State
Peter L. Flangas, Las Vegas, for Appellant.
Attorney and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Whether alleged judicial misconduct deprived defendant of fair trial would be considered on appeal under plain error doctrine,
despite defendant's failure to object, where trial judge, early in trial, was preoccupied with defense counsel's ability to behave
appropriately, making it reasonable for counsel to remain quiet during remainder of trial rather than voice objections and risk
antagonizing the judge.
2. Criminal Law.
A trial judge has a responsibility to maintain order and decorum in trial proceedings.
3. Criminal Law.
Judicial misconduct must be preserved for appellate review. Failure to object or assign misconduct will generally preclude
review by supreme court.
4. Criminal Law.
Warnings by trial judge that fines would be assessed and the imposition of those fines on defense counsel for violation of court's
ground rules were not inappropriate and did not prejudice defendant's right to fair trial.
5. Criminal Law.
Trial judge's inappropriate comments prejudiced defendant's right to fair trial in prosecution for fraudulent gaming. Judge
repeatedly levied fines against or issued warnings to defense counsel for minor transgressions, such as injecting argument into his
opening statement and calling his own client by his first name, repeatedly expressed his impatience with defense counsel in the
presence of the jury, volunteered his opinion on certain evidence and digressed on issues unrelated to the facts of the case, and
repeatedly commented on need to maintain courtroom decorum.
6. Criminal Law.
Level of judicial misconduct necessary to reverse a conviction depends upon how strong and convincing is the evidence of guilt.
7. Criminal Law.
Trial judge's improper comments in prosecution for fraudulent gaming were plain error warranting reversal. Although videotape
showing defendant illegally increasing two bets while playing blackjack was persuasive evidence of guilt, judge's comments may have
lessened defendant's credibility and prevented full and fair consideration of his defense that he merely made mistakes while betting
because he was intoxicated.
OPINION
By the Court, Springer, C. J.:
On May 5, 1994, State Gaming Control arrested Blake Oade at the Clarion Hotel and Casino in Reno for unlawfully increasing
two bets in a blackjack game.
114 Nev. 619, 621 (1998) Oade v. State
two bets in a blackjack game. Oade was charged with two counts of fraudulent gaming
pursuant to NRS 465.070 and NRS 465.088. At trial, Oade argued that he was intoxicated the
morning of the incident and that this caused him to make mistakes while he was playing
blackjack. Oade explained that, in one instance, he must have mistakenly dropped extra chips
on his original bet after the cards had been dealt and that, in the other instance, he thought he
had been paid on his first bet and was attempting to place a second bet.
The jury found Oade guilty of two counts of committing fraudulent acts involving
gaming. The judge sentenced Oade to three years for each count, to run concurrently. The
sentences were suspended, and Oade was placed on probation for an indeterminate period not
to exceed two years. Oade argues on appeal that the district court judge committed judicial
misconduct which deprived him of a fair trial, that the district court erred by excluding Oade's
proposed jury instructions, and that the district court erred by refusing to give Oade's
voluntary intoxication instruction.
We conclude that the district court judge's conduct, when considered in its entirety,
constituted cumulative error, which may have prejudiced Oade's right to a fair trial.
[Headnote 1]
Oade argues that the district court judge made inappropriate comments and threats and
assessed repeated fines, which distracted the jury from the issues, limited the defense's ability
to present a case, and promoted a lack of credibility in Oade's counsel. Oade argues that as a
result of the judge's conduct, he did not receive a fair trial.
The State argues that Oade failed to preserve the issue of judicial misconduct for review
because he did not object to the judge's comments or move for a mistrial. The State also
contends that the district court judge responded appropriately to repeated displays of
unprofessionalism on the part of Oade's counsel.
[Headnote 2]
A trial judge has a responsibility to maintain order and decorum in trial proceedings.
Parodi v. Washoe Medical Ctr., 111 Nev. 365, 367, 892 P.2d 588, 589 (1995); see Nevada
Code of Judicial Conduct Canon 3(B)(1991). What may be innocuous conduct in some
circumstances may constitute prejudicial conduct in a trial setting, and we have earlier urged
judges to be mindful of the influence they wield. Parodi, 111 Nev. at 367, 892 P.2d at 589.
[Headnote 3]
Judicial misconduct must be preserved for appellate review; failure to object or assign
misconduct will generally preclude review by this court. Id. at 36S, S92 P.2d at 590.
114 Nev. 619, 622 (1998) Oade v. State
review by this court. Id. at 368, 892 P.2d at 590. However, this court has reviewed judicial
misconduct, absent the appellant's failure to preserve adequately the issue for appeal, under
the plain error doctrine. See id. at 369-70, 892 P.2d at 591 (failure to object will not always
preclude appellate review in instances where judicial deportment is of an inappropriate but
nonegregious and repetitive nature that becomes prejudicial when considered in its entirety).
In holding that judicial misconduct may fall under the purview of the plain error
doctrine, this court adopted the reasoning in Agee v. Lofton, 287 F.2d 709 (8th Cir. 1961), in
which the Eighth Circuit concluded that, while exceptions to objectionable remarks should be
voiced during trial, counsel . . . are, understandably, loath to challenge the propriety of a trial
judge's utterances, for fear of antagonizing him and thereby prejudicing a client's case.
Parodi, 111 Nev. at 369, 892 P.2d at 590 (quoting Agee, 287 F.2d at 710).
In the instant case, Oade's counsel, early in the trial, moved for a mistrial based on the
court's attitude. The district judge abruptly interrupted counsel and denied the motion.
Thereafter, the judge dismissed the jury and advised Oade's counsel, I'm not going to be
provoked into a mistrial. A review of the record reveals that the judge, early in the trial, was
preoccupied with Oade's counsel's ability to behave appropriately. We conclude that it was
not unreasonable for Oade's counsel to remain quiet during the remainder of the trial rather
than voice objections and risk antagonizing the judge. Therefore, we address Oade's
argument despite his failure to object below.
Oade lists eighteen separate incidents of alleged judicial misconduct. Rather than list
each of Oade's assigned errors, a few illustrative examples will be set forth in the following
discussion.
[Headnote 4]
Many of Oade's assigned errors consist of warnings by the judge that fines would be
assessed and the imposition of those fines. At the start of trial, the court instructed the
attorneys, outside the presence of the jury:
You lawyers will not speak to each other unless you ask me if you can. You will not ask
repetitive, redundant or obnoxious questions. Neither one of you will ask any questions
I sustain an objection to more than once. I give you one warning; the second time, I get
in your pocket, third time I declare a mistrial and you go to jail. That's the way we run it
in Department 9. I know you've [counsel] been practicing law a long time but in
California. Up here it's different. Do you understand me? Oade's counsel agreed to
follow the rules and does not argue on appeal that the rules were inappropriate or
unfair.
114 Nev. 619, 623 (1998) Oade v. State
Oade's counsel agreed to follow the rules and does not argue on appeal that the rules
were inappropriate or unfair. The record reveals that Oade's counsel sometimes failed to abide
by the rules, interrupting both the judge and opposing counsel and repeating questions after
an objection had been sustained. Several of the warnings and fines were in response to these
types of infractions. We conclude that these types of fines and related warnings were not, by
themselves, inappropriate in light of the ground rules set by the judge.
[Headnote 5]
The judge did, however, make several other inappropriate comments which, when
considered together, prejudiced Mr. Oade's right to a fair trial. In addition to imposing fines
for violations of Department Nine's rules, the judge repeatedly levied fines against or issued
warnings to Oade's counsel for minor transgressions, such as injecting argument into his
opening statement and calling his own client by his first name. Cf. Earl v. State, 111 Nev.
1304, 1310, 904 P.2d 1029, 1033 (1995) (citing with disapproval district court's decision to
excuse the jury, hold attorney in contempt, impose fine, and threaten jail because attorney
asked a few leading questions).
Throughout the trial, the district court judge repeatedly expressed his impatience with
Oade's counsel in the presence of the jury. It must be remembered that the words and
utterances of a trial judge, sitting with a jury in attendance, are liable, however unintentional,
to mold the opinion of the members of the jury to the extent that one or the other side of the
controversy may be prejudiced or injured thereby. Parodi, 111 Nev. at 368, 892 P.2d at
589-90. We conclude that the judge's comments regarding his impatience may have had an
adverse impact on the jury's impression of Oade's counsel, which, in turn, may have adversely
affected the jury's acceptance of Oade's defense.
The judge also acted in error by volunteering his opinion on certain evidence and
digressing on issues unrelated to the facts of the case. On one occasion, following
cross-examination by Oade's counsel of a state gaming agent regarding blackjack rules, the
judge told the jury:
There is no regulation or rule which permits a person to increase the bet after the bet
has been made and the cards dealt unless it is a situation where it's known as a double
down . . . or you split cards. But in my view, this examination borders on illogical. If
[Oade's counsel] is trying to suggest that you have a right to double the bet when the
cards are favorable to you just because you like the cards, that is not the law. Those are
not the rules.
114 Nev. 619, 624 (1998) Oade v. State
On another occasion, the judge implied that Oade's voluntary intoxication defense was
untenable. It was improper for the judge to expand upon his reasons for sustaining objections
and to comment on the strength of the defense's theory. In doing so, the judge injected into
the proceedings his belief as to the merits of Mr. Oade's defense.
Finally, although a judge may explain to the jurors the need to maintain order and
decorum in the courtroom, the judge's repeated commentary on this topic may have given the
jurors the impression that the attorneys in this case, particularly Oade's counsel, were
behaving inappropriately.
The above errors were individually neither prejudicial nor egregious; however, viewed
in their entirety, they were clearly erroneous and potentially prejudicial to Oade's case.
[Headnotes 6, 7]
The level of misconduct necessary to reverse a conviction depends upon how strong
and convincing is the evidence of guilt. Kinna v. State, 84 Nev. 642, 647, 447 P.2d 32, 35
(1968). There is persuasive evidence of Oade's guilt; the jury viewed a video tape from the
Clarion Hotel and Casino which shows Oade increasing two bets. This case rested, however,
almost entirely on the defense's credibility. The jurors, in order to find a verdict of not guilty,
had to believe Oade's testimony that he did not intend to cheat, but merely made mistakes due
to his state of intoxication. The judge's remarks may have lessened the defense's credibility
and prevented the defense from obtaining full and fair consideration from the jury. See id., 84
Nev. 642, 447 P.2d 32 (1968). We therefore conclude that the judge's remarks may have had
a prejudicial impact on the verdict and thus constitute plain error warranting reversal.
Because we conclude that Oade deserves a new trial on the basis of the district judge's
conduct, we need not reach the other issues raised on appeal. Accordingly, we order the
judgment of conviction reversed and remand this case for a new trial.
1

Young, J., concurs.
Gibbons, D. J., concurring:
I concur with the majority. From reviewing the record on appeal, there appears to be
at least four occasions when the trial judge either sanctioned or threatened to sanction the
attorney for the Appellant in the presence of the jury. Even if the conduct of counsel for the
Appellant warranted a finding of contempt and a fine, the court should have done so
without the jury present.
__________

1
The Honorable Mark Gibbons, Judge of the Eighth Judicial District Court, was designated by the Governor
to sit in place of The Honorable Robert E. Rose, Justice. Nev. Const. art. 6, 4.
114 Nev. 619, 625 (1998) Oade v. State
fine, the court should have done so without the jury present. Meek v. State, 112 Nev. 1288,
930 P.2d 1104, 1109 (1996). These cumulative errors are prejudicial enough to warrant
reversal.
Shearing, J., dissenting:
I would affirm the judgment of conviction. I have reviewed the trial transcript, and I
do not believe that the district judge was unfair to Oade or to Oade's counsel. The district
judge, indeed, issued frequent admonitions to the attorneys. Through these admonitions,
however, the judge sought to focus on the relevant issues, avoid inappropriate argument and
prevent counsel from repeating questions or arguing after objections were sustained. A trial
judge bears a responsibility to maintain order and decorum in courtroom proceedings. Nev.
Code of Judicial Conduct Canon 3(B)(3). The district judge upheld those responsibilities.
Even when the district judge admonished the attorneys, he repeatedly told the jury that
these admonitions did not reflect his opinion on the merits of the case or the attorneys. The
judge explained that he was trying to run the courtroom in the manner he deemed appropriate.
Oade argues that even comments which clearly express this appropriate goal of the district
court were prejudicial to him. I do not accept this argument. Oade maintains, for example,
that the following comment by the district judge is prejudicial:
This Court does not have any position one way or the other involving any particular
position or particular argument of counsel. . . . It also is aware that the conduct of
counsel is to be constrained when necessary by the court. I want you to know that I do
not favor or disfavor Mr. Flangas, his position, himself personally, his son or his client.
I don't know them. Neither do I favor or disfavor the prosecution. But what I'm going to
do to the best of my ability is run this courtroom. I'm not going to permit counsel to
engage in conduct which I believe is inappropriate.
. . . .
I've already told them [counsel] that's the way this courtroom will be run is a search
for the truth. I will not be deterred from that position. I hold no grudge against any
counsel or against any advocate, but I will not permit the search for truth to be
corrupted in any respect, nor will I permit counsel to misbehave. That's one of the
obligations of the judge.
The district judge did not limit his admonitions to the defendant or his counsel but
applied them equally to the defense and prosecution. At one point, the prosecutor accused the
district judge of being derisive to him.
114 Nev. 619, 626 (1998) Oade v. State
judge of being derisive to him. I suggest that the district judge was simply controlling his
courtroom.
The only interjection by the district judge which I found potentially prejudicial
occurred during the argument among the district judge, counsel and a witness about the rules
of Blackjack. Instead of allowing the witness to testify uninterrupted on the rules of
Blackjack, the district judge interjected his own understanding of the rules and called the
witness's statement illogical. The witness, however, had ample opportunity later to discuss the
rules. Subsequent testimony revealed that there existed no basic disagreement about the rules.
Thus, I do not see how the judge's interjection could have prejudiced Oade.
The judgment should be affirmed.
The evidence of guilt was overwhelming. Although the conduct of this trial was
regrettable from a number of different perspectives, the error is harmless.
____________
114 Nev. 626, 626 (1998) Bryant v. State
WILLIAM PATRICK BRYANT, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 28356
May 28, 1998 959 P.2d 964
Appeal from a judgment of conviction pursuant to a jury verdict of one count of
possession of stolen property. Eighth Judicial District Court, Clark County; A. William
Maupin, Judge.
Following jury trial before the district court, defendant was convicted of felony
possession of stolen property valued at over $250. Defendant appealed. The supreme court,
Rose, J., held that: (1) court erred in admitting evidence of replacement cost without showing
of fair market value or explanation of why fair market value could not be determined, and (2)
evidence of value was insufficient to sustain conviction.
Shearing, J., dissented.
Morgan D. Harris, Public Defender and Sharon G. Dickinson, Deputy Public
Defender, Clark County, for Appellant.
Respondent.
Evidence that replacement cost of stolen tools was $339 was insufficient to sustain conviction of felony possession of stolen
property over $250 in value, where state presented no evidence of fair market value of stolen tools and failed to justify use of
alternative method of valuation. NRS 205.275(3).
In prosecution for receiving stolen property, trial court erred in admitting evidence of replacement value of stolen tools without
first requiring state to show tools' fair market value or why fair market value could not be determined. NRS 205.275(3).
OPINION
On the night of July 27, 1995, Las Vegas police officers observed appellant William Patrick Bryant (Bryant) driving a pickup
truck into a dark alley. The officers approached Bryant for questioning, and discovered several power tools that belonged to a nearby
business in the back of Bryant's truck. The police officers arrested Bryant for burglary and felony possession of stolen property.
A jury convicted Bryant of felony possession of stolen property, but acquitted him of the burglary charge. Bryant appeals, arguing that
the State failed to establish that the value of the tools was over the $250.00 felony threshold and, thus, the State failed to prove the elements
of felony possession of stolen property beyond a reasonable doubt. We agree, and for the reasons set forth below, we reverse Bryant's
conviction and remand for a new trial.
1

FACTS
During the late hours of July 27, 1995, and early July 28, 1995, two plain-clothes
police officers conducting surveillance in the 2000 block of Western Street in Las Vegas
spotted an older model pickup truck pull into an alleyway. The driver turned the truck's lights
off while continuing to drive into the alleyway. The officers called for backup and then
approached the truck.
While approaching, the officers noticed a white male near the truck who appeared to be
observing the area. As the officers drew near, the man noticed them and tried to conceal
himself behind the truck. The officers stopped the man and asked him what he was doing in
the area. The man, who identified himself as Dana Goller (Goller), told the officers that he
was relaxing. When the officers asked him why he was relaxing in a dark alleyway,
Goller stated that he and a friend had gotten into an argument and that his friend had
departed from the area.
__________

1
After careful review of the record on appeal and the briefs filed herein, we conclude that Bryant's remaining
contentions on appeal are without merit.
the officers asked him why he was relaxing in a dark alleyway, Goller stated that he and a
friend had gotten into an argument and that his friend had departed from the area. When the
officers asked where his friend might have gone, Goller changed his story and told the
officers that his vehicle had run out of gas and that his friend went to get more.
During this discussion, one of the officers spotted a man in the shadows attempting to
hide underneath a truck. The man, who was subsequently identified by police as Bryant, was
inside a fenced area of a business. After Bryant climbed back over the fence for questioning,
the officers read both Bryant and Goller their Miranda rights. Bryant stated he had entered the
fenced compound to steal some gas out of a truck because his vehicle had run out. After the
initial questioning, the officers noticed some tools and other items in the truck bed. The tools
included a drill, some drill bits, and a meter.
When the officers asked Bryant who owned the tools, Bryant stated that he did not know
but they were not his. Bryant then stated that he had just purchased the tools from a man at a
7-Eleven store for $20.00. The officers noticed an individual's social security number and the
name of a company, Magna Electric, on the tools. Magna Electric is located about two miles
from where police found Bryant and Goller.
The police contacted Albert McCarthy (McCarthy), owner of Magna Electric, and
informed him that some tools bearing the name of his company had been recovered.
McCarthy went to the scene, recognized his social security number on the tools, and informed
the police that the tools belonged to his company. Accompanying police to his business
address, McCarthy discovered that the tool box in his 1991 GMC pickup truck had been
broken into. A lock on a toolbox in a 1985 Ford pickup truck had also been broken, but no
items were missing from this toolbox. Police accompanied McCarthy back to where Bryant
and Goller were being detained. Police identification technician Rick Workman (Workman)
came to the scene. Workman took photographs of the tools before returning them to
McCarthy.
On August 4, 1995, Bryant was arraigned in justice court on charges of burglary and
possession of stolen property. Bryant waived his preliminary hearing, and trial was set for
October 2, 1995, in district court. By information, Bryant was charged with burglary and
felony possession of the following stolen items: 1 Makita Cordless Drill with charger; 1 GIB
Electric Drill bit set; 1 Eco Drill bit set; and a digital clamp amp meter.
During trial, McCarthy provided original invoices of the tools showing the purchase
price of each item. McCarthy testified that he had not previously given these receipts to the
police or the district attorney's office.
district attorney's office. McCarthy stated that based on his years of experience, he estimated
that the tools were worth approximately $336.00.
Evidence pertaining to the replacement cost of the tools was also presented in the
form of a fax received from McCarthy's regular tool buyer. Based on that information,
McCarthy testified that the individual items were 1 Morse Electric Hole Saw kit, valued new
at $69.00, plus 7 percent tax; 1 Makita Drill, valued new at $115.00, plus 7 percent tax; 1
chuck key, valued new at $3.40, plus 7 percent tax; 1 drill box and charger, valued as free;
and 1 digital clamp amp meter, valued new at $130.00, plus 7 percent tax. McCarthy testified
that he would not buy used tools; accordingly, based on his business experience and price
quotes obtained from his buyer, McCarthy testified that the replacement cost of similar brand
new tools was approximately $317.40, plus $22.20 in sales tax, for a total of $339.62. The
district court admitted McCarthy's testimony over Bryant's objections.
Trial concluded on October 4, 1995. On October 5, 1995, the jury returned a verdict of not
guilty as to the burglary charge and guilty as to the charge of felony possession of stolen
property. On December 13, 1995, the district court sentenced Bryant to a minimum of
twenty-two months and a maximum of fifty-five months in the Nevada State Prison.
However, the district court suspended the sentence and placed Bryant on probation for a
period not to exceed five years.
Bryant now appeals.
DISCUSSION
Bryant was convicted of possession of stolen property valued at over $250.00. On
appeal, he argues that the State failed to prove beyond a reasonable doubt that the value of the
tools was over the $250.00 felony threshold. We agree.
The Due Process Clause of the United States Constitution protects an accused
against conviction except on proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged. Carl v. State, 100 Nev. 164, 165, 678 P.2d
669, 669 (1984) (citing In re Winship, 397 U.S. 358 (1970)); see also Patterson v. New York,
432 U.S. 197, 215 (1977). Felony possession of stolen property requires that the fair market
value of the stolen property be over $250.00. See NRS 205.275(3); see also Cleveland v.
State, 85 Nev. 635, 637, 461 P.2d 408, 409 (1969). However, where such market value
cannot be reasonably determined other evidence of value may be received such as
replacement cost or purchase price. Cleveland, 85 Nev. at 637, 461 P.2d at 409.
[Headnote 1]
In the instant case, McCarthy testified that he bought only new tools and that he did
not know the fair market value of the used tools that were stolen. He produced the original
invoice for the tools that indicated a purchase price of $335.00. An expeditor who purchased
all of McCarthy's tools corroborated McCarthy's testimony. However, no one testified as to
the fair market value of the used tools or why the fair market value could not be reasonably
determined. Without such evidence, it was improper for the district court to admit evidence of
the alternate and higher estimate of value, that being the purchase price.
[Headnote 2]
In this case, the district court erred in resorting to the alternate measure of valuation
without any showing of the fair market value of the tools. The purchase price was only
eighty-five dollars above the felony threshold; thus, it is conceivable, and perhaps probable,
that the value of these used tools was below the felony threshold of $250.00. At any rate, a
felony criminal conviction cannot be sustained on the basis of such unsure footing. Therefore,
the district court erred in admitting evidence of the purchase price in order to establish the
value of the tools because the State made no attempt to first establish the tools' fair market
value. Further, based on our review of the record, the State proffered no evidence
demonstrating that the fair market value of the tools could not be reasonably determined.
See Cleveland, 85 Nev. at 637, 461 P.2d at 409.
Because the State presented no evidence establishing the fair market value of the stolen
tools and failed to justify the use of an alternative method of valuation, the State failed to
prove Bryant's felony possession of stolen property beyond a reasonable doubt. Accordingly,
we reverse Bryant's conviction and remand for a new trial.
2

Shearing, J., dissenting:
I would affirm the conviction of William Patrick Bryant for the felony of possession
of stolen property. The jury heard evidence that the property was valued in excess of $250
and was entitled to accept that valuation. It is not for this court to substitute its judgment as to
the value of the property.
__________

2
The Honorable A. William Maupin, Justice, did not participate in the decision of this appeal.
____________
114 Nev. 631, 631 (1998) State v. Sonnenfeld
THE STATE OF NEVADA, Appellant, v. DIETRICH SONNENFELD, Respondent.
No. 28729
May 28, 1998 958 P.2d 1215
Appeal from an order of the district court granting respondent's motion to suppress
evidence. Second Judicial District Court, Washoe County; Deborah A. Agosti, Judge.
Defendant was charged with driving while intoxicated. The district court granted
defendant's motion to suppress all evidence obtained from initial detention. State appealed.
The supreme court held that bartender's detailed tip concerning inebriated customer and his
vehicle was sufficient to provide deputy who corroborated information with reasonable
suspicion to make investigatory stop of vehicle.
Appellant.
Michael R. Specchio, Public Defender, and John Malone and John Reese Petty,
Deputy Public Defenders, Washoe County, for Respondent.
Automobiles.
Deputy had reasonable suspicion sufficient to make investigatory stop of vehicle based on his corroboration of bartender's
detailed tip to dispatcher that inebriated customer had left bar and was driving under influence. Bartender provided color of car,
description of distinguishing roof rack, license plate number, physical description of driver and direction in which vehicle was heading.
OPINION
Per Curiam:
Respondent, Dietrich Sonnenfeld, was stopped and subsequently arrested for driving while intoxicated after police received a tip
from a bartender regarding Sonnenfeld's apparently inebriated state. The district court granted Sonnenfeld's motion to suppress all evidence
obtained from his initial detention on the grounds that the bartender's tip was insufficient to create reasonable suspicion for a sheriff's
deputy to pull him over for driving under the influence. For the reasons set forth below, we reverse the district court's order.
FACTS
On March 10, 1996, Deputy Sheriff Douglas Brady was on routine patrol in Reno
when he received a call from dispatch that a person identifying herself as a bartender at the
Adobe Bar called to complain of a disorderly, intoxicated person who refused to leave.
Deputy Brady responded to this call and headed in the direction of the Adobe Bar. En route,
Brady was advised by a dispatcher that the bartender called the police a second time to report
that the inebriated patron drove away from the bar in a beige or yellow car with California
license plates and a large roof rack. The bartender also provided police with a detailed
description of the allegedly intoxicated patron and indicated the direction in which his car
travelled away from the bar.
Acting on this information, Deputy Brady continued south on Sun Valley Drive, past
the Adobe Bar, where he eventually caught sight of a yellow or beige Volkswagon with a roof
rack and California license plates bearing numbers matching those given him by the
dispatcher. The deputy pulled up behind the vehicle and activated the flashing emergency
lights on his patrol vehicle.
The driver of the vehicle did not notice or chose to disregard the flashing lights and
continued driving, bypassing several convenient areas to pull over. According to Deputy
Brady, the car did not speed up or otherwise attempt to elude the officer. Instead, the driver
seemed to ignore the presence of the patrol car. The driver eventually turned left, traversed a
freeway overpass, entered an apartment complex and finally stopped near a fence.
The deputy stopped his patrol vehicle and approached the car. The driver of the
vehicle, Dietrich Sonnenfeld, also exited his vehicle. The deputy immediately noticed indicia
of intoxication: Sonnenfeld lost his balance and grabbed his car door for support, he smelled
of alcohol, and he appeared surprised to see a peace officer. At a preliminary hearing, Deputy
Brady testified that before he could question Sonnenfeld, Sonnenfeld tried to strike him;
Deputy Perry arrived and assisted Deputy Brady in subduing Sonnenfeld.
Without conducting field sobriety tests, the officers arrested Sonnenfeld for driving
under the influence. A blood test later confirmed that Sonnenfeld's blood alcohol level of .15
percent exceeded the legal limit.
On May 9, 1996, Sonnenfeld filed a motion in district court to suppress all evidence
flowing from his initial detention. In that motion, Sonnenfeld argued that because Deputy
Brady was operating only on an uncorroborated tip, he did not have the requisite reasonable
suspicion to pull Sonnenfeld over. Following a hearing on the matter, the district court issued
a written order granting the motion to suppress.
ing the motion to suppress. The state thereafter filed this timely appeal.
DISCUSSION
The state argues that the district court erred in granting Sonnenfeld's motion to
suppress. Sonnenfeld argues that the officer lacked reasonable suspicion that Sonnenfeld was
driving under the influence and, therefore, his subsequent detention was unconstitutional.
According to Sonnenfeld, then, all evidence flowing from that detention must be excluded at
his trial.
NRS 171.123(1) authorizes a peace officer to detain any person whom the officer
encounters under circumstances which reasonably indicate that the person has committed or
is about to commit a crime. In discussing these provisions, this court has explained that:
Pursuant to this standard, in order to justify a stop and detention, the police officer must
be able to point to specific and articulable facts which, taken together with rational
inferences from those facts, lead the officer reasonably to conclude, in light of his
experience, that criminal activity may be afoot.
Stuart v. State, 94 Nev. 721, 722, 587 P.2d 33, 34 (1978) (citing Terry v. Ohio, 592 U.S. 1
(1968), and Jackson v. State, 90 Nev. 266, 523 P.2d 850 (1974)).
In Terry, the United States Supreme Court articulated a two-prong test for
determining whether an investigative detention passes constitutional muster:
[In] determining whether the seizure and search were reasonable our inquiry is a dual
onewhether the officer's action was justified at its inception, and whether it was
reasonably related in scope to the circumstances which justified the interference in the
first place.
Terry, 592 U.S. at 19-20.
In Alabama v. White, 496 U.S. 325, 332 (1990), the Supreme Court held that an
officer may make a traffic stop based upon an anonymous tip which was corroborated in
some detail, even though the entirety of the information was not sufficient to justify an arrest.
In White, an anonymous citizen informed the police that the defendant would leave a certain
place at a designated time, driving a particular car heading to a specified location carrying
cocaine. Id. at 326. The Court held that independent corroboration of significant aspects of
the citizens's predictions imparted sufficient reliability to justify a traffic stop. See id. at 332;
accord United States v. Alvarez, 899 F.2d 833 (9th Cir.
1990); United States v. Rodriguez, 835 F.2d 1090 (5th Cir. 1988).
Other jurisdictions addressing this issue have held that an anonymous tip, possessing a
sufficient degree of reliability, can create reasonable suspicion justifying a valid investigatory
stop. In State v. Lownes, 499 N.W.2d 896, 898 (S.D. 1993), an anonymous caller informed a
state police dispatcher that an individual was driving under the influence of some intoxicating
substance. The caller relayed specific information concerning the individual, including: (1) a
description of his distinctive motorcycle, (2) his name, (3) the location from which the
motorcycle departed, and (4) an expected destination. Id. at 898. The dispatcher then relayed
this information to a state trooper who stopped a motorcycle driven by a person matching the
informant's description. Id. The state trooper acted solely on the information relayed to him
by the dispatcher. Id. The Lownes court held that after the trooper verified aspects of the
caller's tip, i.e., that a man driving a motorcycle matching the description was proceeding on
the indicated highway in the direction predicted, there existed adequate reasonable suspicion
to justify a Terry stop. Id. at 900.
A California case, People v. Willard, 228 Cal. Rptr. 895 (Ct. App. 1986), involved similar
facts. There, a motorist hailed a police officer on the street, informing him that the car behind
the motorist appeared to be driven by a drunk. Id. at 896. The officer followed the car the
motorist indicated and effected a traffic stop. Id. The officer did not observe erratic driving
and testified that he made the stop solely on the basis of the motorist's accusation. Id.
The Willard court first held that the informing motorist was a reliable citizen witness,
noting the exigency of the circumstances and the apparent lack of an ulterior motive. Id. The
court also held that because the officer possessed reliable information that criminal activity
was in progress and that the defendant was connected with that activity, the officer possessed
the requisite reasonable suspicion to conduct an investigatory stop. Id. at 898.
The facts in the instant matter are substantially similar to those in Lownes and Willard.
Deputy Brady had first received a call that an intoxicated patron was causing a disturbance at
the Adobe Bar and was refusing to leave. Then, he received a report indicating that this
supposed inebriate left the bar and was driving a vehicle. The bartender, who is presumably in
a reasonable position to evaluate intoxication, provided the dispatcher with several specific
details: the color and license plate number of the vehicle the person was driving, the fact that
the car had a roof rack and the direction in which the car travelled away from the bar. Deputy
Brady was able, almost immediately, to verify these details upon encountering
Sonnenfeld's vehicle.
Brady was able, almost immediately, to verify these details upon encountering Sonnenfeld's
vehicle.
We conclude, as did the courts in Lownes and Willard, that these details sufficiently
corroborated the bartender's report and, therefore, the deputy possessed a reasonable
suspicion that Sonnenfeld was driving while intoxicated. Thus, we conclude that the deputy's
investigatory stop was justified and that the district court erred in granting Sonnenfeld's
motion to suppress.
Having reached the foregoing conclusions, we reverse the district court's order and
remand this case for further proceedings.
____________
114 Nev. 635, 635 (1998) Barkley v. State
JAMES EDWARD BARKLEY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 30666
May 28, 1998 958 P.2d 1218
This is an appeal from a judgment of conviction, pursuant to a jury verdict, of one
count of robbery and one count of misdemeanor battery. Eighth Judicial District Court, Clark
County; Kathy A. Hardcastle, Judge.
The supreme court held that robbery element of taking in presence of person was
satisfied.
Affirmed.
Morgan D. Harris, Public Defender and Craig F. Jorgenson, Deputy Public
Respondent.
1. Criminal Law.
When defendant walked with bottle of brandy from store without paying, despite clerk's questioning, he did so unlawfully, this
was unlawful taking in presence of clerk and against his will, for purposes of robbery statute. Unlawful taking became a robbery when
defendant struck clerk in the head with the bottle, thereby using force and violence to retain possession of bottle. NRS 200.380(1)(a).
2. Criminal Law.
Even if taking occurred when defendant first put bottle of brandy in his pants while still inside store, twenty feet away from store
clerk, and separated from clerk by an island, defendant was still in the presence of store clerk for purposes of satisfying presence
element of robbery, and completed crime of robbery when he used force outside store to retain possession of the
bottle.
completed crime of robbery when he used force outside store to retain possession of the bottle. NRS 200.380(1)(a).
OPINION
Per Curiam:
Appellant James Edward Barkley was convicted of one count each of robbery and misdemeanor battery. He contends that the
state failed to prove a necessary element of robberythe taking of property from the person of or in the presence of the victim. We
conclude that this contention lacks merit and affirm the judgment of conviction.
FACTS
On the morning of December 18, 1996, Henry Valdez was stocking shelves at the Rancho Market in Las Vegas. Valdez saw
Barkley enter the store and slip a bottle of brandy into his pants. Valdez observed this in some reflecting glass; Barkley was about twenty
feet from Valdez with a store island between them. Barkley then got a can of beer and walked to the checkout counter.
As Barkley stood at the checkout counter, Valdez approached and asked him if he intended to pay for the brandy. Barkley denied
having the brandy, threw the can of beer on the counter, and headed out the door. Valdez grabbed Barkley's backpack, but Barkley pulled
away and exited the store. Valdez followed Barkley into the street, grabbed him, and wrestled him back to the sidewalk in front of the store.
Barkley then pulled the bottle of brandy out of his pants and struck Valdez on the head with it. Police arrived and arrested Barkley. Valdez
was taken to a hospital and received five staples to close up his head wound.
The state charged Barkley with robbery and battery causing substantial bodily harm. He was tried, and the jury found him guilty
of robbery and misdemeanor battery. On May 27, 1997, the district court entered judgment accordingly and sentenced Barkley to a prison
term of thirty-five (35) to eighty-eight (88) months for robbery and a concurrent jail term of two (2) months for battery. The court also
ordered him to pay $1,481.88 in restitution.
DISCUSSION
NRS 200.380(1) provides in part:
Robbery is the 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.
of a member of his family, or of anyone in his company at the time of the robbery. A
taking is by means of force or fear if force or fear is used to:
(a) Obtain or retain possession of the property;
(b) Prevent or overcome resistance to the taking; or
(c) Facilitate escape.
Barkley says, correctly, that a necessary element of robbery is the taking of property
from a person or in the presence of a person. He argues that proof of this element was lacking
here because when he took the bottle of brandy, Valdez was twenty feet away, separated by
an island, and watching him in reflecting glass. The state contends that the taking occurred
when Valdez confronted Barkley and Barkley started to leave the store with the bottle. Until
that time, Barkley could have paid for the bottle, and no unlawful taking would have
occurred.
[Headnotes 1, 2]
We conclude that the state's position is correct.
1
We hold that Barkley unlawfully
took the bottle of brandy when he walked with it from the store despite Valdez's questioning.
This occurred in the presence of Valdez and against his will. The unlawful taking became a
robbery when Barkley struck Valdez in the head with the bottle, thereby using force and
violence to retain possession of the bottle, as proscribed by NRS 200.380(1)(a). (Additionally
or alternatively, a factfinder could reasonably decide that Barkley used force and violence to
overcome resistance to the taking or to facilitate escape, as proscribed by NRS 200.380(1)(b)
and (c).)
CONCLUSION
The jury could have reasonably found that Barkley unlawfully took personal property
in the presence of another person against that person's will and used force to retain the
property or facilitate escape.
__________

1
Even if we accepted Barkley's position that the taking occurred when he first put the bottle in his pants, his
argument that he was not in the presence of Valdez has no merit. In Robertson v. Sheriff, 93 Nev. 300, 565
P.2d 647 (1977), two or three men entered a bar and took money from a cash register. The bartender heard the
robbers and out of fear stayed in the restroom of the bar throughout the robbery. This court concluded that the
money was taken in the presence of the bartender. A thing is in the presence of a person, in respect to
robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome by
violence or prevented by fear, retain his possession of it.' Id. at 302, 565 P.2d at 648 (quoting Commonwealth
v. Homer, 127 N.E. 517, 520 (Mass. 1920)).
Therefore, Barkley took the bottle of brandy in the presence of Valdez, even if the taking occurred when
Barkley first put the bottle in his pants. Although under this analysis Barkley did not use force or fear when he
first took the bottle, he still committed robbery because he used force later to retain possession of the property.
NRS 200.380(1)(a).
that person's will and used force to retain the property or facilitate escape. This constitutes
robbery. We therefore affirm his judgment of conviction.
2

This is a theft case, a larceny case, not a robbery case. As pointed out in the majority
opinion, Mr. Valdez happened to observe Barkley secreting the stolen bottle of brandy, saw
him furtively slip the bottle of brandy into his pants. There appears to be no doubt that
Barkley took the property by stealth; he did not take the property by means of force or
violence. It is true that a store clerk was present in the store at the time he stole the brandy,
but it certainly cannot be said that he robbed the clerk.
When the clerk asked Barkley about the brandy, Barkley fled from the store with the
already-stolen property. At the time Barkley left the store he had already appropriated the
brandy with an intent to steal, and his flight does not raise his crime from larceny to robbery
merely because he took flight. The majority seems to agree with my point because it identifies
the robbery as taking place outside of the store when Valdez attempted to apprehend Barkley,
at which time the previous taking became a robbery when Barkley struck Valdez in the head
with the bottle.
The facts of this case require the adoption of a strange rule in robbery cases: A thief
who steals something in a store becomes a robber if later, outside the store, the thief resists
attempts to retrieve the stolen property. Do we have, then, two crimes in such cases, a larceny
when the property is first stolen and robbery when the thief refuses, on demand, to give the
property up? I do not think so. I think that Barkley is a thief and not a robber. The difference
between robbery and theft in the early common law was that robbery was an open taking;
theft a secret taking.
__________

2
Appellant's fast track statement cites to the transcript of appellant's trial, but appellant's counsel, Craig F.
Jorgenson, Deputy Public Defender, has failed to cause transmission of a transcript to this court. Appellant has
the responsibility to provide materials necessary for appellate review. See NRAP 3C(d)(3) and (e)(2); Greene v.
State, 96 Nev. 555, 558, 612 P.2d 686, 688 (1980); Jacobs v. State, 91 Nev. 155, 158, 532 P.2d 1034, 1036
(1975). Since the factual statements in both the fast track statement and the fast track response were consistent,
we accepted the facts as set forth by appellant and were able to decide this appeal. However, we admonish Mr.
Jorgenson to comply with NRAP 3C or face sanctions in the future.
Furthermore, NRAP 3C(e)(2) and 3C(f)(2) provide that fast track appendices shall include only file-stamped
copies of relevant papers and pleadings submitted to the district court that are necessary for consideration of the
appeal by the Supreme Court. In this appeal, the parties' joint appendix included numerous documents which
were not cited to and which were not necessary for our consideration of the appeal. We admonish the parties to
include only relevant documents in future appendices to conform with NRAP 3C, to conserve paper, and to
facilitate efficient appellate review by this court.
was that robbery was an open taking; theft a secret taking. See F. Pollock & F. Maitland,
History of English Law 494 (1911). This was a secret taking, not an open taking.
Robbery is a compound felony, larceny accompanied by violence. Although there was
violence after the theft, the taking was not accomplished by means of violence; and, under
our law, robbery is taking by means of force or violence or with implied force because the
taking was in the presence of the owner. If there were any doubt (and I do not think that there
was), the doubt should be resolved in favor of the defendant. A common larceny has been
artificially raised to a robbery. I would send the case back to the trial court with instructions
that the robbery conviction be reduced to a theft conviction.
____________
114 Nev. 639, 639 (1998) Leonard v. State
WILLIAM BRYON LEONARD, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 29568
May 28, 1998 958 P.2d 1220
Appeal from an order of the district court denying a petition for post-conviction relief.
First Judicial District Court, Carson City; Michael R. Griffin, Judge.
After his conviction for first-degree murder of fellow prison inmate and sentence of
death were affirmed, 108 Nev. 79, 824 P.2d 287 (1992), petitioner sought post-conviction
relief. The district court denied petition, and petitioner appealed. The supreme court,
Shearing, J., held that: (1) counsel was not ineffective in deciding to argue self-defense; (2)
counsel's inaccurate statement during opening did not prejudice defendant; (3) objection in
presence of jury to evidence of defendant's prior escape from prison did not render counsel
ineffective; (4) closing argument which conceded conflict between stories told by defense
witnesses did not render counsel ineffective; (5) deficient performance in failing to present
evidence that victim had previously possessed weapon in prison was not prejudicial; (6)
failure of prison official to videotape altercation did not warrant reversal; (7) any error in
instruction on lying in wait was harmless; (8) counsel was not ineffective in failing to
anticipate subsequently announced new rule; and (9) verdict form, which included as option
that jury therefore unanimously set the penalty at death, was not misleading.
Affirmed.
Erik R. Johnson, Carson City; Richard F. Cornell, Reno, for Appellant.
Frankie Sue Del Papa, Attorney General, and David F. Sarnowski, Chief Deputy
Attorney General, Carson City, for Respondent.
1. Criminal Law.
Counsel for prison inmate charged with first-degree murder of fellow inmate were not ineffective in choosing to argue
self-defense. Although prison guard testified that inmate attacked first and emerged basically unharmed, other testimony was presented
that second inmate, attacked first and was convicted murderer with history of violent behavior, counsel did not reject lesser offenses of
voluntary manslaughter and second-degree murder, but mentioned those options only in passing as part of reasonable strategic decision
not to argue multiple theories, and little if any evidence supported claim of mutual combat. U.S. Const. amend. 6.
2. Criminal Law.
Counsel for prison inmate charged with first-degree murder of fellow inmate was not ineffective in failing to argue that evidence
concerning shank allegedly used in murder was inconsistent with state's theory of case, as testimony of state's forensic criminalist that
shank was consistent with angle iron from metal locker did not disprove state's theory, and defense witness testified that shank had
been made from same locker, but by second inmate. U.S. Const. amend. 6.
3. Criminal Law.
Counsel for prison inmate charged with first-degree murder of fellow inmate was not ineffective in failing to object to
prosecutor's statement during closing argument that there was little doubt that shank used in murder came from locker with missing
legs, based on testimony of forensic criminalist and corrections officer who discovered missing legs, as comment was reasonable and
any objection would have been overruled. U.S. Const. amend. 6.
4. Criminal Law.
If trial court deems evidence insufficient, it may advise jury to acquit, but jury is not bound by such advice. NRS 175.381(1).
5. Criminal Law.
Inaccurate statement during opening argument by counsel for murder defendant that defense did not have to do anything and
could ask judge to find a verdict, but that if defense felt it needed to present the other side of case, it would do that, did not result in
prejudice to defendant, as would entitle him to relief based on ineffective assistance of counsel. In context, counsel was telling jury that
defendant had no duty to put on evidence and that burden lay entirely with state, and no reasonable juror would have relied on remark
to conclude that state had prevailed if trial proceeded to presentation of evidence by defense. U.S. Const. amend. 6.
6. Criminal Law.
Counsel for capital murder defendant was not ineffective in objecting, in presence of jury, to evidence that defendant had
previously attempted to escape from prison. Counsel was objecting to claimed attempt by state to inflame passions of jury, and no
reasonable juror would have believed that counsel was indicating that defendant intended to escape and cause
harm.
would have believed that counsel was indicating that defendant intended to escape and cause harm. U.S. Const. amend. 6.
7. Homicide.
Evidence that capital murder defendant had previously escaped from prison was admissible during penalty phase.
8. Criminal Law.
Counsel for capital murder defendant was not ineffective in arguing evidentiary objections in presence of jury; while defendant
claimed that tactic drew jury's attention to evidence and emphasized its unfavorable effect on defense, counsel was seeking to have his
objections on record, and wanted jury to know that evidence, though admitted, still might not be dependable. U.S. Const. amend. 6.
9. Criminal Law.
Inability of defense counsel to keep damaging impeachment evidence, which showed racist attitudes of defense witness, and
argument from jury, did not unduly prejudice murder defendant, and thus did not entitle him to relief based on ineffective assistance of
counsel. Jury already had evidence of witness' attitude toward blacks, because he had testified that he had used racial epithets toward
blacks but had meant no disrespect, and testimony had been presented regarding racial tensions in prison where murder occurred. U.S.
Const. amend. 6.
10. Criminal Law.
Alleged ineffectiveness of counsel for murder defendant in failing to exclude evidence that defense witness had used aliases had
little prejudicial effect, and did not warrant relief based on ineffective assistance of counsel, given that jury knew that witness was
convicted felon serving time in maximum security for armed robbery, possession of weapon in prison, and attempted escape, and had
been in prison in California for grand theft. U.S. Const. amend. 6.
11. Criminal Law.
Counsel for murder defendant was not ineffective in failing to introduce prior consistent statement by witness that victim had
been aggressor, where no showing was made that state had expressly or impliedly charged witness with recent fabrication or improper
motive, as required for prior consistent statement to be admissible. U.S. Const. amend. 6; NRS 51.035(2)(b).
12. Criminal Law.
Closing argument in which counsel responded to prosecution remarks by conceding defense witnesses had provided accounts of
fatal prison fight which differed in some respects, and admitted that one of witnesses was an obnoxious fellow, taken in context, was
reasonable argument and did not constitute ineffective assistance of counsel, as counsel also stated that if witnesses were going to
concoct a story their versions would have been perfect in every respect, and noted that defense was not asking jurors to like defense
witnesses. U.S. Const. amend. 6.
13. Criminal Law.
Counsel for defendant charged with murder of fellow prison inmate in altercation was not ineffective in failing to present
evidence that victim had complained of migraine headaches, in order to establish that victim had been aggressor; while defendant
claimed that such a theory of aggression could have been developed, no showing was made that counsel was unreasonable in failing to
pursue such a theory. U.S. Const. amend. 6.
14. Criminal Law.
Counsel for defendant charged with murder of fellow prison inmate in altercation was not ineffective in failing to support theory
that victim was aggressor by presenting testimony of fellow inmates that victim did not care if he died, and had thrown boiling water
and chemicals at other inmates; counsel could reasonably have decided that such testimony was largely cumulative, and that further
reliance on inmate testimony would not have been productive. U.S. Const. amend. 6.
15. Criminal Law.
Deficient performance by counsel for defendant charged with murder of fellow prison inmate in failing to introduce evidence
that victim had previously been in possession of prison-made weapon did not significantly prejudice defendant, and thus did not entitle
defendant to relief based on ineffective assistance of counsel, where other evidence before jury indicated that possession of
prisoner-made weapons was almost endemic among inmates in maximum security wing of prison.
16. Criminal Law.
Conviction may be reversed when state loses evidence if defendant is prejudiced by loss, or state acted in bad faith in losing it.
17. Criminal Law.
To establish prejudice resulting from loss of evidence by state, as will warrant reversal of conviction, defendant must show that
it could be reasonably anticipated that evidence would have been exculpatory and material to defense.
18. Criminal Law.
If state fails out of gross negligence to gather material evidence, defendant is entitled to presumption that evidence would have
been unfavorable to state, and in cases of bad faith, dismissal of charges may be an available remedy.
19. Criminal Law.
Failure of prison official to use available videotape equipment to record altercation which resulted in fatal injuries did not
constitute loss of evidence by state, as would potentially warrant reversal of first-degree murder conviction arising from altercation; no
evidence was presented that videotape was made and then erased, and official was not acting for police or prosecuting authorities when
he failed to make tape.
20. Criminal Law.
Prison inmate who was convicted of first-degree murder of fellow inmate in altercation failed to show that video recording of
altercation would have been exculpatory, and thus, even assuming that failure of prison official to use available equipment to record
altercation constituted loss of evidence, reversal of conviction was not warranted. Eyewitness testified that inmate had attacked fellow
inmate without provocation, and inmate's unscathed condition indicated that he was the aggressor.
21. Homicide.
Lying in wait to commit killing, which will support conviction for first-degree murder, consists of watching, waiting, and
concealment from the person killed with intention of inflicting bodily injury upon such person, or of killing such person. NRS
200.030(1)(a).
22. Homicide.
Any error in instruction on lying in wait, which stated that murder so committed is murder in the first degree whether killing was
intentional or accidental, was harmless where jury found necessary intent on part of defendant, who stabbed victim 21 times. NRS
200.030(1)(a).
23. Criminal Law.
Counsel for capital murder defendant, who was charged with killing committed while he was in prison, were not ineffective in
failing to present testimony of expert on prison conditions and possibility of rehabilitation during penalty phase. Although some
evidence of convict code governing prisons was admitted, counsel also presented testimony of defendant's parents, and inmate
testimony on bad character of victim. U.S. Const. amend. 6.
24. Criminal Law.
Counsel for defendant charged with capital murder of fellow prison inmate was not ineffective in asking inmate who testified for
defendant during penalty phase, at defendant's prompting, whether he had brought weapon into court, to which witness replied that he
had brought razor into court. While in retrospect question was improper, at time counsel was reasonably relying on defendant to give
him appropriate questions, and defendant, who had witness smuggle razor to prove point about laxness of prison security and inmates'
need to protect themselves, would not later be heard to accuse counsel of ineffectiveness for which defendant was responsible. U.S.
Const. amend. 6.
25. Criminal Law.
Counsel for capital murder defendant made reasoned, tactical decision not to present during penalty phase testimony of
individuals with prior contact with defendant, including defendant's brother, former teacher and school counselors, and his
ex-girlfriend, regarding his character; ex-girlfriend was reluctant to testify, teachers and counselors had minimal contact with
defendant, and counsel was not told by brother that their stepfather had regularly beaten defendant and brother as children. U.S. Const.
amend. 6.
26. Criminal Law.
Counsel for capital murder defendant who was charged with murder of fellow prison inmate was not ineffective with respect to
presentation of evidence of victim's character, and role of prison in crime, during penalty phase. Jury heard substantial evidence
concerning victim's character and prior violent history, and also learned of negligence of prison officials in allowing defendant access
to victim, which did not mitigate defendant's crime in the least. U.S. Const. amend. 6.
27. Criminal Law.
Presentation of mitigating evidence during penalty phase by counsel for capital murder defendant was not ineffective assistance
of counsel. Evidence was presented that defendant was born prematurely, suffered serious head injuries as a child, and had history of
mental and emotional problems and drug abuse, and counsel also presented expert evidence that defendant had psychiatric problems.
28. Criminal Law.
Capital murder defendant was not prejudiced by alleged ineffectiveness of counsel in managing calling of witnesses and
presentation of evidence during penalty phase. U.S. Const. amend. 6.
29. Courts.
Decisions in Hamilton v. Vasquez and Geary v. State, holding that capital murder defendant cannot constitutionally be
precluded from informing jury that he has little chance of receiving parole, if jury otherwise faces false choice between sentencing
defendant to death or sentencing him to limited period of incarceration, established new rule, and do not apply retroactively in habeas
corpus proceedings.
30. Criminal Law.
Counsel for capital murder defendant was not ineffective in failing to anticipate new rule subsequently announced,
which provides that capital murder defendant cannot constitutionally be precluded from informing jury that
he has little chance of receiving parole, if jury otherwise faces false choice between sentencing defendant
to death or sentencing him to limited period of incarceration.
anticipate new rule subsequently announced, which provides that capital murder defendant cannot constitutionally be precluded from
informing jury that he has little chance of receiving parole, if jury otherwise faces false choice between sentencing defendant to death
or sentencing him to limited period of incarceration. U.S. Const. amend. 6.
31. Criminal Law.
Verdict form in capital murder prosecution which asked jury to state whether mitigating circumstances were, or were not,
sufficient to outweigh aggravating circumstances found, and then contained spaces for jury to indicate either that they therefore
unanimously set the penalty at death, or decline to impose the death penalty, was not misleading. Use of word therefore did not
indicate to jurors that they had no choice but to set penalty at death, since form indicated that jury had option not to impose death even
if mitigating circumstances did not outweigh aggravating circumstances.
32. Witnesses.
Trial court did not abuse its discretion in ruling that judgments of prior convictions of capital murder defendant could be used to
impeach defendant if he testified, and that if defendant claimed that he had acted in self-defense, state might be able to inquire into
circumstances of prior crimes, depending on nature of defendant's testimony.
33. Criminal Law.
Defense counsel was not ineffective in failing to challenge comment by trial court, in response to concern by prospective juror
during voir dire about emphasis placed on protecting rights of criminals as opposed to rights of police, that the Constitution says no
person can be compelled to give evidence against himself. It doesn't say anything about a police officer remark did not comment on
defendant's failure to testify, because it was made long before defendant did so, and while court erred in stating that protection against
self-incrimination was unfortunate, remark was brief, and context indicated that court was not disparaging that protection. U.S.
Const. amends. 5, 6.
OPINION
In October 1987, while incarcerated in prison, appellant William Bryon Leonard stabbed to death a fellow inmate. A jury trial
was held in August 1989, and Leonard was convicted of first-degree murder and other crimes and sentenced to death. This court affirmed
his conviction and sentence. Leonard v. State, 108 Nev. 79, 824 P.2d 287, cert. denied, 505 U.S. 1224 (1992). In September 1992, Leonard
filed a petition for post-conviction relief, pursuant to former NRS 177.315,
1
alleging numerous instances of
ineffective assistance by his trial and appellate counsel.
__________

1
NRS 177.315 and related provisions were repealed in 1993. 1991 Nev. Stat., ch. 44, 31 and 33 at 92.
*Editor's Note:
On August 12, 1998, the court ordered the clerk to correct a factual misstatement in the opinion. This
corrected opinion reflects changes made August 12.
instances of ineffective assistance by his trial and appellate counsel. The district court held an
evidentiary hearing and denied the petition in a written order on October 9, 1996. Leonard has
appealed. As set forth below, we affirm the district court's order.
FACTS
Leonard was an inmate at Nevada State Prison on October 22, 1987, when he stabbed
to death fellow inmate Joseph Wright. Correctional Officer (CO) Leonard Bascus, the state's
only eyewitness to the crime, testified to the following. On the evening of the crime, he was
the shower officer in Unit 7; Leonard and Wright were housed in D Wing of Unit 7. Bascus
was supposed to let only one inmate out at a time to shower. He let Leonard out to shower
last because Leonard had showered first the day before; after Leonard showered, Wright, the
tier porter, would be let out to clean up the wing. This was the usual schedule, which the
inmates knew.
Bascus became locked in C Wing of Unit 7 for about ten minutes due to an error by Senior
CO Thomas Edwards, who was in charge of the control room for Unit 7 that night. When
Bascus returned to D Wing, he did not see Leonard in the shower or in the hallway of the tier
of cells; he yelled for Leonard to return to his cell. Although Bascus never saw Leonard
reenter his cell, he locked Leonard's cell and opened Wright's cell door from a control box.
He then saw Leonard running down the hallway toward Wright's cell. Bascus tried to close
Wright's door, but Leonard ran into the cell just before the door slid shut.
Bascus then unlocked Wright's door. Pursuant to regulations, he did not enter the tier
alone. He heard banging sounds in the cell. After a minute or two, he saw Wright back out of
his cell with his fists raised and blood on his right leg and arm. Leonard then ran out of the
cell and tackled Wright. Bascus saw nothing in either man's hands. He went to summon help
from Edwards in the control room. When Bascus returned, he saw both inmates on their
knees, side by side, facing away from him, with their arms locked around each other. During
the entire incident, he never saw Wright take any offensive action towards Leonard other than
throwing a punch. Then Leonard rose and walked to his cell, saying generally to everyone in
the wing, Well, a little bit longer and I would have killed him. Bascus locked Leonard in
his cell. Wright lay on his back in the hallway and soon died.
An autopsy showed that Wright had suffered twenty-one stab wounds from his head to his
feet. One wound penetrated his pericardial sac and the right wall of his heart, causing his
death within minutes. Leonard had suffered only superficial scratches on the inside of his
right arm.
Senior CO Edwards, who manned the control room for Unit 7 that night, testified that
he did not see the altercation. He was in charge of cameras and video recording equipment
which could have recorded the events in the tier hallway, but no recording was made.
Edwards later gave inconsistent reasons for failing to record anything, and prison authorities
later disciplined Edwards and Bascus for their negligent conduct the night of Wright's killing.
Various prison and police personnel who investigated the crime that night testified that
Leonard and two other inmates who testified for him at the trial, Frank Armijo and Don Hill,
acted amused and carefree after the killing, e.g., Armijo and Hill were singing Another One
Bites the Dust.
A prison plumber located a prison-made weapon, or shank, in the sewer line that
serviced the cells of Hill and Armijo. The line did not service the cells where Leonard and
Wright were located. Investigators also found two prison-made weapons in shoes in Hill's
cell.
The state's forensic criminalist determined from analysis of the metal in the weapons that
the weapon found in the sewer line and one of the weapons in Hill's cell had very likely come
from a single piece of metal. He could not determine whether the metal pieces in the two
weapons had come from the missing legs of a metal locker that was kept in D Wing for the
inmates' legal work.
CO James Baca testified that a week or two before Wright's death, he saw Armijo
throwing the locker around. He ordered the locker removed from the wing. Sometime after
Wright's death, Baca noticed that the rear legs of the locker were missing. He suspected that
the shank found in the sewer after Wright's death had been manufactured from the legs.
Armijo and Hill testified for the defense. Their cells were adjacent and directly across the
hallway from Leonard's and Wright's cells, which were adjacent to each other. The two said
that Leonard was outside Hill's cell speaking with Hill when Wright came out of his cell and
attacked Leonard with a shank. Hill also said that Wright threw some powder in Leonard's
face. Both inmates testified that Wright was known for violent, sometimes homosexual,
attacks on other inmates and that he had threatened Leonard. They also testified to racial
tensions between black and white inmates; Wright was black, and Leonard and Hill were
white. Hill said that Wright had attacked him a few days before Wright was killed; he also
said that in another incident another black inmate had attacked Leonard. Hill stated that he
had bought one of the shanks found in his shoes from Wright, before he and Wright became
enemies, and that Wright had made it from the legs of the locker in D Wing.
John Ignacio, Associate Warden of Northern Nevada Correctional Center, testified for
the defense. He said that Wright was serving two life sentences for murder and that an inmate
had accused Wright of raping him at the county jail and of threatening to kill him for pressing
charges. Ignacio had concluded that Wright was a clear and present danger and sent him to
maximum security. An inmate, apparently the one Ignacio had referred to, testified that while
he and Wright were incarcerated in jail in 1985, Wright had held a razor to his throat, forced
him to orally copulate Wright, and had threatened to kill him if he went to authorities.
The jury found Leonard guilty of first-degree murder. At the penalty phase, the state
proved that Leonard had two prior murder convictions, one in Florida and one in Nevada. The
state also showed that while in prison Leonard had attacked an inmate with a shank and a
correctional officer with a spear-like weapon. It also showed that Leonard had attempted to
escape from Nevada State Prison on January 6, 1989.
The defense called Leonard's father and mother to testify. The defense presented one
inmate who testified that he once had to threaten Wright with a knife to stave off Wright's
sexual advances. Another inmate testified that Wright had assaulted him. Evidence was
presented that Leonard was quite strong, had some skills in martial arts, and could take care
of himself. The district court was concerned that this evidence might not be helpful to the
defense, but Leonard stated that he wanted to show the jury that he was capable of defending
himself to lend credence to the defense theory that Leonard was unarmed when attacked by
Wright, who was larger and armed.
Evidence was presented, some elicited by the state during cross-examination, that some
inmates observe a convict code by which they do not rely on prison authorities but protect
themselves. One inmate defense witness testified that he had carried a razor into court under
his dental plate. The district court had the jury removed and admonished Leonard that such
evidence was not in his interest, but Leonard maintained that he wished to pursue it. Security
officers obtained the razor, and the jury returned and was shown the razor.
The defense also presented extensive evidence of another incident where a
correctional officer simultaneously released Leonard and a black inmate by mistake from
their cells in Unit 7 but no violence occurred. Leonard also exercised his right to allocution.
The jury sentenced Leonard to death. This court affirmed his conviction and sentence in
Leonard v. State, 108 Nev. 79, 824 P.2d 287, cert. denied, 505 U.S. 1224 (1992). Leonard
filed a petition for post-conviction relief in September 1992.
petition for post-conviction relief in September 1992. The district court held a four-day
evidentiary hearing in November 1995 and denied the petition in a written order entered on
October 9, 1996.
DISCUSSION
Leonard contends that his trial and appellate counsel were ineffective in numerous
ways. James Wessel and Sue Saunders represented him at trial, and Saunders represented him
on appeal.
To establish ineffective assistance of counsel, a defendant must show that counsel's
representation fell below an objective standard of reasonableness and that counsel's deficient
performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
To establish prejudice, the defendant must show that but for counsel's mistakes, there is a
reasonable probability that the result of the proceeding would have been different. Id. at 694.
Judicial review of a lawyer's representation is highly deferential, and a defendant must
overcome the presumption that a challenged action might be considered sound strategy. Id. at
689.
Allegations of ineffectiveness during the guilt phase
Relying on a theory of self-defense instead of other theories
Leonard asserts that the most fundamental error of his two trial counsel was relying on
a theory of self-defense and rejecting the options of voluntary manslaughter and
second-degree murder. Moreover, he argues that the offense most applicable to the facts was
mutual combat, pursuant to NRS 200.450, which criminalizes fighting upon previous
concert and agreement.
2

[Headnote 1]
We conclude that Wessel and Saunders were not ineffective in arguing self-defense
but performed reasonably well given the task they faced. Despite CO Bascus's testimony that
Leonard attacked first and the fact that Leonard emerged basically unharmed, it was not
unreasonable to argue self-defense since defense counsel were able to present other testimony
that Wright attacked first as well as undisputed evidence that Wright was a convicted
murderer with a history of violent behavior. Nor did counsel reject voluntary manslaughter
and second-degree murder; the jury was instructed on both lesser offenses. Wessel mentioned
these options only in passing in final argument, but we conclude that it was a reasonable
strategic decision not to argue multiple theories to the jury.
__________

2
At the time of Leonard's prosecution, NRS 200.450(3) provided that if death ensued as a result of such
fighting, a person causing the death would be punished by one to ten years in prison and could be fined as much
as $10,000. The statute now provides that such a death constitutes first-degree murder. 1995 Nev. Stat., ch. 443,
65, at 1189-90.
was a reasonable strategic decision not to argue multiple theories to the jury. Moreover,
arguing self-defense did not contradict or undercut the other two options: a jury conceivably
could have been convinced that Wright acted in a way which did not justify self-defense but
was provocative enough to create an irresistible passion, or at least negate premeditation, on
Leonard's part.
Leonard maintains that the defense should have argued that he and Wright engaged in
mutual combat. But he offers little if any evidence of an agreement between himself and
Wright to fight. Moreover, Leonard theorizes that Senior CO Edwards, the officer in the
control room, opened the cell doors so that the fight could occur. He cites a number of
circumstances which he considers suspicious, for example: Edwards locked CO Bascus in C
Wing for a time, Edwards claimed that he was unaware of the altercation between the inmates
and therefore failed to record it, Edwards changed his explanation for this failure, Edwards
had been disciplined for concealing a 1985 DUI conviction from prison authorities, and
Edwards refused to give any information to the investigator working for Leonard's
post-conviction counsel. We consider this theory completely unconvincing speculation, as the
jury likely would have if presented with it. The theory founders most directly on the fact that
Bascus admitted that he (not Edwards) had mistakenly allowed both inmates out of their cells
at the same time. At best, Leonard now simply posits an alternative defense strategy; he does
not establish that the strategy followed was unreasonable.
Failing to argue that the state's evidence concerning the alleged weapon was
inconsistent with the state's theory
[Headnote 2]
Leonard claims that trial counsel were incompetent because they failed to realize that
key forensic evidence on the origins of the shank found in the sewer line actually disproved
the State's theory and supported the defense testimony. Leonard mischaracterizes the
evidence presented.
3

Leonard declares that the state's forensic criminalist testified that the shank found in
the sewer could not be matched to the angle iron" which Armijo allegedly tore off the
locker.
__________

3
Of course, we refer to the attorneys representing Leonard in this appeal when we say, here and below, that
Leonard has distorted the record. These attorneys are Richard F. Cornell and Erik R. Johnson. Although their
briefs reflect a good deal of effort on the part of their client, this court is troubled that their assertions too often
go beyond fair argument and are misleading as to the facts. Furthermore, Mr. Cornell and Mr. Johnson are
unnecessarily harsh and unfair in their rhetoric when they repeatedly attack the efforts of Leonard's trial and
appellate counsel as foolish, incompetent, etc. We admonish both attorneys to avoid such unprofessional
conduct in the future.
angle iron which Armijo allegedly tore off the locker. Actually, the criminalist testified that
he could not say that the shanks likely came from the angle iron, but they were consistent
with it. Thus, the forensic evidence did not disprove the state's theory, as Leonard claims. In
fact, Hill testified for the defense that the shanks were made from the same locker, only by
Wright instead of Armijo. Therefore, failing to trace the shanks to the locker disproved the
defense's theory as much as the prosecution's.
[Headnote 3]
The prosecutor argued in closing that there was little doubt that the shanks came from
the locker with the missing legs based on the testimony of the criminalist and the correctional
officer who had discovered the missing legs. Based on Leonard's mischaracterization of the
evidence, Leonard says that his counsel were remiss for not objecting to the prosecution's
argument. We conclude that the prosecutor's argument was reasonable and any objection
would have been overruled.
Leonard's counsel were not ineffective in this matter.
Mentioning the possibility of a directed verdict
In her opening statement, Leonard's counsel, Saunders, told the jury that the
prosecution would present its case first and if it failed to prove its case, Leonard
doesn't have to do anything. We don't have to do anything, Mr. Wessel and I. We can
ask the judge to find a verdict
. . . .
If that is not the case, and there is some situation where we feel that we need to
present the other side, we need to present to you why we feel that Mr. Leonard took the
actions that he took, then we will do that.
[Headnotes 4, 5]
Leonard says that counsel's reference to a directed verdict misstated the law and
prejudiced him because once the district court did not acquit him at the end of the state's case
in chief, the jury was led to believe that the court considered the evidence sufficient for
conviction. We agree that counsel's statement was inaccurate. If the trial court deems the
evidence insufficient, it may advise the jury to acquit, but the jury is not bound by such
advice. NRS 175.381(1); State v. Wilson, 104 Nev. 405, 408, 760 P.2d 129, 131 (1988). But
we conclude that the statement had little if any prejudicial effect. In context, counsel was
telling the jury that Leonard had no duty to put on evidence and that the burden of proof lay
entirely with the state. We conclude that no reasonable juror would have relied on counsel's
passing remark to conclude that the state had prevailed if the trial proceeded to
presentation of evidence by Leonard.
to conclude that the state had prevailed if the trial proceeded to presentation of evidence by
Leonard.
Objections in the presence of the jury
[Headnote 6]
Leonard contends that his counsel, Wessel, prejudiced him by objecting in the
presence of the jury to evidence that Leonard had attempted to escape from prison. Wessel
stated:
I believe what the state is trying to do is to inflame the passions of the jury by leading
them to believe that Mr. Leonard is an escape risk and therefore if they don't impose the
death penalty he may cause a death out onto the streets.
. . . .
[A]gain, we submit that the sole purpose of this is just to frighten the jury to lead them
to believe that Mr. Leonard may escape at some time and maybe cause them harm in
the future.
[Headnote 7]
Leonard states that it is improper for a prosecutor to argue that allowing a defendant
to live constitutes a personal risk to the jurors, but such a remark was far more prejudicial . .
. when it came from his own attorney, whom the jury could reasonably conclude would know
what his client was actually intending. We conclude that Leonard distorts the plain meaning,
the intent, and the effect of his counsel's words and that no reasonable juror would have
believed that Wessel was indicating that Leonard intended to escape and cause them harm.
4

[Headnote 8]
Leonard also complains that here and at other times during the trial, Wessel
unsuccessfully argued evidentiary objections in the presence of the jury, drawing the jury's
attention to the evidence and emphasizing its unfavorable effect on the defense. Wessel
testified at the post-conviction evidentiary hearing that he wanted his objections on the record
5
and wanted the jury to know that evidence, though admitted, still might not be dependable.
Further, the district court stated at the hearing that it would not have allowed most objections
to be made outside the presence of the jury or sidebar.
We conclude that Leonard has failed to show that his counsel acted unreasonably or
prejudiced him in objecting to the admission of evidence.
__________

4
Nor was it error to admit evidence of Leonard's escape attempt. See Emmons v. State, 107 Nev. 53, 60-61,
807 P.2d 718, 723 (1991).

5
It appears that sidebar conferences were not reported. Since Leonard's trial, this court has adopted SCR 250,
which requires that all proceedings in capital cases be reported.
acted unreasonably or prejudiced him in objecting to the admission of evidence.
Impeachment of a defense witness
Leonard contends his counsel were ineffective in not successfully objecting to the
prosecution's improper impeachment of defense witness Hill. The prosecutor offered letters
written by Hill which showed racist attitudes and referred to conflicts with black inmates. The
district court admitted one such letter after Wessel objected only on grounds of relevance.
After the court sua sponte raised the issue that the letters constituted improper impeachment
by extrinsic evidence of specific acts, it excluded other letters. See NRS 50.085(3).
Leonard complains that Wessel first objected on the wrong grounds and then failed,
after the favorable ruling, to ask that the first letter be struck. Worse yet, Leonard contends,
Wessel allowed extensive discussions in front of the jury on the admissibility of the
evidence. In discussing the admissibility of the letters, the prosecutor argued that the
defendant's intent is at issue in this case, and this witness has testified regarding the
defendant's outlook on black people, one of whom was the victim in this case, and I believe
the evidence, as you have seen, goes to that issue. At this point, the district court excused the
jury. A lengthy discussion then ensued, and the court excluded the evidence.
[Headnote 9]
Although defense counsel was unable to keep somewhat damaging evidence and
argument from the jury, Leonard was not unduly prejudiced. The jury already had evidence of
Hill's attitude toward blacks because he had testified that he called them niggers and
coons but maintained that he meant no disrespect, and defense witness Armijo had already
testified to the racial tensions in the prison generally.
[Headnote 10]
The prosecutor also elicited from Hill that he had used several aliases. Leonard says
that his counsel should have objected. Assuming that evidence of the aliases was improper,
we conclude that it had little prejudicial effect given that the jury knew that Hill was a
convicted felon serving time in maximum security for armed robbery, possession of a weapon
in prison, and attempted escape and had been in prison in California for grand theft.
[Headnote 11]
Leonard also says that his counsel were ineffective in not countering impeachment of
Hill by introducing a prior consistent statement by Hill that Wright was the aggressor.
statement by Hill that Wright was the aggressor. NRS 51.035(2)(b) allows a prior consistent
statement to rebut an express or implied charge against [a witness] of recent fabrication or
improper influence or motive. Leonard has not shown where the state expressly or impliedly
charged Hill with recent fabrication or improper motive. Absent such a charge, prior
consistent statements are not admissible under the statute. Therefore, trial counsel were not
ineffective in not offering Hill's prior statement.
Defense counsel's discussion of defense witnesses
[Headnote 12]
In closing argument, responding to remarks by the prosecution, Wessel conceded that
defense witnesses Armijo and Hill provided accounts of the fight which differed in some
respects. He went on:
If these two individuals were going to concoct a story, I submit to you that the story
would have been perfect in every respect, and not such an obvious error in their stories.
I have no explanation as to why their stories are not consistent, other than the fact
that this was two years ago. These men did not put down in written reports as to what
they saw. And that they did their best to try to recall what happened.
Now, you all had an opportunity to view Donald Hill. There's no question about the
fact that Donald Hill is an obnoxious fellow. And we're not asking you to like our
witnesses. . . . We are stuck with the witnesses that were there on the night in question.
(Emphasis added.)
Quoting only the emphasized words, Leonard contends that Wessel discredited his
own witnesses; however, in context the remarks are reasonable and not prejudicial to
Leonard.
Leonard also contends that Wessel attacked the credibility of Armijo on redirect
examination; however, the record shows that Wessel was attempting in a reasonable and
competent way to rehabilitate Armijo after the prosecution's cross-examination.
Failing to present more evidence that the victim was the aggressor
Leonard contends that his trial counsel ineffectively failed to present more evidence
regarding Wright's aggressive nature, including: Wright's possession of a prison-made
weapon in 1985; his complaints of migraine headaches; an inmate who reported that Wright
had been shot in a robbery attempt and did not care if he died and who also knew Wright as
a homosexual who desired young white males; an autopsy finding of semen in Wright's
penis; and two other inmates who reported that Wright had thrown boiling water and
chemicals at other inmates.
he died and who also knew Wright as a homosexual who desired young white males; an
autopsy finding of semen in Wright's penis; and two other inmates who reported that Wright
had thrown boiling water and chemicals at other inmates.
[Headnotes 13, 14]
Leonard simply asserts that a theory could have been developed that the migraine
headaches caused Wright to behave violently. This assertion fails to demonstrate that counsel
were unreasonable in failing to pursue such a theory. Regarding the potential testimony by the
three inmates, counsel could have reasonably decided it was largely cumulative to other
defense evidence and that further reliance on inmate testimony would not have been
productive. Leonard claims that the semen in Wright's penis after his death meant that he
intended a violent sexual assault upon Leonard; however, Wessel made this very argument in
closing argument. We conclude that counsel were not ineffective in dealing with this possible
evidence.
[Headnote 15]
At the post-conviction hearing, Wessel could offer no good reason for not presenting
at trial the evidence of Wright's prior possession of a weapon. We conclude that defense
counsel performed deficiently in not presenting this evidence, but this failure did not
significantly prejudice Leonard because other evidence before the jury indicated that
possession of prison-made weapons was almost endemic among inmates in maximum
security.
Failing to challenge the state's failure to produce a videotape of the altercation
Based on the state's failure to produce a videotape of his fight with Wright, Leonard
says his counsel were ineffective in failing to move for dismissal or for a jury instruction that
the missing evidence would be presumed favorable to the defense. He claims that Senior CO
Edwards' inconsistent explanations as to why the tape was not made indicate bad faith on the
part of the state.
[Headnotes 16-18]
A conviction may be reversed when the state loses evidence if the defendant is
prejudiced by the loss or the state acted in bad faith in losing it. Sparks v. State, 104 Nev.
316, 319, 759 P.2d 180, 182 (1988). To establish prejudice, the defendant must show that it
could be reasonably anticipated that the evidence would have been exculpatory and material
to the defense. Boggs v. State, 95 Nev. 911, 913, 604 P.2d 107, 108 (1979). Also, if the state
fails out of gross negligence to gather material evidence, a defendant is entitled to a
presumption that the evidence would have been unfavorable to the state, and in cases of
bad faith, dismissal of the charges may be an available remedy.
have been unfavorable to the state, and in cases of bad faith, dismissal of the charges may be
an available remedy. Daniels v. State, 114 Nev. 261, 956 P.2d 111 (1998).
[Headnote 19]
Leonard concludes that Edwards' failure to record the fight constituted a loss of
evidence by the state. We reject this conclusion. First, although Leonard implies that Edwards
may have erased the tape, there is no evidence that a video recording of the altercation was
ever made. Therefore, the evidence which Leonard alludes to never existed and was never
lost. Second, even assuming that failing to make a recording could be construed as loss of or
a failure to gather evidence, we conclude that the rules announced in Sparks and Daniels do
not apply to Edwards' negligence because, even though a state employee, Edwards was not
acting for the police or prosecuting authorities when he failed to make a tape. Similarly, any
bad faith by Edwards is not attributable to the state in its police or prosecutorial role;
moreover, although Edwards' inconsistent statements may constitute questionable attempts
after the fact to excuse his negligence in failing to make a tape, they do not indicate a
deliberate, bad faith decision not to record the altercation.
[Headnote 20]
Finally, even if the lack of a video recording could be construed as loss of or improper
failure to gather evidence by the state, Leonard has failed to show that such a recording could
be reasonably anticipated to have been exculpatory. CO Bascus testified that Leonard
attacked Wright without provocation, and Wright's numerous stab wounds and Leonard's
unscathed condition indicate that Leonard was the aggressor.
Leonard has shown no ineffectiveness of counsel in this regard.
Failing to object to the instruction on lying in wait
Jury instruction no. 21 stated:
All murder which is committed by lying in wait is as a matter of law, murder in the
first degree, whether the killing was intentional or accidental.
Lying in wait consists of watching, waiting and concealment from the person killed
with the intention of inflicting bodily injury upon such person or of killing such person.
(Emphasis added.) Leonard objects to the two emphasized phrases.
[Headnote 21]
The second paragraph is a sound statement of the law since it comes directly from
Moser v. State, 91 Nev. S09, S13, 544 P.2d 424, 426 {1975).
comes directly from Moser v. State, 91 Nev. 809, 813, 544 P.2d 424, 426 (1975). Therefore,
it was not ineffective for counsel not to object to it.
The first paragraph seems to have no direct source in Nevada law. However, the state
cites People v. Laws, 15 Cal. Rptr. 2d 668, 673-74 (Ct. App. 1993), which holds that under
the relevant California statute, any murdernot killingcommitted by lying in wait is
first-degree murder. This is so even if the murder resulted from an accidental killing. Id. at
674. For example, it is normally second-degree murder if someone shoots a gun toward a
person, intending only to scare the person, but hits and kills the person by mistake; however,
such a murder perpetrated by lying in wait is of the first degree. Id. The first paragraph of the
instruction, if carefully read, is consistent with Laws.
[Headnote 22]
However, this court need not decide whether the reasoning in Laws applies to the
relevant Nevada statute (NRS 200.030(1)(a)) or whether the first paragraph of the instruction
might mislead a reasonable juror. Even assuming that the instruction was erroneous or
misleading, Leonard was not prejudiced. There is no basis to conclude that the jury found the
killing accidental since Leonard stabbed Wright twenty-one times. This is confirmed by the
fact that the jurors returned a verdict form which indicated that they found Leonard guilty of
first-degree murder both by deliberation and premeditation and by lying in wait. Therefore,
the jury found the necessary intent for first-degree murder.
Allegations of ineffectiveness during the penalty phase
Failing to present expert testimony
Leonard says that his counsel were ineffective during the penalty phase in failing to
call an expert on prison conditions and the possibility of rehabilitation. He criticizes their
relying on convict witnesses, who presented evidence of a violent convict code which only
prejudiced him.
[Headnote 23]
Although some evidence of a convict code was admitted during the penalty phase, it
was not, as Leonard implies, the sole or even main theme of the defense. Leonard does not
consider that his counsel called his mother and father to testify for him, presented further
inmate testimony on Wright's bad character, and established that on one occasion Leonard
and a black inmate had been mistakenly released from their cells simultaneously without
incident.
Leonard has failed to demonstrate that presenting some kind of penal expert would have
changed the result of the penalty phase or that his counsel performed unreasonably in
presenting mitigating evidence.
penal expert would have changed the result of the penalty phase or that his counsel performed
unreasonably in presenting mitigating evidence.
Asking a witness if he was carrying a weapon in court
Inmate Theodore Burkett testified for Leonard at the penalty phase that inmates
possessed shanks for protection. Defense counsel Wessel asked Burkett if he had been strip
searched before being brought to court to ensure that he had no weapons. Burkett said yes.
Wessel then asked if he was carrying a weapon, and Burkett said, A razor.
Leonard concedes that he wanted Burkett to testify and that Wessel asked this question
pursuant to a written note which Leonard handed to Wessel during the examination of
Burkett. Nevertheless, he blames his counsel for asking the question and prejudicing his
defense.
At the post-conviction hearing, Wessel testified that he was asking Burkett a series
of questions, and then Mr. Leonard would supplement my questions with questions he wanted
asked and answered. This was a procedure which he and Leonard had followed during the
penalty phase questioning of inmates. Wessel stated, Things were happening very quickly,
and my recollection is that when he asked me to ask that question, the answer would
obviously be negative.
[Headnote 24]
It is clear now that Wessel should not have asked the question, but we conclude that
Wessel was not acting unreasonably at the time. He was simply relying on Leonard to give
him appropriate questions. Up to that point, such reliance was not unreasonable. It appears
that Leonard had Burkett smuggle the razor into court to prove some kind of point, apparently
the laxness of prison security and the inmates' need to protect themselves. When questioned
by the district court outside the presence of the jury, Leonard indicated that he wanted the jury
to see the razor. We conclude that Leonard will not now be heard to accuse his counsel of
ineffectiveness when it is clear that Leonard himself was responsible for any prejudice which
resulted.
Failing to present evidence of child abuse suffered by appellant and of his positive
childhood character
[Headnote 25]
During the post-conviction proceedings, Leonard presented an affidavit from his
brother, Barry Leonard, stating that their stepfather had regularly beaten them both as
children. Leonard says his counsel were ineffective for not discovering and presenting this
evidence and for not calling as witnesses people whom Saunders interviewed in Florida
before the trial, including a teacher, school counselors, and an ex-girlfriend.
his counsel were ineffective for not discovering and presenting this evidence and for not
calling as witnesses people whom Saunders interviewed in Florida before the trial, including
a teacher, school counselors, and an ex-girlfriend. These people had known Leonard and had
positive things to say of him.
Other than the childhood beatings, Leonard has not alleged with any specificity what
available evidence was not presented. Evidence of childhood beatings is important mitigating
evidence, but Saunders provided adequate reason for not presenting any of the evidence in
question. Saunders testified at the post-conviction hearing that the people she interviewed
had positive things to say about Leonard, but nothing outstanding. Leonard's ex-girlfriend
was reluctant to testify and was not surprised that Leonard was accused of murder in Nevada
because she knew of his Florida murder. The teacher and counselors had known Leonard only
a short time during his grade school years and had superficial contact with him. Saunders
considered that with Leonard's school records and the testimony of his mother and father,
testimony by the teacher and counselors would only be cumulative. Saunders interviewed
Barry Leonard, but he told her nothing about any childhood abuse. Barry had also just been
released from the Florida State Penitentiary.
We conclude that counsel made a reasoned, tactical decision not to call these
witnesses.
Failing to present more evidence of the victim's character and of the prison's role in the
crime
[Headnote 26]
Leonard complains that his counsel did not present Wright's prison record or
testimony by more inmates to further attack Wright's character. He considers even more
egregious counsel's failure to pursue the prison's involvement in Wright's death. He asserts
that the jury should have been instructed that this involvement was a possible specific
mitigating circumstance.
The jury heard a great deal of evidence concerning Wright's character during both the guilt
and penalty phases, and Leonard fails to show how further evidence on this subject would
have made a difference. The jury also learned that prison staff, specifically CO Bascus, had
negligently allowed Leonard access to Wright. We fail to see how this negligence mitigates
Leonard's crime in the least. In referring to the involvement of the prison in Wright's death,
Leonard seems to be relying on his theory that Senior CO Edwards intentionally instigated a
fight between Wright and Leonard. To reiterate, this is rank speculation void of credibility.
We conclude that no ineffective assistance of counsel occurred in this regard.
Presentation of mitigating evidence
[Headnote 27]
In her opening statement at the penalty phase, Saunders said that Leonard had been
born prematurely, suffered serious head injuries as a child, and had a history of mental and
emotional problems and drug abuse. Leonard claims that the defense team presented evidence
which either failed to support these claims or disproved them.
This claim is meritless. The defense presented testimony from Leonard's father and/or
mother that Leonard was born prematurely, had childhood head injuries, and had mental and
emotional problems and abused drugs. The defense also presented expert evidence by
audiotape and written report that Leonard had psychiatric problems.
[Headnote 28]
Leonard claims that his counsel mismanaged their calling of witnesses and
presentation of other evidence. It appears that the presentation of expert evidence on
Leonard's mental and emotional problems probably could have been more effective, but
Leonard has not specified how particular evidence differently presented could have changed
the result of the penalty phase.
Leonard also complains that counsel failed to object to letters offered by the
prosecution as Leonard's, and he claims that Saunders was incompetent in her closing
argument. We conclude that these claims have no merit.
We conclude that Leonard has not demonstrated that his counsel were constitutionally
ineffective in these matters.
Failing to object to the instruction on executive clemency
[Headnotes 29, 30]
Leonard contends that his counsel were ineffective in failing to object to the jury
instruction on the Pardons Board's power to modify sentences, given pursuant to Petrocelli v.
State, 101 Nev. 46, 692 P.2d 503 (1985), modified by Sonner v. State, 112 Nev. 1328, 1334,
930 P.2d 707, 711-12 (1996). He says that NRS 213.1099(4) would prevent him from ever
receiving parole; therefore, the instruction was erroneous under Hamilton v. Vasquez, 17 F.3d
1149 (9th Cir.), cert. denied, 512 U.S. 1220 (1994), and Geary v. State, 112 Nev. 1434, 930
P.2d 719 (1996), reh'g granted on other grounds, 114 Nev. 100, 952 P.2d 431 (1998). Even
assuming that those cases would preclude this instruction in Leonard's case, we conclude
that Hamilton and Geary announced a new rule of law and that Leonard has failed to
show that his counsel were ineffective for failing to anticipate that rule.
instruction in Leonard's case, we conclude that Hamilton and Geary announced a new rule of
law and that Leonard has failed to show that his counsel were ineffective for failing to
anticipate that rule.
In Geary, this court relied on Simmons v. South Carolina, 512 U.S. 154 (1994).
Although Simmons was a plurality opinion, a majority of the United States Supreme Court
agreed that a state cannot constitutionally preclude a defendant from informing a jury that he
has little chance of receiving parole if the jury otherwise faces a false choice between
sentencing the defendant to death or sentencing him to a limited period of incarceration, at
least where the state argues future dangerousness. Simmons, 512 U.S. at 161, 176-77.
The Supreme Court recently concluded that Simmons announced a new rule of law and
does not apply retroactively in federal habeas proceedings. O'Dell v. Netherland, 521 U.S.
151, 117 S. Ct. 1969 (1997). Leonard's conviction became final when the Supreme Court
denied his petition for certiorari in 1992. Simmons and Hamilton were decided in 1994 and
Geary in 1996. Therefore, we decline to apply the new rule announced in these cases to this
post-conviction proceeding.
6

Failing to object to the form of the special verdict
[Headnote 31]
The jury found two aggravating circumstances: Leonard committed the murder while
under sentence of imprisonment, and he had been previously convicted of murder and other
violent felonies. It found two mitigating circumstances: the victim was a participant in
Leonard's criminal conduct or consented to the act, and Leonard committed one or more of
the aggravating factors while under the influence of drugs or alcohol. The jury returned a
special verdict form, whose last paragraph read:
The mitigating circumstances we have found above:
___ Are sufficient to outweigh the aggravating circumstances found.
Yes Are not sufficient to outweigh the aggravating circumstances found.
Yes We therefore unanimously set the penalty at death.
___ We decline to impose the death penalty.
__________

6
In supplemental authorities filed April 29, 1998, Leonard cites Gallego v. McDaniel, 124 F.3d 1065,
1074-76 (9th Cir. 1997). Gallego relies on Simmons and thus may be undermined by O'Dell. Assuming that
Gallego is sound authority, we conclude that it does not apply here because the jurors who sentenced Leonard
did not receive the executive clemency instructions deemed misleading in Gallego. See Sonner v. State, 114
Nev. 321, 955 P.2d 673 (1998).
Leonard objects to the word therefore in the third option, which immediately
follows the option finding mitigators insufficient to outweigh aggravators. He reasons that
once the jury determined that the mitigators did not outweigh the aggravators, the form told
the jury that it therefore had no choice but to set the penalty at death. This argument might
prevail if We decline to impose the death penalty were the second option; however, it is the
final option, indicating that the jury need not impose death even if mitigating circumstances
do not outweigh aggravating circumstances. Moreover, the jurors were instructed that even if
they found that mitigators did not exist or did not outweigh aggravators, you still have the
discretion to vote for [a sentence of life imprisonment with or without the chance of parole]
rather than the death penalty.
Therefore, the verdict form, read as a whole and with the jury instructions, was not
misleading.
Allegations of ineffectiveness during the direct appeal
Failing to challenge the district court's ruling that appellant could be impeached with
his prior convictions
During trial, defense counsel asked the district court to decide whether Leonard's prior
felony convictions, including two murders, could be used to impeach him if he testified.
Counsel argued that they could not because the defense had stipulated at the beginning of the
trial that Leonard was in custody as a convicted felon when Wright was killed. The court
ruled that the judgments of convictions could be used to impeach Leonard. It further advised
that if Leonard testified that he had acted in self-defense, the state might be able to inquire
into the circumstances of the prior crimes, depending on the nature of Leonard's testimony.
7
Leonard chose not to testify.
Leonard contends that his appellate counsel ineffectively failed to challenge the district
court's decision. He claims that the district court ruled that the convictions could be used not
only for impeachment but as substantive evidence against Leonard. The record shows that the
court never ruled that the convictions could be used substantively; it only warned that it might
allow such use depending on how Leonard testified.
__________

7
Leonard had a prior conviction of murder in Florida for stabbing to death a man who had been beaten
defenseless. He also had a prior conviction of murder in Nevada for stabbing to death an elderly man. Leonard
told investigators that the second victim had made homosexual advances and Leonard had stabbed him in
self-defense. The district court felt these and other prior convictions might be admissible to show state of mind
as it reflects upon negating the defense of self-defense.
[Headnote 32]
The district court's decision to allow use of the felony convictions for impeachment
was within its reasonable discretion. See NRS 50.095. Whether inquiry into the nature of the
convictions would have been erroneous is not an issue before this court because no such
inquiry occurred.
Failing to challenge the district court's comment on the right not to testify
[Headnote 33]
During voir dire of venire members, one prospective juror voiced a concern about the
emphasis placed on protecting the rights of criminals as opposed to the rights of police. The
district court said, Unfortunately, our system says, you know, for example, the Constitution
says no person can be compelled to give evidence against himself. It doesn't say anything
about a police officer. So we understand, do you have that same attitude? (Emphasis added.)
Leonard asserts that the district court improperly commented on his failure to testify and
that his appellate counsel ineffectively overlooked this error. He cites numerous cases for the
proposition that direct comment on a defendant's failure to testify is reversible error.
To begin with, the district court's remark did not comment on Leonard's failure to
testify because the remark was not aimed at Leonard and was made long before Leonard
declined to testify. The court erred in stating that the constitutional protection against
self-incrimination was unfortunate. However, the remark was brief and in passing, and the
context shows that the court was not disparaging that protection. The court went on to ask the
venire member if his attitude would affect his decision in the case, and he said that he would
certainly attempt to keep it from affecting it. We conclude, therefore, that it was clear to
those present in the courtroom that the court was not espousing a critical view of defendants'
constitutional rights but instead expected all jurors to respect those rights. Therefore,
appellate counsel was not ineffective in failing to raise this issue.
In connection with this issue, Leonard raises for the first time in his reply brief a number
of instances of alleged judicial bias during the trial. Pursuant to NRAP 28(c), which requires
reply briefs to be limited to new matters in the answering brief, we will not consider these
allegations, particularly since our reading of the record has revealed nothing to indicate that
the district court was anything but evenhanded in its handling of the trial.
CONCLUSION
We conclude that none of Leonard's claims of ineffective assistance of counsel
warrants relief.
assistance of counsel warrants relief. We therefore affirm the district court's order.
Rose, and Maupin, JJ., concur.
I conclude that the majority is incorrect in ruling that the verdict form relative to
mitigating circumstances was not misleading.
As I see it, not only is the therefore misleadingan indication that the death penalty
verdict necessarily follows from the previous clauseI also think that putting emphasis on
the phrase not sufficient is prejudicial to the accused.
Given the overall complexion of this case, I am willing to concur in its results and
affirm the judgment of the trial court; however, I hate to see this court's stamp of approval
being placed on the lop-sided special verdict form that was submitted to the jury in this case.
Young, J., concurring:
I concur with the reasoning and the result of the majority opinion, but write separately
regarding the conduct of Leonard's attorneys, Erik R. Johnson and Richard F. Cornell. As the
majority notes, these attorneys harshly attack the competence of the counsel who preceded
them and, worse yet, distort and disregard facts in their briefs to this court. These two tactics
intertwine and form the basis for many if not most of the issues they raise on appeal.
In one example of unnecessary ridicule of Leonard's trial counsel, Johnson and Cornell
assert: Foolishly, [trial counsel] intentionally rejected avoiding a death sentence through
conviction of a lesser offense . . . . [and] gambled away Leonard's life . . . . Such rhetoric is
inappropriate even if trial counsel had acted unreasonably; it is unacceptable when, as the
majority opinion explains, trial counsel performed reasonably in arguing self-defense. If
Johnson and Cornell had spun for the jury their own tale of mutual combat and collusion by
a senior correctional officer, there is no doubt that a different attorney would now be before
us questioning, with much sounder basis, their failed efforts.
Of greater concern, Johnson and Cornell repeatedly misrepresent the factual record to
this court. The majority points out several instances, e.g., Johnson and Cornell misstate the
forensic evidence in regard to the origins of the shank found in the sewer line and then rely on
this misstatement to attack the competency of trial counsel. In an instance not cited by the
majority, Johnson and Cornell claim that undisputed evidence supported the argument that
the victim lay in wait for Leonard and that no witness "testified to facts which, if believed,
would disprove" this argument.
witness testified to facts which, if believed, would disprove this argument. This claim is
simply false. Correctional Officer Bascus testified that he saw Leonard run down the hallway
and into the victim's cell before Bascus could close the cell door. When Bascus unlocked the
door, he saw first the victim back out of his cell with blood on his leg and arm and then
Leonard run out of the cell and tackle the victim. This testimony utterly contradicts the theory
that the victim lay in wait and attacked Leonard.
In another instance, Johnson and Cornell accuse trial counsel of discredit[ing]
Leonard's case by agreeing with the prosecutor's position that there were obvious errors' in
[testimony by two defense witnesses] for which he had no explanation. The record shows,
however, that trial counsel actually stated:
If these two individuals were going to concoct a story, I submit to you that the story
would have been perfect in every respect, and not such an obvious error in their stories.
I have no explanation as to why their stories are not consistent, other than the fact
that this was two years ago. These men did not put down in written reports as to what
they saw. And that they did their best to try to recall what happened.
The majority is correct that these and other assertions made by Johnson and Cornell
go beyond fair argument and are misleading as to the facts. However, admonishing both
attorneys is inadequate. Their tactics of distortion and unfair disparagement are not
inadvertent or isolated, but repeated and deliberate, and should not be tolerated by this court.
Their attempts to mislead this court and their unjustified attacks on Leonard's prior counsel
warrant sanctions, which I would impose in the amount of $500.00 each, to be paid to the
Supreme Court Library.
____________
114 Nev. 664, 664 (1998) Nevius v. Warden
THOMAS NEVIUS, Petitioner, v. WARDEN, NEVADA STATE PRISON, E. K.
McDANIEL; and ATTORNEY GENERAL OF NEVADA, FRANKIE SUE DEL PAPA,
Respondents.
No. 29027
THOMAS NEVIUS, Appellant, v. WARDEN, NEVADA STATE PRISON, Respondent.
No. 29028
June 24, 1998 960 P.2d 805
Motion for rehearing and reconsideration of Opinion denying motion to disqualify
Justice Young.
After the supreme court denied inmate's motion to disqualify supreme court justice
based on attorney general's public endorsement of justice during justice's re-election
campaign, inmate moved for rehearing and reconsideration of that denial. 113 Nev. 1085, 944
P.2d 858 (1997). The supreme court held that disqualification issue was previously decided,
and inmate presented no basis for rehearing.
Motion denied.
Terri Steik Roeser, Zephyr Cove; Michael Pescetta, Assistant Federal Public
Defender, Las Vegas, for Petitioner and Appellant.
Attorney, Clark County, for Respondents.
Appeal and Error.
Where issue as to disqualification of supreme court justice had been previously considered and rejected by the court, rehearing
was not warranted, absent either any material matter of law or fact that was overlooked or misapprehended in court's prior opinion or
showing that rehearing and reconsideration would promote substantial justice.
OPINION
Per Curiam:
In November 1982, over fifteen years ago, a jury convicted Thomas Nevius of murder in the first degree. He was sentenced to
receive the death penalty. This court affirmed his conviction and sentence on direct appeal. See Nevius v. State, 101 Nev. 238, 699 P.2d
1053 (1985). In August 1996, Nevius filed in this court an original petition for a writ of habeas corpus (Docket No. 29027), and an appeal
from an order of the district court denying his petition for post-conviction relief (Docket No. 29028). Because of the similarity of the facts
and issues involved, this court consolidated these matters for disposition.
On October 9, 1996, this court entered an order dismissing the appeal and denying the habeas petition. Nevius timely petitioned this
court for rehearing and for leave to present oral argument. That petition remains pending and unresolved in this court.
Thereafter, Nevius moved this court to disqualify Justice Cliff Young from participating in the decision of these matters. On
August 28, 1997, this court issued an opinion denying the motion. See Nevius v. Warden, 113 Nev. 1085, 944 P.2d 858 (1997). On
September 15, 1997, the clerk of this court received, but did not file, Nevius' instant motion seeking rehearing and reconsideration of
the decision of August 2S, 1997, denying the motion to disqualify Justice Young.
reconsideration of the decision of August 28, 1997, denying the motion to disqualify Justice
Young.
1

Nevius asserts that the opinion of August 28, 1997, contains material mistakes as to
the facts and law and it would be in the interest of the justice for the court to reconsider its
decision. Specifically, Nevius again argues that Attorney General Frankie Sue Del Papa's
public endorsement of Justice Young during Justice Young's most recent re-election
campaign creates an appearance of impropriety which would cause a reasonable person to
entertain doubt as to Justice Young's impartiality in this matter. Further, Nevius again argues
that he is entitled to discovery of the circumstances surrounding the attorney general's
endorsement.
The opinion rejecting Nevius' motion to disqualify specifically relied on the reasoning set
forth in State, Dep't of Transp. v. Barsy, 113 Nev. 709, 941 P.2d 969 (1997). Barsy rejected a
similar contention and quoted at length from Ainsworth v. Combined Ins. Co., 105 Nev. 237,
774 P.2d 1003, cert. denied, 493 U.S. 958 (1989). Ainsworth, in turn, concluded that an
attorney's associations with a justice's campaign did not constitute legally competent grounds
for disqualification under this state's statutes, rules of judicial conduct, or under the Due
Process Clause of the United States Constitution. Ainsworth further held that where no legally
competent grounds supporting a reasonable inference of bias existed, summary dismissal of
the challenge was warranted and no evidentiary hearing or discovery was required.
Ainsworth, 105 Nev. at 270, 774 P.2d at 1026; see also In re Petition to Recall Dunleavy, 104
Nev. 784, 769 P.2d 1271 (1988) (where motion to disqualify justice stated no legally
cognizable ground for disqualification, the motion was wholly insufficient as a matter of law
to warrant a formal hearing).
2
This court's decisions in Barsy and Ainsworth set forth more
than adequate grounds for rejecting Nevius' request for disqualification and discovery.
__________

1
NRAP 35(d) provides in material part: Serial motions or charges, whether entitled as separate challenges,
or as supplements, or entitled in any other way, must not be filed, and will not be entertained. (Emphasis
added.) Concerned that the instant motion might not comply with NRAP 35, the clerk of this court declined to
file the motion and, instead, submitted it to the court for a determination of whether it should be filed. Although
we entertain serious doubt about the motion's compliance with NRAP 35, in the interest of finally resolving this
disqualification matter, we direct the clerk of this court to file the motion.

2
In Dunleavy, this court also observed that if an attorney's contribution to a judge's campaign could constitute
a reasonable ground for disqualification upon a challenge made after the judge had ruled on the merits of a
matter before the court, the conduct of judicial business in the courts of this state would be severely and
intolerably obstructed. Id. at 790, 769 P.2d at 1275. We reiterate that Justice Young ruled on the merits of these
matters on October 9, 1996.
decisions in Barsy and Ainsworth set forth more than adequate grounds for rejecting Nevius'
request for disqualification and discovery.
In the instant motion, Nevius improperly reasserts and reargues matters previously
considered and rejected by the court. Nevius has not pointed to any material matter of law or
fact that was overlooked or misapprehended in the court's prior opinion; nor has he
demonstrated that rehearing and reconsideration will promote substantial justice.
Accordingly, we deny the motion for rehearing and reconsideration and specifically
reaffirm in its entirety the prior opinion of this court denying the motion to disqualify Justice
Young.
3,4

This is a motion for rehearing and reconsideration of our August 28, 1997, decision
concluding that Justice Young was not disqualified from sitting on the motion to rehear this
case. Our August 1997 decision did not revisit the merits of the case which had already been
disposed of by an October 9, 1996 order dismissing appellant's appeal and petition for writ of
habeas corpus. The dissent acknowledges these facts, but then proceeds to reconsider
previously resolved issues which were not raised by the appellant's rehearing/reconsideration
motion presently before this court.
The only rationale for Justice Springer's decision to revisit previously resolved and
unraised issues is apparently his desire to take yet another shot at two of his perceived
enemiesJustice Young and the Nevada Attorney Generalboth of whom opposed the
action taken by Justice Springer (along with a departed member of this court) against the
Nevada Judicial Discipline Commission.
Justice Springer demonstrated none of the high-minded conflict of interest principles
stated in his dissent when he determined that even though an attorney and her law partner's
aggregate election campaign contribution to a judge was over $100,000, this fact was
insufficient to disqualify that judge from participation in the contested selection of the
attorney to a State Bar committee.
__________

3
The Honorable Peter I. Breen, Judge of the Second Judicial District Court, was designated by the Governor
to sit in the place of Justice Shearing, for the purposes of deciding this motion only.

4
The Honorable Merlyn H. Hoyt, Judge of the Seventh Judicial District Court, was designated by the
Governor to sit in the place of Justice Cliff Young, for the purposes of deciding this motion only.
this fact was insufficient to disqualify that judge from participation in the contested selection
of the attorney to a State Bar committee. See O'Brien v. State Bar, 114 Nev. 71, 952 P.2d 952
(1998). The attorney involved in the O'Brien case is the former law clerk and personal friend
of Justice Springer. Justice Springer has consistently refused to disqualify himself from
participation in motions to disqualify me filed by this attorney, even though his close
relationship with this attorney is well known, as is his animus toward me. See Whitacre Inv.
Co. v. State, Dep't Transp., 113 Nev. 1101, 946 P.2d 191 (1997).
Justice Springer claims in his dissent that only a mere $10,000 contribution was
involved in the O'Brien case. That is simply not true. When the contributions of the attorney
whose election was challenged, Laura FitzSimmons, are added to those made by her husband
and those made by or arranged by her law partner, we have close to $100,000 in contributions
that were involved. FitzSimmons and her husband are listed as each contributing $10,000 in
Judge Steve Jones' 1996 Campaign Disclosure Forms filed with the Nevada Secretary of
State. Kermitt Waters admitted to making large additional contributions in a motion to
disqualify Justice Young filed on December 16, 1996, in the Whitacre case. In that motion,
Waters stated as follows: Kermitt L. Waters, his wife Jan Waters, and Nevada corporations
owned by Mr. Waters contributed substantially to Judge Jones' campaign. The approximate
aggregate amount of campaign contributions from those sources is $75,000.000 [sic]. Ms.
FitzSimmons and her husband, John Lambrose, each contributed $10,000 to the Steve Jones
campaign. Whitacre Inv. Co. v. State, Dep't Transp., Docket No. 29401 (Appellant's Motion
to Disqualify Justice C. Clifton Young at 4, December 16, 1996). By their own admission,
Laura FitzSimmons and Kermitt Waters, with their spouses and through corporations they
controlled, admit to contributing at least $95,000 to Justice Young's opponent in 1996.
When this appeal from the denial of a writ of habeas corpus and post-conviction relief was
disposed of in October of 1996, the issue of the improper preemption of prospective black
jurors was carefully considered and rejected by a unanimous court. After analyzing the claim,
this court, including Justice Springer, rejected the appellant's racial assertion as being not
credible. Now, Justice Springer's opinion has shifted 180 degrees and he finds that those
very same allegations present a compelling claim for summary reversal.
The only thing that has changed since our October 1996 resolution of this issue on the
merits is that a motion to disqualify Justice Young has been denied; the disqualification
motion challenged Justice Young's participation in the rehearing of this case for the
reason that the Attorney General had supported Justice Young in his re-election
campaign.
challenged Justice Young's participation in the rehearing of this case for the reason that the
Attorney General had supported Justice Young in his re-election campaign. It is indeed
alarming that Justice Springer is willing to abandon his decision in a death penalty case
simply to continue his one-sided campaign of enmity against the Attorney General and a
justice on this court.
The reason Justice Springer and the rest of this court found Nevius' allegations of
racism in jury selection to be incredible is because they were raised many years after the
racially repugnant statements were allegedly made, the prosecutor had no recollection of
making any such statements and stated that he would not make such statements, and the state
and federal district courts, in addition to the federal court of appeals all found that the
peremptory challenges were exercised for a race neutral reason.
The prosecutor denied that he racially stacked a jury and, up until now, Justice Springer
agreed that the evidence did not support such claims. Justice Springer's new-found conviction
that a black man is being executed because of the verdict of a stacked jury represents yet
another effort in his quest to vilify his perceived long-standing enemies.
Regrettably, Justice Springer's latest attacks do nothing more than discredit himself
and our beleaguered judicial system.
The issue presently before the court is, as pointed out in the concurring opinion,
whether Justice Young may properly sit in judgment of Nevius' death sentence. I am unable to
address this issue adequately, however, without first drawing attention to the overriding issue
in this case, which is whether Nevius' death sentence must be set aside by reason of the
prosecutor's having stacked the jury by deliberately excluding black people from Nevius'
jury.
1

To get to the heart of the matter: We have before the court a representation by a member of
the bar, an officer of this court, that the prosecutor admitted to having deliberately excluded
black people from the Nevius jury and to having done a good job of it."
__________

1
Nevius, who is black, presents evidence that his prosecutor said to his defense attorney about the jury
selection process: You don't think I want all those niggers on my jury do you? The prosecutor does not
expressly deny making this statement but, rather, claims not to recall using the word, nigger, claiming
further that if he did use that word it was only because the defense attorney used it first. Whether the prosecutor
used the offensive word or not, there is credible evidence that the prosecutor was trying to stack the jury
racially and that he admitted to defense counsel that he did a good job of it.
it. The majority continues to maintain, incorrectly, I think, that the defense attorney's charges
of impermissible racial discrimination are incredible and that they need not be considered
by the court.
2
It is now clear to me that the uncontradicted report of the prosecutor's racist
comments must not only be considered by the court but must be taken as mandating the
reversal of the death penalty judgment.
There is presently pending before the court Nevius' motion to reconsider and vacate
previous rulings in this case which reject his claims of racially-discriminatory jury stacking
by the State. To me, the necessity for granting Nevius' motion on these grounds is now clear.
The pressing constitutional issues awaiting final disposition by this court render even more
compelling Nevius' pending request that Justice Young be removed from the case. Justice
Young's remaining on the case, given his alliance with the Attorney General and his
tough-on-crime campaign stance creates an appearance of impropriety that is magnified by
reason of the race-related constitutional issues advanced by Nevius.
It is true, as stated in the concurring opinion, that the majority opinion addresses only
issues relating to whether or not a challenged justice should continue to sit in judgment of this
case; but, as I have said, this justice's qualifications cannot be adequately addressed without
considering the very critical race-discrimination issue at the heart of this case. What this case
is really all about is whether Nevius, a black man, must go to his death by verdict of a jury
that was chosen in a manner that appears to have involved the deliberate exclusion of jury
members of his race.
3
Because this is the case, greater scrutiny must be given to the
disqualification issues at hand.
__________

2
This court is not, of course, competent to make judgments about a witness's credibility. Under our
constitution the supreme court is empowered to decide only questions of law, not fact. Nev. Const. art. 6, 4;
NRS 175.025. Even if the court had the power to rule that Nevius' attorney was misrepresenting his conversation
with the prosecutor, there is absolutely no justification for the court's ruling on defense counsel's credibility in
this case. Even if this were not the case, there is no cause for believing that counsel is not telling the truth.

3
My calling attention to the racist aspects of this case has provoked a remarkably extravagant concurring
opinion. According to the concurrence, my proceeding to reconsider previously resolved issues of racial
discrimination in the jury selection process is not only impermissible, it is charged to have been motivated by my
supposed enmity and animus toward other justices of this court. I have a very hard time trying to understand
what it is about my discussion of the vital racial-discrimination question that would prompt my brother Rose to
say that I raise this issue just to take yet another shot at three of [my] perceived enemies. I do not understand
how a necessary discussion of the racial issues that haunt this case can possibly be seen as being a shot at
anyone.
More and more frequently this court is being presented with claims of error arising out
of racial abuses employed by prosecutors during the jury selection process. In these cases we
find prosecutors presenting one kind of excuse or another for their actions, claiming that their
practice of removing minorities from juries is based on racially neutral grounds. The
prosecutor's saying in this case that he got rid of all those niggers on the jury and saying
that he did a good job of doing so can hardly be claimed to be racially neutral; and I think
that it is time at last that this court put a stop to what is seen by some as rampant racial bias in
the criminal justice system in this state.
Nevius claims that Justice Young's close political alliance with the Attorney General and
expressions of bias in criminal cases create an appearance of impropriety that should
disqualify the justice from sitting in judgment in this case. It is not, of course, necessary for
Nevius to demonstrate that Justice Young has an actual bias in favor of the Attorney General
or in favor of affirming death-sentence cases. Nevius has only to convince the court that to an
outside observer there appears to be bias on the part of Justice Young. My position in this
dissent is not that Nevius has demonstrated actual bias on the part of Justice Young but,
rather, that the factual averments upon which Nevius relies rather clearly show an
unacceptable appearance of bias.
Nevius' claims of bias are partially based upon Justice Young's close political alliance
with the Attorney General, an alliance that arose while his appeal was pending. Nevius
complains that the Attorney General gave to Justice Young in the last election what Justice
Young himself described as a particularly important contribution, namely, the Attorney
General's public endorsement of Justice Young's candidacy over that of another jurist. It is
commonly believed that Justice Young owes his election success to the Attorney General's
public endorsements of his candidacy; and Nevius argues that the contribution is of such
importance that Justice Young can no longer sit in impartial judgment in this case.
Justice Young and Justice Rose in a recent dissenting opinion, O'Brien v. State Bar of
Nevada, 114 Nev. 71, 952 P.2d 952 (1998), have expressed their view that where a political
contribution is very large or greatly disproportionate to the contributions made by a similar
class of contributors then an appearance of impropriety should be recognized. Id. at 79, 952
P.2d at 957. Such disproportionate contributions, according to Justice Young himself, not
only create the impression of impropriety, they create a judicial atmosphere that is
fundamentally unfair and require that decision-makers with [such] conflicts of interest not
participate in the decision. Id. at 78-80, 952 P.2d at 957-58. If we are to accept the position
taken by Justice Young in O'Brien, then Nevius presents a very credible argument that the
Attorney General's public endorsement is a far greater and more "disproportionate"
contribution to Justice Young than the mere $10,000.00 involved in the O'Brien case.
O'Brien, then Nevius presents a very credible argument that the Attorney General's public
endorsement is a far greater and more disproportionate contribution to Justice Young than
the mere $10,000.00 involved in the O'Brien case.
In support of his motion, Nevius cites to American Bar Association documents
relating to the legitimate concern about a judge's impartiality that is present when lawyers
who represent such parties are known to have made contributions to election campaigns of
judicial candidates. The ABA Commentary to 5(C)(2) of the Code of Judicial Conduct
states:
[C]ampaign contributions of which a judge has knowledge, made by lawyers . . . who
appear before the judge may by virtue of their size and source, raise questions about a
judge's impartiality and be cause for disqualification as provided under Section 3(E).
(My emphasis.) One can certainly understand Nevius' legitimate concern about [Justice
Young's] impartiality.
The source of the campaign contributions here (the State's Attorney General, who
issued an unprecedented and important public, political endorsement of Justice Young over
another jurist) and the size of the contribution (characterized by Justice Young himself as
being particularly important to his campaign endeavors) appear to me of such a nature as to
raise questions about a judge's impartiality and be cause for disqualification.
Nevius also claims that, in addition to forming a close and important alliance with the
State's chief prosecutor, Justice Young has, while the present case has been pending, publicly
taken such a pro-prosecution, anti-accused stance as to make it impossible for Justice Young
to sit in impartial judgment of Nevius' case. For example, not only did Justice Young describe
himself in campaign advertisements as a judge who was tough on crime,
4
he presented
himself as being a judge who had a "record of fighting crime" and supported his judicial
crime-fighting record by claiming that he had "[voted] to uphold [the death penalty] 76
times."
__________

4
Tough-on-crime claims by judges are sometimes overlooked as being merely campaign puffing; but a
judge's claiming to be a judicial crime-fighter is, arguably, in a different category. The problem with tough on
crime statements and boasting of a record of fighting crime is that such statements carry the implication that
the judge would act in a biased manner (that is, in favor of the state) in criminal cases. In Washington, a judge
was censured for campaign statements that he was tough on drunk driving. In re Kaiser, 759 P.2d 392, 394-96
(Wash. 1988).
For a general discussion of the failure of our judicial discipline machinery to deal with campaign misconduct
and other serious judicial misconduct see Whitehead v. Comm'n on Jud. Discipline, Table of Disciplinary
Oversights, Concurring Addendum to Order Granting Petition (No. 24598, October 28, 1994). Getting elected to
judicial office seems to create an immunity against
record of fighting crime and supported his judicial crime-fighting record by claiming that
he had [voted] to uphold [the death penalty] 76 times. Judges should be judging crime not
fighting crime.
5
Given the narrowness of Justice Young's election victory, it is certainly
reasonable for Nevius to maintain that Justice Young owes his position on this court to his
political alliance with the Attorney General and to her unprecedented, ethically-suspect
endorsement of his candidacy.
This court should examine critically the appearance of bias inferable from Justice
Young's crime-fighting stance and from the important political debt owed by Justice Young
to the Attorney General. Such critical examination would demonstrate, I maintain, bias of a
sort that demands the disqualification of Justice Young.
__________
discipline proceedings relating to a judge's unethical campaign practices; but this does not mean that convicts
condemned to death are not entitled to complain of bias based upon a judge's pro-prosecution campaign boasts.

5
I commend to the reader of this opinion a well-written and pertinent law review article entitled, Judges and
the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, by Stephen
B. Bright and Patrick J. Keenan. 75 B.U. L. Rev. 759 (1995). The article expresses concern that judges in capital
cases may be too responsive to a political climate in which judges who wish to remain as judges must
constantly profess their fealty to the death penalty. Id. at 760 (citations omitted). The authors compare the
pressures facing judges who decide capital cases to the kind of danger that confronted the judges beholden to
King George III. Id. The article concludes by urging that it is time for open and honest discussion of the
political pressures on judges who must stand for election.
The integrity, credibility, and legitimacy of the courts are at stake. Judges themselves should lead the
discussion by disqualifying themselves, sua sponte from cases in which they recognize that political
considerations may keep them from holding the balance nice, clear and true. But it may be necessary
for lawyers to prompt the discussion by filing motions for recusal in cases in which such pressures are
present. The judiciary and the bar have a duty to explain to the public the difference between the
representative function of legislative bodies and the adjudicatory function of the courts.
Id. at 834-35 (citation omitted).
____________
114 Nev. 674, 674 (1998) Stevenson v. State
PRESTON LEE STEVENSON, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 28851
June 25, 1998 961 P.2d 137
Appeal from a judgment of conviction, pursuant to a guilty plea, of one count of
trafficking in a controlled substance. Sixth Judicial District Court, Humboldt County; Jerry V.
Sullivan, Judge.
The supreme court held that: (1) unconstitutional seizure did not occur during drug
sweep on commercial bus, and (2) substantial evidence supported finding that defendant
consented to have narcotics detection dog sniff his bag and then consented to have police
officers search bag.
Affirmed.
Steven G. McGuire, State Public Defender, James P. Logan, Chief Deputy Public
Defender, Carson City, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; R. Michael McCormick,
District Attorney, Conrad Hafen, Chief Deputy District Attorney, Humboldt County, for
Respondent.
1. Arrest.
Seizure did not occur during drug sweep on commercial bus where circumstances indicated that reasonable person would have
felt free to decline police officer's request to search their bags or terminate encounter. Officers boarded bus and announced their intent
to conduct drug sweep and to ask passengers questions, officer nearest passengers kept his badge displayed, but his weapon concealed,
he did not block passengers access to aisle, officer at front of bus left room for passengers to access door and passengers got on and off
the bus, and no physical force or display of force was used until defendant fled. U.S. Const. amend. 4.
Substantial evidence supported finding that defendant consented to have narcotics detection dog sniff his bag and then
consented to have police officers search bag, during drug sweep of commercial bus, given that officer's apparent failure to tell
defendant that he could refuse to consent was immaterial in light of police report, all testimony and officer's subsequent request to have
dog sniff bag, which demonstrated that defendant exercised his right to refuse to consent to search. Nothing in defendant's testimony
supported his contention that he never consented to officers' request and, on the other hand, all officers present testified that defendant
gave consent. U.S. Const. amend. 4.
Voluntariness of consent to search is a question of fact to be determined from the totality of the circumstances. U.S. Const.
amend. 4.
OPINION
Per Curiam:
On September 19, 1995, appellant Preston Lee Stevenson (Stevenson) was a
passenger on a Greyhound bus that made a temporary stop at the Greyhound bus depot in
Winnemucca. There were over thirty people on the bus; Stevenson was the only
African-American passenger.
While the bus was stopped, Investigator Craig Ronzone (Ronzone) of the Nevada
Division of Investigations, Humboldt County Sheriff's Deputy Dave Knopf (Knopf), and
Nevada Highway Patrol Trooper Brent Harmon (Harmon) performed a drug sweep of the
bus.
A drug sweep entails a boarding of the bus, examination of the passengers' tickets and
identification, and brief questioning about the passengers' baggage. The purpose of the sweep
is to look for unclaimed baggage and to find narcotics being transported aboard the bus.
Ronzone and Knopf boarded the bus, while Harmon waited just outside with a
drug-sniffing dog. Ronzone, who wore plain clothes with his badge displayed, proceeded to
the rear of the bus, while Knopf, who was uniformed, stood at the front of the bus near the
driver's seat, leaving room for passengers to get by. Ronzone announced to the passengers
that he was with the narcotics task force and that he needed to ask them a few questions
before getting them on their way.
Ronzone began questioning the passengers in the rear of the bus first, working his way
forward. He would check each passenger's ticket, ask questions about their identity and
destination, then ask them which bag was theirs while placing his hand on it. Ronzone stood
behind and to the side of each passenger's seat so as not to block the passenger's path to the
aisle.
When Ronzone got to Stevenson, he asked for Stevenson's ticket. Ronzone questioned him
and verified that the information Stevenson gave matched the information on the ticket.
Ronzone then returned Stevenson's ticket. Stevenson identified which bag in the overhead
compartment was his, and Ronzone put his hand on the bag and moved it back. Ronzone
noticed the bag felt heavy and asked Stevenson what was in the bag. Stevenson said it
contained clothes.
What happened next is in dispute. According to the State, Ronzone asked if he could
search the bag. Stevenson looked down and nervously replied, I don't know what for.
Ronzone then asked Stevenson if he would consent to having the dog sniff the bag. Stevenson
said, Okay. Per Ronzone's instructions, Stevenson took his bag and got off the bus.
Stevenson took his bag and got off the bus. Ronzone told Harmon that Stevenson refused the
search, but consented to have the dog sniff the bag. Ronzone then went back to questioning
the other passengers.
Stevenson again gave permission to Harmon to have the dog sniff the bag. Stevenson
then put the bag in the baggage compartment under the bus per Harmon's instructions and
voluntarily returned to his seat. The dog sniffed the baggage compartment and alerted on
Stevenson's bag. Harmon then asked Stevenson to exit the bus again. Ronzone exited the bus
with Stevenson. Harmon told Stevenson that the dog alerted to the bag and asked if he had
narcotics in the bag. Stevenson replied that he had marijuana cigarettes in the bag. Harmon
then asked if he could search the bag. Stevenson verbally consented. When Harmon opened
the bag and pulled out a package hand-wrapped in cellophane, Stevenson ran. After a brief
foot pursuit, Ronzone apprehended and arrested Stevenson.
The officers discovered a 9mm semi-automatic pistol, a pen containing a small amount of
marijuana, and 15.6 grams of black-tar heroin in the bag. The black-tar heroin was found
wrapped in plastic, which was in a small plastic bag along with coffee grounds. This bag, in
turn, was wrapped in cellophane and submerged in a plastic container full of water. The
container, then, was encased in five larger zip-lock bags, and the entire package wrapped
several times in cellophane.
However, according to Stevenson, the facts are slightly different. Stevenson stated he
refused to consent to the search of the bag. Upon doing so, Ronzone purportedly ordered him
to take the bag off the bus and place it on the ground. Knopf also exited the bus at this time.
Stevenson again allegedly refused to consent to a search of the bag. Stevenson was asked
whether he was a member of a gang and whether he smoked marijuana. Stevenson answered
that he was not in a gang, but that he did smoke marijuana. Stevenson was then told to put the
bag in the baggage compartment underneath the bus and return to his seat. Several minutes
later, Stevenson was ordered off the bus. When he got off the bus, he saw the officers
searching through the bag, and then he ran.
Stevenson was charged with one count of trafficking in a controlled substance and one
count of being an ex-felon in possession of a firearm.
1

On February 6, 1996, Stevenson filed a motion to suppress the black-tar heroin
evidence on the grounds that it had been obtained in violation of his Fourth Amendment
rights against unreasonable search and seizure.
__________

1
Stevenson has a prior conviction in California for felony possession of crack cocaine.
search and seizure. On February 26, 1996, the district court heard oral arguments on the
motion. On March 7, 1996, the district court found the State's witnesses to be more credible
than Stevenson and denied the suppression motion.
On June 3, 1996, pursuant to a plea agreement, Stevenson was convicted of one count
of trafficking in a controlled substance, in violation of NRS 453.3385, and was sentenced to
forty-eight months in prison and a fine of $2,000.00. As a condition to his guilty plea,
Stevenson retained the right to appeal the district court's denial of the suppression motion.
On June 18, 1996, Stevenson timely filed his notice of appeal.
DISCUSSION
Stevenson argues that the police unreasonably seized him and searched his bag,
thereby violating his Fourth Amendment rights. The State counters that the encounter and the
subsequent search of Stevenson's bag were entirely consensual.
I. Seizure
[Headnote 1]
Initially, we must determine if a seizure occurred. The United States Supreme Court
has held that police drug sweeps on commercial busses are not necessarily seizures. Florida v.
Bostick, 501 U.S. 428, 435-40 (1991). In that case, police in Broward County, Florida,
routinely boarded busses at bus depots and asked passengers for their tickets and for
permission to search their bags. During one of those sweeps and without articulable
suspicion, two uniformed officers picked out Bostick and began to question him. After
checking his ticket, the police requested Bostick's permission to search his luggage and
advised him that he had the right to refuse consent. The defendant consented to the search.
The police found cocaine in the defendant's bag. Bostick moved to suppress the cocaine,
arguing his Fourth Amendment rights had been violated. The Florida Supreme Court held
that the practice of boarding busses, questioning passengers, and searching luggage with
consent was unconstitutional. Id. at 431-33.
The United States Supreme Court reversed, holding that Florida's per se rule was
erroneous. Id. at 440. The Court held that in order to determine whether a particular
encounter constitutes a seizure, a court must consider all the circumstances surrounding the
encounter to determine whether the police conduct would have communicated to a reasonable
person that the person was not free to decline the officers' requests or otherwise terminate the
encounter. Id. at 439; see also United States v. Gonzales, 979 F.2d 711, 713-14 {9th Cir.
1992) {holding that an armed and uniformed Border Patrol agent did not conduct a
seizure by boarding a bus, questioning a passenger, and requesting to search that
passenger's bag when the agent had no articulable suspicion).
Gonzales, 979 F.2d 711, 713-14 (9th Cir. 1992) (holding that an armed and uniformed Border
Patrol agent did not conduct a seizure by boarding a bus, questioning a passenger, and
requesting to search that passenger's bag when the agent had no articulable suspicion).
Further, a bus is no different than a city street or other public place for purposes of this test.
Although it refrained from deciding whether a seizure occurred, the Court noted the facts left
some doubt as to whether one did. Bostick, 501 U.S. at 439-40.
Here, the officers boarded the bus and announced their intent to conduct a drug sweep
and to ask the passengers questions. They also indicated that they would work as fast as they
could to keep everyone on schedule. Ronzone kept his badge displayed, but his weapon
concealed. He also stood to the side and slightly behind each passenger's seat as he was
questioning them, so as not to block them in. Knopf stayed up front near the driver's seat,
leaving a space for passengers to get by. Passengers did, in fact, get on and off the bus to
smoke a cigarette or get some air. No physical force or display of force was used at any time
until Stevenson fled. Additionally, Stevenson did initially refuse to consent to a search of the
bag. We agree with the State's assertion that this fact indicates Stevenson knew he could
refuse to consent to a search and felt free to do so. Therefore, applying Bostick, we conclude
that the circumstances indicate that a reasonable person would have felt free to decline
Ronzone's request or terminate the encounter. As such, we conclude a seizure did not occur.
Contrary to the dissent's assertion, the evidence presented at trial shows that people were,
in fact, freely getting on and off the bus during the encounter. Further, as stated above,
Stevenson obviously felt free to refuse the officers' requests as evidenced by his initial refusal
of Ronzone's request to search his bag. While the dissent is worried about drug sweeps on
busses and believes that the drug sweep in this case was illegal, we conclude that the facts
of this case, as set against established holdings of the United States Supreme Court, clearly
show that no systematic violation of [Stevenson's] constitutional rights took place.
II. Consent
[Headnote 2]
Next, we must determine if the search of Stevenson's bag was consensual.
As in the present case, the defendant in Bostick stated he never gave consent, but the
police contradicted him saying he did. Also, Bostick claimed the police never told him he
could refuse consent. The Florida Supreme Court resolved this in the state's favor as it was a
question of fact decided by the trial court.
favor as it was a question of fact decided by the trial court. The United States Supreme Court
agreed. Bostick, 501 U.S. at 432.
Here, as in Bostick, the officer questioned Stevenson about his ticket and then asked if
he would consent to a search of the bag. While Ronzone apparently did not tell Stevenson
that he could refuse to consent, we conclude it is immaterial because Harmon's police report,
all testimony, and Ronzone's subsequent request to have the dog sniff the bag instead show
Stevenson exercised his right to refuse to consent to the search. See also Schneckloth v.
Bustamonte, 412 U.S. 218, 249 (1973) (holding that knowledge of the right to refuse to
consent to a search is not required to determine voluntariness).
When Ronzone asked if Stevenson would allow the dog to sniff the bag, Stevenson
consented. Stevenson then consented to a search of the bag before fleeing.
[Headnote 3]
Stevenson contends that he did not consent to have the dog sniff the bag or to the
search of the bag, but the district court found that Stevenson did consent and that his
testimony was not credible. Voluntariness is a question of fact to be determined from the
totality of the circumstances. Canada v. State, 104 Nev. 288, 290-91, 756 P.2d 552, 553
(1988). Further, we have held that a district court's findings of fact in a suppression hearing
will not be disturbed on appeal if supported by substantial evidence. State v. Harnisch, 113
Nev. 214, 219, 931 P.2d 1359, 1363 (1997), reh'g denied, 114 Nev. 225, 954 P.2d 1180
(1998).
Nothing other than Stevenson's own testimony supports his contention that he never
consented to Ronzone's or Harmon's requests. On the other hand, all the officers present
testified that he did give consent. Therefore, we conclude that substantial evidence supports
the finding that Stevenson consented to have the narcotics detection dog sniff the bag and to
the search.
CONCLUSION
From the facts of this case, we conclude that the bus sweep did not violate Stevenson's
constitutional rights because the encounter with police was in a public place and a seizure did
not occur. We further conclude that substantial evidence supports the district court's finding
that Stevenson consented to have the dog sniff the bag and then consented to have the officers
search the bag. Therefore, the district court correctly denied Stevenson's suppression motion.
Accordingly, we affirm Stevenson's conviction.
I see this case in an entirely different light from that of the majority.
majority. Interstate busses are being commandeered in Winnemucca by small posses of
lawmen (calling themselves Narcotics Task Forces). These posses interrogate and sometimes
search bus passengers when the busses stop in Winnemucca. They call these forays bus
encounters, and they admit to at least seventy-five of these boarding parties. In my opinion,
these incursive boarding parties should be stopped because they are violative of state and
federal constitutional prohibitions against unlawful searches and seizures.
The boarding party of four involved in this case was comprised of Investigator Craig
Ronzone of the Nevada Investigations Division, Deputy Sheriff Dave Knopf, State Trooper
Brent Harmon and a canine drug inspector named Katie. Each member of the posse had his or
her special assignment. Investigator Ronzone was the first to board the bus and commandeer
1
its passengers; he entered the bus and went to his command post at the rear of the bus. Deputy
Sheriff Knopf (according to the State's brief) was stationed at the door of the bus, in [the]
front of the bus close to the driver[']s seat. Trooper Harmon and Katie were posted outside
of the bus near the entry door.
All members of the boarding party were armed (except Katie). Task Forcers Knopf and
Harmon were in police uniform; Investigator Ronzone was not in uniform upon boarding the
bus, but he immediately displayed his badge to the passengers, so they could see it.
After taking his post at the rear of the bus, Investigator Ronzone (according to the
State's brief) announced to the passengers that he was with the narcotic task force, that he
was searching for narcotics and that it was his intention to interrogate the passengers, or, as
he put it to take a few minutes of their time and talk to them. Investigator Ronzone testified
that he did not advise those being interrogated that they were free to leave or that they
were not required to talk to him.
__________

1
Commandeer seems like the correct description of the Task Force's incursion. The inspector testified that
he boarded the bus, pulled out [his] badge and then engaged in some consensual talk with the passengers on
the bus, looking for a controlled substance . . . .
After the time that the inspector announced that he was looking for contraband and that he was going to
question the passengers about controlled substances, the passengers certainly were not, as claimed by the
inspector, free to do whatever they want[ed].
The inspector's conclusory testimony that people were free to leave the bus while he was interrogating them
and his reply in answer to a leading question that passengers were actually leaving [and] getting on and off the
bus does not persuade me that the passengers had not been seized at the time the officer was conducting his
search for controlled substance[s]. The officer's telling passengers, in effect, I am a narcotics officer. I am
looking for narcotics and I want to question you, cannot be taken as an invitation to leave the bus at will.
advise those being interrogated that they were free to leave or that they were not required to
talk to him. It is clear to me that the bus passengers were seized at the time the Task Force
commandeered the bus, rendering any evidence found thereafter inadmissible. The events that
occurred after the bus was commandeered, including Mr. Stevenson's claimed consent to
having his bag sniffed by the police dog, then, have no bearing on the admissibility of the
evidence taken from Mr. Stevenson's bag.
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. Florida
v. Bostick, 501 U.S. 429, 434 (1991) (emphasis added). In the context of this bus
encounter, the appropriate inquiry is whether a reasonable person would feel free to decline
the officers' requests or otherwise terminate the encounter. Id. at 436. The test is not, of
course, whether the citizen perceived that he was being ordered to restrict his movement, but
whether the officer's words and actions would have conveyed that to a reasonable person.
California v. Hodari D., 499 U.S. 621, 628 (1991).
The officers involved in this case clearly used a show of authority to elicit cooperation
from the passengers, as evidenced by Investigator Ronzone's statement that he displayed his
badge to the passengers so they could see it. In addition, the officers' tactical positions, with
one armed officer at the rear of the bus, another at the only entry/exit of the bus, and a third
with a police dog just outside the bus, makes it rather clear that the officers intended to
exercise control over the bus and its passengers. The passengers on the commandeered bus
did not feel free to decline the officers' requests or otherwise terminate the encounter under
such circumstances. Stevenson, himself, obviously, did not feel free to terminate his
encounter with the boarding party, or he would not have agreed to have his bag sniffed by
Katie (if, indeed, he did so consent).
Although the United States Supreme Court declined to rule that the bus sweeps at
issue in Bostick were necessarily unconstitutional, under the circumstances attendant to the
present case, the manner in which the bus was commandeered and the passengers sequestered
exceeds the scope of permissible search and seizure.
2
The bus-boarding here exceeds the
scope of permissible search and seizure under the Nevada Constitution.
__________

2
I note that the defendant in Bostick, unlike Stevenson, was specifically advised . . . that he could refuse
consent. Id. at 437. I do not contend that the officers' not informing Stevenson of a right to refuse to consent is
alone dispositive of this case, but this does suggest the failure to advise him of this right would make a
reasonable person even more inclined to believe that he was under the officers' dominion and control.
The bus-boarding here exceeds the scope of permissible search and seizure under the
Nevada Constitution. See Barrios-Lomeli v. State, 113 Nev. 952, 957, 944 P.2d 791, 794
(1997), petition for reh'g pending, (although the United States Supreme Court abandoned the
exigency requirement for warrantless search of automobile, Nevada declines to do so).
I am convinced that any citizen, any reasonable person, would have felt that the
passengers' movements were restricted by this boarding party. It may be, as contended by the
State, that Investigator Ronzone did not intend to block [Mr. Stevenson's] ability to leave the
bus at any time, that no guns were pulled and that he asked the same type of questions to each
passenger; but this does not alter the conclusion that any reasonable person would have
considered himself or herself restrained by the four members of this boarding party and not
free to leave once the bus was boarded and surrounded.
I dissent because I believe that these boarding parties, at least as they are currently
being conducted, are illegal, and because I believe that Mr. Stevenson was subject to an
unlawful search and seizure. I am worried about this practice because innocent passengers
should not be subjected to systematic violation of their constitutional rights in the hope that a
drug courier might occasionally be apprehended. This court should condemn the practice and
reverse the district court's order denying the motion to suppress.
____________
114 Nev. 682, 682 (1998) Turner v. State
VINCENT EDWARD TURNER, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 27411
July 16, 1998 962 P.2d 1223
Appeal from a judgment of conviction, entered pursuant to a jury verdict, of one count
each of conspiracy to commit robbery, robbery with use of a deadly weapon, burglary, and
first degree murder with use of a deadly weapon. Eighth Judicial District Court, Clark
County; Don P. Chairez, Judge.
Defendant's motion for judicial disqualification was denied, and defendant was
convicted of first degree murder with a deadly weapon and other crimes. Defendant appealed.
The supreme court, Young, J., held that: (1) trial court judge, who prior to taking the bench
had appeared for district attorney's office on behalf of the state at defendant's initial
arraignment in the murder case, was required to disqualify himself from the murder trial
because implied bias existed, and
because implied bias existed, and (2) automatic reversal of defendant's convictions, rather
than harmless error analysis, was appropriate.
Maupin and Rose, JJ., dissented in part.
Lee Elizabeth McMahon, Las Vegas, for Appellant.
Attorney, James Tufteland, Chief Deputy District Attorney, and Chris Owens, Deputy District
1. Judges.
District court judge, who prior to taking the bench had appeared for district attorney's office on behalf of the state at defendant's
initial arraignment in murder case that was later assigned to judge, was required to disqualify himself from the murder trial because
implied bias existed and judge's impartiality might reasonably be questioned. NRS 1.230; Code of Jud.Conduct, Canon 3(E)(1)(b).
2. Judges.
Recusal is mandatory in cases where the district court judge, prior to taking the bench, acted as an attorney in the case, as
implied bias exists. NRS 1.230; Code of Jud.Conduct, Canon 3(E)(1)(b).
3. Judges.
Party may waive his right to have a judge disqualified.
4. Judges.
Defendant initially waived his right to have district court judge disqualified in murder trial. Judge disclosed that prior to taking
the bench he had appeared for district attorney's office on behalf of the state at defendant's arraignment in the murder case, and state
and defendant conferred outside of judge's presence and agreed on the record that judge need not be disqualified.
5. Judges.
Despite defendant's procedural error in failing to file certificate of good faith as part of recusal motion, trial judge was required
to disqualify himself from defendant's murder trial. Prior to taking the bench the judge had appeared for district attorney's office on
behalf of the state at defendant's initial arraignment in the murder case, and judge's implied bias made recusal mandatory. NRS 1.230,
1.235(1); Code of Jud.Conduct, Canon 3(E)(1)(b).
6. Criminal Law.
Automatic reversal of defendant's criminal convictions for murder and other crimes, rather than harmless error analysis, was
appropriate where implied bias of trial judge existed because the trial judge, prior to taking the bench, had appeared for district
attorney's office on behalf of the state at defendant's initial arraignment in the criminal case, as applying a harmless error analysis
would be inconsistent with avoiding even the appearance of impartiality. NRS 1.230; Code of Jud.Conduct, Canon 3(E)(1)(b).
OPINION
Edward Earl Walker, a.k.a. Earl Cage, (Walker), a cocaine dealer, stored drugs at
the home of his girlfriend, Marnie Hickman (Hickman). Hickman had at least a friendly
relationship with appellant Vincent Edward Turner (Turner). On February 2, 1992, Turner,
Darryl Fuller (Fuller), and Armond Brown (Brown) formed a plan to rob Walker of
cocaine. Turner was to gain entry to the apartment, then leave the door unlocked. The other
two were to enter and execute the robbery. Turner was not to play any further role in the
robbery so that Hickman would not suspect his involvement.
The three went to Hickman's apartment that evening. Hickman allowed Turner inside the
apartment. Turner left the door unlocked behind him. Fuller and Brown then entered the
apartment and searched for cocaine. Brown aimed a handgun at Hickman and demanded to
know where Walker kept his stash of cocaine. Fuller discovered a large amount of cocaine.
Fuller and Brown then determined that because Hickman had seen them, they were obliged to
kill her. Brown ordered Hickman to lie on the floor. He pulled the trigger, but his gun
jammed. Fuller handed Brown his handgun. Hickman begged for her life and promised to tell
Brown where Walker kept his remaining narcotics. Brown then shot Hickman to death. The
three then took Walker's cocaine to a hotel and divided it amongst themselves.
On April 21, 1992, Turner contacted the North Las Vegas Police Department and
ultimately confessed his involvement in the murder. This confession matched facts which the
police had previously learned from Fuller. Turner was subsequently arrested. On December
23, 1992, Turner, Fuller, and Brown were each charged by information with conspiracy to
commit robbery, robbery with use of a deadly weapon, attempted robbery with use of a deadly
weapon, burglary, and murder with use of a deadly weapon. Brown was subsequently killed,
likely as revenge for the Hickman murder.
On March 3, 1994, Fuller filed a motion for disclosure of any possible basis for judicial
disqualification. On June 6, 1994, Turner joined this motion. On August 1, 1994, the district
court held a hearing on this and certain other motions. At this hearing, the following
exchange occurred:
THE COURT: Apparently I argued a sentencing one time against Mr. Turner and I
also appeared for the State of Nevada at the initial arraignment as to both
defendants.
Nevada at the initial arraignment as to both defendants. Was there a problem?
[Fuller's counsel]: Your honor, on behalf of both defendants, we have no problem
with your previous participation and would waive any defects.
[Turner's counsel]: Judge, I discussed the matter with my client and would waive any
defects in the case.
. . . .
THE COURT: And, Mr. Turner, do you have any problem with me being the judge
hearing your case and I previously worked in the D.A.'s case and I not only appeared for
the State of Nevada at previous arraignments but I previously had argued for a sentence
for you or against you I should say.
[Turner]: No, sir.
However, at the August 5, 1994 calendar call, Turner stated that he had concerns
about the district court's fairness, given the judge's prior activity as a prosecutor in both the
present case and a prior case. The district court vacated the approaching trial date and asked
counsel to brief the issue of whether recusal was required. On this same date, Fuller pleaded
guilty pursuant to a plea agreement.
On August 24, 1994, Turner filed a motion to recuse the district court judge. On
September 8, 1994, the district court denied this motion, but did not explain its reasons for
doing so.
On January 10, 1995, Turner filed a proper person motion to dismiss his counsel.
Turner argued that his attorney failed to investigate certain information which would have
shown that Turner did not knowingly and voluntarily waive his Miranda rights before
confessing. In addition, Turner argued that his counsel should be dismissed because Turner
had filed a federal civil rights complaint against his counsel for malpractice, and therefore,
Turner had a conflict of interest with his attorney. On January 24, 1995, the district court
denied this motion.
The jury trial began on February 28, 1995. When the district court instructed the jury on
the charges of robbery and attempted robbery, it mistakenly stated that [i]f one count of an
information charges a defendant with committing an offense and another count charges a
lesser included offense, the defendant may be convicted of both counts. The jury returned a
verdict of guilty on all charges, including both robbery and attempted robbery. At the April 6,
1995 sentencing hearing, the court dismissed the attempted robbery charge and let stand the
guilty verdict for robbery with use of a deadly weapon.
On April 24, 1995, the district court filed a judgment of conviction.
conviction. Turner was sentenced to two consecutive life sentences with the possibility of
parole for the murder, six years in prison for the conspiracy, fifteen years for the robbery with
an additional fifteen years as a robbery sentence enhancement, and ten years for the burglary.
The conspiracy and burglary sentences were to run consecutively to each other and to the
murder sentence. The robbery sentence was to run concurrently with all the other prison time.
On May 22, 1995, Turner filed his notice of appeal.
DISCUSSION
First, Turner argues that his conviction should be reversed because the district court
judge should have been disqualified from the case on the grounds of implied bias. We agree.
Canon 3(E) of the Nevada Code of Judicial Conduct (NCJC) provides, in relevant
part:
(1) 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:
. . . .
(b) the judge served as a lawyer in the matter in controversy . . . .
(Emphasis added.)
A similar provision is codified in NRS 1.230:
2. A judge shall not act as such in an action or proceeding when implied bias exists in
any of the following respects:
. . . .
(c) When he has been attorney or counsel for either of the parties in the particular
action or proceeding before the court.
(Emphasis added.)
[Headnotes 1, 2]
We conclude that the plain language of these statutes demonstrates that recusal is
mandatory in cases where the district court judge, prior to taking the bench, acted as an
attorney in the case.
In the present case, the district court judge had, while employed by the district attorney's
office, appeared on behalf of the State at two of Turner's pre-trial hearings. Therefore, we
conclude that the district court judge was clearly subject to disqualification.
[Headnote 3]
However, a party may waive his right to have a judge disqualified. Canon 3(F) of the
NCJC provides:
A judge disqualified by the terms of Section 3E may disclose on the record the basis
of the judge's disqualification and may ask the parties and their lawyers to consider, out
of the presence of the judge, whether to waive disqualification. If following disclosure
of any basis for disqualification other than personal bias or prejudice concerning a
party, the parties and lawyers, without participation by the judge, all agree that the
judge should not be disqualified, and the judge is then willing to participate, the judge
may participate in the proceeding. The agreement shall be incorporated in the record of
the proceeding.
[Headnote 4]
At a hearing on August 1, 1994, the district court judge disclosed his previous
involvement in the case to the parties, then called a thirty-five minute recess to allow the
parties and their attorneys to determine whether to waive disqualification. Following this
recess, the district court asked Turner whether he had any objection to the judge based on his
previous involvement in this case. Turner responded that he did not.
We conclude that this colloquy demonstrates that Turner waived disqualification. The
record shows that the district court judge disclosed the basis for disqualification and then
allowed the parties to determine how to proceed. The parties agreed on the record the judge
need not be disqualified. Therefore, pursuant to Canon 3(F), Turner initially waived his right
to disqualification.
However, at the August 5, 1994 calendar call, Turner attempted to withdraw this
waiver. In response, the district court judge vacated the trial date and asked the parties to
submit briefs addressing the issue of whether he should disqualify himself. We conclude that
by so doing, the court acknowledged Turner's withdrawal of waiver.
NRS 1.235 delineates the procedure for disqualifying judges. This statute provides, in
relevant part:
1. Any party to an action or proceeding pending in any court other than the supreme
court, who seeks to disqualify a judge for actual or implied bias or prejudice must file
an affidavit specifying the facts upon which the disqualification is sought. The affidavit
of a party represented by an attorney must be accompanied by a certificate of the
attorney of record that the affidavit is filed in good faith and not interposed for delay. . .
.
. . . .
5. The judge against whom an affidavit alleging bias or prejudice is filed shall
proceed no further with the matter and shall:
(a) Immediately transfer the case to another department of the court . . . .
(b) . . . The question of the judge's disqualification must thereupon be heard and
determined by another judge. . . .
[Headnote 5]
In this case, Turner submitted only a document styled Motion to Recuse Judge. This
motion was accompanied by court transcripts that were sufficient to show that the district
court judge should have recused himself on the grounds of implied bias pursuant to NRS
1.230. However, no affidavit or certificate of good faith was filed as required by NRS
1.235(1).
Despite these procedural errors, we conclude that the district court judge erred by failing to
recuse himself. Although Turner's motion was procedurally flawed, he submitted that motion
in response to the judge's request that the parties submit briefs on the issue. The
memorandum of points and authorities which Turner submitted in support of his motion
adequately set forth the applicable law. The facts giving rise to disqualification are not
disputed; the district court judge acknowledged from the bench that he had made appearances
as an assistant district attorney in the case. NRS 1.230 and Canon 3(E) explicitly provide that
a judge who has served as an attorney in a case shall recuse himself. Therefore, we conclude
that the judge erred by failing to recuse himself.
[Headnote 6]
We further conclude that this error mandates automatic reversal. The Preamble to the
NCJC states: [J]udges, individually and collectively, must respect and honor the judicial
office as a public trust and strive to enhance and maintain confidence in our legal system.
The United States Supreme Court has held that 28 U.S.C. 455(a), a statute similar to Canon
3(E), is designed to avoid even the appearance of partiality. Liljeberg v. Health Services
Acquisition Corp., 486 U.S. 847, 860 (1987). We conclude that it would be inconsistent with
these goals to apply a harmless error analysis to a judge's improper failure to recuse himself.
Therefore, we conclude that such failure mandates automatic reversal.
Accordingly, we reverse the judgment of the district court and remand the case for
further proceedings consistent with this opinion.
1

__________

1
Turner argues that his Sixth Amendment right to counsel was violated because of a conflict of interest on the
part of his trial counsel. Turner also
Maupin, J., with whom Rose, J. agrees, concurring in part and dissenting in part:
I agree with the majority that the trial judge erred by failing to recuse himself upon
Turner's renewed motion for disqualification. However, contrary to the majority's position, I
believe that his failure to recuse himself created merely an appearance of bias which does not
mandate reversal but is susceptible to a harmless error analysis. See NRS 178.598 (any error
not affecting substantial rights shall be deemed harmless).
NRS 1.230 provides that a district court judge may be disqualified on the grounds of either
actual or implied bias. It is well settled that where a district judge errs by failing to recuse
himself on the grounds of actual bias, reversal is mandatory. See NRS 1.230(1). However, I
submit that where the bias was merely implied, see NRS 1.230(2)(c), as it indisputedly was in
this case, reversal is not mandatory and a harmless error analysis is appropriate. See United
States v. Van Griffin, 874 F.2d 634, 637 (9th Cir. 1989) (in case involving violation of 28
U.S.C. 455, which defines the circumstances under which a federal judge must recuse
himself, court held that harmless error analysis is appropriate if violation created merely
appearance of bias rather than actual bias).
Applying this harmless error analysis, I conclude that Judge Chairez's failure to recuse
constitutes harmless error because (1) his prior involvement in the case, while a Clark County
district attorney, was nominal, (2) Turner did not receive the maximum sentences, and (3) the
evidence of guilt was overwhelming in that Turner confessed to the murder of Hickman.
Accordingly, I submit that the application of a harmless error analysis, when the failure to
recuse creates merely an appearance of bias, is not inconsistent with the broader goals of
judicial impartiality.
__________
argues that the district court erred by dismissing the attempted robbery charge and convicting him of robbery. In
addition, Turner submitted a proper person supplemental brief in which he argued the trial court erred by failing
to adequately consider whether Turner was competent to stand trial. Because we have determined that Turner's
conviction must be reversed on other grounds, we will not address these issues.
____________
114 Nev. 690, 690 (1998) Powers v. United Servs. Auto. Ass'n
WILLIAM R. POWERS, Appellant/Cross-Respondent, v. UNITED SERVICES
AUTOMOBILE ASSOCIATION and USAA CASUALTY INSURANCE COMPANY,
Respondents/Cross-Appellants.
No. 26794
July 16, 1998 962 P.2d 596
Appeal and cross-appeal from a judgment of the district court. Eighth Judicial District
Court; Myron E. Leavitt, Judge.
Insured brought suit against marine insurer which denied claim for sinking of boat and
which had sought unsuccessful criminal prosecution of insured for fraud. The district court
entered judgment on jury verdict in favor of insured for breach of contract, bad faith and
breach of fiduciary duty. Both sides appealed. The supreme court, Rose, J., held that: (1) issue
of whether insured made material misrepresentation during claims process was for jury; (2)
substantial evidence supported jury verdict on breach of fiduciary duty for concealing
information from insured; (3) substantial evidence supported jury verdict of bad faith denial
of claim; and (4) insured was entitled to post-judgment interest on his punitive damages
award.
Petition for rehearing denied; motions to appear as amicus curiae granted;
motions for leave to file reply denied; prior opinion modified. 115 Nev.
------
, 979 P.2d
1286 (1999).
Brenske & Christensen, Las Vegas; Raleigh, Hunt & McGarry, Las Vegas, for
Appellant/Cross-Respondent.
Beckley, Singleton, Jemison & List and Daniel F. Polsenberg, Las Vegas; Pearson &
Patton, Las Vegas; Howard, Moss, Loveder, Strickroth & Walker, Santa Ana, California, for
Respondents/Cross-Appellants.
Bradley, Drendel & Jeanney, Reno, for Amicus Curiae Nevada Trial Lawyers
Association.
1. Insurance.
Issue of whether insured's misrepresentation during claims process for loss of boat was material was for jury in breach of
contract and bad faith suit against marine insurer which refused to pay claim on grounds of misrepresentation and suspected
intentional sinking of craft.
Jury's verdict will not be overturned if it is supported by substantial evidence unless the verdict was clearly erroneous when
viewed in light of all the evidence presented.
3. Insurance.
In breach of contract and bad faith suit against marine insurer that refused to pay claim for sinking of boat and withheld
information about investigation, substantial evidence supported determination that insured's initial misrepresentation, when he led
investigator to believe he had not cut exhaust hose by stating that hose had deteriorated was not material and did not void policy.
4. Evidence.
Admission of expert testimony lies within the sound discretion of the district court. NRS 50.275.
5. Evidence.
In breach of contract and bad faith suit against marine insurer for refusal to pay claim regarding sinking of boat, permitting
experts for both sides to testify as to materiality of insured's misrepresentation in which he led investigator to believe that he had not
cut exhaust hose while attempting to save boat, was not abuse of discretion.
6. Insurance.
Duty owed by an insurer to an insured is fiduciary in nature.
7. Insurance.
Substantial evidence supported jury verdict finding breach of fiduciary relationship arising from marine insurer's refusal to
comply with its insured's requests for information and concealment of facts relevant to his claim for loss of boat, which could be
viewed as breach of the trust and confidence insured was entitled to place in his insurer.
8. Insurance.
Misconduct by insurer, such as misrepresenting or concealing facts to gain advantage over insured during first-party claims
process, is breach of duty owed to insured that is fiduciary in nature.
9. Insurance.
Fiduciary nature of the insurer-insured relationship is part of the duty of good faith and fair dealing.
Time to raise inconsistencies or irregularities in the form of a verdict is at trial.
Insurer waived right to question form of verdict, in failing to segregate punitive damages for breach of covenant of good faith
and for breach of fiduciary duty, by failing to object at trial.
12. Insurance.
Judgment will not be overturned if the jury's verdict that an insurer acted in bad faith is supported by substantial evidence.
13. Insurance.
To establish a prima facie case of bad-faith refusal to pay an insurance claim, the plaintiff must establish that the insurer had no
reasonable basis for disputing coverage, and that the insurer knew or recklessly disregarded the fact that there was no reasonable basis
for disputing coverage.
14. Insurance.
Substantial evidence that marine insurer knew or recklessly disregarded evidence that there was no reasonable basis to deny
claim for sinking of boat supported jury verdict for insured for bad faith refusal to pay claim.
Supreme court will not disturb an award of punitive damages unless the trial record lacks substantial evidence to support it.
16. Insurance.
Substantial evidence, from which jury could have concluded that marine insurer made critical omissions in investigating claim
for loss of boat and attempted to ensure denial of claim, supported award of punitive damages on grounds of insurers' fraud, oppression
or malice. NRS 42.005.
17. Interest.
Imposition of post-judgment interest on punitive damages is proper; abrogating Ainsworth v. Combined Ins. Co., 105 Nev. 237,
774 P.2d 1003 (1989). NRS 17.130.
18. Interest.
Insured was entitled to post-judgment interest on punitive damages award against insurer. NRS 17.130.
OPINION
Retired Air Force Colonel William Powers lived on his boat, the Mikimbi. On April 28, 1987, en route from Texas to Florida
through the Gulf of Mexico, the Mikimbi sank. On May 2, 1987, Powers reported his loss to USAA, his insurer for thirty-five years. After
USAA commenced its investigation, it accused Powers of intentionally sinking his own boat. On December 14, 1987, eight months after
the Mikimbi sank, USAA denied Powers' claim. In May 1989, USAA instigated criminal charges against Powers for pursuing an allegedly
false insurance claim, including wire fraud and mail fraud. At trial, Powers was acquitted.
Powers then brought a civil action against USAA based on its conduct in handling his claim. A jury found that USAA acted in bad
faith in failing to pay Powers' claim, in breach of its fiduciary relationship with Powers, and had breached the insurance contract. The jury
awarded Powers special, compensatory, and punitive damages; however, the district court denied Powers' motion to amend the judgment to
include post-judgment interest on the punitive damages.
Powers appeals the denial of his motion regarding post-judgment interest on punitive damages; USAA now cross-appeals the
judgment. We affirm the jury's verdicts and conclude that Powers was entitled to interest on the punitive damage award as of the date the
judgment was entered.
FACTS
Retired Air Force Colonel William Powers lived on his boat, the "Mikimbi."
the Mikimbi. On the afternoon of April 28, 1987, en route from Texas to Florida through
the Gulf of Mexico, Powers fell asleep aboard the Mikimbi. He awoke to the odor of smoke
and went below to find water entering the engine room. The water was above his ankles.
Powers noticed that an exhaust hose had disconnected from the engine so that fumes and sea
water were being pumped into the engine room. He attempted to save his boat, unsuccessfully
trying to reattach the hose and to close a gate valve at the thru-hull, which was frozen in the
open position.
Powers felt extremely sick and confused from inhaling engine room fumes and carbon
monoxide. He vomited a few times from his exertion and the fumes. In a panic, he finally
stopped the water from continuing to siphon into the boat by cutting the hose at the valve near
the thru-hull. Water was still coming into the boat because it was leaning to the port side with
the thru-hull below sea level. Powers stuffed a sheet into the thru-hull, temporarily stopping
water from entering the boat.
Powers then called the U.S. Coast Guard for help, and boarded a life raft with a few
provisions. At the direction of the Coast Guard, a commercial fishing boat, captained by
Richard Underwood, rescued Powers. After resting aboard the fishing boat, Powers
re-boarded the Mikimbi in an attempt to save it. He found that the sheet previously stuffed
into the thru-hull had come out, and more water had entered the boat. He stuffed more rags
into the opening. At approximately 6:55 p.m., Powers informed the Coast Guard that the leak
was under control. The Coast Guard parachuted an emergency water pump to Powers, who
spent thirty minutes unsuccessfully attempting to retrieve the pump from the ocean. Powers
then experienced chest pains. The Coast Guard insisted that Powers abandon his boat.
After Powers left, no one attempted to board the Mikimbi. The boat continued to take
on water, and eventually sank at 11:30 that night. A Coast Guard helicopter flew Powers to
land, where an ambulance took him to a nearby hospital. When his blood was tested at 12:30
a.m., it showed the presence of (1) carbon monoxide from breathing fumes and (2) elevated
enzymes from muscle damage due to physical exertion. He spent the night in the intensive
care unit and left the hospital the next day against medical advice. USAA never reviewed
Powers' medical records during its investigation of his claim.
On May 2, 1987, four days after the Mikimbi sank, Powers reported his loss to USAA, his
insurer for thirty-five years. He believed that the woman to whom he described the incident
did not understand his explanation of events. USAA then decided to assign Powers' case to its
Claims Security Unit (CSU), which investigates fraud. Wayne McNeely, a CSU special
investigator, was designated as the chief investigator of Powers' claim.
was designated as the chief investigator of Powers' claim. In his May 1987 telephone
conversation with McNeely regarding the sinking of the Mikimbi, Powers stated that the
exhaust hose had deteriorated at the thru-hull. He used the term deteriorated to simplify
his explanation (McNeely had no expertise in marine investigations), and because he was
concerned that USAA would automatically deny his claim if he explained that he had
deliberately cut the hose.
Although McNeely testified that at this point in the review of the claim, he had no
reason to believe that Powers had intentionally sunk the Mikimbi, USAA began to investigate
Powers' finances looking for motive to file a fraudulent claim. In July 1987, two months after
the Mikimbi sank, frustrated with USAA's failure to pay his claim, Powers telephoned
McNeely to explain how and why he had cut the exhaust hose. USAA decided to raise the
Mikimbi from the ocean. Powers asked USAA to allow him to be present when the boat was
raised and brought into port. USAA refused Powers' request. At the end of September 1987,
USAA raised and surveyed the Mikimbi outside of Powers' presence.
USAA had hired a local salvager, Harry Davis, to oversee the raising and investigation of
the Mikimbi, notwithstanding Davis' lack of training as a marine investigator. Although
Davis had told USAA that the boat could be raised at a cost of approximately $30,000, the
actual cost to USAA of raising the Mikimbi (which involved numerous failed attempts)
exceeded $200,000a cost approximately double the amount for which the Mikimbi had
been insured. Don Wimberly, district manager of the CSU, wrote in an October 27, 1987
internal USAA memo that Davis has completely misled us all for his own purposes on the
cost of the [Mikimbi] project.
USAA also allowed Davis to interview Captain Underwoodthe only witness to the
Mikimbi sinking who USAA interviewed. Davis recorded this interview on an audio tape;
however, there was evidence that only selected portions of Captain Underwood's statement
were recorded. USAA failed to produce this tape at trial. USAA did not interview any other
witnesses to the sinking of the Mikimbi. On October 2, 1987, Davis made a videotape of the
Mikimbi, purportedly depicting the contents of the boat at the time it was raised. At trial,
Davis admitted that his videotape was a re-creation and that he had moved items allegedly
found on the boat for purposes of the videotape. On the tape, Davis held up a pipe wrench
which he alleged had been found near the thru-hull and could have been used to shut the
frozen gate valve. Powers maintained that no such wrench had been present on his boat at the
time of sinking. At trial, Powers' expert witnessa metallurgisttestified that the wrench
depicted in the videotape did not show corrosion consistent with having been submerged
on the boat in ocean water for five months.
lurgisttestified that the wrench depicted in the videotape did not show corrosion consistent
with having been submerged on the boat in ocean water for five months. In any event, USAA
failed to produce the wrench for analysis by Powers' expert.
The videotape also depicted an adaptor kita large hose and two clamps which
purportedly could have been used by Powers to repair the hose at the thru-hull. Again, Powers
denied having had these items on his boat when it sank, and his expert testified that the
condition of the clamps indicated that they had not been submerged in ocean water for five
months. At trial, McNeely admitted that even had it been present on the Mikimbi, the
adaptor kit would not have enabled Powers to repair a cut hose.
While investigating the Mikimbi, McNeely took numerous photographs of its interior.
Powers told USAA that he had left almost all of his possessions on the Mikimbi and that
various items had been stored in a cabinet above the stove. The cabinet consisted of three
separate doors but only one un-partitioned cabinet. The McNeely/Davis inspection revealed
that the cabinet was emptysupposedly evidence that Powers had removed all of his
belongings before intentionally sinking his boat. McNeely's photographs showed two of the
three doors which were latched closed. However, no pictures were taken of the third door
which had a broken latch and open door through which the cabinet contents could have fallen
out during the numerous attempts to raise the boat.
The videotape and photographs also showed that hoses from the toilet and the raw
water intake pump had been disconnected. Davis told McNeely that these hoses could have
been intentionally disconnected as a means of sinking the boat. However, Powers maintained
that water would not enter the boat if those hoses were disconnectedhe explained that one
of the hoses simply took waste from the toilet to a holding tank. McNeely never investigated
these inconsistent positions and adopted Davis' conclusions.
In mid-October, USAA asked Powers to submit to an examination under oath; Powers
complied. At this examination, Powers reiterated the manner in which the boat had sunk; his
testimony was consistent with the information he had provided to McNeely in July, prior to
the raising of the Mikimbi. Shortly after this examination, Powers asked USAA to seal the
Mikimbi and allow the Coast Guard to perform an independent examination of its condition.
USAA refused and left the boat and its contents in Davis' custody.
On November 9, 1987, McNeely submitted his closing report in which he stated that
the toilet and raw water intake hose had been disconnected, causing the boat to take on
water.
been disconnected, causing the boat to take on water. The report concluded that Powers had
intentionally sunk the Mikimbi. Notwithstanding the fact that McNeely had no expertise in
the investigation of boat sinkings, he admitted that he never attempted to confirm Powers'
contention that a siphon had occurred on the boat. The Mikimbi's designer, William Crealock,
testified in the instant case that a siphon could have occurred in the manner described by
Powers.
McNeely concluded his report by stating that the investigation would be forwarded to
the Insurance Crime Prevention Institute (ICPI)an entity funded by insurance companies
which investigates claims and refers cases to the FBI for possible criminal prosecution. On
December 14, 1987, eight months after the Mikimbi sank, USAA denied Powers' claim. The
letter denying the claim stated that false swearing, concealment or misrepresentation of any
material fact voided the insurance policy.
The ICPI forwarded Powers' USAA file, including USAA's conclusions, to the FBI. In
May of 1988, an FBI investigator contacted McNeely. The federal investigator told McNeely
that the disconnected hoses to which USAA had attached great significance, could have
become disconnected during the numerous attempts to raise the Mikimbi. In May 1989, the
FBI contacted Powers. When Powers and his wife arrived at the FBI for an interview, he was
arrested. The U.S. Attorney's Office filed criminal charges against Powers for pursuing an
allegedly false insurance claim, including wire and mail fraud.
The federal trial commenced in March 1991. Davis testified in front of a federal grand
jury and again at the federal trial; he was compensated by USAA on both occasions. At the
federal trial, Davis presented the gate valve from the Mikimbi and demonstrated to the jury
that it was not frozen. However, Powers' defense included the testimony of a metallurgist who
concluded that the valve had been tampered with after the Mikimbi had been raised as there
was lubricant on the valve which would not be present after five months in ocean water.
A federal jury acquitted Powers on all charges. Notwithstanding Powers' acquittal of
criminal wrongdoing, USAA stood by its denial of his claim. Moreover, USAA continued to
investigate the case and attempted to establish that Powers had hired Captain Underwood to
sink the Mikimbi. USAA eventually abandoned this subsequent investigation, but still
maintained that its denial of Powers' claim was justified based upon his alleged material
misrepresentations.
Just prior to his arrest in connection with the federal charges, Powers had filed the
instant case against USAA alleging six causes of action: (1) breach of contract, (2) bad faith
failure to pay Powers' claim,
pay Powers' claim, (3) breach of fiduciary relationship, (4) malicious prosecution, (5)
intentional infliction of emotional distress, and (6) violation of the Unfair Claim Settlement
Practices Act. A jury found in Powers' favor on the first three causes of action, rejected the
final three causes of action, and awarded him special, compensatory, and punitive damages.
However, the judgment did not award Powers post-judgment interest on the punitive
damages.
Powers appeals on the ground that the district court erred in failing to award
post-judgment interest on his punitive damages award; USAA cross-appeals the judgment
awarding Powers compensatory and punitive damages.
DISCUSSION
1

The district court did not err in allowing the jury to determine whether Powers'
misrepresentation was material
[Headnote 1]
Powers initially told USAA that the exhaust hose aboard the Mikimbi had
deteriorated. Two months later, he told USAA that he had cut the hose. The USAA policy
insuring the Mikimbi contained the following provision: False swearing, concealment or
misrepresentation of any material fact by any covered person voids this policy. At trial,
Powers admitted that he had misrepresented the detachment of the hose because he was
worried that USAA would summarily deny his claim. USAA asserts that this
misrepresentation was material as a matter of law and that it was error to permit the jury to
decide the issue of materiality. We disagree.
Under most circumstances involving misrepresentations by an insured to an insurance
company, it is a question of fact for the jury to decide whether the variance between the
representation and the existing facts was material. Gerhauser v. N. B. & M. Ins. Co., 7 Nev.
174, 196 (1871). The rule is well established that, if the materiality of the representations or
statements depends upon inferences to be drawn from facts and circumstances proved, the
question of materiality is one for the jury. Smith v. N. A. A. I. Co., 46 Nev. 30, 43, 205 P.
801, 804 (1922). In both Gerhauser and Smith the materiality issue arose with respect to false
statements made in insurance applications. It was acknowledged in Smith, that materiality
could be judged as a matter of law in cases where the parties' contract stipulated that
certain facts were to be considered material; however, where "materiality must be shown
by matters outside the terms of the contract, it is a question of fact."
__________

1
NRAP 28(h) designates the plaintiff below as the appellant, and the defendant below as cross-appellant,
unless otherwise ordered. If we were to reverse Powers' damages award on USAA's cross-appeal, Powers' issue
on appeal concerning post-judgment interest would be moot. Accordingly, this opinion will first address the
issues on cross-appeal, i.e., the validity of Powers' damages award.
was acknowledged in Smith, that materiality could be judged as a matter of law in cases
where the parties' contract stipulated that certain facts were to be considered material;
however, where materiality must be shown by matters outside the terms of the contract, it is
a question of fact. 46 Nev. at 45, 205 P.2d at 805.
Unlike the situation in Gerhauser and Smith, the deception here relates to the claims
process rather than to the application process, and it is only in the rarest of cases of this kind
that the materiality issue can be taken from the jury. Further reluctance to remove this issue
from the jury is fostered by reason of the fact that in this case a jury has already ruled on the
issue and in Powers' favor. As put in Gerhauser, the issue is whether there is a material
variance between the representation and the existing facts. 7 Nev. at 196. Under our cases,
then, it is the jury that must decide whether the false representation, that is, the variance
between the [false] representation and the existing [true] facts, is material, which is to say,
substantially related to or, as put in the jury instruction, reasonably relevant to the insurance
company's investigation.
We conclude that in this case whether Powers' misrepresentation was material was a
question of fact to be properly decided by a jury. USAA was not entitled to a determination
that materiality was present in this case as a matter of law.
There was substantial evidence upon which the jury could have reasonably concluded that
Powers' misrepresentation was not material
[Headnote 2]
A jury's verdict will not be overturned if it is supported by substantial evidence unless
the verdict was clearly erroneous when viewed in light of all the evidence presented. Bally's
Employees' Credit Union v. Wallen, 105 Nev. 553, 779 P.2d 956 (1989). We conclude that
there was substantial evidence upon which the jury could have determined that Powers'
misrepresentation was not material.
2

The jury was instructed that: A fact is material if it concerns a subject reasonably relevant
to the insurance company's investigation, and if a reasonable person would attach importance
to that fact. A representation is false when the facts fail to correspond with its assertions."
__________

2
We reach this same conclusion and apply the same reasoning with regard to USAA's assertions that Powers'
alleged initial concealment of the fact that the exhaust hose slipped off the engine manifold and that his failure to
mention a siphon effect in his May 1987 conversation with McNeely were material. We note that the purported
inconsistencies in Powers' recounting of relevant events were presented to the jury.
with its assertions. Stated another way, a misrepresentation is material if the false statement
concerns a subject relevant and germane to the insurer's investigation as it was then
proceeding. Pacific Indem. Co. v. Golden, 985 F.2d 51, 56 (2d Cir. 1993). To be deemed a
material misrepresentation, it must be shown that an insurer's investigation would have
proceeded differently had the insured told the truth. Id. at 56-57.
[Headnote 3]
In the instant case, there was ample evidence upon which the jury could have
concluded that USAA's investigation of Powers would not have proceeded differently had he
stated in May 1987 that he had cut the exhaust hose. Wimberly testified that he was
suspicious of Powers' claim from the onset due to the fact that the Mikimbi sank in calm
waters. According to McNeely, USAA had decided to raise the Mikimbi prior to Powers'
telephone call in July 1987 wherein he explained that he had cut the exhaust hose. Following
this conversation, USAA proceeded with its plans to raise the boat.
Furthermore, the jury could have easily concluded, based on the evidence, that the fact that
the exhaust hose was cut rather than deteriorated was not reasonably relevant to USAA's
investigation. USAA's investigation focussed on the manner in which the Mikimbi sank. The
boat's designer, William Crealock, testified that it was the fact that the exhaust hose slipped
off of the engine manifold, combined with the fact that the valve at the thru-hull could not be
closed, that caused the Mikimbi to take on water. The condition of the hose at the thru-hull
(i.e., cut or deteriorated) was not a relevant factor in the sinking of the boat.
[Headnotes 4, 5]
We conclude that based upon substantial evidence, the jury could have found,
applying the definition of materiality contained in Instruction No. 14, that Powers' May 1987
misrepresentation was not material so as to void his policy.
3

__________

3
We reject USAA's contention that the district court erred in overruling USAA's objections to the expert
testimony on the issue of materiality. The admission of expert testimony lies within the sound discretion of the
district court. Cf. Prabhu v. Levine, 112 Nev. 1538, 1547-48, 930 P.2d 103, 101-10 (1996). NRS 50.275
provides that [i]f 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 . . . may testify to matters within the
scope of such knowledge. Moreover, NRS 50.295 permits an expert to give opinion testimony concerning the
ultimate issues in a case. We conclude that the district court did not abuse its discretion in permitting experts for
both USAA and Powers to testify as to the materiality of the misrepresentation at issue.
The jury was properly instructed that the relationship between USAA and Powers was
fiduciary in nature; the jury could have properly found that USAA breached its fiduciary duty
to Powers
Powers argued that USAA breached a fiduciary responsibility to him by refusing
Powers' requests (1) for copies of photographs Powers had been shown at the October 1987
examination under oath; (2) to be present when the Mikimbi was raised and not telling him
where the boat was until three days after USAA had possession; and (3) to seal the Mikimbi
to protect evidence Powers needed to defend against allegations that he had intentionally sunk
his boat.
[Headnote 6]
USAA contends that, while an insurer's duty to an insured can be akin to that of a
fiduciary in some respects, the insurer has no fiduciary duty to pay questionable claims. See
Employers Insurance Co. of Wausau v. Albert D. Seeno Construction, 945 F.2d 284 (9th Cir.
1991). USAA contends that imposing a fiduciary duty to a first-party insured would require
insurance companies to pay every claim presented by an insured. USAA argues that an
insurance carrier owes a duty to its other policyholders not to dissipate its reserves by paying
meritless claims. We are not persuaded by these arguments; in the instant case, the jury did
not find a breach of fiduciary duty based on USAA's failure to pay Powers' claim, but upon its
failure to comply with the reasonable requests of its insured.
The jury was instructed on this issue as follows:
The duty owed by an insurance company to an insured is fiduciary in nature. . . . A
fiduciary relationship exists when one has the right to expect trust and confidence in the
integrity and fidelity of another. This special relationship exists in part because, as
insurers are well aware, consumers contract for insurance to gain protection, peace of
mind and security against calamity.
(Emphasis added). It is clear that the jury was properly instructed that an insurer's duty to its
policyholder is, as USAA concedes, akin to a fiduciary relationship.
[Headnote 7]
Notwithstanding the language of this instruction, USAA argues that to affirm the
jury's verdict, we would have to recognize a new tort which requires the insurer to place the
insured's interests above its own. We cannot agree. Nevada has long recognized the special
relationship between the insurer and its insured. Ainsworth v. Combined Ins. Co., 104 Nev.
587, 592, 763 P.2d 673, 676 (1988) (hereinafter Ainsworth I). In the instant case the jury
was not asked to find that USAA breached a duty to place Powers' interests over its own;
rather, the jury was instructed to consider whether USAA's refusal to comply with its
insured's requests for information relevant to his own claim constituted a breach of "the
trust and confidence" an insured is entitled to place in his insurer.
instant case the jury was not asked to find that USAA breached a duty to place Powers'
interests over its own; rather, the jury was instructed to consider whether USAA's refusal to
comply with its insured's requests for information relevant to his own claim constituted a
breach of the trust and confidence an insured is entitled to place in his insurer.
[Headnote 8]
In denying USAA's motion for judgment notwithstanding the verdict or a new trial,
the district court cited Tynes v. Bankers Life Co., 730 P.2d 1115, 1124-26 (Mont. 1986). The
Montana court reviewed other states' decisions regarding the nature of the fiduciary
relationship between insurer and insured, and held that a special relationship between insurer
and insured can be described as fiduciary in nature, although it is not identical to the
fiduciary duty relationship of a trust. The court explained that this type of duty is basically a
statement of the kind of good faith duty owed by an insurer to a first-party insured.
Misconduct, such as misrepresenting or concealing facts to gain an advantage over the
insured, is a breach of this kind of fiduciary responsibility. Tynes, 730 P.2d at 1126; see also
Rawlings v. Apodaca, 726 P.2d 565, 571 (Ariz. 1986) (holding that although an insurer is not
a fiduciary in the strict sense of the word, it has some duties of a fiduciary nature and these
duties include an obligation to disclose relevant facts discovered during the investigation of a
policyholder's claim); Indus. Indem. of the N.W. v. Kallevig, 792 P.2d 520, 526 (Wash. 1990)
(holding that the insurer's duty to act in good faith is a fiduciary duty which is fairly broad
and may be breached by conduct short of intentional bad faith or fraud).
We conclude that the jury's verdict was supported by substantial evidence that USAA
concealed facts to gain an advantage over Powers, and that this misconduct constituted a
breach of the fiduciary nature of its relationship with Powers. The jury could have reasonably
concluded that USAA's failure to comply with Powers' request for photographs, to be present
at the raising of his boat, and to have an outside party investigate the boat was not in keeping
with a relationship of trust and confidencefiduciary in naturewith its insured. Such a
conclusion supports the jury's finding of bad faith, of which the breach of fiduciary duty is a
component.
[Headnote 9]
We are not adopting a new cause of action based on an insurance company's failure to
put its insured's interests above its own; we are merely recognizing that breach of the
fiduciary nature of the insurer-insured relationship is part of the duty of good faith and fair
dealing.4 Therefore, we need not address USAA's contention that punitive damages were
unfairly assessed on this verdict.
good faith and fair dealing.
4
Therefore, we need not address USAA's contention that
punitive damages were unfairly assessed on this verdict. Additionally, USAA argues that the
jury's verdict does not explain whether it found USAA liable for breaching the covenant of
good faith and fair dealing or breaching a fiduciary duty. USAA contends that when there are
two actions and no way to determine whether the jury found on one or the other, an error in
either action requires a new trial. Lightenburger v. Gordon, 81 Nev. 553, 407 P.2d 728
(1965). However, the verdict indicates that the jury found USAA liable for both a breach of
the covenant of good faith and fair dealing and a breach of its fiduciary relationship, granting
compensatory and punitive damages awards to Powers for both. In this case we view the
jury's finding of a breach of fiduciary duty as buttressing the finding of bad faith.
[Headnote 10]
Both parties stipulated to the form of the verdict, and USAA did not request that the
court ask the jury to explain its punitive damage amount. The time to raise inconsistencies or
irregularities in the form of a verdict is at trial. Eberhard Mfg. Co. v. Baldwin, 97 Nev. 271,
628 P.2d 681 (1981); see also Brascia v. Johnson, 105 Nev. 592, 596 n.2, 781 P.2d 765, 768
n.2 (1989) (holding that a party must challenge inconsistencies in a verdict before the jury is
discharged, and failure to object while the jury is available to clarify its verdict constitutes
waiver).
[Headnote 11]
We conclude that the language in the verdict clearly states the jury's finding and that
USAA waived its right to question the form of the verdict by failing to object at trial.
There was substantial evidence that USAA acted in bad faith by denying Powers' claim
[Headnotes 12, 13]
A judgment will not be overturned if the jury's verdict that an insurer acted in bad
faith is supported by substantial evidence. United Fire Insurance Co. v. McClelland, 105 Nev.
504, 780 P.2d 193 (1989). In reviewing this evidence, this court must presume that the jury
believed evidence favorable to that prevailing party and drew inferences in that party's favor.
Id.; see Ainsworth I, 104 Nev. at 590, 763 P.2d at 675. To establish a prima facie case of
bad-faith refusal to pay an insurance claim, the plaintiff must establish that the insurer had
no reasonable basis for disputing coverage, and that the insurer knew or recklessly
disregarded the fact that there was no reasonable basis for disputing coverage.
__________

4
However, to the extent that the giving of the instruction defining the fiduciary relationship between Powers
and USAA constituted error, we adopt the concurrence's view that it was harmless.
the plaintiff must establish that the insurer had no reasonable basis for disputing coverage,
and that the insurer knew or recklessly disregarded the fact that there was no reasonable basis
for disputing coverage.
5
Falline v. GNLV Corp., 107 Nev. 1004, 823 P.2d 283 (1991).
[Headnote 14]
We conclude that there was abundant evidence upon which the jury could have found
that USAA knew or recklessly disregarded the fact that there was no reasonable basis for
denying Powers' claim. Experts in investigations management testified that USAA's
investigation was improper, incomplete, poorly done, in violation of USAA's own
procedures, and rendered the opinion that USAA's conduct amounted to bad faith. Presuming
that the jury believed evidence favorable to Powers, it was justified in concluding that USAA
began its investigation by submitting the claim directly to its fraud unit, failing to review the
evidence objectively. There was substantial evidence that had USAA undertaken an objective
investigation, USAA would have discovered evidence to show that the claim should have
been paid.
Among other things, McNeely admitted that there were erroneous conclusions in his
closing report (e.g., that the disconnected toilet and raw water intake hoses caused the boat to
sink); however, USAA made no effort to correct these known errors, even though this report
was relied upon by federal authorities in pursuing criminal charges against Powers.
Additionally, there was evidence that the gate valve, which had been kept in USAA's custody,
had been tampered with so as to further discredit Powers. Furthermore, the jury could have
believed that the videotape contained numerous fabrications and was designed to provide
USAA with a reason to deny Powers' claim when no such reason actually existed. We
conclude that the jury's verdict that USAA is liable to Powers for bad faith is supported by
substantial evidence and is not clearly erroneous.
[Headnote 15]
Based upon our review of the record and the parties' arguments on appeal, we
conclude that there was substantial evidence to support the jury's award of special and
compensatory damages based upon USAA's breach of the insurance contract, bad faith refusal
to pay Powers' claim, and breach of a fiduciary relationship. Furthermore, we will not disturb
an award of punitive damages unless the trial record lacks substantial evidence to support it.
First Interstate Bank v. Jafbros Auto Body, 106 Nev. 54, 56, 787 P.2d 765, 767 (1990).
__________

5
We reject USAA's contention that its actions were reasonable as a matter of law.
[Headnote 16]
We conclude that the evidence the jury could have believed supported a finding that
USAA had been guilty of oppression, fraud or malice, express or implied. See NRS 42.005.
There are numerous facts in the record, taken individually and cumulatively, which support
such a determination. The evidence showed that USAA made numerous critical omissions in
its investigative process; these omissions support a finding of oppression. A jury could also
properly conclude USAA undertook an intentional course of conduct designed to ensure the
denial of Powers' claim and that such conduct constituted fraud and malice.
Perhaps the most egregious example of oppression, fraud and/or malice is contained in the
USAA videotape of the newly raised Mikimbi. There was ample evidence upon which the
jury could have concluded that USAA enhanced the actual contents of the Mikimbi in an
effort to create support for its decision to deny Powers' claim and to justify the forwarding of
his claim to the ICPI and, ultimately, the U.S. Attorney's Office. In this case, we conclude that
punitive damages were indeed warranted.
The imposition of post-judgment interest on punitive damages is proper
[Headnotes 17, 18]
NRS 17.130 outlines computation of a judgment and imposition of any interest
thereon.
6
The statute provides for interest to accrue on a judgment as of the date the
complaint was served, although interest on certain parts of a judgment, such as damages not
incurred until after the complaint was served, accrues as of the date those damages were
actually sustained, see, e.g., Gibellini v. Klindt, 110 Nev. 1201, 1209, 885 P.2d 540, 545
(1994) (holding pre-judgment interest accrues on costs from time incurred after complaint
served); LTR Stage Lines v. Gray Line Tours, 106 Nev. 283, 289, 792 P.2d 386, 389 (1990)
(holding pre-judgment interest accrues on damages from time actually incurred after
complaint served).
Powers argues that the plain language of the statute does not preclude post-judgment
interest on punitive damages; rather, it provides for interest on a "judgment."
__________

6
The relevant portion of NRS 17.130 states:
1. In all judgments . . . rendered by any court of justice, for any debt, damages or costs . . . the
amount must be computed, as near as may be, in dollars and cents . . . .
2. When no rate of interest is provided by contract or otherwise by law, or specified in the judgment,
the judgment draws interest from the time of service of the summons and complaint until satisfied, except
for any amount representing future damages, which draws interest only from the time of the entry of the
judgment until satisfied . . . .
preclude post-judgment interest on punitive damages; rather, it provides for interest on a
judgment. In the present case, the jury award included compensatory and punitive damages,
cumulatively comprising the judgment in the case. Powers argues that every aspect of a
judgment entered by the court should be treated the same, and that interest should accrue on
punitive damages as of the date the judgment is awarded.
We have held that pre-judgment interest does not accrue on punitive damages because
a plaintiff is never entitled to punitive damages as a matter of right. Ramada Inns v. Sharp,
101 Nev. 824, 711 P.2d 1 (1985). We later expanded this rule to apply to post-judgment
interest on punitive damages. Ainsworth v. Combined Ins. Co., 105 Nev. 237, 774 P.2d 1003
(1989), cert. denied, 493 U.S. 958 (1989) (hereinafter Ainsworth II). Powers asks this court
to revisit the issue and consider the policies in favor of imposing post-judgment interest on
punitive damages awards.
The purpose of post-judgment interest is to compensate the plaintiff for loss of the use of
the money awarded in the judgment without regard to the elements of which that judgment
is composed.' Air Separation v. Lloyd's of London, 45 F.3d 288, 290 (9th Cir. 1995)
(quoting Perkins v. Standard Oil Co., 487 F.2d 672, 675 (9th Cir. 1973)). In Air Separation,
the Ninth Circuit also noted that failing to award post-judgment interest creates an incentive
for the defendant to exploit the time value of money by frivolously appealing or otherwise
delaying timely payment. Id. Moreover, awarding post-judgment interest on exemplary
damages is consistent with the purpose of post-judgment interestcompensation to a
successful plaintiff for the intervening time between entitlement to and actual payment of an
award of damages. Brown v. Petrolite Corp., 965 F.2d 38, 51 (5th Cir. 1992).
In response to USAA's contention that allowing interest to accrue on punitive
damages would deter meritorious appeals, we note that the courts require defendants who
appeal from a judgment for compensatory damages to pay interest, and that imposition is not
considered to deter meritorious appeals. Moreover, a defendant whose conduct was egregious
enough to warrant the imposition of punitive damages should not be given preferential
treatment and be allowed to make money during the appellate process on what has been
ordered to be paid to the plaintiff.
Based upon our review of the policies mentioned above, we believe that Ainsworth II
should be modified to the extent that it denies successful litigants post-judgment interest on
punitive damages. Accordingly, we conclude that Powers' punitive damage award should
have accrued post-judgment interest as of the date the judgment was entered.
age award should have accrued post-judgment interest as of the date the judgment was
entered.
CONCLUSION
We conclude that materiality of misrepresentation is a question of fact. We further
conclude that there was substantial evidence upon which the jury could have concluded that
Powers' misrepresentation was not material.
We further conclude that, in limited circumstances, an insurer may be held liable for
breaching its fiduciary responsibility to a first-party insured. The jury's finding that USAA
breached its relationship in this case was supported by substantial evidence. Further, the
verdict properly identified the jury's findings and award of damages.
Additionally, we conclude that the jury's verdict regarding USAA's bad faith was
supported by substantial evidence and was not clearly erroneous. Finally, we conclude that
Powers is entitled to post-judgment interest on his punitive damages award as of the date the
district court entered the judgment.
Therefore, we reverse that portion of the district court's judgment that awards punitive
damages without post-judgment interest and remand to the district court to award punitive
damages with post-judgment interest. We affirm the judgment in all other respects.
Shearing and Young, JJ., concur.
The opinions of Rose, J., and Springer, C. J., argue with equal elegance and
persuasive force the points made by both sides of this controversy at trial. I write separately
because I would prefer to review, not re-try, this matter.
USAA correctly argues that, in light of its exoneration on the causes of action alleging
malicious prosecution, intentional infliction of emotional distress, and violation of the Unfair
Claims Practices Act, any material representation in the claims process by Mr. Powers to
USAA would void any recovery in this matter.
1

__________

1
Although the malicious prosecution claim (based on the federal prosecution of Mr. Powers for fraud), and
the unfair settlement practices and intentional infliction claims were based on several alleged acts that, if proved,
were also evidence of bad faith, a successful outcome in favor of USAA on those claims does not compel the
conclusion that the verdicts were inconsistent. The jury could have concluded that Mr. Powers failed to prove
elements of those claims that were not essential to the claim of bad faith. It is also possible, if not probable, that
the jury concluded Mr. Powers had overpleaded his case and, thus, the claims upon which USAA was
exonerated were simply duplicative of the bad faith claim.
However, in the context of this case, I cannot conclude that the materiality of the
misrepresentation was proved as a matter of law.
Ordinarily, a claimant who lies to an insurer has precious little right to complain when
his or her claim is denied. Certainly, Mr. Powers' admission through counsel that he initially
lied about the sinking of his boat, the Mikimbi, would immunize USAA from bad faith or
fiduciary liability for a preliminary refusal to pay this claim, and for its undertaking of a
comprehensive investigation thereafter.
2
It was the nature of the investigation and the failure
to pay after the investigation was complete that provided legitimate fodder for Mr. Powers'
claims of bad faith and breach of contract.
As my colleagues suggest, the larger body of evidence submitted for consideration by the
jury was vigorously disputed. Quite uniquely, the trial court was confronted with evidence of
Mr. Powers' attempts to mislead the carrier during the initial stages of the claim, evidence of
a shoddy and unprofessional investigation by USAA, an ill-advised referral for prosecution
by federal authorities, conflicting evidence regarding how the Mikimbi sank, and allegations
that agents of USAA had planted evidence to bolster its claim that Mr. Powers was guilty of
sabotage. Thus, the many excellent arguments that did exist for and against the imposition of
liability were severely undermined by the extracurricular activities of both parties.
Although USAA may have reasonably entertained suspicions and developed competent
circumstantial evidence implicating Mr. Powers in the loss of the Mikimbi, the questions of
whether Mr. Powers sunk the boat
3
and whether the evidence developed by USAA to that
effect justified denial of the claim with or without proper cause were, in my opinion, for the
jury.
4

Because there is no doctrine in Nevada of comparative bad faith between an insured
and an insurer, and because this case was replete with competent evidence, albeit disputed, of
misconduct by both sides, I conclude that the trial court properly submitted the issue of the
materiality of Mr. Powers' misrepresentations to the jury.
__________

2
Thus, in my view, the fact that the cost of the investigation, including raising the Mikimbi from the ocean
floor, far exceeded the value of the claim is irrelevant to the resolution of this matter.

3
If the jury believed that Mr. Powers did not sink the boat, an issue central to this case, the misrepresentation
would have been immaterial as a matter of law. In this connection, I would note that literally every issue in this
appeal, save the post-judgment interest dispute, would have been rendered moot if the jury had been asked to
resolve via special interrogatory whether Mr. Powers was the culprit in the sinking of the Mikimbi.

4
Instruction No. 8, conditioned recovery on Mr. Powers' claim for bad faith on a finding that the claim was
denied without proper cause.
sentations to the jury. It was the finding against USAA on this issue that provided the
predicate for the breach of contract and bad faith awards.
As to the verdict regarding breach of fiduciary duty, counsel for Mr. Powers
contended at oral argument that Mr. Powers sought to establish a claim for a limited fiduciary
obligation. The jury was instructed on this issue as follows:
Plaintiff seeks damages for a breach of a fiduciary relationship between plaintiff and
defendant. The duty owed by an insurance company to an insured is fiduciary in nature.
In order to recover plaintiff must establish by a preponderance of the evidence that a
fiduciary relationship existed between plaintiff and defendant and that defendant
breached a duty to disclose known facts to plaintiff.
A fiduciary relationship exists when one has the right to expect trust and confidence
in the integrity and fidelity of another.
This special relationship exists in part because, as insurers are well aware, consumers
contract for insurance to gain protection, peace of mind and security against calamity.
5

By use of the term fiduciary in nature, the instruction seems internally inconsistent.
First, this language implies a general, not a limited, fiduciary relationship.
6
Second, an
obligation to disclose known information is not, in and of itself, fiduciary. Third, Mr. Powers'
attorneys conceded at oral argument that a relationship which is fiduciary in nature in this
context only means that the insurer must deal fairly with its insured. This, of course, does
not distinguish this alleged special relationship from any other ordinary contractual
relationship. Further, as argued by USAA, first-party claims do not, of necessity, implicate a
fiduciary relationship as in the case of third-party claims. This is because, to a degree, the
relationship between the insurer and the insured in first-party claims may, in fact,
become adversarial.
__________

5
Mr. Powers pled a general claim for breach of a fiduciary duty. The claim was, based on the language of the
jury instruction on this issue, limited somewhat by the trial court. Although the instruction limited the liability
theory to evidence that USAA withheld known facts, counsel represented at oral argument that the limited
fiduciary relationship was argued at trial in terms of failures by USAA to tell Mr. Powers the truth, failures to
seal the Mikimbi for an independent investigation, and failures to produce certain photographs. Even though
these arguments went well beyond the scope of the instruction, I conclude that they were simply part and parcel
of the claim for bad faith.

6
Mr. Powers' counsel concedes that a general claim under this theory was unnecessary and also conceded that
first-party claims do not implicate a general fiduciary relationship. Given the fact that the fiduciary duty
instruction added virtually nothing to the claim for bad faith, it appears that Mr. Powers' counsel would have
been wise to abandon this theory altogether.
because, to a degree, the relationship between the insurer and the insured in first-party claims
may, in fact, become adversarial. See Beck v. Farmers Ins. Exch., 701 P. 2d 795, 800 (Utah
1985).
7

Here, however, the definition of a fiduciary relationship in the jury instruction is so
innocuous as to add little or nothing to the elements of Mr. Powers' bad faith claim. The
instruction is devoid of the standard language defining this tort; i.e., that one party gain[ed]
the confidence of the other and purport[ed] to act or advise with the other's interests in mind .
. . .' Perry v. Jordan, 111 Nev. 943, 947, 900 P.2d 335, 338 (1995) (quoting Kudokas v.
Balkus, 103 Cal. Rptr. 318, 321 (Ct. App. 1972)), or that USAA was in a superior position
to exert unique influence of the dependent party. . . .' Hoopes v. Hammargren, 102 Nev.
425, 431, 725 P.2d 238, 242 (1986) (quoting Barbara A. v. John G., 193 Cal. Rptr. 422, 432
(Ct. App. 1983)). Thus, because the definition of a fiduciary relationship added nothing to the
duties attendant to the covenant of good faith and fair dealing, implied in every contract,
providing this instruction to the jury was harmless error.
I would note that the nature of this case represents an anomaly in this area of
jurisprudence. Thus, it is only of marginal precedential value. The bench and bar should be
most careful in the future about drawing any sweeping conclusions from it.
8

I dissent because I believe the majority has misapprehended the facts of this case, has
ignored several errors committed by the trial court and has distorted our jurisprudence
relating to the adjustment of property insurance claims.
I begin by noting my disagreement with the majority's perception of the critical, false
statements which Mr. Powers made to his insurance company. Mr. Powers represented to the
company, under oath, that the cause of his boat's sinking was that the boat's exhaust hose had
deteriorated and broke loose near the point where it exited the hull.
__________

7
Fiduciary obligations are a signal feature of third-party claims covered by liability insurance. These
obligations arise largely from the insurer's right and duty to provide legal representation to the insured, and the
right to control the conduct of the defense of suits against the insured. See Beck, 701 P.2d at 799. Such
obligations also stem from the duty of the insurer to protect the insured's personal estate from extra-contractual
liability. The duty of the carrier to exercise good faith in the processing of first-party claims is not fiduciary per
se, but is only akin to such an obligation. Therefore, a separate instruction on fiduciary obligations should not
be given in this context.

8
I agree with Rose, J., that an award of punitive damages should be subject to post-judgment interest.
point where it exited the hull. The broken hose, according to Mr. Powers' version of the
sinking, caused sea water to enter the hull of the boat, causing it to sink. With no disrespect
intended, the sworn proof-of-loss statements which Mr. Powers gave to his insurance
company were, plainly and simply, lies.
1
The truth is that the external exhaust hose did not
break loose because of natural deterioration. Mr. Powers, according to his own later
statement, cut it with a knife.
The record makes it plain to me that Mr. Powers did not admit that he had cut the
hose until he realized that the company was going to raise the sunken boat and would
discover that the hose had been cut. Mr. Powers explains his false statements by saying that
the false reports were made because he feared that USAA would automatically deny his
claim if he told the truth.
Naturally, the USAA did not consider these lies to be immaterial and asked for a federal
investigation into marine insurance fraud. The FBI did not think the misrepresentations were
immaterial, and the federal prosecutors did not think that they were immaterial; a federal
grand jury indicted Mr. Powers based upon the FBI's investigation.
Mr. Powers' lies would be immaterial only if they were not reasonably relevant to the
insurance company's investigation. When a claimant tells an insurer that his loss was caused
in a certain way, and it is later conclusively established that the insured gave a false account
of the incident, there is no way that such statements can be immaterial and not related to the
company's investigation. Of course, an insured's description of the loss is related to the
investigation; it is the heart of the investigation.
I part company with the majority in two vital respects. The first is the majority's saying
that Mr. Powers' original false report (that the hose deteriorated and broke loose) was
made not to deceive the insurance carrier, but rather, to simplify his explanation. To me,
there is sufficient difference between cutting a hose and having it deteriorate and break loose
on its own to conclude that Mr. Powers was lying and not simplifying.
__________

1
Mr. Powers actually gave at least three different versions of the events leading up to the sinking: (1) that an
exhaust hose deteriorated at the thru-hull causing water to leak in through the ruptured hose; (2) story number 1,
plus water being pumped by the engine into the hold through the ruptured exhaust hose (sworn proof of loss) and
(3) the hose had detached at one end (having slipped off the engine manifold) and was cut at the other,
thru-hold end, thereby causing some kind of siphon which caused the hold to fill with water to sink the boat. I
recount these versions merely to support my saying that USAA certainly had reasonable grounds for
investigating the claim, rather than paying it, and for referring the matter to federal authorities.
conclude that Mr. Powers was lying and not simplifying. My second disagreement with the
majority is with its focus on what caused the boat to sink. No one knows what caused the boat
to sink except Mr. Powers. The majority and concurring opinions seem to assume that Mr.
Powers can recover millions of dollars against his insurance company if he proved to the jury
that he did not deliberately sink his boat. Mr. Powers was in deep financial and domestic
trouble, and insurance investigators had many sound reasons to believe he sank his boat; but,
for the purposes of this lawsuit, this does not matter. What does matter is that he made false,
sworn statements and misled his insurance carrier in its investigation, causing it to spend
hundreds of thousands of dollars to try to get to the truth of the matter.
Mr. Powers sued his marine insurance carriers in contract and tort based on the
insurance companies' claimed refusal without proper cause
2
to pay Mr. Powers' claim for
loss of his sail boat. A jury awarded Mr. Powers judgment and damages on his contract claim
and on two tort claims, one for the tort of breach of the implied covenant of good faith and
fair dealing, the other for USAA's commission of a tort previously unrecognized in Nevada,
namely, a property insurance company's supposed breach of a fiduciary duty to disclose
known facts.
Under the terms of Mr. Powers' insurance policy, [f]alse swearing, concealment or
misrepresentation of any material fact by any covered person violates the insurance contract
and voids the policy. Although Mr. Powers admits that he was guilty of false swearing,
concealment and misrepresentation of fact, he claims that these were not material and that,
therefore, the insurance contract should not be voided. The facts relating to Mr. Powers' false
swearing, concealment and misrepresentation of material facts are as follows.
Mr. Powers' boat sank on April 28, 1987. The boat was insured by USAA.
Approximately two weeks after the sinking, on May 11, 1987, Mr. Powers told Wayne
McNeely, a claims investigator for USAA, that the reason his boat sank was that an exhaust
hose had deteriorated and ruptured near the place where the hose passed through the hull to
the outside of the boat (a place called the thru-hull). Mr. Powers told Mr. McNeely that,
when he discovered the ruptured hose, he grabbed the hose and could feel the water coming
from the outside. According to Mr. Powers' then-version of the facts, he realized
immediately that taking the sail down would help the boat straighten out and maybe the
thru-hull wouldn't be so deep in the water. Mr. Powers told Mr. McNeely that after he took
down the sail, the thru-hull was still "about half way in the water" and, thus, "water was
still coming in the boat.
__________

2
Instruction No. 8.
Powers told Mr. McNeely that after he took down the sail, the thru-hull was still about half
way in the water and, thus, water was still coming in the boat. Mr. Powers tried to stuff
towels into the ruptured hose, but to no avail; and, according to Mr. Powers, the boat
continued to take on water until it sank.
On June 14, 1987, about a month after his May 11 report to Mr. McNeely, Mr. Powers
filed his official, sworn proof of loss with USAA. In this sworn statement Mr. Powers
claimed that his loss was due to the failure of the main engine exhaust hose at the exit thru
hull . . . causing sea water to be pumped into boat . . . through [the] exposed thru hull fitting.
In his sworn proof of loss statement, Mr. Powers did not tell the truth, did not admit that he
had cut the hose. He used the word failure of the exhaust hose rather than a deterioration, as
he had first reported. In his formal, sworn proof of loss statement, Mr. Powers added another
complication to the sinking; he stated that sea water was being pumped into [the] boat by
[the] main engine. Later, he claimed that the water was propelled by a siphoning effect,
rather than by the force of the engine.
None of Mr. Powers' varying stories made much sense to USAA's claims operatives; so
USAA decided to contract for the investigative services of Bachrach & Wood Associates to
make an independent investigation and evaluation of the sinking. Bachrach quite
understandably concluded that Mr. Powers had made numerous contradictions in his
previous statements and found Mr. Powers' versions of the incident to be inconsistent with
Bachrach's independent investigation of the facts. (For example, Bachrach noted that Mr.
Powers claimed that his boat was operating on auto pilot prior to discovering that something
was amiss; however, Bachrach reported that upon inspection there was no auto pilot
aboard the vessel, nor any adapters or apparatus providing evidence that there ever was an
auto pilot aboard.) Bachrach concluded its report in the following manner:
SYNOPSIS OF OBSERVATIONS:
The undersigned, using the sworn statement under oath by Mr. William R. Powers as
the basic data, and other statements and miscellaneous items, as well as sighting the
vessel as auxiliary data, construed the aforementioned observations and other points of
interest, and offers herewith the following synopsis:
The insured in initiating his claim for the sinking of his 42 West Sail sailboat, the
MIKIMBI, made various statements which contained numerous contradictions. It is
the opinion of the undersigned that the ultimate reported cause of subject vessel
sinking, under the conditions that reportedly existed at the time of the reported sinking,
would have been nearly an impossible feat.
After receiving the Bachrach report, USAA officials decided to raise the boat from the
bottom of the gulf and take a look for themselves. Mr. Powers was, of course, the only
witness to what had been going on inside the boat at the time of the sinking; and, so long as
the boat was on the bottom of the sea, Mr. Powers could tell about any story he chose to tell.
When Mr. Powers learned of USAA's plan to inspect the boat, he realized that he had a
problem. Mr. Powers knew that the hose had not deteriorated at the thru-hull. It had not
failed; rather, Mr. Powers had cut the hose, and insurance investigators would have been
justified in suspecting that it was Mr. Powers' intentional cutting of the hose that caused the
water to enter the boat. As Mr. Powers himself admitted, he feared that his lies would be
discovered. By his own account, Mr. Powers was forced to explain this because somebody is
going to look down there and see . . . that cut hose. Mr. Powers admitted at trial that, at the
time he told USAA that the hose had deteriorated or failed, he was playing with the truth a
little bit (sometimes called simplifying). Eventually, the time came when Mr. Powers had
to admit that he had cut the hose himself.
USAA had the benefit of Bachrach's opinion that Mr. Powers' first accounts of the
sinking were nearly impossible; still, USAA decided to employ another, independent
investigator, an admiralty law firm, to provide a second opinion in order to have additional
advice as to whether USAA should pay this claim. Admiralty lawyer Allen von Spiegelfeld of
the retained admiralty firm took Mr. Powers' sworn deposition and gave Mr. Powers another
opportunity to give his version of the sinking. Mr. von Spiegelfeld reported the results of the
deposition and his appraisal of the same in a letter to USAA dated October 26, 1987.
In the October 26 letter, Mr. von Spiegelfeld reported Mr. Powers' latest version of the
sinking. Mr. Powers told Mr. von Spiegelfeld that he had awakened from a nap to see smoke
coming from the engine room. Upon inspection, Mr. Powers noticed that the exhaust hose
had detached itself from the engine manifold
3
and that the engine was emitting exhaust and
water into the engine room. Mr. Powers related that he tried to reattach the hose to the engine
but that he could not do so because of the heat. He stated that he then turned off the engine,
thus stopping the water and exhaust from being pumped into the room. According to Mr. von
Spiegelfeld, Mr. Powers explained:
__________

3
Testimony at trial indicated that the heat of the manifold has a tendency to fuse exhaust hoses to the
manifold and that the hose is very, very difficult to get off of the engine. Mr. Powers' own expert, William
Crealock, admitted that it is uncommon for a hose to come off at the exhaust manifold. USAA investigators
thought that Mr. Powers was aware of this fact and that this was why he first made up the story that the exhaust
hose failure was at the other end of the hose, at the thru-hull entry into the boat.
Upon returning to the engine room, he found that water was coming in through the
exhaust hose from the through hull fitting. It was his version that suction had somehow
been created, which was causing the water to pump into the vessel via the through hull
fitting. Mr. Powers stated that in order to stop the suction effect he went over to a panel
to the through hull fitting for the exhaust hose and with a screw driver took the panel
off. . . . Mr. Powers then state[d] that he cut the 4-inch hose with a knife and also used a
pair of pliers to cut the wire. According to his deposition he tried to stuff the hole with
rags, however, everytime the boat would wallow to port the rags would fall out and the
water would gush in.
At a certain point after the boat had taken on water, Mr. Powers decided to abandon
his boat, and he was rescued by a fishing vessel. He told Mr. von Spiegelfeld that, later,
since his boat was not sinking, he asked that he be pushed back to it. Mr. Powers, then,
after being rescued, returned to his boat. Mr. von Spiegelfeld goes on to report:
Upon getting back on board his boat the water was higher, however, he attempted to
plug the hole to the through hull fitting again. For reasons he could not explain, Mr.
Powers claims that he reattached the hose to the exhaust manifold at this time. This
makes absolutely no sense since no water was coming in through the boat hose.
(Emphasis added.)
The admiralty attorney's investigation prompted him to report to the company:
Mr. Powers' statements are very inconsistent and make little sense.[
4
] He
acknowledged several false statements made early on in the investigation.
__________

4
The company was, understandably, very much concerned about the inconsistencies and implausibility of Mr.
Powers' various versions of the sinking. For example, in his May 11, 1987, version, Mr. Powers said that he
shut the engine off immediately and went below. In his October 1987 statement he said that he did not turn off
the engine prior to going into the engine room. This becomes important because of Mr. Powers' claim that he
suffered from carbon monoxide poisoning in the engine room, which, according to his and other testimony, had
all portholes open. [T]he engine room was just full of smoke, and it was dark back there. I couldn't hardly see,
and water was almost up to my knees. In his October 6 statement Mr. Powers testified that the water was about
8 inches deep. It was about mid-calf or over my ankles. USAA investigators were concerned about this
discrepancy because if the water had been over eight inches in depth, the air intake for the engine would be
under water and the engine would probably not have been running under these circumstances. Mr. von
Spiegelfeld, the admiralty lawyer, reported to USAA his opinion that Mr. Powers' change in
early on in the investigation. When asked why he came up with his original story about
the rotted hose, he wavered and waffled. Ultimately Mr. Powers stated that he lied
because he did not want to confuse the claim. . . . Mr. Powers also did not explain why
he reattached the 4-inch hose to the exhaust manifold, or how he did it while the engine
was under water.
Mr. von Spiegelfeld concluded his report by saying:
We are of the opinion that Mr. Powers['] claim should be denied and that the basis for
denial should be on the basis that the loss was caused intentionally by or at the
direction of a covered person. Furthermore, it should be stated that the policy was
voided by the "false swearing, concealment or misrepresentation of any material
fact by any covered person."
__________
story resulted from his realization that the engine would have [to have] been under water if he were in knee
deep water in the galley.
Mr. Powers told two different stories as to when he lowered the sail. In his October statement, Mr. Powers
said that he lowered the sail before he cut the hose. (Before the cut, and while Mr. Powers was trying to get to
the valve to cut off the outside water inlet, and before he found it necessary to cut the hose, he testified that, it
dawned on me that I was still heeling to port because of my mainsail being up. So I went back up and got the
mainsail down.) Later in his statement, Mr. Powers testified that the sail lowering was performed after he had
cut the hose. (It [the sail-lowering] was after I cut it, and it dawned on me that I was heeled over to port, and if I
got that sail down, it might help a little bit.) USAA considered this inconsistency to be important because once
the sail was lowered, the boat would come upright, stop its forward movement and float idly in the water,
thereby breaking the siphon which Mr. Powers claimed was causing his boat to fill with sea water through the
cut portion of the exhaust hose. If Mr. Powers had, as was once his testimony, taken the sail down before he cut
the hose, it would appear that any siphoning would have been stopped and that very little, if any, water could
have entered the boat by way of the thru-hull opening. It is hard to claim, under these circumstances, that USAA
was not justified in making further inquiries before paying this claim.
Another matter that caused some pause on the part of USAA investigators was the question as to whether Mr.
Powers' reinstallation of the end of the exhaust hose that he claimed had become detached from the engine
manifold had taken place before or after he had cut the hose at the hull end, at the thru-hull fixture. In his
October statement to Mr. von Spiegelfeld, Mr. Powers explained how he reclamped the hose to the engine.
Mr. Powers was asked if this was after you cut the hose, and he answered in the affirmative. It is not difficult
to understand why USAA would question this answer and to wonder why Mr. Powers would say that he went to
the trouble of reclamping the dangling hose to the manifold, unless, as suspected by USAA, Mr. Powers testified
in this way to conform his testimony to the condition that the boat was in when it was raised. Mr. Powers could
not very well maintain his story that all of his problems were traceable to the hose's detaching from the engine
manifold, when the recovered boat showed that the hose was attached to the engine. I recount these additional
inconsistencies not to reargue the facts of this case, but merely to show that USAA's decision, based upon two
independent recommendations, was reasonable under the circumstances.
the policy was voided by the false swearing, concealment or misrepresentation of any
material fact by any covered person.
On December 14, 1987, approximately two months after receiving the von Spiegelfeld
report, USAA, following attorney von Spiegelfeld's advice, wrote to Mr. Powers, advising
him that it was denying coverage on the grounds that the loss had been caused
intentionally and that the policy was voided by reason of Mr. Powers' violation of the
policy provision relating to false swearing, concealment or misrepresentation of any material
fact by any covered person.
CONTRACT LIABILITY
In my view, Mr. Powers does not have an enforceable claim in either tort or contract.
With respect to Mr. Powers' contract claim, USAA based its denial of his contractual claim
on two grounds: first, that the independent investigators believed that Mr. Powers had
intentionally sunk his boat and, second, that Mr. Powers was guilty, in connection with
USAA's claims investigation, of false swearing, concealment and misrepresentation of
material facts. USAA does not now claim the right to prevail in this appeal by reason of Mr.
Powers' having intentionally sunk his boat
5
; rather, USAA claims that it is entitled to
judgment as a matter of law based on the provision in the policy that reads:
False swearing, concealment or misrepresentation of any material fact by any covered
person voids this policy.
It is uncontested and admitted that Mr. Powers was guilty of false swearing,
concealment [and] misrepresentations relating to the manner in which this loss was incurred.
Mr. Powers admits that he intentionally lied to the company because he feared that if he told
the truth, USAA might deny his claim. Mr. Powers' strained position at trial and on appeal
is that the quoted policy provision does not apply to his claim because his misrepresentations
and concealments were not material to USAA's investigation of the circumstances relating
to the sinking.
USAA argues that the misrepresentations in question were material as a matter of law and
that, if they are not material as a matter of law, there was no probative evidence in the record
to support a jury finding that the misrepresentations were not material.
The jury was instructed that a lie is material if it concerns a subject reasonably
relevant to the insurance company's investigation."
__________

5
The issue of whether Powers intentionally sank his own boat to defraud his insurance company has no part
to play in either the contract or tort claims in this lawsuit.
subject reasonably relevant to the insurance company's investigation. I do not see how it can
possibly be said that Mr. Powers' lies had no relation to this investigation. If it had not been
for Mr. Powers' lies and his inconsistent versions of the sinking, the insurance companies
would not have had to spend hundreds of thousands of dollars to raise the boat and to
intensify the investigation.
I would agree with the majority that, as a general rule, questions of materiality in the
context of misrepresentations made in the claims process are questions of fact; however, the
facts in this case dictate that the misrepresentations made in this case cannot properly be
considered in any way other than as material misrepresentations. Mr. Powers' varying and
sometimes starkly false versions of the sinking go to the very core of the insurance
companies' investigation and are eminently relevant to the investigation. The insurance
companies had a duty to investigate the false claims. Because it cannot be said under any
circumstances that the lies were not relevant to the investigation, I would conclude that they
are material as a matter of law.
USAA correctly argues in its brief that questions relating to the insured's involvement
with the actual sinking are pertinent [and therefore material] to an issue of coverage, . . . [and
that] the insured is obligated to answer truthfully. As I have said, under most circumstances
involving misrepresentations by an insured to an insurance company, it is a question of fact
for the jury to decide whether the variance between the representation and the existing facts
was material. Gerhauser v. N. B. & M. Ins. Co., 7 Nev. 174, 196 (1871). The rule is well
established that, if the materiality of the representations or statements depends upon
inferences to be drawn from facts and circumstances proved, the question of materiality is one
for the jury. Smith v. N. A. A. I. Co., 46 Nev. 30, 43, 205 P. 801, 804 (1922). In both
Gerhauser and Smith, the materiality issue arose with respect to false statements made in
insurance applications; and it was acknowledged in Smith, 46 Nev. at 44, 45, 205 P. at 805,
that materiality could be judged as a matter of law in cases in which the parties' contract
stipulates that certain facts shall be considered material; but, where materiality must be
shown by matters outside the terms of the contract, it is a question of fact, id. at 45, 205 P. at
805. Unlike the situation in Gerhauser and Smith, the deception here relates to the claims
process rather than to the application process, and it is only infrequently in cases of this kind
that the materiality issue must be taken from the jury. This is one of those cases.
It is my view that Mr. Powers' lies were material as a matter of law because there is no
logical way in which they could be found not to be material; and there is no sufficient
evidence in the record from which a jury could come to a contrary conclusion.
not to be material; and there is no sufficient evidence in the record from which a jury could
come to a contrary conclusion. I believe this to be the case even if a competent expert witness
were to testify to the contrary.
The only evidence from which it could possibly be concluded that Mr. Powers' lies
were not material was introduced in the form of opinion evidence by an expert in insurance
law, a Mr. Patrick Fitzgibbons.
6
Mr. Fitzgibbons, however, did not testify that Mr. Powers'
misrepresentations were not relevant or that they did not affect the insurance company's
investigation of this claim; Mr. Fitzgibbons just flatly told the jury that Mr. Powers'
misrepresentation was not a material misrepresentation. Mr. Fitzgibbons' opinion is
unsubstantiated by fact or reason and provides no substantial evidence on the issue of
materiality. As I have already pointed out, there is no way in which Mr. Powers'
misrepresentations can be viewed as being either irrelevant or immaterial to the investigation
of this sinking.
Mr. Fitzgibbons presented the jury with his conclusion that Mr. Powers' tale about the
deteriorated hose was not a material misrepresentation. The first unfounded reason that Mr.
Fitzgibbons gave to support his opinion that the misrepresentations were not material was
that a deteriorated hose was not (at least according to Mr. Fitzgibbons) the real cause of the
sinking, or as Mr. Fitzgibbons put it, the misrepresentation was not material because the
exhaust hose deteriorat[ion] was not the cause of the sinking of the vessel. The other
justification offered by Mr. Fitzgibbons for his opinion that Mr. Powers' misrepresentations
were immaterial was that Mr. Powers' later recanting of his first stories rendered the previous
lies immaterial.
With regard to the first reason for his opinion, that the misrepresentation about the
deteriorated hose was not material because hose-deterioration was not the real cause of the
sinking, it would appear that what Mr. Fitzgibbons was telling the jury was that the false story
about the deteriorated hose would not be material unless hose-deterioration was the actual
cause of the sinking.
__________

6
The testimony of Mr. Powers and witnesses called by him might lead to the conclusion that Mr. Powers'
cutting of the exhaust hose himself did not cause the boat to sink. The jury might even have believed Mr.
Powers' second or third version and believed that the boat sank not because Powers cut the exhaust hose near
where it passed through the hull of his boat to the outside sea water but, rather, because the exhaust hose became
detached at its juncture to the exhaust manifold. As I have maintained throughout, whether Mr. Powers did or
did not deliberately sink his boat by cutting the exhaust hose where it exited the hull is not an issue in this case.
The issue is whether his deliberately false representations were reasonably relevant to the insurance carriers'
investigation of the sinking. I do not see how it can possibly be said that these lies were immaterial, which is to
say that they had no importance or relevance to the investigation.
According to Mr. Fitzgibbons, so long as Mr. Powers did not lie about the real cause of the
accident, his false statements were necessarily immaterial to USAA's investigation. Such an
opinion and such an explanation has no basis in law or logic. In the first place, Mr.
Fitzgibbons does not have the slightest idea as to what the real cause of the sinking was; he
knows no more about what caused the boat to sink than I do and did not claim to know. As a
consequence, Mr. Fitzgibbons' assumptions as to the real cause of the sinking are completely
unwarranted and cannot be accepted as legitimate grounds for his expert opinion.
Secondly, even if Mr. Fitzgibbons were competent to testify as to the true cause of the
sinking, whether a deteriorated exhaust hose was or was not the cause of the sinking has
nothing to do with the materiality of the misrepresentations. What does have to do with
materiality, as discussed throughout this dissent, is whether the misrepresentations
concern[ed] a subject reasonably relevant to the insurance company's investigation
(Instruction No. 14), whether they affected the attitude and action of the insurer in its
investigation, or whether they were calculated either to discourage, mislead or deflect the
company's investigation in any area that might have been a relevant or productive area to
investigate. Pacific Indem. Co. v. Golden, 985 F.2d 51, 56 (2d Cir. 1993) (citing Fine v.
Bellefonte Underwriters Ins. Co., 725 F.2d 179, 184 (2d Cir. 1984), cert. denied, 469 U.S.
874 (1984). If Mr. Fitzgibbons had told the jury that Mr. Powers' misrepresentations were not
material because they were not relevant to USAA's investigation, or that they would not affect
the attitude or actions of USAA in its investigation or that the misrepresentations were not
calculated to discourage, mislead or deflect the investigation, these reasons might have
provided an acceptable basis for the opinion. That the sinking was or was not caused by a
deteriorated hose has nothing to do with the materiality of the misrepresentations; and Mr.
Fitzgibbons' assumption that the sinking was not caused by a deteriorated hose provides no
rational support for his opinion that the misrepresentations were not material.
Mr. Powers put the matter correctly in his brief: Not all misrepresentations provide a
ground for denying coverage and voiding an insurance policy. It is only a material
misrepresentation which has this effect. In support of his position, that his
misrepresentations were not material, Mr. Powers cites Pacific Indem. Co. v. Golden, 985
F.2d 51 (2d Cir. 1993), a case in which, according to Mr. Powers' brief, the claimant lied
about why he stored gasoline in his home and later admitted this was a lie. The claimant
untruthfully told the insurance company that he had stored the gasoline for use with his
snowmobiles; whereas, in actuality, he had stored the gasoline in order to poison his
neighbor's lawn.
poison his neighbor's lawn. He later admitted that he had told the false story because he was
embarrassed to tell the real reason for storing the gasoline and because he was afraid that
storing gasoline in his home would affect his coverage. The district court entered judgment
against the claimant because of the misrepresentations. The Second Circuit Court of Appeals
reversed, holding, properly I think, that the claimant's personal reasons for storing gasoline in
his home were not material, not relevant to the cause of the fire or to the company's
investigation. The Pacific Indemnity case is, of course, entirely different from the case at
hand.
Mr. Powers offered no evidence to show that his misrepresentations were not relevant
to USAA's investigation of the sinking of his boat other than the mentioned conclusory
opinion of Mr. Fitzgibbons that the Mr. Powers' misrepresentations were not material. In his
brief, however, Mr. Powers makes an argument that leads to the conclusion that the issue of
whether the hose deteriorated or was intentionally cut is very much relevant to the insurance
company's investigation. Asserts Mr. Powers:
If a boat sinks because a hose deteriorates and comes off, allowing water to enter the
boat, that would be an accidental loss and covered. If an insured intentionally cuts a
hose for no apparent reason, and lets water enter his boat, that would appear to be an
effort to sink the boat.
(Emphasis added.)
Mr. Powers is correct in saying that his cutting of the exhaust hose at the thru-hole
would appear to be an effort to sink the boat. Understandably then, it appeared to USAA
also that Mr. Powers had engaged in an effort to sink the boat. Under these circumstances,
it is difficult for Mr. Powers to maintain that whether the hose deteriorated or was
intentionally cut does not matter and is irrelevant to USAA's investigation of the sinking. Mr.
Powers' deterioration-of-the-hose lie would appear to be material; and if this is the case,
then USAA had every right to consider Mr. Powers' misrepresentations to be relevant to its
investigation. That deterioration of the hose was or was not the actual cause of the sinking has
absolutely nothing to do with the question of whether Mr. Powers' misrepresentations were
material.
Mr. Powers did not or could not bring in evidence that insurance companies do not
consider misrepresentation of this kind to be relevant to their investigations; rather, he
brought in an expert who simply stated his unsupported conclusion that Mr. Powers'
misrepresentations were not material in this case and gave as reasons for that opinion the
two, unacceptable reasons mentioned above: the cause of the sinking was not a
deteriorated hose and Mr. Powers recanted his lie.
reasons for that opinion the two, unacceptable reasons mentioned above: the cause of the
sinking was not a deteriorated hose and Mr. Powers recanted his lie.
Having discussed Mr. Fitzgibbons' faulty and unfounded explanation that the
deteriorating hose lie was not material because deterioration was not the cause of the sinking,
I go on to examine the other reason that Mr. Fitzgibbons gave for saying that the
misrepresentations were not material, namely, that Mr. Powers' recanting of the lies renders
them immaterial. Specifically, Mr. Fitzgibbons told the jury that if Mr. Powers came back
and corrected any misrepresentation . . . that would not be a material misrepresentation. Mr.
Fitzgibbons was clearly wrong when he told the jury that when Mr. Powers corrected his
misrepresentation, this rendered the misrepresentation immaterial to USAA's investigation.
The idea that lies become immaterial once they are recanted has a little more substance to
it than the idea that lies to one's insurance company are rendered immaterial if the
falsely-stated versions were not the real cause of the loss. Mr. Fitzgibbons' reasoning with
respect to the recanting of lies is that USAA eventually did learn the truth (defined as Mr.
Powers' latest version of the sinking) and that, therefore, the company was not materially
affected by Mr. Powers' earlier lies. It seems to me that neither the company nor Mr.
Fitzgibbons ever learned the true cause of the sinking. Only Mr. Powers knows.
The subject of materiality as it relates to later revelations of the truth is discussed in
Fine v. Bellefonte Underwriters Ins. Co., 725 F.2d 179 (2d Cir. 1984), cert. denied, 469 U.S.
874 (1984). In Fine, the issue was whether a false statement would be material only if it
related to a matter which ultimately proved to be decisive in the ultimate disposition of the
claim, or whether it is sufficient merely that the false statement concerned a subject
reasonably relevant to the insurance company's investigation at the time. The court's answer
to this question was:
The law is clear that the materiality of [a] false statement[] during an insurance
company investigation is not to be judged by what the facts later turn out to have been.
Id. at 183.
According to Fine, materiality is not determined by whether or not the false answers
deal with a subject later determined to be unimportant because the loss was caused by
factors other than those with which the statements dealt. Id. at 184 (emphasis added).
False sworn answers are material if they might have affected the attitude and action of
the insurer. They are equally material if they may be said to have been calculated either
to discourage, mislead or deflect the company's investigation in any area that might
seem to the company, at that time, a relevant or productive area to investigate.
Fine, 725 F.2d at 184 (emphasis added).
Fine disposes of Mr. Fitzgibbons' explanation that recanting of former untruths cures
the misrepresentations and makes them immaterial. This being the case, neither Mr.
Fitzgibbons' explanation that false statements cannot be material, nor his explanation that
recanting a former lie cures the defect and renders the lie immaterial, can support his final,
conclusory opinion that Mr. Powers did not make a material misrepresentation.
Mr. Fitzgibbons' opinions are patently fallacious and unreliable. One who makes a
claim of loss to an insurance company cannot be excused for lying just because his false
rendition later turns out not to have been the true cause of the loss or because he is later
caught in a lie and recants the false statement.
On its face, the manner in which a boat sinks would ordinarily, if not always, be seen as
being of paramount importance and materiality to the insurance company that was being
asked to pay for the loss; and it would not matter much to an investigating insurance company
if the claimant's misrepresentations were, after the fact, recanted or shown not to be causally
related to the eventually-discovered cause of the loss. For example, if Mr. Powers had told
USAA that his boat had been hit by an air-to-sea missile and then, at a later date (after he
suspected that the company was going to raise and inspect the boat), admitted that, actually,
he had not been hit by a missile at all but had collided with a reef, then, probably, most would
see the air-to-sea missile story as being a material misrepresentation on his part. Under such
hypothetical circumstances, few would accept Fitzgibbons-like testimony to the effect that the
sworn misrepresentation by the insured that his boat had been sunk by a missile was not a
material misrepresentation either (a) because the missile story was false and a missile was not
the real cause of the boat's sinking or (b) because the insured's first, false statement was
later recanted and replaced by a new, true story.
It is hard to understand the jury's conclusion that Mr. Powers' false statements were
not material other than by assuming that the jury must have accepted Mr. Fitzgibbons'
expert but baseless conclusion that Mr. Powers' telling USAA false stories about how the
boat sank were not material to the insurance companies' claims investigation. It would also
appear that the jury must have accepted the reasons given by Mr. Fitzgibbons for his
opinion, namely, that a lie to one's insurance company about how the loss occurred is not
"material" if the false facts are not the "real" cause of the loss or if the insured recants a
previous lie.
jury must have accepted the reasons given by Mr. Fitzgibbons for his opinion, namely, that a
lie to one's insurance company about how the loss occurred is not material if the false facts
are not the real cause of the loss or if the insured recants a previous lie. This being the case,
the jury had no substantial or reliable evidence before it upon which to base a conclusion that
Mr. Powers' false swearing, concealments and misrepresentations were not material.
There is another, second reason why the jury verdict on contract liability must be set
aside. The reason is that, even if it were to be conceded that the lies in question were not
material as a matter of law, it was error for the trial court to permit the jury to receive an
opinion going to the matters which should be decided properly by the jury itself and not by an
expert witness.
USAA cites in support of this position the advisory notes to Federal Rule of Evidence 704
(the model, claims USAA, for Nevada's enactment of NRS 50.295). The cited notes caution
against the admission of opinions which would merely tell the jury what result to reach,
somewhat in the manner of the oath-helpers of an earlier day. The sole issue in Mr. Powers'
contract claim was whether the admitted misrepresentations were material. If the
misrepresentations were material, the policy is voided, and USAA prevails. If the
misrepresentations were immaterial, the misrepresentations do not matter, and Mr. Powers
can recover on his insurance claim. When Mr. Fitzgibbons was allowed to tell the jury that
Mr. Powers' misrepresentations were not material and, in effect, that they were not relevant to
the insurance company's investigation, he was telling the jury what result to reach, namely, to
decide in favor of the claimant rather than the insurance company.
The referred-to advisory notes condemn the use of such questions as, Did T have
capacity to make a will? Testamentary capacity is a matter to be decided by the judicial
forum and not by the opinion of a legal expert. A proper question, then, would be: Did T
have sufficient mental capacity to know the nature and extent of his property and the natural
object of his bounty to formulate a rational scheme of distribution? The difference between
the two kinds of questions is, obviously, that one calls for a legal conclusion that is
determinative of the controversy, the other is evidential and does not.
Mr. Fitzgibbons could have been asked questions about whether Mr. Powers' telling the
story of the deteriorated exhaust hose was relevant to the insurance company's
investigation, or whether a reasonable person would attach importance to these lies, or
whether the misrepresentations might affect the attitude and action of the insurer in its
investigation.
and action of the insurer in its investigation. Mr. Fitzgibbons did not testify in this manner;
rather, he bluntly told the jury: My opinion is that Colonel Powers did not make a material
misrepresentation. This legal conclusion was an opinion that told the jury what result to
reach. Mr. Fitzgibbons' answer was dispositive of USAA's defense to contract liability in
this case.
The jury was correctly instructed on the issue of materiality and instructed that a fact
is material if a reasonable person would attach importance to that fact and if the fact
concerns a subject reasonably relevant to the insurance company's investigation. The only
evidence that Mr. Powers' several inconsistent and incompatible stories
7
were not important
or relevant to the investigation was Mr. Fitzgibbons' saying so. Mr. Powers himself does not
explain how such stories could be irrelevant or unimportant to an insurance investigation. In
his brief, Mr. Powers cites to Pacific Indem. Co. v. Golden, 985 F.2d 51 (2nd Cir. 1993), in
support of his argument on the materiality issue. Citing this case, Mr. Powers tells this court
that a
misrepresentation is not material unless it might affect the attitude and action of the
insurer in its investigation, or was calculated to discourage, mislead or deflect the
company's investigation in an area that might have been relevant or productive to
investigate.
Id. at 56.
What Mr. Powers fails to tell us, however, is that this case does not support his
position. He does not tell us how his misrepresentations and concealments would not affect
the attitude and action of the insurer, or how his misrepresentations and concealments could
be said not to be calculated to discourage, mislead or deflect the company's investigation. It is
certainly clear to me that Mr. Powers' conflicting stories did affect the action of the company
(for example, the company's action in spending some $300,000.00 to recover the boat); and it
is also apparent, from his own admissions, that his false stories were calculated to deflect
the company's investigation.
The only explanation for the jury's apparent conclusion that the misrepresentations and
concealments were not material is that the jury misunderstood Mr. Fitzgibbons' unfounded
conclusions and that these conclusions became dispositive of Mr. Powers' contract claim.
__________

7
It cannot be said exactly what prompted Mr. Powers to tell these varying stories other than that he was
trying to influence the manner in which his claim was being handled by USAA. Mr. Powers himself apparently
believed in his own mind that his statements were of sufficient relevance and importance to the company that he
was willing to risk telling lies about what truly happened.
the jury misunderstood Mr. Fitzgibbons' unfounded conclusions and that these conclusions
became dispositive of Mr. Powers' contract claim. Because of the inherent unreliability and
conclusory nature of the Mr. Fitzgibbons' opinion and because it was prejudicial error for the
trial court to have permitted this opinion evidence to be received by the jury, I would reverse
the judgment of the trial court and remand for retrial Mr. Powers' contract action for recovery
of the value of his boat.
TORT CLAIMS
As summarized in Mr. Powers' brief, [t]he jury found that USAA had breached the
covenant of good faith and fair dealing and breached a fiduciary duty to disclose information
to Col. Powers. For this, the jury awarded compensatory damages of $350,000.00. The
antecedent of the pronoun this is USAA's commission of two torts, namely, that USAA
had breached the covenant of good faith and fair dealing and breached a fiduciary duty to
disclose. (Emphasis added.)
Breach of fiduciary duty to disclose known facts
Today the court affirms a judgment of over $5 million
8
on a brand-new tort,
committable exclusively by insurance companies. The tort is called, breach of a fiduciary
duty to disclose known facts.'
9
As I understand the majority opinion, this new tortoid is
based on the insurance company's refusing Powers' requests (1) for copies of photographs
[that were part of the claims investigations], (2) to be present when the Mikimbi was raised
and not telling him where the boat was until three days after USAA had possession; and
__________

8
The judgment is for $47,236.29 for the breach of contract claim, $350,000.00 on the tort claims, and $5
million in punitive damages.

9
There is no way of telling from the majority opinion whether an insurance company's breach of fiduciary
duty to disclose tort is an independent tort or merely a corollary or sub-tort of the bad faith tort. Perhaps the
strangest aspect of the majority opinion is its creation of this new tort not as a separate and new cause of action
but merely as part of the duty of good faith and fair dealing tort. If I understand the majority opinion
correctly, the breach of fiduciary relations tort is now a component of the bad faith tort. If withholding
investigative photographs or other failures to disclose investigative materials is not an independent tort, then
this court should not allow the judgment of over $5 million entered on this tort to stand. If, on the other hand, an
insurance company's failure to disclose confidential investigative materials comprise a component of the bad
faith tort, then I would merely express my hearty agreement with Justice Maupin's concurring opinion, wherein
he realizes that we must not take this case seriously and that it represents an anomaly in this area of
jurisprudence. I agree with the Justice that the creation of this tort or sub-tort, or whatever it is, is of doubtful,
in any, precedential value and that the bench and bar should be most careful in the future about drawing any
sweeping conclusions from it.
raised and not telling him where the boat was until three days after USAA had possession;
and (3) to seal the Mikimbi to protect evidence Powers needed to defend against allegations
that he had intentionally sank [sic] his boat. Refusing Powers' requests does look like the
kinds of conduct that would justify suing insurance companies in the future for breach of
what I see as a non-existent duty to disclose. Henceforth, insurance companies must hasten
to open up their investigative files and not to refuse any requests for material contained in
their files.
I would not, of course, disagree with the majority's saying that the relationship
between USAA and Powers was fiduciary in nature; but to conjure a new and unnecessary
tort action to be superimposed on the so-called bad faith tort is, I humbly suggest, a tortured
jurisprudential solecism unknown to the law of torts and unique to the State of Nevada.
The trial court's instruction (No. 19), upon which this novel tort action is based,
stated:
In order to recover plaintiff must establish by a preponderance of evidence that a
fiduciary relationship existed between plaintiff and defendant and that defendant
breached a duty to disclose known facts to plaintiff.
There is no need to engage in a general discussion of the scope of fiduciary
relationships that might arise out of insurance contracts because we are dealing with tort
claims relating to a very narrowly-defined and specific duty, a duty that was described in the
jury's instruction as the duty to disclose known facts to plaintiff in connection with USAA's
investigation of possible insurance fraud on the part of Mr. Powers. Mr. Powers cites no
authority to support his position that an insurer has a fiduciary duty to disclose known facts
to its insured during its investigation of a suspected claim, much less authority to support the
existence of a tort called breach of the duty to disclose known facts. Even if some pertinent
authority had been presented, I would have serious reservations about the judicial recognition
of a tort based on an insurance company's refusal to disclose to a property claimant all of the
known facts relating to an investigation of the claimant for fraud.
10

When I examine the nature of Mr. Powers' duty-to-disclose tort claim in this case and
take a look at the known facts alluded to by Mr. Powers, it becomes rather clear that Mr.
Powers should not be allowed to recover tort damages arising out of a claim that USAA
breached a duty to disclose facts.
__________

10
See Martin v. State Farm Mut. Auto. Ins. Co., 960 F. Supp. 233 (D. Nev. 1997) (Although Nevada has
recognized the special contractual relationship between insurer and insured, it has never classified the
relationship as a fiduciary duty giving rise to a tort action for breach.).
not be allowed to recover tort damages arising out of a claim that USAA breached a duty to
disclose facts. During fraud investigations of the kind instituted by USAA in this case, one
would think that refusal to provide photographs or to permit the person being investigated to
be present during the investigation would be a rather common and accepted circumstance. It
is hard to envision a tort action's arising out of such normal, expected conduct on the part of
insurance fraud investigators.
11

If an insurance company's breach of duty to disclose known facts is not an
independent and self-sufficient tort action, then the judgment of over $5 million should be
reversed. If an insurance company's refusal to reveal investigative photographs is said by this
court to be a component of the bad faith tort, then I dissent on the ground that such a
judgment is (as put by Justice Maupin) an unfounded anomaly in this area of jurisprudence.
Breach of the covenant of good faith and fair dealing
The jury was instructed that an insurance company breaches its duty of good faith
and fair dealing with its policyholder by refusal, without proper cause, to compensate its
policyholder for a loss covered by the policy and that a denial of a claim in bad faith occurs
when an insurance company fails, without proper cause, to pay the amount due under the
insurance policy. (Emphasis added.) The jury was not instructed on the meaning of the
phrase, without proper cause.
The instruction on the tort of breach of the implied covenant of good faith and fair dealing
given by the trial court is incomplete and fails to state the necessary elements of this tort. The
vital element of the so-called bad faith
12
tort is the insurance company's wrongful conduct,
not in merely denying a claim incorrectly and, therefore, without proper cause, but in
denying the claim wrongfully, without any reasonable basis or with the knowledge that it
is denying a rightful claim.
__________

11
In asserting this tort claim, Mr. Powers complains because USAA refused, on demand, to provide him with
certain evidentiary material, all of which was available through normal discovery procedures. Mr. Powers wants
to mulct USAA in damages because they refused to divulge, upon Mr. Powers' demand, the confidential subject
matter of USAA's investigation of misrepresentation and fraud on the part of Mr. Powers. What a dangerous
precedent it would be if we were to allow compensatory and punitive damages to be awarded against insurance
companies just because they do not respond to the demand of an under-investigation insured that the company
provide photographs and exhibits that make up the company's fraud investigation of its insured.

12
Use of the term bad faith in connection with the torts of breach of the implied covenant of good faith and
fair dealing is sometimes criticized in the legal literature; nevertheless, I will use this abbreviated form
throughout the opinion.
claim wrongfully, without any reasonable basis or with the knowledge that it is denying a
rightful claim. See Falline v. GNLV Corp., 107 Nev. 1004, 823 P.2d 888 (1991). A mere
incorrect or improper denial of a claim is not tortious. A company may, in the utmost of
good faith and propriety, deny a claim, only to have it proven later, in court, that its denial of
the claim was improper and that the claimant was, indeed, entitled to indemnity. Under the
instruction as given, all an insurance company would have to do to become liable to its
insured for commission of the bad faith tort would be to deny mistakenly a claim without
proper cause, that is to say, to deny a questionable claim that it should, properly, have
paida rather common occurrence in the insurance world.
It is very hard to argue that without proper cause could have been understood by the
jury to have meant denying the claim unreasonably or with knowledge or reckless
disregard of rightfulness of the claim. The instructions in this case gave no hint to the jury as
to what the word proper meant in the context of the bad faith instruction. In the present
case, the jury was not told what proper cause was; and the instruction seems to say,
incorrectly, that when an insurance company denies a claim improperly (that is to say, in a
manner with which the jury disagrees), then the claim has been denied without proper
cause. Mere denial of a claim without proper cause, by itself, is insufficient to create tort
liability. It is, of course, common knowledge that, occasionally, insurance companies make
mistakes and deny disputed claims for which they are later held by a court to have incorrectly
or improperly denied payment. These claims decisions, determined later to have been made
incorrectly and thus without proper cause, cannot form the basis for tort actions for breach of
the implied covenant of good faith and fair dealing.
This court ruled in Aluevich v. Harrah's, 99 Nev. 215, 217, 660 P.2d 986, 987 (1983), that
there may be a cause of action in tort for the breach of an implied covenant of good faith and
fair dealing where an insurer fails to deal fairly and in good faith with its insured by refusing,
without proper cause, to compensate its insured for a loss covered by the policy. (Emphasis
added.) Insofar as Aluevich were to be read as holding that an action in tort can arise out of an
insurance company's merely refusing to pay a claim, which refusal was later determined to
have been made incorrectly or improperly, such a reading is not in accordance with the
generally-accepted law relating to the bad faith tort. The quoted language in Aluevich does
not include the essential element of intentional or reckless wrongfulness that must, in any bad
faith tort action, accompany the incorrect or "improper" denial of a claim.
bad faith tort action, accompany the incorrect or improper denial of a claim. An insurance
company's improper (without proper cause) denial must be accompanied by an actual or
implied awareness of the absence of a reasonable basis for denying benefits of the policy.
Am. Excess Ins. Co. v. MGM, 102 Nev. 601, 605, 729 P.2d 1352, 1354-55 (1986).
The quoted Instruction, No. 8, does not advise the jury that a mere incorrect or
improper denial of an insurance claim (even if it is later made to appear that the insurer
improperly failed to abide by its contractual obligation and did not, therefore, have a
proper cause for denying the claim) is not, of itself, the basis for tort recovery. Tort liability
for breach of the implied covenant of good faith and fair dealing appears to have been
imposed in this case on the basis of an instruction that did not contain all of the essential
elements of the tort; however, USAA did not object to the instruction and, thus, acceded to
the jury's being drastically misinformed with regard to USAA's liability.
Although, as stated, USAA permitted this case to be decided by a misinstructed jury, this
does not mean that USAA has no right to challenge the tort judgment under discussion.
USAA argues in its brief that the evidence does not support a verdict for breach of the
implied covenant of good faith and fair dealing. USAA further argues, correctly, that the
mere entitlement to contract damages . . . does not prove a breach of the duty of good faith
and fair dealing. USAA also correctly argues that the insured must also prove the
unreasonableness of the position taken by the insurer and that, in this case, Mr. Powers
failed to prove this element of the tort. I agree with this argument.
In considering the bad faith tort judgment entered in this case, I note that the jury was
instructed only with regard to one particular manner in which the good faith covenant was
claimed to have been breached, namely, by USAA's refusal to pay Mr. Powers' claim.
Accordingly, under the jury charge, USAA could not have been held liable for such conduct
as untoward delay in payment or with bad faith which might have occurred after USAA's
refusal to pay the claim (for example, the alleged planting of evidence by USAA in order
to defeat Mr. Powers' claim). The reliance by the majority on such things as USAA's
investigation [being] improper, incomplete and poorly done, in violation of USAA's own
procedures is misplaced. Although a jury might have concluded that the firms with whom
USAA contracted did an investigation that was incomplete or poorly done, this would not
permit the jury in this case to bring in a bad faith verdict, because they were not instructed
that liability could be based on a negligent investigation; and if they had, they would have
been, obviously, improperly instructed.
have been, obviously, improperly instructed. Further, I note, the jury found for the insurance
companies on Mr. Powers' unfair claim settlement policies suit.
The only basis for finding tort liability in this case, under the bad faith tort instruction
given to the jury, is USAA's refusal to pay the claim, a refusal that was based on Mr. Powers'
false swearing and misrepresentations or on USAA's legitimate belief that Mr. Powers had
sunk his own boat.
In Falline v. GNLV Corp., 107 Nev. 1004, 823 P.2d 888 (1991), this court held that for
there to be liability under this tort there must be an absence of a reasonable basis for
denying benefits . . . and the defendant's knowledge or reckless disregard of the lack of a
reasonable basis for denying the claim.' Id. at 1009 (quoting Franks v. United States Fidelity
& Guar. Co., 718 P.2d 193, 197 (Ariz. Ct. App. 1985) (quoting Noble v. National Am. Life
Ins. Co., 624 P.2d 866 (Ariz. 1981) (en banc)). In order to establish a prima facie case for the
tort of breach of the good faith covenant, then, Mr. Powers had to prove two elements of the
tort, (1) that USAA had no reasonable grounds for refusing to pay the claim and (2) that
USAA knew or recklessly disregarded the fact that there was no reasonable basis for refusing
to pay the claim. There is no such proof in this record.
Aside from the problems inherent in the jury's receiving an incomplete instruction on
the bad faith tort, the facts of this case fall short of supporting (even under a correct
instruction) any version of bad faith tort liability arising out of USAA's refusal to pay this
claim. Under the circumstances of this case, it is difficult to conceive of any scenario in
which USAA could be held to have had no reasonable grounds to deny the claim or that it
refused to pay a knowingly rightful claim with an awareness that it had no reasonable grounds
to deny the claim. USAA had been advised, shortly before its formal, written denial of the
claim, by independent attorney/investigator, Mr. von Spiegelfeld, that Mr. Powers'
statements are very inconsistent and make little sense. Mr. von Spiegelfeld, an independent
evaluator of the Powers claim, advised USAA that Mr. Powers' claim should be denied and
that the bases for denial should be that the loss was caused intentionally by or at the direction
of a covered person,' and that the policy should be voided by the false swearing,
concealment or misrepresentation of any material facts by any covered person.' Unless some
guilty complicity between Mr. von Spiegelfeld and USAA were shown, the von Spiegelfeld
letter provides virtually unopposable evidence that USAA was not acting with the wrongful
awareness that there was no reasonable basis for denying benefits of a policy. See MGM,
102 Nev. at 605, 729 P.2d at 1354-55.
We must continue to be mindful that Mr. Powers lied to USAA and that he did not tell
the truth until he felt threatened by USAA's plan to raise the boat from the bottom of the sea.
USAA was dealing with a self-admitted liar. This alone prompted further inquiry on the part
of USAA. When this is added to USAA's evaluation of the physical evidence and Mr. Powers'
multiple inconsistent and implausible versions of the sinking, USAA had what appears to me
to be sound reason to exercise caution in dealing with this claim. All in all, it is very difficult
to find in this record any indication that USAA knew that Mr. Powers had a valid claim and
that it, nevertheless, knowingly or recklessly denied the claim in the knowledge that it was
dealing with a rightful claim.
USAA argues, and I agree, that liability on Mr. Powers' bad faith claim cannot be
sustained if USAA's denial was accompanied by legitimate factual or legal issues regarding
the validity of the claim. See Falline, 107 Nev. 1004, 823 P.2d 888; National Sav. Life Ins.
Co. v. Dutton, 419 So.2d 1357, 1362 (Ala. 1982) ([I]f the evidence produced by either side creates a
fact issue with regard to the validity of the claim and, thus, the legitimacy of the denial thereof, the tort claim
must fail and should not be submitted to the jury.). In deciding to refuse to honor Mr. Powers' claim, USAA
had to deal with a number of factual issues
13
relating to whether Mr. Powers intentionally scuttled his boat and
with a critical legal issue as to whether Mr. Powers' false misrepresentations and concealments were material
under the terms of the policy.
It is worth noting that the trial judge, after hearing all the evidence, did not see this as
a bad faith case. While discussing the issue of attorney's fees, the trial judge made the
following comment:
I've already indicated that I thought [USAA] defended in good faith.
I can't find that the insurance company defended this without reasonable grounds
because of . . . several factors involved. [T]here was a possibility that he could have
sunk the boat himself, and so there is some conflicting evidence to that effect, so I
can't find that the insurance company defended in bad faith.
__________

13
Early on in its investigation USAA suspected that Mr. Powers was lying and that perhaps he may have sunk
his own boat to get the insurance money. USAA's suspicions were heightened when its investigations disclosed
that Mr. Powers was deeply in debt and that he owed $30,000.00 to his former wife. One of the insurance
investigation reports indicated that Mr. Powers was obviously strapped for money and desperate. Repeatedly
Mr. Powers asserted that he would have to file for bankruptcy soon. The company was also aware that Mr.
Powers had been trying unsuccessfully to sell his boat in order to pay off his debts.
effect, so I can't find that the insurance company defended in bad faith.
It is difficult indeed to challenge the trial court's perception of this case; and it is
rather obvious that USAA had, of necessity, been struggling with a number of legitimate
factual issues by the time it finally decided to deny this claim. In making its decision to deny
coverage, USAA also had to deal with legitimate legal issues relating to the materiality of Mr.
Powers' false accounts of the sinking.
Although it is rather clear that USAA made its decision to refuse this claim on the basis
of many legitimate factual and legal issues, Mr. Powers was able to find an expert who was
willing to offer an opinion relating to the ultimate liability issue, namely, whether USAA was
guilty of committing the tort of breach of the covenant of good faith and fair dealing. This
opinion evidence was offered in the form of expert testimony by Mr. Patrick Fitzgibbons, the
same Mr. Fitzgibbons that told the jury that Mr. Powers' lying to his insurance company about
how his boat sank was not material. Mr. Fitzgibbons took the stand in this regard and was
asked the question:
Can you tell this jury what facts that you gleaned from your review of USAA's file
handling of Colonel Powers claim that would breach the covenant of good faith and fair
dealing? [Emphasis added.]
Mr. Fitzgibbons evaded the question entirely and gave the following answer to the
question:
Yes, The implied covenant of good faith and fair dealing is something that is created by
the law to try to equalize(answer discontinued because of objection)
To get Mr. Fitzgibbons back on track, Mr. Powers' attorney asked Mr. Fitzgibbons a
leading question which is remarkably like the proverbial, Have you stopped beating your
wife? Without ever asking Mr. Fitzgibbons if, in his opinion, USAA had breached its duty
of good faith, Mr. Powers' counsel asked Mr. Fitzgibbons to tell the jury how USAA had
breached its good-faith duty to Mr. Powers. The question was put to Mr. Fitzgibbons in this
way:
What did USAA do by way of breaching its covenant of good faith and fair dealing in
this case?
Mr. Fitzgibbons gave the following answer:
All right. USAA had a 22-year member, been insured with USAA for 22 years, a retired
colonel in the Air Force who had only made, in that 22 years' time, as I recall, one
prior claim.
had only made, in that 22 years' time, as I recall, one prior claim. And that was when
his automobile was hit by an airplane that was trying to land. Colonel Powers lost his
yacht, which he had done most of the work on this yacht, building this yacht himself,
put in a great deal of time, effort, and expense. He turned in this claim to USAA within
three or four days after the yacht sank.
And in my opinion, USAA should have taken this claim in good faith. They should
have paid this claim within 30 days on it being reported to them, and this is what they
are required to do by this particular statute, to deal with their insured in good faith and
fairly.
Based on the facts recited by Mr. Fitzgibbons, namely, that Mr. Powers had been with
USAA for twenty-two years and had made only one claim, was a retired colonel, had lost his
yacht, had done most of the work on the yacht, and had turned in his claim within three or
four days, Mr. Fitzgibbons testified that USAA should have taken this claim in good faith
and that it should have paid this claim within 30 days.
14

The issue, of course, is whether USAA acted reasonably; and even if attorneys were to be
allowed to testify as to whether insurance companies were guilty of tortious, bad faith
conduct, it is obvious that Mr. Fitzgibbons had no rational basis for his opinion.
Unless I misread Mr. Fitzgibbons' opinion, he is telling the jury that USAA should
have paid this claim, and within thirty days, because Mr. Powers was with the company for
twenty-two years, was a retired colonel, did most of the work on his own yacht and made his
claim within three or four days.
Mr. Fitzgibbons' opinion that USAA should have paid the fraudulent claim within thirty
days of the time that Mr. Powers made it highlights the overall untenability and extravagance
of the Fitzgibbons testimony. With a lying claimant who ultimately was indicted by a federal
grand jury for insurance fraud, no insurance company could be expected to pay such a claim
within 30 days. Mr. Fitzgibbons' testimony is the only evidence upon which the jury could
have reasonably relied in support of Mr. Powers' tort claim, and his testimony is clearly
insufficient for its intended purpose.
__________

14
Mr. Fitzgibbons also told the jury that when a jury in an earlier criminal proceeding acquitted Powers of
intentionally scuttling his boat, USAA should have paid the claim promptly at that point and apologized to
Colonel Powers for what they caused to be done to him. This opinion, of course, ignores the material
misrepresentation ground for denying the claim and seems to assume that the acquittal represents an adjudication
of the merits of USAA's position in this case. This opinion is, on its face, of no validity.
Powers' tort claim, and his testimony is clearly insufficient for its intended purpose.
15

Finally, Mr. Fitzgibbons' opinion that USAA should have taken this claim in good
faith certainly does not provide evidence which would support a jury verdict based on
USAA's having breached the implied covenant of good faith and fair dealing. Obviously,
USAA could have denied this claim when it should have paid it, without being guilty of
bad faith. It could have merely incorrectly, but in good faith, denied a disputed claim. To
provide evidence of bad faith conduct, Mr. Fitzgibbons would have had to have testified not
only that USAA should have taken the claim, but that its failure to accept the claim was
accompanied by a wrongful and knowing denial of the claim, a knowing denial of a claim that
the company knew or should have known was a valid claim. Merely stating that USAA
should have taken this claim in good faith does not furnish a prima facie case for tort
liability in this case.
16

Mr. Powers failed to make a prima facie case for the tort of breach of the implied
covenant of good faith and fair dealing.
__________

15
In his reply brief, Mr. Powers argues that there is ample evidence to support this jury's verdict. Mr.
Powers then cites in his brief only two bases for his contention that he was entitled to recover tort damages. One
is the Fitzgibbons testimony; the other is the testimony of James Hall, an expert in the field of managing
investigations. According to the brief, Mr. Hall explained in detail how USAA's investigation had been
improper, incomplete, poorly done, and in violation of USAA's procedures. A showing that USAA employed
sloppy investigating procedures does not tend to show that USAA had no reasonable grounds for disputing
coverage or that it knew (or recklessly disregarded) that there was no reasonable basis for disputing coverage. If
Mr. Fitzgibbons' testimony fails to furnish a prima facie tort case, there is no tort case. There is no tort case.

16
I note that in United Fire Insurance Co. v. McClelland, 105 Nev. 504, 510 n.1, 780 P.2d 193, 196-97 n.1
(1989), this court approved an expert's opinion that the company was (1) responsible to the policy holder[] and
(2) knew that it should pay that claim. If Mr. Fitzgibbons had testified not only that USAA should have taken
the claim but also that USAA knew that it should pay the claim, but refused, nonetheless to do so, then such
testimony would have formed the basis for a prima facie tort liability in this case. He did not so testify.
I would note in passing that in United Fire Insurance the witness testified that the insurance company was
guilty of bad faith, and was liable for punitive damages. Id. at 510, 780 P.2d at 196-97. This testimony was
given on rebuttal to counter previous testimony offered by the insurance company relating to the witness'
previous deposition testimony that he had not seen any conduct on the part of appellant that warranted punitive
damages. Id. at 510, 780 P.2d at 197. The holding in United Fire Insurance should not be taken as authority for
the proposition that Mr. Fitzgibbons would be allowed to testify on direct examination that, in his opinion,
USAA was guilty of commission of the bad faith tort and was liable to Mr. Powers for punitive damages.
breach of the implied covenant of good faith and fair dealing. Having failed in his proof, I
would reverse Mr. Powers' tort judgment for breach of the implied covenant of good faith and
fair dealing.
____________
114 Nev. 735, 735 (1998) Martinez v. State
RAMON MARTINEZ, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 29172
ARMANDO CACERAS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 29173
JORGE ELIERSE, aka JORGE RAMON RUIZ, aka BRAYAN DIAZ, aka WILSON
RAMOR, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 29174
July 16, 1998 961 P.2d 143
Appeal from judgments of conviction entered pursuant to guilty pleas. Eighth Judicial
District Court, Clark County; Stephen L. Huffaker, Judge.
Defendants pleaded guilty in the district court to one count each of attempted
racketeering, and each defendant received maximum sentence. Defendants appealed. The
supreme court, Shearing, J., held that: (1) record did not support defendants' argument that
they were deprived of their constitutional right to individualized sentencing, but (2) trial
judge's remarks concerning defendants' nationality necessitated remand for resentencing.
Remanded for resentencing.
Maupin and Young, JJ., dissented in part.
Kirk T. Kennedy, Las Vegas, for Appellants Martinez and Caceras.
Jose C. Pallares, Las Vegas, for Appellant Elierse.
Respondent.
1. Criminal Law.
Record did not support defendants' argument that trial court deprived them of their constitutional right to individualized
sentencing when it imposed same sentence on each of them. Trial court conducted separate sentencing hearing for each defendant and
discussed facts unique to each defendant, and identical sentences were justified by fact that defendants allegedly participated in
conspiracy to commit same crimes and pled guilty to same charge. U.S. Const. amend. 8.
2. Criminal Law.
The Eighth Amendment requires that defendants be sentenced individually, taking into account the individual, as well as the
charged crime. U.S. Const. amend. 8.
Trial judge's remarks, when sentencing defendants who were illegal immigrants, that nature of offense was heightened when
offenders come from foreign lands to commit crimes and that governments look unfavorably on people coming from other countries
to rip us off in our country, suggested that judge may have improperly relied on defendants' nationality when imposing sentence, in
violation of defendants' due process rights, and therefore it was necessary to remand matter for resentencing. U.S. Const. amend. 14.
4. Criminal Law.
The sentencing judge is accorded wide discretion in imposing a sentence; absent an abuse of discretion, supreme court will not
disturb the district court's determination on appeal.
5. Criminal Law.
Discretion of the sentencing judge enables him to consider a wide, largely unlimited variety of information to insure that the
punishment fits not only the crime, but also the individual defendant.
A trial judge may not consider a defendant's nationality or ethnicity in its sentence determination; consideration of these facts
violates a defendant's right to due process. U.S. Const. amend. 14.
OPINION
On June 21, 1996, appellants Ramon Martinez, Armando Caceras, Jorge Elierse and three additional co-defendants were
charged in a sixteen-count indictment with racketeering, conspiracy to commit larceny, burglary, grand larceny, possession of stolen
property and possession of burglary tools. These charges arose from a conspiracy to steal from Las Vegas tourists and casinos.
Appellants accepted a plea bargain pursuant to which they pled guilty to one count each of attempt racketeering, a crime pursuant to
NRS 193.330 and 207.400. The plea agreement provided that the minimum sentence that each defendant could serve was one to four years
and the maximum sentence was ten years.
On August 15, 1996, appellants, who are Venezuelan citizens and illegal immigrants in the United States,
appeared before the district court for sentencing.
and illegal immigrants in the United States, appeared before the district court for sentencing.
The Division of Parole and Probation submitted separate but similar reports for each
defendant. The reports contained minimal personal information about each appellant, because
the Las Vegas Metropolitan Police Department encountered difficulty in obtaining truthful
information about them. The district court judge conducted three separate hearings at which
he sentenced each appellant to 48-120 months of incarceration. Appellants filed this timely
appeal.
DISCUSSION
[Headnote 1]
Appellants argue that the district court failed to separately consider each defendant's
personal history and degree of culpability. Appellants argue that the district court sentenced
them as a group, in violation of their right to individualized sentencing.
[Headnote 2]
The Eighth Amendment requires that defendants be sentenced individually, taking
into account the individual, as well as the charged crime. United States v. Lai, 944 F.2d 1434,
1440 (9th Cir. 1991). Here, the record reveals that the district court conducted a separate
sentencing hearing for each defendant, during which it discussed facts unique to each
individual. Furthermore, each appellant allegedly participated in a conspiracy to commit the
same crimes and pled guilty to the same charge; this fact alone justifies the district court's
decision to impose the same sentence on each defendant. Consequently, appellants' argument
that the district court denied them individualized sentencing lacks merit.
[Headnote 3]
Appellants also argue that at their sentencing hearings, the district court improperly
considered their national origin in violation of their due process rights. At the conclusion of
Jorge Elierse's sentencing hearing, the district court stated:
There's something that heightens the nature of an offense when people come from
foreign lands to do offenses in another land. I know if I go to a foreign land and get in
trouble there, that I'm in deeper trouble there, that I'm in deeper trouble than if I did it in
this country, because of the nature of it. Because governments look unfavorably on
people coming from other countries to rip us off in our country. And they know that but
they decided to do it anyway.
[Headnotes 4-6]
The sentencing judge is accorded wide discretion in imposing a sentence; absent an
abuse of discretion, this court will not disturb the district court's determination on appeal.
sentence; absent an abuse of discretion, this court will not disturb the district court's
determination on appeal. Randell v. State, 109 Nev. 5, 8, 846 P.2d 278, 280 (1993). This
discretion enables the sentencing judge to consider a wide, largely unlimited variety of
information to insure that the punishment fits not only the crime, but also the individual
defendant. Norwood v. State, 112 Nev. 438, 440, 915 P.2d 277, 278 (1996); Wilson v. State,
105 Nev. 110, 771 P.2d 583 (1989). A trial judge may not, however, consider a defendant's
nationality or ethnicity in its sentence determination; consideration of these facts violates a
defendant's right to due process. United States v. Borrero-Isaza, 887 F.2d 1349, 1352 (9th Cir.
1989) (citing United States v. Tucker, 404 U.S. 443, 446-47 (1972)). Thus, the district court
here violated appellants' due process rights, if it based its sentencing decision, in part, upon
appellants' status as illegal aliens.
We cannot, however, determine from the record whether the district court actually
based its sentencing decision on appellants' nationality. The record reveals that substantial
factual evidence supported the district court's decision to impose the maximum sentence.
Nevertheless, the Supreme Court of the United States and numerous Circuit Courts of Appeal
have emphasized the importance of not only doing justice, but also insuring that justice
satisfy[ies] the appearance of justice. United States v. Edwardo-Franco, 885 F.2d 1002,
1005 (2d Cir. 1989) (citing Offut v. United States, 348 U.S. 11, 14 (1954)).
Here, the district court's remarks go beyond passing references to the defendant's
nationality or immigrant status. United States v. Leung, 40 F.3d 577, 587 (2d Cir. 1994). In
fact, the district court's remarks create the appearance that appellants' foreign nationality
adversely affected its sentencing determination. Thus, we conclude that the district court's
conduct did not satisfy the appearance of justice and as such, appellants' sentences cannot
stand. Edwardo-Franco, 885 F.2d at 1006; Leung, 40 F.3d at 586-87.
This court has held that if the judge relies upon prejudicial matters, such reliance
constitutes an abuse of discretion that necessitates a resentencing hearing before a different
judge. Castillo v. State, 110 Nev. 535, 545, 874 P.2d 1252, 1259 (1994). Because here, we
cannot conclusively determine that the district court did not improperly rely on prejudicial
matters, namely appellants' nationality, in rendering his sentencing decision, we must remand
this matter for resentencing before a different judge.
Springer, C. J., and Rose, J., concur.
Maupin, J., with whom Young, J. agrees, concurring and dissenting:
I agree that appellants' rights to individualized sentencing were not violated. I disagree
that the comments of this trial judge require remand to determine if any or all of the
appellants were sentenced based upon their nationality.
____________
114 Nev. 739, 739 (1998) State of Nevada v. District Court
THE STATE OF NEVADA, Petitioner, v. THE SIXTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, in and for the County of Humboldt, and THE
HONORABLE JERRY V. SULLIVAN, District Judge, Respondents, and MASON
MILLER WARREN, Real Party in Interest.
No. 31561
July 16, 1998 964 P.2d 48
Original petition for a writ of mandamus, or alternatively, writ of prohibition,
challenging an order of the district court dismissing an appeal from justice's court. Sixth
Judicial District Court, Humboldt County; Jerry V. Sullivan, Judge.
State appealed from order of magistrate of the justice court which granted defendant's
motion to dismiss second complaint filed against him for trafficking in controlled substance.
The district court dismissed appeal. State filed petition for writ of mandamus, or alternatively,
writ of prohibition. The supreme court held that magistrate's dismissal of original trafficking
charge against defendant following preliminary hearing barred state from filing second
complaint charging defendant with the same offense.
Petition denied.
R. Michael McCormick, District Attorney and Conrad Hafen, Deputy District
Attorney, Humboldt County, for Petitioner.
Ted Herrera, Winnemucca, for Real Party in Interest.
Magistrate's dismissal of drug trafficking charge against defendant following preliminary hearing barred state from filing second
complaint against defendant in justice court charging him with the same offense; overruling Feole v. State, 113 Nev. 628, 939 P.2d
1061 (1997); Cipriano v. State, 111 Nev. 534, 894 P.2d 347 (1995); Murphy v. State, 110 Nev. 194, 871 P.2d 916 (1994). NRS
178.562(2).
2. Habeas Corpus.
Discharge by writ of habeas corpus, being merely from custody and not from penalty, does not operate as an acquittal and is not
a bar to subsequent proceedings. NRS 34.590.
If a defendant is not bound over for trial following preliminary hearing, the state may: (1) seek leave to file an information by
affidavit in the district court, or (2) seek an indictment by a grand jury; however, the state may not refile the original charges in
justice's court if the defendant was not bound over. NRS 173.035(2), 178.562(2).
OPINION
Per Curiam:
On January 24, 1997, a complaint was filed against real party in interest, Mason Miller Warren, charging him with one count of
trafficking in a controlled substance, and one count of possession of a controlled substance. On March 6, 1997, after a preliminary hearing,
the magistrate dismissed the trafficking charge and bound Warren over to the district court on the possession charge.
On March 7, 1997, the state filed a motion for leave to file a felony information by affidavit. NRS 173.035(2) provides, in pertinent
part, that if an accused has been discharged after the preliminary hearing, the district attorney may, by leave of the district court, file an
information 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. On April 11, 1997, District Judge Richard A. Wagner ruled that the magistrate had not committed egregious error
1
and
dismissed the state's motion.
On April 14, 1997, the state filed a second complaint in justice's court, charging
Warren with trafficking in a controlled substance. On May 29, 1997, the magistrate granted
Warren's motion to dismiss the complaint. The magistrate found, as a matter of law, that
when a criminal charge has been dismissed because the state failed to provide slight or
marginal evidence at the time of the preliminary hearing, the state is prohibited from refiling
the criminal complaint stating the same charge that was dismissed because of insufficient
evidence. The magistrate's conclusion accurately reflects NRS 178.562(2), which provides:
The discharge of a person accused upon preliminary examination is a bar to another
complaint against him for the same offense, but does not bar the finding of an indictment or
filing an information. (Emphasis added.)
__________

1
See Cipriano v. State, 111 Nev. 534, 539, 894 P.2d 347, 351 (1995) (NRS 173.035(2) allows the
prosecutor to correct egregious errors made by a magistrate in failing to bind an accused over for trial.),
modified on other grounds by Tinch v. State, 113 Nev. 1170, 946 P.2d 1061 (1997).
On May 29, 1997, the state filed a notice of appeal to the district court from the
magistrate's order. District Court Judge Jerry Sullivan heard argument on the appeal on
September 22, 1997. On September 30, 1997, the district court entered an order dismissing
the appeal. The state filed a timely appeal to this court from the district court's order. Because
the district courts have final appellate jurisdiction in cases arising in justices' and municipal
courts, this court dismissed the appeal for lack of jurisdiction. State v. Warren, Docket No.
31162 (Order Dismissing Appeal, December 10, 1997). See Nev. Const. art. 6, 6; Tripp v.
City of Sparks, 92 Nev. 362, 550 P.2d 419 (1976); Waugh v. Casazza, 85 Nev. 520, 458 P.2d
359 (1969).
[Headnote 1]
On December 18, 1997, the state filed the instant petition for a writ of mandamus or
alternatively, prohibition. The state contends that the district court exceeded its jurisdiction by
dismissing the appeal from the justice's court. Specifically, the state argues that the justice's
court erred by granting Warren's motion to dismiss the second complaint that was filed
charging Warren with trafficking. Thus, the state argues, the district court should not have
dismissed the state's appeal from justice's court. In support of its position, the state cites three
decisions by this court: Feole v. State, 113 Nev. 628, 939 P.2d 1061 (1997); Cipriano v.
State, 111 Nev. 534, 894 P.2d 347 (1995); and Murphy v. State, 110 Nev. 194, 871 P.2d 916
(1994). The state argues that these three opinions direct[] prosecutors to refile the criminal
complaint if the original complaint has been dismissed for insufficient evidence.
The three decisions cited by the state appear to directly conflict with NRS 178.562(2), and,
therefore, this petition presents an important issue of statewide concern involving criminal
proceedings in the justices' courts of this state. Accordingly, we have elected to exercise our
discretion to consider the merits of this petition. See, e.g., Ashokan v. State, 109 Nev. 662,
856 P.2d 244 (1993); Babayan v. State, 106 Nev. 155, 787 P.2d 805 (1990).
Murphy involved an individual who was charged with possession of stolen cattle. The
justice's court concluded that there was inadequate evidence to bind Murphy over for trial.
The state then filed a motion for leave to file an information by affidavit, as provided by NRS
173.035(2). This procedure does not conflict with NRS 178.562(2), because the latter statute
specifically allows for the filing of an information if the justice's court does not bind a
defendant over for trial. However, this court has held that 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."
examination, through affidavit. Cranford v. Smart, 92 Nev. 89, 91, 545 P.2d 1162, 1163
(1976).
In Murphy, this court held that [t]he State ha[d] failed to make a showing that Judge
Terrell's refusal to bind over Murphy for trial was an egregious error. 110 Nev. at 198, 871
P.2d at 918. Therefore, the state could not proceed against Murphy by filing an information
upon affidavit. Unfortunately, this court went on to say, Pursuant to our holding in Cranford,
the proper way for the State to bring the charges against Murphy would have been by filing a
second complaint or by indictment. Id. Our reference to the filing of a second complaint
directly conflicts with the language of NRS 178.562(2) which specifically bars such action.
Cranford involved an individual who had been bound over after preliminary examination
on charges of being an ex-felon in possession of a firearm. He sought pretrial habeas corpus
relief in the district court, arguing that the record contained no evidence that he was an
ex-felon. The district court denied his petition, and he appealed. This court reversed. Cranford
v. Sheriff, 91 Nev. 551, 553, 539 P.2d 1215, 1216 (1975). Thereafter, the prosecuting
attorney obtained leave to file an information upon affidavit, pursuant to NRS 173.035(2),
charging Cranford with the same offense. Cranford then sought a writ of prohibition.
This court held that if the state had evidence that Cranford was an ex-felon, the state
was not precluded from instituting new charges in the justice's court, or from seeking an
indictment before a grand jury. Cranford, 92 Nev. at 90, 545 P.2d at 1163.
[Headnote 2]
However, there is an important distinction between Cranford and Murphy.
Specifically, Cranford was granted relief pursuant to a pretrial petition for a writ of habeas
corpus. A discharge by writ of habeas corpus, being merely from custody and not from
penalty, does not operate as an acquittal and is not a bar to subsequent proceedings. Stone v.
State, 85 Nev. 60, 64, 450 P.2d 136, 138 (1969). As we noted in Stone, NRS 34.590
specifically permits the state to re-arrest and reinstitute the same charges in justice's court
against an accused who has successfully obtained a discharge from custody by way of a
pretrial petition for a writ of habeas corpus.
2
In Murphy, the filing of a second complaint
should have been barred by NRS 17S.562{2) because Murphy had been discharged upon
preliminary examination.
__________

2
No person who has been discharged by the order of the judge upon habeas corpus issued pursuant to
the provisions of this chapter shall be again imprisoned, restrained or kept in custody for the same cause,
except in the following cases:
1. If he shall have been discharged from custody on a criminal charge and be afterwards committed
for the same offense by legal order or process.
2. If after a discharge for defect of proof, or for any defect of the
complaint should have been barred by NRS 178.562(2) because Murphy had been discharged
upon preliminary examination. On the other hand, in Cranford, subsequent proceedings were
not barred because the relief obtained by Cranford was merely from custody, not from
penalty. This court unfortunately overlooked this distinction in Murphy, and incorrectly stated
the law.
In Cipriano and Feole, this court repeated the incorrect statement of law. Both
Cipriano and Feole involved defendants who were not bound over after the preliminary
hearing, and the state had not demonstrated egregious error required to file an information
upon affidavit. In both cases, this court concluded that the state could have either sought a
grand jury indictment or filed a second complaint. Cipriano, 111 Nev. at 540-541, 894 P.2d
at 351; Feole 113 Nev. at 630, 939 P.2d at 1063. Although the state could have sought an
indictment in either case, the state was expressly prohibited from filing a second complaint in
justice's court. NRS 178.562(2). However, neither case addressed this proscription.
In the instant petition, the state urges this court to direct the district court to apply the law
as set forth in Murphy, Cipriano, and Feole. Although the state accurately represents this
court's holdings in Murphy, Cipriano, and Feole, we conclude that those three decisions are
flawed, in that they directly conflict with the proscription of NRS 178.562(2). To grant the
instant petition would be to perpetuate a line of cases which are in error. Instead, we take this
opportunity to clarify this area of the law.
[Headnote 3]
Pursuant to NRS 178.562(2), if a defendant is not bound over, the state may: (1) seek
leave to file an information by affidavit in the district court, pursuant to NRS 173.035(2); or
(2) seek an indictment by a grand jury. However, the state may not refile the original charges
in justice's court if the defendant was not bound over.
3
To the extent that Murphy, Cipriano,
and Feole differ from this scheme, they are expressly overruled.
4

__________
process, warrant or commitment in a criminal case, the prisoner be again arrested on sufficient proof and
committed by legal process for the same offense.

3
If the defendant is granted relief pursuant to a pretrial petition for a writ of habeas corpus (as was the case in
Cranford), the state may refile the original charges in justice's court, because discharge by writ of habeas corpus
does not act as a bar to subsequent proceedings.

4
We acknowledge that anomalous consequences may result under the conflicting provisions of NRS 34.590
and NRS 178.562(2). Whether an accused is discharged for lack of probable cause upon preliminary
examination under NRS 178.562, or upon the granting of a pretrial petition for a writ of habeas corpus under
NRS 34.590, the legal analysis respecting the presence of probable cause entails the same considerations.
Nonetheless, the legislature's decision to distinguish between a finding of no probable cause
Based on the foregoing analysis, we conclude that the instant petition must be, and is
hereby, denied.
5

____________
114 Nev. 744, 744 (1998) Gordon v. District Court
TERRY W. GORDON and JOHN F. SWEENEY, Petitioners, 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 THE STATE OF NEVADA, Real Party in Interest.
No. 26722
July 16, 1998 961 P.2d 142
Petition for rehearing of opinion denying petition for a writ of mandamus or
prohibition.
Petition denied.
Dominic P. Gentile and JoNell Thomas, Las Vegas, for Petitioner Gordon.
Laura Wightman FitzSimmons, Las Vegas, for Petitioner Sweeney.
Stewart L. Bell, District Attorney, and Frank Ponticello, Deputy District Attorney,
Clark County, for Real Party in Interest.
OPINION DENYING REHEARING
Per Curiam:
Petitioners Terry W. Gordon and John F. Sweeney seek rehearing of this court's prior
opinion denying their original petition for a writ of mandamus or prohibition. See Gordon v.
District Court, 112 Nev. 216, 913 P.2d 240 (1996). As rehearing is not warranted, we deny
their petition. See NRAP 40. However, petitioners have directed our attention to a few minor
inaccuracies in our prior opinion; despite their immaterial nature, we now correct those
errors.
__________
by a magistrate upon preliminary examination and a discharge by way of a writ of habeas corpus can be traced to
historic, long-standing traditions respecting the writ of habeas corpus. Thus, because neither statute offends any
constitutional proscription, we conclude that the duty to remedy any anomaly falls within the purview of the
legislature, not this court.

5
First, in footnote 3, we inadvertently miscounted the number of grand jurors at issue.
The opinion states, This is distinguishable from the instant case, where seven of the grand
jurors were present for the live testimony, where the other three read the transcript from the
day they missed, and where twelve were present for the vote. Gordon, 112 Nev. at 222 n.3,
913 P.2d at 244 n.3 (emphasis added). In fact, ten jurors were present for live testimony, and
thirteen were present for the vote.
Second, when quoting the text of a portion of counts 4 through 15 of the indictment at
issue, we mistakenly omitted several lines of text. Id. at 227, 913 P.2d at 247. The passage
should read:
directly, or indirectly through their subordinates, counseled, encouraged, hired,
commanded, induced, or otherwise procured the employees and/or agents of [the
nightclub] to induce potential customers to purchase a bottle of non-alcoholic wine by
directing the employees and/or agents of [the nightclub] to use a pitch which was
designed to falsely lead the potential customers to believe that they would have sexual
intercourse and/or oral sex with the female employees and/or agents of [the nightclub]
if they were to purchase a bottle of non-alcoholic wine.
(Omitted text emphasized.)
Third, with regard to our conclusion that no cumulative error existed in this case, the
opinion should read, Here, if cumulative error permeated the indictment, there is no reason
why it should not be dismissed; however, since we have held that there is no such error, this
argument must fail. See id. at 231, 913 P.2d at 250. The word if was inadvertently left out
of the original sentence after Here.
In denying the instant petition for rehearing, we take this opportunity to caution counsel
for petitioners, as well as all members of the State Bar of Nevada, of the proper purpose for
petitions for rehearing. In In re Herrmann, 100 Nev. 149, 151, 679 P.2d 246, 247 (1984), this
court held,
Under our long established practice, rehearings are not granted to review matters that
are of no practical consequence. Rather, a petition for rehearing will be entertained only
when the court has overlooked or misapprehended some material matter, or when
otherwise necessary to promote substantial justice. NRAP 40(c)(2). A petition for
rehearing may not be utilized as a vehicle to reargue matters considered and decided in
the court's initial opinion. NRAP 40(c)(1); Gershenhorn v. Stutz, 72 Nev. 312, 306 P.2d
121 (1957). Nor may a litigant raise new legal points for the first time on rehearing.
NRAP 40(c)(1); Cannon v. Taylor, 88 Nev. S9, 493 P.2d 1313 {1972);
Nev. 89, 493 P.2d 1313 (1972); In re Lorring, 75 Nev. 334, 349 P.2d 156 (1960). It
therefore appears that [the] petition for rehearing has not been filed for any of the
legitimate purposes countenanced by our rules. Instead, as [the parties opposing the
petition for rehearing] contend, it appears that said petition has been filed for purposes
of delay . . . .
We advise petitioners' counsel to review Herrmann and the authority cited within carefully
prior to filing other petitions for rehearing in future cases.
Having concluded that rehearing is not warranted, we deny this petition.
1

____________
ALEHANDRO MARTINEZ, aka LOUIS PENA SANTOS, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 26172
July 16, 1998 961 P.2d 752
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of
robbery. Eighth Judicial District Court, Clark County; Lee A. Gates, Judge.
Defendant was convicted in the district court of simple robbery, and he appealed. The
supreme court held that conviction was not supported by sufficient evidence.
Reversed.
Morgan D. Harris, Public Defender, and George E. Franzen, Deputy Public
Attorney, James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.
1. Robbery.
Element that distinguishes robbery from larceny is the use of force: when force is used to accomplish the taking, the crime is
robbery; however, where force is used only to facilitate escape, the use of force must be subsequent to a taking by force or fear, or used
to compel acquiescence to escaping with the property in order to constitute the crime of robbery. NRS 200.380.
2. Robbery.
Robbery conviction was not supported by sufficient evidence since there was no evidence of force used in connection with a
taking of roast from supermarket or that defendant had roast when he attempted to escape; if defendant
waved a knife at security guards, it was only after struggle ensued following discovery that he had placed a
roast in his pants.
__________

1
from supermarket or that defendant had roast when he attempted to escape; if defendant waved a knife at security guards, it was only
after struggle ensued following discovery that he had placed a roast in his pants. NRS 200.380.
OPINION
Per Curiam:
Keith Anderson was a security guard at Smith's Food King in North Las Vegas. At approximately 4:30 p.m., on December 30,
1993, Anderson observed appellant placing a roast in his pants. Although the size of the roast is unknown, it had a value of $25.89.
Anderson observed appellant heading toward the exit of the store, and Anderson went outside to intercept appellant.
When appellant exited the store, Anderson approached appellant, placed his hand on appellant's stomach, patted the roast and told
appellant to accompany him to the security office. Anderson placed a handcuff on one of appellant's wrists. Appellant reached into his
pants with the other hand, pulled out the roast, and dropped it. At that point, appellant said something to the effect of, You got the roast,
let me go. Appellant then began struggling to get away.
At the time of the incident in question, Jose Ramirez, an off-duty Smith's security guard, happened to be at Smith's with his wife
and two children, doing his grocery shopping. He observed Anderson struggling with appellant in front of the store. Ramirez ran over to
assist Anderson. Both Ramirez and Anderson testified that appellant pulled out a box cutter knife and began waving it at them. Appellant
denied having a knife.
1
During the struggle, Ramirez pulled the mace out of Anderson's utility belt
and maced appellant. Despite being maced, appellant managed to break free of the two
security guards and ran away. Ramirez and Anderson ran to Ramirez' car, where Ramirez'
wife had loaded the groceries. Ramirez directed his wife to get in the back seat with the
children. Ramirez and Anderson jumped in the front seat of the car and began following
appellant, who was fleeing on foot. They saw appellant run into a motel room. Ramirez told
Anderson to go to the bar across the street and call the police. Ramirez, his wife, and children
remained in front of the motel to make sure appellant did not come out of the room. When the
police arrived, they entered the room and found appellant lying on the floor of the room with
one arm still handcuffed.
Appellant was arrested and charged with robbery with use of a deadly weapon and
battery with use of a deadly weapon.
__________

1
Although appellant was charged with robbery with a deadly weapon, the jury found him guilty of simple
robbery, without the use of a deadly weapon.
deadly weapon and battery with use of a deadly weapon. Following a jury trial, appellant was
convicted of robbery. The district court sentenced appellant to serve eighteen (18) months in
the Nevada State Prison.
[Headnotes 1, 2]
Appellant contends that there was insufficient evidence at trial to support his
conviction for robbery. We agree. NRS 200.380 defines robbery as: the 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 . . . . A taking is by means of force or fear if force or fear is
used to: . . . (c) Facilitate escape. Moreover, [t]he degree of force used is immaterial if it is
used to compel acquiescence to the taking of or escaping with the property. NRS 200.380(1).
The element that distinguishes larceny from robbery is the use of force. When force is used to
accomplish the taking, the crime is clearly robbery. However, where force is used only to
facilitate escape, the use of force must be subsequent to a taking by force or fear, or used to
compel acquiescence to the escaping with the property in order to constitute the crime of
robbery.
2
In this case, there was no evidence of a taking by means of force, nor was appellant
attempting to escape with the roast. Consequently, appellant's conviction of robbery is not
supported by sufficient evidence.
3
Accordingly, we reverse appellant's conviction for
robbery.
__________

2
This court recently considered a similar case in Barkley v. State, 114 Nev. 635, 958 P.2d 1218 (1998). The
appellant in Barkley placed a bottle of brandy in his pants. When he exited the store without paying, the clerk
confronted Barkley and a struggle ensued. In the struggle, Barkley struck the clerk on the head with the bottle of
brandy. This court held that Barkley had committed robbery because he used force and violence to retain
possession of the bottle, as proscribed by NRS 200.380(1)(a). (Additionally or alternatively, a factfinder could
reasonably decide that Barkley used force and violence to overcome resistance to the taking or to facilitate
escape, as proscribed by NRS 200.380(1)(b) and (c).) Id. at 637, 958 P.2d at 1219. We conclude that Barkley is
distinguishable from the instant case because Barkley was attempting to retain possession of the brandy or
escape with the brandy. In the instant case, both the security officers testified that appellant said, You've got the
roast, let me go. The chain of events had already moved beyond a taking, because the attempted taking had
been abandoned. In Barkley, the force used was part of a continuing taking.

3
In light of our holding that appellant's conviction is not supported by sufficient evidence, we conclude it is
unnecessary to reach appellant's remaining contention.
____________
114 Nev. 749, 749 (1998) County of Clark v. Upchurch
COUNTY OF CLARK, ex rel., UNIVERSITY MEDICAL CENTER, Appellant, v.
KIMBERLY UPCHURCH, a Minor, by and Through MARTHA IMELDA
UPCHURCH and JOHN LOWELL UPCHURCH, the Parents and Natural Guardians
of KIMBERLY UPCHURCH; MARTHA IMELDA UPCHURCH and JOHN
LOWELL UPCHURCH, Individually, Respondents.
No. 27368
July 27, 1998 961 P.2d 754
Appeal from an order of the district court granting a motion for summary judgment.
Tort plaintiffs sought declaratory judgment that statutory cap on tort liability of state
and its political subdivisions applied separately to each governmental entity. The district
court entered judgment for plaintiffs. County appealed. The supreme court, Wagner, D.J.,
sitting by designation, held, as a matter of first impression, that the statutory cap applied on a
per person per claim basis as the aggregate liability of all governmental entities to each
claimant, regardless of the number of governmental entities involved.
Reversed.
Alverson, Taylor, Mortensen, Nelson & Sanders, and Marie Ellerton, Las Vegas, for
Appellant.
Lyles, Austin & Burnett, Ltd., and John R. Hawley, Las Vegas, for Respondents.
1. Declaratory Judgment.
Declaratory relief is available only if: (1) a justiciable controversy exists between persons with adverse interests; (2) the party
seeking declaratory relief has a legally protectable interest in the controversy; and (3) the issue is ripe for judicial determination.
Whether making a determination in an action for declaratory judgment is proper is a matter for the district court's discretion and
will not be disturbed on appeal unless the district court abused that discretion.
Issue of whether statutory cap on governmental tort liability applied separately to each governmental entity or whether it was an
aggregate cap was ripe for determination by declaratory judgment, though question of state university hospital's liability in pending
negligence action was unresolved, as the issue was one of first impression and of fundamental public importance that would likely arise
again, and resolution of the issue would promote judicial economy and would likely end the pending negligence
action.
issue would promote judicial economy and would likely end the pending negligence action. NRS 30.040, 41.031, 41.035.
Construction of a statute is a question of law subject to de novo review.
5. Statutes.
Intent of the legislature is the controlling factor in statutory interpretation.
6. Municipal Corporations.
It is important that there be some certainty in the law with regard to the application of governmental immunity caps in order that
litigant's may make proper decisions about settlements as well as preparation for litigation. NRS 41.035.
7. States.
Statutory cap on tort liability of the state and its political subdivisions applied on a per person per claim basis as the aggregate
liability of all governmental entities to each claimant, regardless of the number of governmental entities involved. NRS 41.031, 41.035.
8. States.
The $50,000 statutory cap on tort liability of the state and its political subdivisions applies on a per person per claim basis to
negligence claims of child and her parents against county and state, and thus, child, father, and mother could each recover no more
than $50,000 in the aggregate from state and county, rather than $50,000 from state and $50,000 from county. NRS 41.031, 41.035.
OPINION
By the Court, Wagner, D. J.:
On July 9, 1990, respondent Martha Imelda Upchurch (Mrs. Upchurch), age twenty-nine, gave birth to a daughter, respondent
Kimberly Upchurch (Kimberly), at the hospital of appellant University Medical Center of Southern Nevada (UMC) in Las Vegas.
Kimberly was born with cerebral palsy.
Donald Roberts, M.D., and Edward Spoon, M.D., two obstetric-gynecology residents employed by the State of Nevada and the
University of Nevada-Reno (UNR) School of Medicine, were the attending physicians throughout the labor and delivery. Mrs. Upchurch
and her husband, respondent John Lowell Upchurch (Mr. Upchurch) (collectively the Upchurches), filed a complaint with the Nevada
Department of Business and Industry, Division of Insurance, Medical-Legal Screening Panel. Kimberly, and Mr. and Mrs. Upchurch were
each named claimants on the complaint. The Upchurches alleged that the medical mismanagement of various state actors, including Drs.
Roberts and Spoon, the State of Nevada, and the UNR School of Medicine, caused their daughter's condition.
In October 1993, the Upchurches voluntarily settled their claims with the State of Nevada, the UNR School of Medicine, and
Drs. Roberts and Spoon, for an aggregate sum of $150,000$50,000 for each claimant (i.e., Kimberly, Mr. Upchurch, and Mrs.
Upchurch).
claims with the State of Nevada, the UNR School of Medicine, and Drs. Roberts and Spoon,
for an aggregate sum of $150,000$50,000 for each claimant (i.e., Kimberly, Mr. Upchurch,
and Mrs. Upchurch). The Upchurches accepted this sum in conjunction with a release
agreement in full compromise, settlement and satisfaction of and as sole consideration for
the final release and discharge of all actions, claims and demands whatsoever that now exist
or may hereafter accrue . . . . The release further stated that the settlement shall not be
deemed or construed as an admission of liability to [the Upchurches] by the persons, parties
and entities released herein but, on the contrary, any and all such liability is expressly
denied.
Another provision in the parties' settlement agreement specified:
Said settlement funds represent the statutory cap applicable to the State of Nevada pursuant
to NRS 41.035, and in no way constitute a release of any actions, claims or rights that the
undersigned may have against all other parties, including but not limited to other
governmental entities, Dr. Tayengco (the attending physician on the day of delivery), [UMC],
the County of Clark as a separate governmental entity, or any of their agents, employees or
representatives. The undersigned expressly reserve any rights they may have to claim a
separate governmental entity cap from the County of Clark or to claim that no cap is
applicable in this case.
Subsequently, the Upchurches filed an amended complaint with the Nevada
Medical-Legal Screening Panel adding UMC and Dr. Tayengco and deleting all parties who
signed the settlement agreement.
In December 1993, the Upchurches filed the instant action for declaratory relief
against UMC, seeking a judicial determination that there is no applicable statutory cap as to
UMC because UMC denied that Drs. Roberts and Spoon were employees, or alternatively,
that the Upchurches were entitled to two separate sets of damage caps of $150,000 because
Clark County (which operates and funds UMC) and the State of Nevada are separate and
independent governmental entities.
The Upchurches filed a motion for summary judgment claiming that NRS 41.031 and
NRS 41.035 provide them with the right to seek a second set of statutory damage caps.
UMC filed its opposition to the Upchurches' motion and a countermotion for summary
judgment. UMC realleged its affirmative defenses and alleged that the Upchurches had no
right to additional damages after having recouped the statutory damage limit from the state.
The district court directed UMC to rebrief the substantive issues regarding NRS 41.031 and
NRS 41.035 in the form of a motion to dismiss. The district court then entered an order, in
effect, granting summary judgment for the Upchurches. The written order stated:
[The Upchurches] are not precluded from recovering a second set of statutory caps from
County of Clark, pursuant to NRS 41.031 and NRS 41.035. Therefore, [UMC's] motion
to dismiss is denied and, inasmuch as this decision resolves the subject declaratory
relief action, this decision shall act as a final judgment on the declaratory relief action
in favor of [the Upchurches] and against [UMC]. Therefore, the trial in this matter is
moot . . . .
UMC appeals this order, which was, in effect, a summary judgment.
Meanwhile, the Upchurches filed a separate complaint alleging that UMC was
institutionally negligent and negligent for the damages arising from and out of Kimberly's
birth, as well as vicariously negligent for the malpractice of the doctors and the nurses
involved in Kimberly's delivery and care. This negligence claim is pending.
DISCUSSION
[Headnotes 1, 2]
Declaratory relief is available only if: (1) a justiciable controversy exists between
persons with adverse interests, (2) the party seeking declaratory relief has a legally protectable
interest in the controversy, and (3) the issue is ripe for judicial determination. Knittle v.
Progressive Casualty Ins. Co., 112 Nev. 8, 10, 908 P.2d 724, 725 (1996). However, whether a
determination in an action for declaratory judgment is proper is a matter for the district court's
discretion and will not be disturbed on appeal unless the district court abused that discretion.
El Capitan Club v. Fireman's Fund Ins., 89 Nev. 65, 68, 506 P.2d 426, 428 (1973).
[Headnote 3]
UMC argues that the issue of the statutory damage limitation is not ripe for judicial
determination because the question of UMC's underlying liability remains unresolved. It is
true that UMC's liability has not been determined. However, courts must also consider
whether speedy resolution of the issue might promote economy in the litigation process or
might lead to meaningful pretrial settlement. Cf. El Capitan Club, 89 Nev. at 70, 506 P.2d at
429. Although there has been no determination regarding UMC's liability, the resolution of
the issue will likely end the controversy between the parties.
between the parties. Thus, immediate judicial review of this issue will promote economy in
the litigation process.
Furthermore, the issue of whether the $50,000 statutory damage limitation applies
separately to each governmental entity and its actors or whether it applies to all governmental
entities in the aggregate is one of first impression and of fundamental public importance. This
issue may profoundly affect the state treasury and budgets of other state agencies. In addition,
this issue will likely arise again and its resolution might forestall future litigation. While the
liability of UMC in this case has not been decided, resolution of the issue may end the
controversy between the parties and could save them from undergoing a lengthy and
expensive trial.
NRS 30.040 provides in relevant part:
Any person . . . whose rights, status or other legal relations are affected by a statute . . .
may have determined any question of construction or validity arising under the . . .
statute . . . and obtain a declaration of rights, status or other legal relations thereunder.
This provision suggests that immediate review of the rights of the Upchurches and UMC
pursuant to NRS 41.031 and 41.035 is appropriate. Thus, we conclude that the district court
did not abuse its discretion in granting declaratory relief.
In granting declaratory relief, the district court determined that the Upchurches were
entitled to damages from UMC, even though the State of Nevada had already paid each
claimant the maximum $50,000 allowed under NRS 41.035. UMC argues that the district
court erred in determining that the Upchurches could seek a second set of statutory damage
limitations under NRS 41.031 and 41.035. According to UMC, the legislature intended that
the damage cap apply on a per claimant, per wrong basis rather than a per claimant, per
wrong, per government actor basis.
[Headnotes 4, 5]
The construction of a statute is a question of law subject to de novo review. State,
Dep't of Mtr. Vehicles v. Lovett, 110 Nev. 473, 476, 874 P.2d 1247, 1249 (1994). 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). 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.' Lovett, 110 Nev. at 477, 874 P.2d at 1249-50
(quoting State, Dep't Mtr. Vehicles v. Vezeris, 102 Nev. 232, 236, 720 P.2d 1208, 1211
(1986)).
1. The State of Nevada hereby waives its immunity from liability and action and
hereby consents to have its liability determined in accordance with the same rules of
law as are applied to civil actions against natural persons and corporations, except as
otherwise provided in NRS 41.032 to 41.038, inclusive . . . . The State of Nevada
further waives the immunity from liability and action of all political subdivisions of the
state, and their liability must be determined in the same manner, except as otherwise
provided in NRS 41.032 to 41.038, inclusive . . . .
2. An action may be brought under this section against the State of Nevada or any
political subdivision of the state. In any action against the State of Nevada, the action
must be brought in the name of the State of Nevada on relation of the particular
department, commission, board or other agency of the state whose actions are the basis
for the suit . . . .
An award for damages in an action sounding in tort brought under NRS 41.031 or
against a present or former officer or employee of the state or any political subdivision,
immune contractor or state legislator arising out of an act or omission within the scope
of his public duties or employment may not exceed the sum of $50,000, exclusive of
interest computed from the date of judgment, to or for the benefit of any claimant. An
award may not include any amount as exemplary or punitive damages.
Neither NRS 41.031 nor 41.035 make clear whether a tort plaintiff may recover an
award equal to the statutory damage limitation from the state and each political subdivision or
whether a tort plaintiff is limited to only one award equal to the statutory damage limitation,
regardless of the number of defendant political subdivisions. The statutes are ambiguous as to
the proper application of the statutory damage limitation. We must, therefore, first look to the
legislative history.
The legislative history of NRS 41.031 and NRS 41.035 from 1965, the year of the
original enactment, and 1973, the first year of substantive amendments, reveals that this issue
was not discussed. In 1977, the legislature amended NRS 41.035(1) by adding the language:
or against a present or former officer or employee of the state or any political subdivision,
immune contractor or state legislator arising out of an act or omission within the scope of his
public duties or employment. . . . See 1977 Nev. Stats., ch. 584, 5, at 1539 (emphasis
added). The 1977 hearings on the amendment reflect that, between 1965 and 1977, there
had been some question among civil lawyers and the courts as to whether these statutes
protected individual state employees from tort liability arising out of official state
activities.
1977 hearings on the amendment reflect that, between 1965 and 1977, there had been some
question among civil lawyers and the courts as to whether these statutes protected individual
state employees from tort liability arising out of official state activities. See Hearings on S.B.
260 before the Assembly Judiciary Comm., 59th Leg. (Nev., April 15, 1977) (statements of
Senator Gary Sheerin and Deputy Attorney General Mike Dyer), reprinted in Legislative
History of S.B. 185 (1965), at 21-22. The amendment to NRS 41.035 was enacted to make it
absolutely clear that the statutes insulated individual public employees from personal liability.
Thus, contrary to the Upchurches' contention, the language was not added to empower tort
plaintiffs to seek multiple statutory damage limitations. See id. There is no indication that the
legislature intended, by this amendment, to permit multiple damage awards subject to
separate limitations. In fact, the only indirect discussion of multiple damage awards indicates
that the idea of multiple recoveries up to the statutory limitation from different state actors for
a single action was rejected.
1
However, the question was not clearly addressed by the
legislature.
Therefore, we must consider NRS 41.031 and 41.035 in relation to the prior decisions
interpreting these provisions and the public policy implications. The question in this case is
whether each person can recover on each claim from each state actor. As stated in Arnesano
v. State, Dep't Transp., 113 Nev. 815, 942 P.2d 139 (1997), protecting the state is a legitimate
interest. Judicial determination that the state, through different state actors, is subject to
multiple statutory damage limitations for any one action arising out of a single incident may
have a massive and deleterious effect upon state and local treasuries. In addition, determining
which individuals or entities are state actors raises complex issues with respect to litigation of
tort claims.
On the other hand, prohibiting multiple recoveries in this case effectively insulates
UMC from liability. UMC will not be held accountable for any misfeasance it may have
committed.
[Headnote 6]
It is important that there be some certainty in the law with regard to the application of
governmental immunity caps in order that litigants may make proper decisions about
settlements as well as preparation for litigation.
__________

1
During a March 15, 1977 Nevada Senate Judiciary Committee hearing, a witness suggested that the two
statutes be amended to provide that, in addition to the $25,000 (now $50,000) limitation of liability as against
the state, state employees also be liable up to another $25,000. Senator Bryan questioned this argument, stating
that doing so would weaken the argument that $25,000 represented the statutory maximum recovery. Minutes of
the Senate Judiciary Comm., 59th Leg. (Nev., March 15, 1977) (statements of Senators Bryan and Sheerin),
reprinted in Legislative History of S.B. 260 (1965), at 7. Senator Sheerin concurred with Senator Bryan's
assessment. Id.
that litigants may make proper decisions about settlements as well as preparation for litigation.
Virtually all jurisdictions have abolished or substantially abolished the doctrine of governmental immunity.
In balancing the rights of the public to receive recovery from tortious acts of government and government agents
with the need to protect taxpayers and public funds from potentially devastating judgments, state governments
have used an array of different approaches. All have been concerned with the problem of protecting the public
treasury.
Large jury awards could present a threat to the state treasury. A statutory cap on the
damages the state must pay for its tortious conduct furthers a legitimate interest in
protecting the state treasury. See Packard v. Joint School Dist. No. 171, 661 P.2d 770,
775 (Idaho Ct. App. 1983) (a statutory cap on governmental liability relates to effective
risk management by public entities and their insurers, and protects the public coffers).
Arnesano v. State, Dep't Transp., 113 Nev. 815, 819, 942 P.2d 139, 142 (1997).
Most jurisdictions have adopted statutes limiting the damages which are recoverable
against government tortfeasors. Courts have uniformly recognized the rights of the legislative
branch of the government to set the limits of such recovery, and such limits have been
overwhelmingly deemed to be constitutional, particularly as it relates to equal protection
attacks as in the recent decision by this court in Arnesano. The courts have generally reasoned
that damage limitation statutes have withstood constitutional attacks as a denial of redress or
impairment of rights, as such rights in the past have not existed at all since governments have
enjoyed immunity from liability.
In more recent legal history as these cases have progressed, there has been a tendency
to liberally construe the statutes passed by the state legislature; and the greater the harm and
inequities by government, the greater the tendency to judicially legislate around the statutory
caps. By any standards of equity, limiting governmental liability appears to be patently unfair
in cases where the wrongs and injuries are great compared to the limits. Taking an overall
view of tort immunity, it must be remembered that almost total governmental immunity has
been retained in large part for the judicial and legislative branches of government in carrying
out their functions in those branches of government. In addition, most states protect agents of
the executive branch from liability for discretionary acts.
Although almost all jurisdictions have given up total governmental immunity, there
is a myriad of legislative schemes which have been used by state legislatures to limit
immunity.
mental immunity, there is a myriad of legislative schemes which have been used by state
legislatures to limit immunity. In some jurisdictions, various statutory schemes have been
adopted in an attempt to provide full relief to victims of government tortfeasors by petition to
appropriate legislative bodies, recovery from individual public officers or employees and
contribution from private joint tortfeasors.
Throughout the United States, there appear to be three types of standards in
governmental immunity cases for measuring awards for multiple plaintiffs or claims as
follows:
2

1. The per incident or occurrence standardThis standard uses a maximum
aggregate recovery by law for a single tortious act, regardless of the number of
plaintiffs, claims or defendants involved.
2. The per person or per claimant standardPermits an award of damages up to the
statutory cap for each person having a valid claim against a governmental tortfeasor.
Some jurisdictions further limit this per claimant or per person standard to an aggregate
damages award by incident or occurrence.
3. The per claim standardUnder such a standard the statutory cap limit is
applicable to each cause of action asserted by each victim or governmental wrongdoing
against each government defendant.
At issue in this case is the interpretation of NRS 41.031, wherein the State of Nevada waives
its immunity and NRS 41.035, which states the limitation on the award for damages.
This court has interpreted the statutory limitation in NRS 41.035 to apply to each
cause of action by each claimant. In State v. Webster, 88 Nev. 690, 691, 504 P.2d 1316, 1319
(1972), this court held that the state was negligent for failing to install a cattle guard at the
entrance to a controlled-access freeway. As a result of this failure, plaintiff's automobile
crashed into a horse which was wandering on the highway at night. The wife brought an
action for both her own injuries and for the wrongful death of her husband. This court ruled
that the wife was entitled to recover $25,000 for the wrongful death of her husband, as well as
$17,725.84 for the personal injury damages she personally suffered as a result of the accident.
In addition, three relatives of the decedent were allowed to recover $25,000 each on their
wrongful death claims. This court stated: Although joined in one complaint, an action for
wrongful death and an action for personal injuries suffered by the plaintiff in the same
accident are separate, distinct and independent. . . .
__________

2
These standards are discussed in some detail in the article, James L. Isham, J.D., Annotation, Validity and
Construction of Statute or Ordinance Limiting the Kinds or Amount of Actual Damages Recoverable in Tort
Action Against Governmental Unit, 43 A.L.R. 4th 19 (1986).
Although joined in one complaint, an action for wrongful death and an action for
personal injuries suffered by the plaintiff in the same accident are separate, distinct and
independent. . . . They rest on different facts and may be separately maintained.
Id. at 695, 504 P.2d at 1320 (citations omitted). Thus, this court allowed plaintiffs to recover
damages against the state on a per person per claim basis.
In State v. Eaton, 101 Nev. 705, 708, 710 P.2d 1370, 1373 (1985), this court ruled that
the state could be held liable for failure to warn motorists of known icy road conditions. As a
result of this failure, a husband driving a vehicle over Golconda Summit ran into the back of
a semi-truck. Within the vehicle were his wife and baby in the front seat. The collision caused
the wife to dislocate her ankle and crushed the baby between the mother and the dashboard.
The baby died of head injuries. The mother, believing the baby to be asleep, handed the child
through the window to a highway patrolman. The mother later heard the father screaming that
the baby was dead.
In the Eaton case, this court allowed claims against the state for the mother's personal
injury, the wrongful death of the baby and a claim for the mother's emotional distress.
In Falline v. GNLV Corp., 107 Nev. 1004, 1012, 823 P.2d 888, 893-94 (1991), this
court held that SIIS, its officers and employees enjoy the benefit of a $50,000 recovery limit
provided by NRS 41.035(1). The court stated further that any action seeking tort damages
against a self-insured employer or its administrator/agent shall also be subject to a total
recovery limit of $50,000, exclusive of interest computed from the date of judgment. Id. This
opinion appears to limit a plaintiff's recovery to a total of $50,000 regardless of how many
government actors are tortfeasors.
In Arnesano v. State, Dep't Transp., 113 Nev. 815, 942 P.2d 139 (1997), a pickup
truck struck the rear of Arnesano's Ford causing it to spin out of control on the freeway.
Although the impact was minor, the driver's side of the Ford ultimately crashed into a
concrete post three feet in diameter, located 16 feet off the paved portion of the freeway.
Arnesano died at the scene from severe head trauma. The American Association of State
Highway Engineers guide states that solid, non-movable objects within 30 feet of the traveled
roadway should be protected by a barrier such as a guardrail, concrete Jersey barrier, or
crash cushions.
The state argued that the district court erred in denying its motion to dismiss because
there was no evidence to show that it caused the fatal accident. The state contended that
striking the support post was not legally foreseeable. The state argued that the proximate
cause of the accident was the impact of the pickup truck to the rear of Arnesano's Ford.
proximate cause of the accident was the impact of the pickup truck to the rear of Arnesano's
Ford. Regarding liability, this court ruled:
One whose tortious conduct is otherwise one of the legal causes of an injurious result
is not relieved from liability for the entire harm by the fact that the tortious act of
another responsible person contributes to the result. Restatement (Second) of Torts
879 cmt. a (1965). Accordingly, we conclude that the State is not relieved from liability
by the fact that the accident was initially triggered by the impact of the pickup.
The actor's negligent conduct is a legal cause of harm to another if (a) his conduct is
a substantial factor in bringing about the harm. Restatement (Second) of Torts 431.
Trial testimony indicates that safety barriers would have reduced or prevented the
impact of the Ford against the support post. We conclude that striking the support post
was legally foreseeable, and that substantial evidence supports the jury's finding that the
State's failure to install such barriers was a legal cause of Arnesano's death.
Id. at 822-23, 942 P.2d at 144.
Based on this analysis, this court affirmed the district court's award of damages of
$50,000 each for Arnesano's wife and two children. Their claims were based on the wrongful
death of Arnesano. Thus, this court permitted damages under NRS 41.035(1) on a per person
per claim basis for a total award of $150,000, exclusive of attorneys fees and costs.
[Headnotes 7, 8]
Based on the legal precedent in this state, it appears that this court, in construing NRS
41.035, has consistently allowed plaintiffs to recover damages on a per person per claim
basis. This interpretation is consistent with the legislative intent as well as the clear reading of
NRS 41.035(1), which uses the phrases in an action (singular), as well as the phrase
arising out of an act or omission (again singular). Neither the ambiguous language of NRS
41.031 and NRS 41.035, nor the conflicting public policy considerations are compelling on
the issue of whether plaintiffs can recover statutory damage limitations from multiple
government actors. Furthermore, no direct evidence exists to suggest that the legislature ever
considered this issue. In view of these facts and this court's custom of practicing judicial
restraint in the absence of clear legislative guidance, this court reverses the decision of the
district court and concludes that NRS 41.035 allows one statutory limitation for each cause of
action, regardless of the number of actors.
number of actors. See generally Goldstine v. Jensen Pre-Cast, 102 Nev. 630, 631, 729 P.2d
1355, 1356 (1986). Any substantial amendments of the waiver of state tort immunity must
be made by the legislature.
3

Springer, C. J., with whom Rose, J., agrees, dissenting:
We have here two governmental entities, the State of Nevada and the County of Clark.
Each is claimed to be tortiously liable to the Upchurch family. Under a statute which the
majority concedes to be ambiguous, I see no reason why each entity should not be held
liable to the full extent of the statute.
I would construe the ambiguity in favor of the claimants and read the statute to apply
(as alluded to in the majority) on a per claimant, per wrong, per government actor basis.
The statute permits an action to be brought against any political subdivision. This means to
me that one can sue and recover judgment against the state, a county government and a city
government, if each has been proven to be independently liable for tortious conduct.
Judgment, in such a case, could be awarded against each, and each would have to pay up to
the $50,000 statutory limit. I would, therefore, affirm the judgment of the trial court.
____________
114 Nev. 760, 760 (1998) Crippens v. Sav On Drug Stores
DIANNA CRIPPENS, Appellant, v. SAV ON DRUG STORES, a Delaware Corporation,
Respondent.
No. 27735
July 28, 1998 961 P.2d 761
Appeal from a district court's order granting summary judgment. Eighth Judicial
District Court, Clark County; Donald M. Mosley, Judge.
Daughter who administered prescription drug to mother and subsequently observed
mother's sever adverse reaction to drug brought action against pharmacy, seeking recovery for
emotional distress she suffered as result of pharmacist's allegedly negligent dispensation of
wrong drug. Pharmacy moved for summary judgment. The district court entered judgment for
pharmacy, and daughter appealed. The supreme court, Shearing, J., held that (1) pharmacy
could reasonably have foreseen that negligent dispensation of wrong drug would result in
harm to daughter, and (2) daughter could not bring action under statute requiring that
pharmacist communicate certain data concerning use and proper administration of
dispensed drug.
__________

3
The Honorable Richard Wagner, Judge of the Sixth Judicial District Court, was designated by the Governor
to sit in the place of The Honorable A. William Maupin, Justice. Nev. Const. art. 6, 4.
daughter could not bring action under statute requiring that pharmacist communicate certain
data concerning use and proper administration of dispensed drug.
Springer, C. J., and Young, J., dissented.
Crockett & Myers and Laura E. Stubberud, Las Vegas, for Appellant.
Joel F. Hansen & Associates and Bradley M. Ballard, Las Vegas, for Respondent.
1. Damages.
A bystander plainfiff claiming negligent infliction of emotional distress must be closely related to the victim of an accident, be
located near the scene of the accident, and suffer a shock resulting from direct emotional impact stemming from the sensory and
contemporaneous observance of the accident.
2. Damages.
Foreseeability is the cornerstone of the supreme court's test for negligent infliction of emotional distress.
3. Damages.
Pharmacy could reasonably have foreseen that its pharmacist's negligent dispensation of wrong prescription drug to daughter
who provided care for mother, to whom drug was prescribed, would result in harm to daughter, and thus daughter could bring negligent
infliction of emotional distress claim against pharmacy, based upon her witnessing mother's extreme adverse reaction to wrong
prescription drug.
Daughter who received wrong prescription drug for mother, due to alleged negligence of pharmacist, and who subsequently
administered wrong drug to mother, causing extreme adverse reaction, could not bring action against pharmacy under statute which
requires pharmacists to communicate certain data concerning use and proper administration of dispensed drugs. NRS 639.266.
OPINION
The trial court granted summary judgment to Sav On Drug Stores, dismissing appellant Dianna Crippens' action for negligent
infliction of emotional distress. Ms. Crippens' claim was based upon her having witnessed the adverse effects upon her mother resulting
from the administration of prescription medication that had been negligently dispensed by Sav On. Ms. Crippens, who had been providing
care to her mother, obtained the medication for her mother, the druggist had filled the prescription with the wrong drug which turned out
to be highly toxic, and Ms. Crippens observed her mother become incoherent, eventually experience hypoglycemic shock and become
permanently disabled.
wrong drug which turned out to be highly toxic, and Ms. Crippens observed her mother
become incoherent, eventually experience hypoglycemic shock and become permanently
disabled. We reverse the summary judgment in favor of Sav On and conclude that this matter
should proceed to trial.
DISCUSSION
[Headnote 1]
This case is governed by State v. Eaton, 101 Nev. 705, 710 P.2d 1370 (1985). Eaton
requires that a bystander plaintiff be closely related to the victim of an accident, be located
near the scene of the accident, and suffer a shock resulting from direct emotional impact
stemming from the sensory and contemporaneous observance of the accident. Id. at 716, 710
P.2d at 1377-78.
The majority of the cases on negligent infliction of emotional distress have involved
automobile accidents, including Eaton. Thus, some of the language of these cases cannot
appropriately be applied to the negligence of a pharmacist dispensing drugs. In addition to
debating whether a plaintiff is a bystander or what the plaintiff actually observed, we should
look to the basic principles underlying the tort of negligent infliction of emotional distress.
In Eaton, this court discussed some of the history of the tort of negligent infliction of
emotional distress due to injury to another. This court embraced the ruling in Dillon v. Legg,
441 P.2d 912 (Cal. 1968) by saying:
[T]he [Dillon] court held that liability could be circumscribed in these cases, as in all
tort cases, by the application of the general principles of negligence. 441 P.2d at 924.
The trial courts could determine whether the accident and the harm to the bystander was
reasonably foreseeable and thus mark out areas of liability, excluding the remote and
unexpected. 441 P.2d at 921. We agree with the reasoning of the California court. We
see no good reason why the general rules of tort law, including the concepts of
negligence, proximate cause, and foreseeability, long applied to all other types of
injury, should not govern the case now before us. 441 P.2d at 924. . . . See also II
Harper and James 18.4, p. 1039 (mechanical rules of thumb which are at variance
with these [general] principles [of tort law] do more harm than good.).
Eaton, 101 Nev. at 713, 710 P.2d at 1376.
[Headnote 2]
Under this reasoning, it is not the precise position of plaintiff or what the plaintiff saw
that must be examined. The overall circumstances must be examined to determine whether
the harm to the plaintiff was reasonably foreseeable.
cumstances must be examined to determine whether the harm to the plaintiff was reasonably
foreseeable. Foreseeability is the cornerstone of this court's test for negligent infliction of
emotional distress. Id. at 715.
[Headnote 3]
In this case, a daughter purchased prescription medication for her mother. The
daughter then initiated and continued administration until her mother was rendered comatose.
In effect, because of the pharmacist's negligence, the daughter poisoned her mother. Under
these facts, it was entirely foreseeable that the drug would significantly harm the actual
patient and that a close relative would continue administration until the ultimate catastrophic
effect was realized.
[Headnote 4]
Of course, the plaintiff still faces the burden of proving her damages were proximately caused by the
pharmacist's negligence. The jury should be allowed to make the determination of whether Crippens' claim is
meritorious.
1

Accordingly, we reverse the judgment of the district court and remand for further
proceedings.
Rose and Maupin, JJ., concur.
I do not see a daughter's witnessing the slowly-emerging, not accidental effects of
wrongly-prescribed medication as being the subject matter of a negligently-inflicted
emotional distress tort action; so I dissent. There is not present here the required
contemporaneous observance of an accident. The plaintiff cannot properly be described
as a bystander, nor can it be said that she suffered a shock which resulted from a direct
emotional impact.
The questions presented by this case are: (1) whether Ms.
__________

1
We have considered and rejected Ms. Crippens' claim that she is entitled to recover under NRS 639.266.
This statute merely requires that pharmacists communicate certain data relating to use and proper
administration of dispensed drugs. The law is quite clearly intended for the protection of the users of drugs and
does not relate directly or indirectly to other persons who might observe the adverse effects of a
negligently-dispensed drug. Ms. Crippens' claim for emotional distress does not relate to the manner in which the
drug was administered but, rather, to the negligent dispensing of the wrong drug. Even if Sav On had dispensed
the right drug with the wrong instructions, NRS 639.266 would not apply to Ms. Crippens' claim, although it
might have some applicability to the user of the drug. It is clear that a statute which regulates the
communication of information concerning administration of drugs does not create a duty running from Sav On
to Ms. Crippens with respect to her observation of the effects of a drug that had not even been prescribed.
Crippens can be said to have been a bystander who was located near the scene of an
accident; (2) whether the suffering sustained by Ms. Crippens' mother can be said to have
resulted from an accident; (3) whether Ms. Crippens can be said to have suffered shock
resulting from a direct emotional impact brought about by her observing an accident. The
most important of these words in deciding the present case is the word accident.
1
See State
v. Eaton, 101 Nev. 705, 710 P.2d 1370 (1985).
Although it is probably safe to say that none of the elements of this tort (other than the
close relationship of the mother and daughter) can be said to be present here, it is inescapably
clear in this case that the negligently-treated mother was not the victim of an accident. We
should keep in mind that most of these kinds of cases truly do involve an accident, cases,
for example, in which mothers witness serious injuries being inflicted on their children, thus
suffering a direct emotional impact and shock in the observance of the accident. This
pattern does not fit the case now before us at all.
I will focus in this dissent on the missing element accident. We have in Nevada's industrial
compensation law a definition of "accident" that would seem to fit our purposes in this
case.
__________

1
Although the majority correctly states that this case is governed by Eaton, and recites the standard
requirements for a negligent infliction of emotional distress claim as set forth in Eaton, the majority curiously
fails to apply those standard requirements to the instant case. Instead, the majority addresses only foreseeability
and proximate cause which, of course, are the cornerstone issues of a negligence claim. If these issues were
alone dispositive of claims for negligent infliction of emotional distress, the cause of action would never have
developed, as it would have the same elements as ordinary negligence. Negligent infliction of emotional distress
is a discrete tort cause of action, rather than simply an expansion of the damages upon which an ordinary
negligence claim may be predicated. Thing v. La Chusa, 771 P.2d 814, 817 (Cal. 1989).
Allowing those who are emotionally impacted by the physical injuries of others to recover for their emotional
distress under ordinary negligence principles alone would encourage an unwarranted proliferation of this special
kind of tort litigation. The California Supreme Court, which developed the requirements adopted in Eaton in the
landmark case of Dillon v. Legg, 441 P.2d 912 (Cal. 1968), has subsequently commented on the importance
ofavoiding the limitless exposure to liability that the pure foreseeability test of duty' would create. Thing, 771
P.2d at 821. The court concluded:
[R]eliance on foreseeability of injury alone in finding a duty, and thus a right to recover, is not adequate
when the damages sought are for an intangible injury. In order to avoid limitless liabiltiy out of all
proportion to the degree of a defendant's negligence, and against which it is impossible to insure without
imposing unacceptable costs on those among whom the risk is spread, the right to recover for negligently
caused emotional distress must be limited.
Id. at 826-27; see also John L. Diamond, Dillon v. Legg Revisited: Toward a Unified Theory of Compensating
Bystanders and Relatives for Intangible Injuries, 35 Hastings L. J. 477 (1984). The limitations on recovery
recited in Dillon and discussed in Thing have already been adopted by Nevada in Eaton and, I suggest, should
be properly and faithfully applied in the present case.
We have in Nevada's industrial compensation law a definition of accident that would seem
to fit our purposes in this case. NRS 616A.030 tells us that an [a]ccident' means an
unexpected or unforeseen event happening suddenly and violently, with or without human
fault, and producing at the time objective symptoms of an injury. It is rather clear that there
was no accident here, that Ms. Crippens did not observe an accident and that she did not
suffer a shock from observing an accident.
It cannot be argued, under the definition of accident taken from Chapter 616A, that
the mother's progressive mental deterioration can be called an accident. Certainly, the
mother's failing condition did not occur suddenly and violently, and the negligent acts
(dispensing the wrong drug) did not cause at the time objective symptoms of an injury.
(Emphasis added.) The glove just does not fit. This is clearly not a case of negligently
inflicted emotional injury; and I would hold that the trial judge was correct in granting
summary judgment to Sav On.
Young, J., dissenting:
While I agree with the dissenting opinion of Chief Justice Springer, I write separately
because I am disturbed by the majority's casual adoption of a radical and unprecedented
expansion in the scope of potential NIED liability.
In State v. Eaton, 101 Nev. 705, 710 P.2d 1370 (1985), we first allowed bystander
NIED recovery by adopting the California Supreme Court's reasoning in Dillon v. Legg, 441
P.2d 912 (Cal. 1968). As my dissenting colleague points out, this cause of action has
heretofore been subject to strict limitations. Although the majority pays lip service to these
limitations, it ultimately eschews them in favor of a much less restrictive foreseeability test. It
seems to me that under the majority opinion, NIED damages will be recoverableor
claimedas a matter of course in virtually every personal injury action; I can hardly think of
a case in which it is not foreseeable that an injured person will have a close friend or relative
who may suffer severe emotional distress at the sight of a loved one's suffering.
Thus, in only thirteen years, by judicial decision alone, we have created what is in
effect a new and extremely broad field of litigation. I can think of no other area in which the
law has changed so rapidly in the absence of legislative action.
Moreover, I believe that the majority's decision today will have far-reaching policy
ramifications. By effectively eliminating the restrictions which Eaton and Dillon place on the
NIED cause of action, I fear that the majority lays the foundation for an exponential
proliferation in the number of NIED claims brought in Nevada. It seems likely that this will,
in turn, apply significant upward pressure on personal injury settlement values and,
consequently, liability insurance rates.
upward pressure on personal injury settlement values and, consequently, liability insurance
rates. A policy change of this magnitude ought to be made through legislative processes
rather than judicial ones. Therefore, I respectfully dissent.
____________
114 Nev. 766, 766 (1998) State, Dep't Mtr. Veh. v. Jones-West Ford
DEPARTMENT OF MOTOR VEHICLES AND PUBLIC SAFETY, an Administrative Agency of The State of
Nevada; FORD MOTOR COMPANY, a Delaware Corporation, Qualified to Do Business in Nevada,
Appellants, v. JONES-WEST FORD, INC., a Nevada Corporation, Respondent.
No. 29112
July 28, 1998 962 P.2d 624
Appeal from an order of the district court reversing an agency's dismissal of a case for
lack of subject matter jurisdiction and remanding for an agency hearing on the merits. Second
Judicial District Court, Washoe County; Connie J. Steinheimer, Judge.
Automobile dealer sought administrative review of manufacturer's decision to
terminate dealership franchise. The Department of Motor Vehicles and Public Safety (DMV)
dismissed for lack of subject matter jurisdiction, concluding that dealer's appeal was
untimely. Dealer sought judicial review. The district court reversed. Manufacturer and DMV
appealed. The supreme court, Rose, J., held that manufacturer's written notice of intent to
terminate dealership franchise did not trigger the 30-day statutory period for appealing to
DMV, as the termination was conditional and the notice did not and could not provide an
exact date of termination.
Affirmed.
Young and Shearing, JJ., dissented.
[Rehearing denied September 24, 1998]
Frankie Sue Del Papa, Attorney General, and Mariah L. Sugden, Deputy Attorney
General, Carson City, for Appellant Department of Motor Vehicles.
Wait & Shaffer, Reno; Lemons, Grundy & Eisenberg, Reno; Berkowitz, Feldmiller,
Stanton, Brandt, Williams & Stueve, L.L.P., Kansas City, Missouri, for Appellant Ford Motor
Co.
Carelli & Miller, Las Vegas; Bradley, Drendel & Jeanney, Reno; Guild, Russell,
Gallagher & Fuller, Reno, for Respondent.
Supreme court's role in reviewing an administrative decision is identical to that of the district court: to review the evidence
before the agency so that a determination can be made as to whether the agency decision was arbitrary, capricious, or an abuse of
discretion.
2. Trade Regulation.
De novo review applied to supreme court's review of Department of Motor Vehicles and Public Safety's (DMV) interpretation of
whether statutory period for seeking DMV's review of automobile manufacturer's termination of dealership franchise contemplated a
threatened or conditional notice of termination, as such interpretation was a purely legal question. Parties did not dispute operative
dates for various documents, and the question was what triggered running of statutory time limit for filing protest with DMV. NRS
482.36352(3)(b).
Automobile manufacturer's written notice to dealer of manufacturer's intent to terminate dealership franchise did not trigger the
30-day statutory period for appealing the purported termination to the Department of Motor Vehicles and Public Safety (DMV), as the
termination was conditional and the notice did not and could not provide exact date of termination, since dealer was required under
franchise agreement to seek relief through manufacturer's dealer policy board before seeking administrative relief through appeal to
DMV. NRS 482.36352(3)(b).
Automobile manufacturer's notice of intent to terminate dealership franchise, for purposes of triggering statutory 30-day period
for dealer to appeal termination decision to Department of Motor Vehicles and Public Safety (DMV), does not contemplate those
notices which are conditional notices, that is, those describing a mere potentiality. NRS 482.36352(3)(b).
OPINION
On July 11, 1995, respondent Jones-West Ford, Inc. (Jones-West) received notice that appellant Ford Motor Co. (Ford) planned to
terminate Jones-West's Ford franchise. Pursuant to its contract with Ford, Jones-West had fifteen days to appeal the notice of franchise
termination to the Ford Dealer Policy Board (policy board). Under Nevada law, NRS 482.36352, a franchisee has thirty days from receipt
of a notice of termination to file a protest with the Nevada Department of Motor Vehicles and Public Safety (DMV). Pursuant to this law,
Ford was required to send the DMV a copy of its notice of termination; the DMV received this copy dated July 3, 1995, from Ford.
On July 13, 1995, Jones-West filed a timely appeal with the policy board. On March 20, 1996, the policy board issued a decision
upholding Ford's decision to terminate Jones-West's franchise. On April 8, 1996, Jones-West filed a protest and request for hearing with
the DMV.
for hearing with the DMV. The DMV determined that it lacked subject matter jurisdiction to
consider the case on the merits because Jones-West had waited nine months to file a protest
from the time it had received notice of Ford's intent to terminate the franchise, in violation of
the time limits set forth in NRS 482.36352(3)(b). Jones-West petitioned the district court for
judicial review. The district court reversed the DMV's decision and remanded to the agency
for a hearing on the merits of Jones-West's protest. Ford and the DMV now appeal from the
district court's order.
FACTS
Jones-West entered into a Ford Sales and Service Agreement (FSSA) in 1977, at
which point it became an authorized Ford dealer in Reno. According to Ford, between 1992
and 1995 Jones-West's sales performance was below the regional average; additionally,
Jones-West had received consistently poor customer service and satisfaction ratings.
1
Citing
numerous attempts by Ford to help Jones-West cure vehicle sales deficiencies, and
warnings that continued failure to meet sales expectations could result in [franchise]
termination, Ford sent Jones-West a notice of termination on July 3, 1995.
This notice, received by Jones-West on July 11, 1995, began with the following
language:
Notice of termination, effective as hereinafter provided, is hereby given by [Ford] of its [FSSA] . . . with
Jones-West . . . (Dealer) . . . . This action is due to non-performance by the Dealer of its responsibilities
under the [FSSA] as detailed herein.
The notice is then partitioned into four sections: Vehicle Sales Responsibilities;
Termination Provisions; Dealer Policy Board Review; and Termination Effective Date.
Under the policy board review section, the notice provides:
In this connection, [Ford] has established a Dealer Policy Board. One of the functions of the Board is to
review any termination of a sales agreement if requested to do so by the dealer concerned. This is to
advise that a written request may be submitted to the Board within fifteen (15) days after receipt of this
notice.
__________

1
We are cognizant of the fact that the merits of this casethat is, the propriety of Ford's decision to
terminate Jones-West's franchisehave not been addressed by the DMV or the district court. We will avoid
referring to matters beyond the scope of the issue of subject matter jurisdiction except where necessary to
provide a context for the issue on appeal.
. . . .
If such a request is made, the Board will arrange for a conference at a suitable time.
Following this provision, the section labeled Termination Effective Date provides in
pertinent part:
This notice of termination shall become effective as follows:
. . . .
4) If the Dealer requests, within such fifteen (15) day period, a conference with the
Board and attends the conference scheduled; and if the Board shall confirm in
writing to the Dealer this notice of termination, termination shall become
effective thirty (30) days after receipt of such written confirmation, but not earlier
than (90) days after receipt of this notice.
If a conference with the Board is requested and the conference scheduled is attended by
the Dealer, and if the Board does not confirm this notice of termination, this notice will
be deemed withdrawn and will be of no effect.
2

(Footnote added.)
At this juncture, the language of the franchise agreement also becomes relevant. FSSA paragraph 18(b)
provides:
Any protest, controversy or claim by the Dealer (whether for damages, stay of action or otherwise)
with respect to any termination . . . of this agreement by [Ford] . . . shall be appealed by the Dealer to the
Policy Board within fifteen (15) days after the Dealer's receipt of notice of termination . . . . Appeal to the
Policy Board shall be a condition precedent to the Dealer's right to pursue any other remedy available
under this agreement or otherwise available under law. [Ford], but not the Dealer, shall be bound by
the decision of the Policy Board.
(Emphasis added.)
On July 13, 1995, Jones-West's counsel wrote to the policy board stating: Pursuant to the terms of Notice of
Termination mailed to Jones-West Ford and received July 11, 1995 please be on notice that Jones-West Ford
would request an appeal to the Dealer Policy Board regarding the Notice of Termination. . . . On October 31,
1995, Jones-West's counsel presented argument to the policy board against confirmation of the notice of
termination.
__________

2
Provisions 1 through 3 of this section set forth the calculation of the termination effective date where the
dealer has given notice to Ford that it will not appeal to the policy board, not given notice but failed to appeal to
the policy board, or has appealed to the policy board but failed to attend the scheduled conference.
tion. On March 20, 1996, the policy board issued its decision upholding and confirming the July 3, 1995
termination decision. Therefore, pursuant to the termination effective date provision quoted above, Jones-West's
franchise was to have terminated on approximately April 19, 1996.
However, on April 8, 1996 (nineteen days from receipt of the policy board's decision), Jones-West filed a
protest of its franchise termination with the DMV pursuant to NRS 482.36352(3)(b) (part of the Franchise
Act). The portions of this statute relevant on appeal provide:
1. Notwithstanding the terms of any franchise, a manufacturer or distributor shall
not terminate . . . any franchise unless it has received the written consent of the dealer
or:
(a) It has given written notice of its intention to the dealer and the director [of the
DMV]; and
(b) Either of the following conditions occurs:
(1) The dealer does not file a protest with the director within the time allowed
by this section; or
(2) After the dealer has filed a protest and the director has conducted a hearing
on the matter, the director issues an order authorizing the manufacturer or distributor to
terminate the franchise . . . .
2. The notice required by this section must be given to the dealer and the director:
. . . .
(b) At least 60 days before the effective date of the intended termination . . . . The
notice required by this section must include a statement of the particular grounds for the
intended termination . . . .
3. A dealer who has received a notice pursuant to this section may file a protest with
the director:
. . . .
(b) Within 30 days after receiving the notice . . . .
NRS 482.36352 (emphasis added).
On May 9, 1996, at a pre-hearing conference before the DMV, Ford filed a motion to dismiss Jones-West's
protest. Ford argued that the DMV lacked jurisdiction because Jones-West had waited nine months to file its
protest, in violation of the thirty day provision of the above statute, NRS 482.36352(3)(b). The DMV's assigned
administrative law judge granted Ford's motion and stated the following:
It is very clear that [Ford], on July 3, 1995, gave written notice of its intention to terminate the
[FSSA] that had been signed between [Jones-West] and [Ford]. That notice was very clear and gave
[Jones-West] four different options under which that termination was to occur.
which that termination was to occur. [Jones-West] made the decision to request a hearing before the Ford
Dealer Policy Board. That option clearly stated that 30 days following a decision adverse to
[Jones-West] the termination would occur.
(Emphasis added.) The judge then quoted NRS 482.36352(3)(b) and continued:
The statute is very clear that a hearing must be requested within 30 days of receipt of the notice of
Termination. [Jones-West] received the July 3, 1995 Notice of termination on July 11, 1995. They did
not request a hearing before the Director until April 8, 1996, well beyond the 30 day period set forth in
NRS 482.26252 [sic], therefore, the [DMV] lacks jurisdiction in this matter.
On June 7, 1996, Jones-West filed a petition for judicial review of the DMV's decision.
3
The district court
granted the petition
4
and on August 19, 1996, following briefing and oral argument, remanded the matter to the
DMV director for a determination of Jones-West's protest on the merits. In its Decision Order of Remand,
the district court first considered the proper standard of review of the DMV's order. Because the district court
concluded that the DMV's decision was based upon its interpretation of NRS 482.36352, it found that de novo
review was appropriate.
Citing Webster's dictionary, the court defined the word effective as actual; taking effect; valid; operative.
Applying this definition, the court reasoned that because the exact calendar date of termination could not be
known until the policy board upheld Ford's notice of termination, the July 3, 1995 letter did not provide clear
notice 60 days prior to the effective date of franchise termination as was required by NRS 482.36352(2). The
court also found that paragraph 18(b) of the FSSA (quoted supra) mandated that Jones-West exhaust Ford's
internal appeal process before seeking a remedy through the statute.
The district court concluded that Ford's July 3, 1995 letter was merely a conditional notice and lacked the
requisite clear effective date of termination necessary under NRS 482.36352 to trigger review/appeal
deadlines. The district court concluded that the DMV therefore erred in finding that Ford's letter
constituted sufficient notice.
__________

3
At this time, Jones-West also filed a request for injunctive relief to stay enforcement of the DMV's order
and any efforts by Ford to terminate the Jones-West franchise. Concluding that Jones-West had a reasonable
likelihood of success on the merits of its petition for judicial review, the district court issued an injunction.

4
On July 8, 1996, the DMV informed the district court that it intended to participate in the judicial review
process.
that the DMV therefore erred in finding that Ford's letter constituted sufficient notice. The order further
stated:
Even if the statute did not have a clear meaning on its face, it would be at best ambiguous as to the
required content of notice's [sic] utilized to trigger time of filing deadlines. A review of the legislative
history supports the conclusion that the legislature intended to allow for appeal of the termination of a
franchise; and that notice must be given in such a manner so that the appeal process may be instituted
prior to the effective termination date. The statute requiring procedural deadlines to be conformed with
must be construed in favor of allowing the appeal to be decided on the merits if there is any ambiguity
The district court concluded that the DMV had subject matter jurisdiction and remanded to
the agency for a hearing on the merits. Ford and the DMV now appeal from the district court's
order of remand.
DISCUSSION
Standard of review
[Headnote 1]
Our role in reviewing an administrative decision is identical to that of the district courtto review the
evidence before the agency so that a determination can be made as to whether the agency decision was arbitrary,
capricious, or an abuse of discretion. Ruggles v. Public Service Comm'n, 109 Nev. 36, 40, 846 P.2d 299, 301
(1993). Furthermore, the final decision of an agency may be reversed by a reviewing court where the agency
decision was based upon an error of law. NRS 233B.135(3)(d).
[Headnote 2]
As an initial matter, the parties
5
argue as to whether the district court erred by reviewing the DMV's
decision de novo. We have held that, while a reviewing court may decide pure questions of law without
affording the agency any deference, the agency's conclusions of law, which will necessarily be closely related to
the agency's view of the facts, are entitled to deference, and will not be disturbed if they are supported by
substantial evidence. Beavers v. State Dep't of Mtr. Vehicles, 109 Nev. 435, 438, 851 P.2d 432, 434 (1993). A
pure legal question is one that is not dependent upon, and must necessarily be resolved without reference to
any fact in the case before the court. An example . . . might be a challenge to the facial validity of a
statute."
__________

5
Ford and the DMV raise similar arguments; generally, we will refer to Ford's arguments as encompassing
the DMV's assertions.
. . . might be a challenge to the facial validity of a statute. Id. at 438 n.1, 851 P.2d at 434 n.1.
Ford asserts that the DMV's resolution of the jurisdictional issue was inextricably linked to the factual
determination that Jones-West failed to file a timely protest. Thus, Ford argues that the agency decision was
entitled to deference, and that the district court erred by invoking a de novo standard of review. In support of its
petition, Ford cites the following language from Clark County School District v. Local Government, 90 Nev.
442, 446, 530 P.2d 114, 117 (1974):
An agency charged with the duty of administering an act is impliedly clothed with power to construe it as
a necessary precedent to administrative action. . . . Indeed, [the statute at issue] charges the board with
that responsibility and great deference should be given to the agency's interpretation when it is within the
language of the statute.
(Citations omitted.)
However, in Clark County School District the statute at issue in that case provided that the agency was to
hear and determine any complaint arising out of the interpretation of the statute. Id. at 444, 530 P.2d at 116.
The instant case raises a straightforward question of statutory interpretationa purely legal question. See Manke
Truck Lines v. Public Service Comm'n, 109 Nev. 1034, 1036-37, 862 P.2d 1201, 1203 (1993) (holding that
questions of statutory construction are purely legal issues to be reviewed without any deference whatsoever to
the conclusions of the agency).
None of the parties disputed the operative dates that various documents were received and upon which filings
and appeals were made. The only issue before the DMV was whether the statute should have been interpreted so
as to bar Jones-West's protest as untimely (that is, what event triggered the running of the thirty day limit of NRS
484.36352(3)(b)). We conclude that, in this case, the district court properly invoked the de novo standard of
review, and we shall do the same.
Statutory construction of NRS 482.36352
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. Board of Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 441 (1986). However,
where a statute is capable of being understood in two or more senses by reasonably well-informed persons,
then the statute is ambiguous and legislative intent is the factor which controls its interpretation. Thompson
v. District Court, 100 Nev. 352, 354, 683 P.2d 17, 19 (1984).
Both the DMV and the district court concluded that NRS 482.36352 was clear on its face; nonetheless, each
arrived at an interpretation contrary to the other's. As quoted in the factual statement, NRS 482.36352(1)
provides that a manufacturer/distributor cannot terminate a franchise without first giving written notice of its
intention [to terminate] to the dealer and the director. The statute further provides:
2. The notice required by this section must be given to the dealer and the director:
. . . .
(b) At least 60 days before the effective date of the intended termination . . . .
[And] must include a statement of the particular grounds for the intended termination . .
. .
NRS 482.36352(2)(b). The statute concludes that [a] dealer who has received a notice
pursuant to this section has thirty days from receipt of this notice to file a protest with the
DMV. NRS 482.36352(3)(b).
Ford argues that its July 3, 1995 notice of termination satisfied the clear requirements of the statute in that:
(1) it stated Ford's intention to terminate Jones-West's franchise pursuant to NRS 482.36352(1); (2) it was sent
to both the dealer and the director pursuant to the same section; (3) it stated grounds for terminating the
franchise (i.e., deficient sales and poor customer service) pursuant to NRS 482.36352(2)(b); and (4) the notice
was given to Jones-West at least sixty days prior to the effective date of the intended termination pursuant to
NRS 482.36352(2)(b).
The administrative law judge agreed, concluding that the July 3, 1995 letter constituted a very clear notice
of intent to terminate and, thus, was the type of notice contemplated by the statute that would commence the
running of the thirty day protest filing period upon receipt by Jones-West. In contrast, the district court
interpreted section (2)(b) of the statute as mandating that a dealer receive notice of an actual or operative
termination date before the notice will be deemed sufficient under the statute to start the running of the thirty
day protest period of section (3)(b). Thus, the precise interpretive issue is whether the statute contemplates a
notice of intent to terminate which provides that the termination effective date hinges upon: (1) a dealer's
decision to elect an internal appeal; and (2) the outcome (Ford's notice of termination provided that if the policy
board did not confirm the termination, it would be withdrawn and of no effect) and timing (termination was
to become effective thirty days from confirmation) of that internal appeal.
[Headnote 3]
Both sides present reasonable interpretations of the statute at issue; accordingly, we must adopt that
construction which best effects the underlying purpose of the statute in resolving the issue at hand. The
Franchise Act was enacted to address problems in franchise terminations. See Hearing on S.B. 543 Before the
Senate Commerce & Labor Comm., 61st Leg. (Nev., April 27, 1981). The statute requires a written notice of
intention to terminate at least sixty days before the effective date, and it is receipt of this type of notice that
commences the running of the thirty day protest period. We conclude that because the July 3, 1995 notice of
termination did not, and could not (based upon internal appeal options), provide an exact date of termination, it
was not the type of notice contemplated by NRS 482.36352.
[Headnote 4]
The July 3, 1995 notice was conditional upon dealer choice and subsequent outcomes (i.e., the policy board
review) and, therefore, was not definite enough to put Jones-West on notice of the beginning of the thirty day
period. Although the statute refers to a notice of intent to terminate, we conclude that it does not contemplate
those notices which are conditional notices, that is, those describing a mere potentiality. The district court
addressed the legislative intent, reasoning:
The part of NRS 482.36352 before the Court at this time is clearly intended to provide an
administrative procedure whereby a motor vehicle dealer may seek [DMV] review of a franchisor's
decision to terminate the dealer's franchise. That legislative intent would be frustrated if a dealer was
required to defend the franchise in two venues at the same time. To require dealers to immediately protest
to the [DMV] upon receipt of any letter from a franchisor titled notice of intent to terminate whether or
not the dealer could remedy the problem would create unnecessary and costly work for the [DMV] and
the courts. This is analogous to a ripeness issue in constitutional law. The Nevada Legislature would not
have intended that a dealer, who was in no immediate harm of franchise termination until all intra
franchisor appeals were exhausted, be required to file a protest with the Director prior to the
determination of the intra franchisor appeal and an actual effective date set for termination. The
Legislature intended to provide an administrative remedy prior to the actual or operative date of franchise
termination. By exclusion, the Legislature did not intend to provide an administrative remedy prior to a
threatened or conditional notice of termination. To find the latter would require the dealer to defend
the franchise through contractually mandated intra franchisor appeal processes,
and through a protest to the Director of the [DMV].
dealer to defend the franchise through contractually mandated intra franchisor appeal processes, and
through a protest to the Director of the [DMV].
We agree with the district court's analysis.
6

Furthermore, because termination may not even become effective pursuant to the franchisor's own internal
decision-making process, we conclude it would defeat judicial economy to require the filing of an appeal which
would have to be stayed and then, ultimately, withdrawn.
7
Cf. Ford Motor Company v. West Seneca Ford, Inc.,
No. 91-CV-0784E(F), 1995 WL 529613, at *2 (D. N.Y. Aug. 29, 1995) (concluding that requiring a franchisee
to file a civil action in a court which would have to hold the suit in abeyance until the franchisee received an
unfavorable policy board decision would have resulted in a needless waste of the court's and the parties' time).
Based on the foregoing analysis, we conclude that pursuant to NRS 482.36352, notice of the actual effective
date, that is, thirty days from receipt of the March 20, 1996 policy board decision confirming termination,
triggered the running of the protest filing period.
__________

6
The language of NRS 482.36361 supports our conclusion; it provides in part:
1. If the director receives a written protest from a franchise dealer pursuant to NRS 482.36352, . . .
the director shall schedule a hearing on the protest within 60 days after the director receives it. The
director shall give notice as follows:
(a) To the manufacturer or distributor, that the protest has been filed, the date, time, and place of the
hearing on the protest, and that he may not take the intended action which has given rise to the protest
until the director has made his findings and issued an order permitting him to do so;
. . . .
2. A manufacturer or distributor who receives a notice pursuant to this section shall not proceed with
the action which has given rise to the protest until the director notifies him that he has made a decision
authorizing him to proceed with that action.
Although NRS 482.36361 only requires the director to schedule a hearing within sixty days, we conclude that
this provision is at least some evidence of the legislature's intent to require protests only from final termination
decisions. Otherwise, had Jones-West filed a protest within thirty days of receiving Ford's July 3, 1995 notice,
the DMV would have been forced to grant a stay if Ford was to be allowed to conduct its contractually mandated
intracompany termination review process. Thus, even if the FSSA allowed Jones-West to file a protest with the
DMV, the contractual provision contemplates that the agency will hold its proceedings in abeyance until the
policy board confirms terminationa period spanning over eight months in the instant case.

7
Ford's reliance on Reno Sparks Visitors Auth. v. Jackson, 112 Nev. 62, 910 P.2d 267 (1996) (hereinafter
RSVA), is misplaced. RSVA arose in the context of the workers' compensation statutory scheme and, unlike
Ford's notice, the denial of an insurance claim is an unequivocal reflection of an insurer's final decision.
the running of the protest filing period. Accordingly, Jones-West timely filed its April 8, 1996 protest with the
DMV. We, therefore, affirm the decision of the district court remanding the matter to the DMV for a hearing on
the merits.
CONCLUSION
We conclude that the statutory protest filing period began to run upon Jones-West's receipt of a final
termination decision by Ford's policy board. Because Jones-West subsequently filed a protest within thirty days,
the district court did not err in reversing the DMV's determination that it lacked subject matter jurisdiction
because Jones-West's protest was untimely pursuant to NRS 482.36352(3)(b).
Springer, C. J., and Maupin, J., concur.
Young, J., with whom Shearing, J., joins, dissenting:
I respectfully disagree with the majority's interpretation of the statutory limits on an automobile franchisor's
ability to terminate a franchise. In my view, the notice of intended termination of franchise which Ford provided
Jones-West was exactly the sort of notice contemplated by NRS 482.36352. Therefore, the receipt of this notice
by Jones-West triggered the thirty-day period during which Jones-West had an opportunity to file a protest of the
termination with the DMV. By failing to file a protest within this time period, I believe that Jones-West waived
their right to do so.
NRS 482.36352(1)(a) provides that an automobile manufacturer or distributor cannot terminate a franchise
without first giving written notice of its intention [to terminate] to the dealer and the director. NRS
482.36352(2) further provides:
The notice required by this section must be given to the dealer and the director:
. . . .
(b) At least 60 days before the effective date of the intended termination . . . . [And] must include a
statement of the particular grounds for the intended termination . . . .
The statute concludes that [a] dealer who has received a notice pursuant to this section has
thirty days from receipt of this notice to file a protest with the DMV. NRS 482.36352(3)(b).
It is well settled that where the language of a statute is plain and unambiguous, a court should give that
language its ordinary meaning and not go beyond it. City Council of Reno v. Reno Newspapers, 105 Nev. 886,
891, 784 P.2d 974, 977 (1989).
The majority here concludes that NRS 482.36352 contemplates a notice which provides an exact date upon
which the termination will be effective.
will be effective. Therefore, the majority reasons that notice which is subject to a franchisor's internal appeals
process does not trigger the thirty-day time limit for filing a protest with the DMV. In my view, this
interpretation belies the plain and unambiguous language of NRS 482.36352.
First, there is nothing in the text of the statute which requires the franchisor to provide an exact date of
intended termination; the statute merely requires that the notice be given, depending upon the circumstances,
either fifteen or sixty days prior to termination. Moreover, the statute at issue provides that the franchisor must
give notice of its intention to terminate a franchise. The use of the word intention implies that the legislature
wished to require that notice be given to the franchisee before the termination was a fait accompli. Thus, the
legislature clearly understood that at the time a franchisor gives notice, the termination will be, to some extent,
conditional upon future events such as an administrative appeal to the DMV or negotiations between the
franchisor and the franchisee. Therefore, I believe that a notice of termination of a franchise pursuant to NRS
482.36352 need not provide an exact date of termination.
In my view, Ford's July 3, 1995 notice of termination satisfied the clear requirements of the statute in that:
(1) it stated Ford's intention to terminate Jones-West's franchise pursuant to NRS 482.36352(1); (2) it was sent
to both the dealer and the director pursuant to the same section; (3) it stated grounds for terminating the
franchise (i.e., deficient sales and poor customer service) pursuant to NRS 482.36352(2)(b); and (4) the notice
was given to Jones-West at least sixty days prior to the effective date of the intended termination pursuant to
NRS 482.36352(2)(b). Accordingly, pursuant to NRS 482.36352(3)(b), Jones-West had thirty days from receipt
of this notice in which to file a protest of the termination with the DMV. By failing to timely file such a protest,
Jones-West waived this right.
For these reasons, I would reverse the judgment of the district court and reinstate the order of the DMV
dismissing Jones-West's complaint for lack of jurisdiction. Therefore, I respectfully dissent.
____________
114 Nev. 779, 779 (1998) Barrios-Lomeli v. State
RUBEN BARRIOS-LOMELI, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 27484
July 28, 1998 961 P.2d 750
Petition for rehearing. First Judicial District Court, Carson City; Michael E. Fondi,
Judge.
Defendant was convicted in the district court of trafficking in controlled substance.
Defendant appealed. The supreme court reversed and remanded. 113 Nev. 952, 944 P.2d 791
(1997). State filed petition for rehearing. The supreme court, Young, J., held that state could
not obtain relief from 60-minute statutory time limit for law enforcement officer's temporary
detention of person suspected of criminal behavior.
Petition denied.
Maupin, J., dissented.
Steven G. McGuire, State Public Defender, James P. Logan, Chief Appellate Deputy
Public Defender, and Timothy P. O'Toole, Appellate Deputy Public Defender, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Noel S. Waters, District
Attorney, and John C. Eck, Deputy District Attorney, Carson City, for Respondent.
1. Arrest.
State could not obtain relief from 60-minute time limit set forth by statute for law enforcement officer's temporary detention of
person suspected of criminal behavior. Rigid adhearence to the one-hour limit was legislature's clear intent, and technological
advancements significantly reduced state's procedural burden in procuring search warrant. NRS 171.123(4).
Supreme court is not empowered to go beyond the face of a statute to lend it a construction contrary to its clear meaning.
3. Statutes.
If a statute clearly and unambiguously specifies the legislature's intended result, such result will prevail even if the statute is
impractical or inequitable.
OPINION
In Barrios-Lomeli v. State, 113 Nev. 952, 944 P.2d 791 (1997), this court reversed a conviction because the police violated
appellant Ruben Barrios-Lomeli's rights by searching his parked, unoccupied vehicle without a warrant.
cupied vehicle without a warrant. The state filed a petition for rehearing. NRAP 40(c). We
deny rehearing. See State v. Harnisch, 114 Nev. 225, 954 P.2d 1180 (1998).
[Headnote 1]
However, we take this opportunity to address the state's contention that the one-hour limit in NRS
171.123(4)
1
is an inadequate amount of time to obtain a search warrant. After careful
consideration, we reject the state's contention and refuse to extend the time limit prescribed in
the statute.
NRS 171.123(4) allows an officer to detain an individual for a reasonable time, but
expressly states that in no event shall the law enforcement officer's detention be longer than
sixty minutes. This is a clear expression of the legislature's intent to keep the definition of a
reasonable detention within a sixty-minute time frame. According to NRS 171.123(4), a
detention longer than sixty minutes is unreasonable per se. Thus, rigid adherence to the
one-hour limit was the clear intent of the legislature.
[Headnotes 2, 3]
We are 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). Moreover, if a
statute clearly and unambiguously specifies the legislature's intended result, such result will prevail even if the
statute is impractical or inequitable. Randono v. CUNA Mutual Ins. Group, 106 Nev. 371, 374, 793 P.2d 1324,
1326 (1990). Therefore, if the sixty-minute time frame is inadequate, that question should be brought before the
legislature, not this court.
Further, the state appears to misapprehend NRS 179.045, the provision allowing telephonic search warrants,
and exaggerate the logistics of complying with its requirements. In 1995, the relevant time period, NRS 179.045
provided in material part:
2. In lieu of the affidavit required by subsection 1, the magistrate may take an oral statement given
under oath, which must be recorded in the presence of the magistrate or in his immediate vicinity by a
certified court reporter or by electronic means, transcribed, certified by the reporter if he recorded it, and
certified by the magistrate. The statement must be filed with the clerk of the court.
3. After a magistrate has issued a search warrant, whether it is based on an affidavit or an oral
statement given under oath, he may orally authorize a peace officer to sign the magistrate's name on a
duplicate original warrant.
__________

1
NRS 171.123(4) provides: 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.
(Emphasis added.)
whether it is based on an affidavit or an oral statement given under oath, he may orally
authorize a peace officer to sign the magistrate's name on a duplicate original warrant.
A duplicate original search warrant shall be deemed to be a search warrant. It must be
returned to the magistrate who authorized the signing of his name on it. The magistrate
shall endorse his name and enter the date on the warrant when it is returned to him. Any
failure of the magistrate to make such an endorsement and entry does not in itself
invalidate the warrant.
(Emphasis added.) In light of today's technological advancements, there is absolutely no
reason to move backward so as to effectively ignore the efficiency with which these warrants
may be procured.
Obtaining a search warrant outside the physical presence of the magistrate has long been permitted. In 1987,
we considered the validity of a telephonically obtained search warrant. Sanchez v. State, 103 Nev. 166, 734 P.2d
726 (1987). In Sanchez, the defendant argued that the warrant was invalid because the affidavit was not taken in
the presence of the magistrate as required under NRS 179.045. Id. at 168, 734 P.2d at 727. We held:
The specific requirement that the oral statement be recorded in the presence of the magistrate is read
broadly by this court. The telephone and the ability to arrange conference calls greatly expands the
presence of a magistrate. When . . . the magistrate is convinced that the requesting authority is a police
officer and knows that the deputy district attorney is recording the statement, the magistrate's presence is
extended electronically by telephone. Such a recording, albeit outside the physical presence of the
magistrate, is nevertheless in the presence of the magistrate for purposes of NRS 179.045(2).
Id. at 168-69, 734 P.2d at 728 (footnote omitted). Nevada statutes have authorized such
telephonic search warrants since 1981.
2
1981 Nev. Stat., ch. 685, 1, at 1652.
Since Sanchez, telecommunication devices have continued to become more advanced and portable. Facsimile
machines, cellular phones, and portable computers have become commonplace. These technological
advancements have significantly reduced the state's procedural burden to expeditiously procure a search warrant.
With this burden reduced, the protection afforded to personal liberties should be increased
accordingly.
__________

2
Nevada is not alone in this respect. California has allowed for telephonic search warrants to be issued since
1973. Cal. Penal Code 1526(b)(2); People v. Aguire, 103 Cal. Rptr. 153, 155 (Ct. App. 1973).
liberties should be increased accordingly. Now is not the time to dilute the protection
provided by the state and federal constitutions. This is particularly true when a well-known
prosecutor in northern Nevada can be quoted as saying that courts have transformed the
Constitution into a meaningless . . . old rag, and if you want to get around the Fourth
Amendment search and seizure clause, a good prosecutor and good police can do it and they
know it. Mike Henderson, Criticism of Constitution Draws Fire, Reno Gazette-Journal, Sep.
22, 1997, at 1B.
Indeed, when speaking of intrusion into the life of our citizens by recognizing more power in the State with
respect to search and seizure, we are reminded of the eloquent statement of William Pitt, Earl of Chatham,
spoken several years before the founding of our nation:
The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof
may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of
England cannot enterall his force dares not cross the threshold of the ruined tenement!
(quoted in Miller v. United States, 357 U.S. 301, 307 (1958)).
Further, we commend to those who may be tempted to criticize judicial vigilance over constitutional
protections against unreasonable searches and seizures
that we are in danger of forgetting that the Bill of Rights reflects experience with police excesses. It is not
only under Nazi rule that police excesses are inimical to freedom. It is easy to make light of insistence on
scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy. It is too
easy. History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at
first, then stealthily, and brazenly in the end.
Davis v. United States, 328 U.S. 582, 597 (1946) (Frankfurter, J., dissenting).
In conclusion, we deny rehearing and decline the state's invitation to extend the sixty-minute time limit in
NRS 171.123(4).
On rehearing, the State asks us to reconsider our decision and inter alia, to provide flexibility to the one hour
time limit set forth in NRS 171.123(4). If law enforcement showed that a search warrant could not be obtained in
one hour with a good faith effort, I would be inclined to give some relief from the rather stringent one hour
requirement.
hour requirement. However, that is not the case presented, and therefore, I join in denying the petition for
rehearing.
Despite the elegance with which the majority expresses its point, I believe the potential for logistical
difficulties in obtaining search warrants, even in this electronic age, merits nonrigidity in the application of the
one hour time limit. For example, whether in a remote area of our state, or within the congested confines of the
Las Vegas valley, a police officer in a squad car will inevitably be at a loss to comply with the rule in some
instances, with or without a mobile or land-based telephone. Also, I still believe that the court wrongfully
decided the underlying issue, to wit: whether the contraband seized from appellant's car should have been
suppressed on Fourth Amendment grounds. See California v. Carney, 471 U.S. 386 (1985). Thus, I would fully
rehear the matter.
____________
114 Nev. 783, 783 (1998) Domingues v. State
MICHAEL DOMINGUES, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 29896
July 31, 1998 961 P.2d 1279
Appeal from an order denying a motion to correct an illegal sentence. Eighth Judicial District Court, Clark
County; A. William Maupin, Judge.
Following affirmance of his convictions and death sentence, 112 Nev. 683, 917 P.2d 1364
(1996), defendant who was 16 years old at time of his capital offense filed motion for
correction of illegal sentence, contending that his sentence violated international treaty signed
by United States which prohibited execution of individuals who commiteed capital offenses
while under age of 18. The district court denied motion. Defendant appealed. The supreme
court, Young, J., held that treaty did not supersede statute which authorized defendant's death
sentence.
Affirmed.
[Rehearing denied December 1, 1998]
Morgan D. Harris, Public Defender, and Robert L. Miller and Phillip J. Kohn, Deputy
Public Defenders, Clark County, for Appellant.
Attorney and James Tufteland, Chief Deputy District Attorney and Christopher J. Laurent,
Deputy District Attorney, Clark County, for Respondent.
Criminal Law; Treaties.
International treaty ratified by United States which prohibited execution of individuals who committed capital offenses while
under age 18 did not supersede state statute allowing imposition of death penalty on defendant who was 16 years or older at time that
capital offense was committed, and therefore death sentence imposed on defendant who was 16 at time of his offense was not illegal,
where Senate ratified treaty with express reservation of United States' right to impose death penalty on juvenile offenders. NRS
176.025.
OPINION
This case raises the single issue of whether NRS 176.025 is superseded by an international treaty ratified by the United States, which
prohibits the execution of individuals who committed capital offenses while under the age of eighteen. NRS 176.025 allows imposition of
the death penalty on a defendant who was sixteen years old or older at the time that the capital offense was committed.
FACTS
On October 22, 1993, sixteen-year-old Michael Domingues murdered a woman and her four-year-old son in the victims' home. In
August 1994, a jury found Domingues guilty of one count of burglary, one count of robbery with the use of a deadly weapon, one count of
first degree murder, and one count of first degree murder with the use of a deadly weapon. At seventeen years of age, Domingues was
sentenced to death for each of the two murder convictions. On May 30, 1996, this court upheld Domingues' convictions and sentence.
Domingues v. State, 112 Nev. 683, 917 P.2d 1364 (1996), cert. denied, 519 U.S. 968, 117 S. Ct. 396 (1996).
1

On November 7, 1996, Domingues filed a motion for correction of illegal sentence, arguing that execution
of a juvenile offender violates an international treaty ratified by the United States and violates customary
international law. Article 6, paragraph 5 of the International Covenant on Civil and Political Rights (ICCPR)
provides that:
__________

1
According to the State, Domingues' petition for writ of certiorari to the United States Supreme Court raised
the issues of whether this court's statutory review of his sentence violated due process and whether this court's
review of his sentence violated the Eighth Amendment.
graph 5 of the International Covenant on Civil and Political Rights (ICCPR) provides that: Sentence of death
shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out
on pregnant women. ICCPR, Dec. 19, 1966, art. 6, S. Treaty Doc. No. 95-2, 999 U.N.T.S. 171, 175.
In 1992, the United States Senate ratified the ICCPR, with the following pertinent reservation and
declaration:
That the United States reserves the right, subject to its Constitutional constraints, to
impose capital punishment on any person (other than a pregnant woman) duly
convicted under existing or future laws permitting the imposition of capital
punishment, including such punishment for crimes committed by persons below
eighteen years of age.
. . . .
That the United States declares that the provisions of Articles 1 through 27 of the
[ICCPR] are not self-executing.
138 Cong. Rec. S4781-01, S4783-84 (daily ed. April 2, 1992) (emphasis added).
At a hearing on Domingues' motion to correct the illegal sentence, the district court concluded that the
sentence was not facially illegal and, thus, it lacked jurisdiction to correct the sentence; on March 7, 1997, the
district court issued an order denying Domingues' motion. Domingues appeals from this order.
DISCUSSION
Domingues contends that pursuant to the ICCPR, imposition of the death sentence on one who committed a
capital offense while under the age of eighteen is illegal. ICCPR, 999 U.N.T.S. at 175. Although the United
States Senate ratified the ICCPR with a reservation allowing juvenile offenders to be sentenced to death,
Domingues asserts that this reservation was invalid and thus this capital sentencing prohibition set forth in the
treaty is the supreme law of the land. See 138 Cong. Rec. S4781-01, S4783-84 (daily ed. April 2, 1992).
Domingues contends that his death sentence, imposed for crimes he committed when he was sixteen years old, is
thereby facially illegal. See Edwards v. State, 112 Nev. 704, 708, 918 P.2d 321, 324 (1996) (recognizing the
inherent power of the district court to correct a facially illegal sentence); Anderson v. State, 90 Nev. 385, 528
P.2d 1023 (1974). We disagree.
We conclude that the Senate's express reservation of the United States' right to impose a penalty of death on
juvenile offenders negates Domingues' claim that he was illegally sentenced. Many of our sister jurisdictions
have laws authorizing the death penalty for criminal offenders under the age of eighteen, and such laws have
withstood Constitutional scrutiny. See Stanford v. Kentucky, 492 U.S. 361 {19S9); Ved P. Nanda, The
United States Reservation to the Ban on the Death Penalty for Juvenile Offenders: An
Appraisal Under the International Covenant on Civil and Political Rights, 42 DePaul L. Rev.
1311, 1312-13 {1995).
492 U.S. 361 (1989); Ved P. Nanda, The United States Reservation to the Ban on the Death Penalty for
Juvenile Offenders: An Appraisal Under the International Covenant on Civil and Political Rights, 42 DePaul L.
Rev. 1311, 1312-13 (1995).
NRS 176.025 provides that the death penalty shall not be imposed upon individuals who were under sixteen
years of age at the time that the offense was committed. Because Domingues was sixteen at the time he
committed a capital offense, we conclude that the death penalty was legally imposed upon him. Accordingly, we
affirm the decision of the district court denying Domingues' motion to correct the sentence.
Shearing, J., and Blake, D. J., concur.
2

The International Covenant on Civil and Political Rights, to which the United States is a party, forbids
imposing the death penalty on children under the age of eighteen. International treaties of this kind ordinarily
become the supreme law of the land. Under the majority's interpretation of the treaty, the United States, at
least with regard to executing children, is a party to the treaty, while at the same time rejecting one of its most
vital terms. Under Nevada's interpretation of the treaty, the United States will be joining hands with such
countries as Iran, Iraq, Bangladesh, Nigeria and Pakistan in approving death sentences for children. I withhold
my approval of the court's judgment in this regard.
Rose, J., dissenting:
Following a brief hearing, the district court summarily concluded that the death sentence was facially valid in
spite of an international treaty signed by the United States which prohibits the execution of individuals who were
under eighteen years of age when the crime was committed. I believe this complicated issue deserved a full
hearing, evidentiary if necessary, on the effect of our nation's ratification of the ICCPR and the reservation by
the United States Senate to that treaty's provision prohibiting the execution of anyone who committed a capital
crime while under eighteen years of age.
The penultimate issue that the district court should have considered is whether the Senate's reservation was
valid. Article 4(2) of the treaty states that there shall be no derogation from Article 6 which includes the
prohibition on the execution of juvenile offenders.
__________

2
The Governor appointed the Honorable Archie E. Blake, Judge of the Third Judicial District Court, to sit in
place of The Honorable A. William Maupin, Justice, who recused himself. Nev. Const. art. 6, 4.
offenders. ICCPR, 999 U.N.T.S. at 174. Furthermore, there is authority to support the proposition that the
Senate's reservation was invalid. See, e.g., Restatement (Third) of the Foreign Relations Law of the United
States 313 (1987); Ved P. Nanda, The United States Reservation to the Ban on the Death Penalty for Juvenile
Offenders: An Appraisal Under the International Covenant on Civil and Political Rights, 42 DePaul L. Rev.
1311, 1331-32 (1993).
If the reservation was not valid, then the district court should determine whether the United States is still a
party to the treaty. If the reservation was a sine qua non of the acceptance of the whole treaty by the United
States, then the United State's ratification of the treaty could be considered a nullity. See William A. Schabas,
Invalid Reservations to the International Covenant on Civil and Political Rights: Is the United States Still a
Party?, 21 Brook. J. Int'l L. 277, 318-19 (1995). But, if the United States has shown an intent to accept the
treaty as a whole, the result could be that the United States is bound by all of the provisions of the treaty,
notwithstanding the reservation. Id.
These are not easy questions and testimony about the international conduct of the United States concerning
the subjects contained in the treaty, in addition to expert testimony on the effect of the Senate's reservation may
be necessary. A federal court that deals with federal law on a daily basis might be better equipped to address
these issues; however, the motion is before the state court and it should do its best to resolve the matter.
Accordingly, I would reverse the district court's denial of Domingues' motion and remand the case for a full
hearing on the effect of the ICCPR on Domingues' sentence.
____________
114 Nev. 788, 788 (1998) State of Washington v. Bagley
THE STATE OF WASHINGTON, LOIS J. ANGLIN, Appellants, v. PETER J. BAGLEY,
Respondent.
No. 28225
COUNTY OF PLACER, Appellant, v. HARRY W. PERRINE, Respondent.
No. 28237
LUCINDA K. BRUCE, Appellant, v. GEORGE E. OSBORNE, Respondent.
No. 28263
THE COUNTY FRESNO o/b/o MARC JOSEPH MULOCK, Appellant, v. GARRY LEE
MULOCK, Respondent.
No. 28310
JANET PECORE, Appellant, v. RONALD JAY PECORE, Respondent.
No. 28316
NILIDAN L. MEDEIROS, Appellant, v. VIRGINIO ANTHONY MEDEIROS, JR.,
Respondent.
No. 28328
COUNTY OF SACRAMENTO, STATE OF CALIFORNIA, and VALINDA WALSH,
Appellant, v. ROBERT MORAN WALSH, Respondent.
No. 28329
THE STATE OF CALIFORNIA, ex rel ROBYN BROOKE GOFORTH, Appellant, v.
MONTE EUGENE GOFORTH, Respondent.
No. 28330
TRANELL A. HERHOLDT, Appellant, v. RONALD CARTER, Respondent.
No. 28500
September 1, 1998 963 P.2d 498
Appeals from orders of the district court affirming recommendations by URESA
(Uniform Reciprocal Enforcement of Support Act) masters. Second Judicial District Court,
Washoe County; James A. Stone and Scott Jordan, Judges.
In actions to collect child support arrearages, district court affirmed recommendations
of URESA (Uniform Reciprocal Enforcement of Support Act) masters that obliges were
barred from recovering child support payments that had accrued more than six years prior to
initiation of actions. Obligees appealed. The supreme court, Young, J., held that: (1) obligees
were not barred from recovering support payments that accrued more than six years prior to
commencement of their actions, and (2) failure of obligees with foreign child support orders
to raise below claim that trial court was obliged to apply statute of limitations of state or
foreign state, whichever statute provided longer period of limitation, pursuant to Full Faith
Credit for Child Support Orders Act, barred its review on appeal.
Shearing, Maupin, and Rose, JJ., and Springer, C. J., dissented in part.
Attorney, and Kari Lepori Cordisco, Deputy District Attorney, and Susan Hallahan, Deputy
District Attorney, Family Support Division, Washoe County, for Appellants.
Peter J. Bagley, Reno, in Proper Person.
Harry W. Perrine, Reno, in Proper Person.
George E. Osborne, Reno, in Proper Person.
Garry Lee Mulock, Sparks, in Proper Person.
Jeffrey Friedman, Reno, for Respondent Pecore.
Virginio Anthony Medeiros, Jr., Reno, in Proper Person.
Robert Moran Walsh, Carson City, in Proper Person.
Monte Eugene Goforth, Reno, in Proper Person.
Ronald Carter, Reno, in Proper Person.
Child support obligees, seeking enforcement of child support orders under Uniform Interstate Family Support Act (UIFSA),
were not barred from recovering child support obligation payments that accrued more than six years prior to the commencement of
their actions. NRS 125B.050(3), 130.0902 et seq.
Statue repealing six-year limitations period on child support collection actions permits the recovery of child support payments,
under Uniform Interstate Family Support Act {UIFSA), that accrued no more than six years prior to effective
date of repealer.
Uniform Interstate Family Support Act (UIFSA), that accrued no more than six years prior to effective date of repealer. NRS
125B.050(3), 130.0902 et seq.
Failure of obligees with foreign child support orders, seeking to enforce orders under Uniform Interstate Family Support Act
(UIFSA), to raise below claim that trial courts were obligated to apply the statute of limitations of state or foreign state, whichever
statute provided the longer period of limitation, pursuant to Full Faith and Credit for Child Support Orders Act, barred its review on
appeal. 28 U.S.C. 1738B(h)(3); NRS 130.0902 et seq.
OPINION
By the Court, Young J.:
Appellants filed actions in the district court to enforce child support orders entered prior to July 1, 1987. URESA masters
determined that pursuant to McKellar v. McKellar, 110 Nev. 200, 871 P.2d 296 (1994), appellants were barred from recovering child
support payments that had accrued more than six years prior to the initiation of their actions. The district court held that the masters
correctly interpreted McKellar and affirmed their recommendations. In light of our clarification of McKellar, we conclude that the district
court erred and accordingly, we reversed the district court's orders and remand for further proceedings.
FACTS
Respondents are subject to child support obligations pursuant to orders entered prior to July 1, 1987, in Nevada, California,
North Dakota, and Washington. In late 1994, the Washoe County District Attorney's Office began notifying respondents of its intent to
enforce their support obligations on behalf of appellants. Appellants were seeking to recover child support payments that had accrued over
different periods since the entry of their respective child support orders.
1

In each case, URESA master determined that pursuant to McKellar, each appellant was
barred from recovering child support payments that had accrued more than six years prior to
the commencement of each appellant's action. The district court determined that the masters
correctly interpreted McKellar, and affirmed their recommendations. These appeals followed.
Appellants contended that the district court erred and that NRS 125B.050(3) permits them to
recover payments that accrued from July 1, 1981, to the commencement of their action. We
agree.
__________

1
Several of the appellants are state agencies seeking to recover arrears as reimbursement for public assistance
granted to the respondents' children.
DISCUSSION
[Headnote 1]
Prior to July 1, 1987, actions to recover child support arrears were subject to a
six-year period of limitations pursuant to NRS 11.190(1)(a). Where child support was payable
in installments, the six-year period of limitation began to run against each installment as it
became due. See, e.g., Gibbs v. Giles, 96 Nev. 243, 607 P.2d 118 (1980); Bongiovi v.
Bongiovi, 94 Nev. 321, 579 P.2d 1246 (1978). On July 1, 1987, the legislature eliminated the
period of limitation with the addition of subsection 3 to NRS 125B.050 (formerly NRS
126.263). This subsection provides:
3. If a court has issued an order for the support of a child, there is no limitation on the
time in which an action may be commenced to:
(a) Collect arrearages in the amount of that support; or
(b) Seek reimbursement of money paid as public assistance for that child.
1987 Nev. Stat., ch. 808, 41 at 2252. At issue in these appeals is how NRS 125B.050(3)
applies in an action to enforce a child support order that was entered prior to July 1, 1987.
We previously considered this issue in McKellar, 110 Nev. 200, 871 P.2d 296. In that
case, the father was ordered to pay child support following the parties' divorce in 1974. He
stopped making payments in 1977, and, in 1991, nearly fourteen years later, the mother filed
an action to recover arrears dating back in 1977. The district court held that the mother was
entitled to arrears that accumulated during the entire period. We disagree and concluded that
NRS 125B.050(3) does not apply retroactively and that NRS 11.190(1)(a) applied to
preclude recovery for any of [the mother's] claims which were time-barred at the
commencement of her action. Id. at 203-204, 871 P.2d at 298. We then remanded the matter
to the district court for a recalculation of the recoverable arrears. Id. at 204, 871 P.2d at 298.
[Headnote 2]
Today, we clarify our holding in McKellar. For the reasons expressed below, we
conclude that in an action to enforce a child support order entered prior to July 1, 1987, NRS
125B.050(3) permits the recovery of child support payments that accrued from July 1, 1981,
to the commencement of the enforcement actions.
2

__________

2
In McKellar, we also stated as follows:
[The father] claims that the amendment to NRS 125B.050 (effective July 1, 1987), which eliminated the
statue of limitations in actions to collect child support arrearages, does not apply retroactively. Therefore,
[the father] asserts, the general six-year statute of limitations should
As set forth above, prior to July 1, 1987, when NRS 125B.050(3) was enacted, the
six-year statute of limitations (NRS 11.190(1)(a)) began to run as each installment payment
became due. See Gibbs, 96 Nev. at 246, 607 P.2d at 120; Bongiovi, 94 Nev. at 322, 579 P.2d
at 1247. Although the statute of limitations began to run for child support payments that came
due from July 1, 1981, onward, the period of limitation never expired because on July 1,
1987, the period of limitation was abolished. Therefore, recovery of payments that accrued in
that period is not barred by any statute of limitations.
Applying NRS 125B.050(3) in this manner best effectuates the legislative intent to remove
obstacles to collecting unpaid child support. See Minutes of Hearing on A.B. 395 Before the
Assembly Judiciary Comm., 64th Leg. (Nev., May 14, 1987) (noting, for instance, that
evading child support was often a predetermined plan by the noncustodial parent to become
unavailable until the statue of limitations cancelled that parent's support obligation). It
permits all obligees with extant support judgments to benefit from the statute. Additionally,
this application is consistent with our holding in McKellar that NRS 125B.050(3) does not
apply retroactively. 110 Nev. at 203, 871 P.2d at 298. Applying NRS 125B.050(3) in this
manner does not revive any claims that were barred by NRS 11.190(1)(a) as of July 1, 1987.
Accordingly, we conclude that the district court erred in determining that appellants are
barred from recovering payments that accrued more than six years prior to the
commencement of their actions.
[Headnote 3]
Those appellants with foreign child support orders also argue for the first time on
appeal that in an action to enforce a foreign child support order, a Nevada court is obliged to
apply the statute of limitations of Nevada or the foreign state, whichever statute provides the
longer period of limitation pursuant to the federal Full Faith and Credit for Child Support
Orders Act. 28 U.S.C.A. 1738B(h)(3) (West Supp. 1998). Therefore, they contend that
where applicable, they should be permitted to benefit from the longer statute of limitations
provided by the foreign state. We need not address this issue. Since those appellants did not
pre-set this argument below, they are preclude from raising in on appeal. See Peot v. Peot, 92
Nev. 388, 551 P.2d 242 (1976).
__________
control in this case to bar recovery of arrearages accrued more than six years prior to the initiation of this
action. See NRS 11.190. We agree.
110 Nev. at 203, 871 P.2d at 298 (footnote omitted). To the extent that this language is at odds with our analysis
and conclusion in this opinion, it is expressly overruled.
CONCLUSION
We conclude that the district court erred in affirming the recommendations of the
URESA masters. We therefore reverse the district court's orders and remand these cases to
the district court so that it may recalculate the child support arrears owed by respondents.
3

Shearing, J., with whom Maupin, J., joins, concurring in part and dissenting in part:
I agree that NRS 125B.050(3) permits appellants to recover child support payments
dating back to July 1, 1981. However, I take issue with this court's refusal to address the
alternative claim raised by the appellants with foreign child support orders.
In an action to enforce a foreign child support order, the federal Full Faith and Credit for
Child Support Orders Act (Act) requires a Nevada court to apply the statute of limitations
of either Nevada or the foreign state, whichever statute provides the longer period of
limitation. 28 U.S.C.A. 1738B(h)(3) (West Supp. 1998). The Act is clearly applicable
here. See In re Marriage of Carrier, 576 N.W.2d 97 (Iowa 1998) (holding that under the
supremacy clause of the United States Constitution, the Act is binding on all states and
supersedes any inconsistent provisions of state law); DCSE/Jennings v. DeBussy, 707 A.2d
44 (Del. Fam. Ct. 1997) (holding that the Act, which was enacted in October 1994, applies
retroactively). As a result, the district court committed plain error by failing to apply the Act
and thus, this court is free to address this issue even though it was not raised below. See
Bradley v. Romeo, 102 Nev. 103, 716 P.2d 227 (1986) (concluding that this court may
consider relevant issues sua sponte in order to prevent plain error, such as when a clearly
controlling statute is not applied by the district court). Therefore, I would remand with
instructions that the district court determine whether any appellant with a foreign child
support may benefit from a longer period of limitation provided by the foreign state that
entered the support order, and that the district court recalculate the child support arrears due
those appellants accordingly. See Cal. Fam. Code 4502 (West 1994); N.D. Cent. Code
28-01-15{1) {1991); Wash. Rev. Code Ann. 4.16.020{2) {West Supp. 199S).
__________

3
Pursuant to NRAP 34(f)(1), we have determined that oral argument is not warranted in Docket Number
28316.
On July 3, 1996, pursuant to NRAP 46(b), we granted leave to respondent Harry W. Perrine to file a proper
person answering brief in Docket Number 28237. Although he was not granted to leave to file any other
documents, this court has considered the proper person documents subsequently received from him.
The Washoe County District Attorney's Office has filed motions requesting that Docket Numbers 28225 and
28237 be remanded to the district court pursuant to Huneycutt v. Huneycutt, 94 Nev. 79, 575 P.2d 585 (1978).
We deny the motions as moot.
15(1) (1991); Wash. Rev. Code Ann. 4.16.020(2) (West Supp. 1998).
Rose, J., with whom Springer, C. J., joins, concurring in part and dissenting in part:
This court properly declined to address the application of the federal Full Faith and
Credit for Child Support Orders Act since the issue was not raised below. Although I agree
that the district court erred in concluding that appellants are limited to a six-year period of
recovery, in my view, NRS 125B.050(3) should not be applied to extend their recovery to
July 1, 1981.
It appears to me that NRS 125B.050(3) eliminates the period of limitation beginning from
the day the provision took effect, i.e., July 1, 1987. In other words, payments that accrue on or
after July 1, 1987, are not subject to any period of limitation. On the other hand, payments
that accrued before July 1, 1987, remain subject to the six-year period of limitation prescribed
by NRS 11.190(1)(a).
This application of NRS 125B.050(3) is in line with our case law holding that the
statute of limitations begins to run against an installment payment when that payment due.
See Gibbs v. Giles, 96 Nev. 243, 607 P.2d 118 (1980); Bongiovi v. Bongiovi, 94 Nev. 321,
579 P.2d 1246 (1978). The period of limitation that governed prior to July 1, 1987, was six
years. See NRS 11.190(1)(a). As this limitation period applied as soon as each payment
became due, it remained the applicable limitation period for all payments that came due
before July 1, 1987. Applying NRS 125B.050(3) in this manner is consistent with our earlier
holding that NRS 125B.050(3) does not apply retroactively. See McKellar v. McKellar, 110
Nev. 200, 203, 871 P.2d 296, 298 (1994). Additionally, this application of the statute is
faithful to our conclusion in McKellar that [i]n amending NRS 125B.050, the legislature
intended to eliminate the statue of limitations for actions to collect child support payments,
beginning on the effective date of the amendment. Id. (emphasis added). Finally, applying
the six-year statute of limitations to payments that became due before July 1, 1987, is
equitable to obligors and obligees; it imposes no hardship on either since they were on notice
at the time the payments became due that the period of limitation was six years.
Accordingly, I would remand these cases for the district court to apply NRS
125B.050(3) to the recovery of child support payments that accrued on and after July 1, 1987,
only, and to recalculate the collectible child support arrears.
____________
114 Nev. 795, 795 (1998) Lorenz v. Beltio, Ltd.
ALLEN R. LORENZ, Trustee of the EMMA GUNDERSON TRUST, and SANDRA LORENZ, ALLEN
LORENZ, and ELAINE LOVERSO, Trustee of the DON and CARMELINA LOVERSO FAMILY
TRUST, Appellants, v. BELTIO, LTD., ARTHUR D. STRUBLE and BARBARA STRUBLE,
Respondents.
BELTIO, LTD., Cross-Appellant, v. ALLEN R. LORENZ, Trustee of the EMMA
GUNDERSON TRUST, and SANDRA LORENZ, ALLEN LORENZ and ELAINE
LOVERSO, Trustee of the DON and CARMELINA LOVERSO FAMILY TRUST,
Cross-Respondents.
No. 25434
September 1, 1998 963 P.2d 488
Appeal and cross-appeal from a judgment of the district court. Second Judicial
District Court, Washoe County; Brent T. Adams, Judge.
Landlords brought action against tenant for a declaratory judgment that lease for motel
property was terminated and seeking damages for waste committed on property. After
corporation to which tenant purportedly assigned lease filed bankruptcy and bankruptcy court
lifted automatic stay, the district court entered judgment in favor of landlords, but refused to
pierce corporate veil to hold its shareholders personally liable. On cross-appeals, the supreme
court held that: (1) evidence was sufficient to support finding that landlords' re-entry of leased
motel premises terminated lease; (2) tenant's assignment of lease to corporation was effective
prior to landlords' termination of lease; (3) assignment did not eliminate effectiveness of
landlords' termination of lease, rendering corporation a holdover-tenant liable for damages;
(4) district court's order did not violate automatic stay in corporation's bankruptcy case; and
(5) alter ego doctrine applied and corporate veil would be pierced.
[Rehearing denied November 25, 1998]
Gezelin & Gezelin, Reno; Glade Hall, Reno, for Appellants/Cross-Respondents Lorenz.
Bowers, Thomas and Associates, Verdi, for Appellant/Cross-Respondent Loverso.
Gerald A. Phillips, Reno, for Respondent/Cross-Appellant Beltio, Ltd.
Arthur D. Struble and Barbara Struble, Reno, in Proper Person.
1. Judgment.
Evidence was sufficient to support finding that tenant's attorney had been properly served with landlords' summary judgment
motion, to which no response was filed, despite claim that attorney never received motion. Summary judgment motion was enclosed in
the same envelope as several other motions to which tenant responded, and, although address on certificate of service reflected a
typographical error, secretary for landlords' attorney stated she typed the correct address on the envelope.
District court's determinations of fact will not be set aside on appeal unless they are clearly erroneous.
3. Landlord and Tenant
Evidence was sufficient to support finding that landlords' re-entry of leased motel premises terminated lease pursuant to notice
of default; that landlords also invoked the statutory unlawful detainer provision by sending a five-day notice to quit did not alter
termination of lease pursuant to its own terms. NRS 40.252(1).
When the parties do not dispute the facts, the interpretation of a contract is a question of law, which supreme court reviews de
novo.
5. Landlord and Tenant.
Tenant's assignment of lease for motel premises to corporation was effective prior to landlords' termination of lease; even though
tenant and corporation destroyed original document executed before lease termination, they did so only because the later dated
document was notarized.
6. Contracts.
It is to be assumed that the parties to a contract know best what was meant by its terms and are the least likely to be mistaken as
to its intention; in case of doubt or uncertainty, therefore, the courts will generally follow the parties' own construction of their
language, at least if that construction is reasonable.
7. Landlord and Tenant.
Upon assignment, assignee of motel lease acquired the same right, title, and interest in the motel that tenant possessed on that
day, and, thus, the assignment did not eliminate effectiveness of notices of default sent by landlords to tenant or landlords' termination
of lease, rendering assignee a holdover-tenant liable for damages.
8. Bankruptcy.
District court's order determining damages owed by debtor as holdover-tenant on motel lease and addressing alter ego claim
asserted against debtor did not violate Bankruptcy Code's automatic stay of proceedings, where bankruptcy court lifted stay to allow all
issues as to all parties to be resolved and adjudicated.
9. Bankruptcy.
Any action taken in violation of the automatic stay is rendered void and without effect.
10. Bankruptcy.
While the bankruptcy court has jurisdiction over the debtor's estate, which includes all legal and equitable interests in property,
state law defines what those interests are.
11. Bankruptcy.
Mere possessory interest in real property, even if no legal interest in that property exists, falls within the confines of the
automatic stay; however, the bankruptcy court may lift the stay for specific issues to be determined in state court.
12. Corporations.
As a matter of law corporation which was hold-over tenant under motel lease was alter ego of its sole shareholders and directors,
warranting piercing of the corporate veil. Shareholders governed corporation although some corporate formalities were observed, sole
shareholders commingled corporate and non-corporate funds, treated corporation's finances as their own, disregarded certain corporate
formalities, and undercapitalized corporation, and failure to pierce corporate veil would have resulted in an injustice and possibly
sanctioning of fraud.
District court's determination with regard to the alter ego doctrine will be upheld on appeal if substantial evidence exists to
support the decision.
14. Corporations.
Requirements for finding alter ego and piercing the corporate veil are: (1) the corporation must be influenced and governed by
the person asserted to be its 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 fiction of separate entity would, under the circumstances, sanction a fraud or promote
injustice.
15. Corporations.
Some factors to be considered when determining if a unity exists in an alter ego analysis include, but are not limited to,
commingling of funds, undercapitalization, unauthorized diversion of funds, treatment of corporate assets as the individual's own, and
failure to observe corporate formalities; however, no one of these factors alone is determinative to apply the alter ego doctrine.
OPINION
Per Curiam:
In 1965, Allen and Emma Gunderson entered into a fifty-five year lease agreement with Don Loverso. The Gundersons owned land in
Reno, which Don Loverso leased in order to build the Roulette Motel. The Gundersons' ownership interest subsequently passed to their
daughter, Carole Lorenz, and then to her children, appellants/cross-respondents Allen R. Lorenz, trustee of the Emma Gunderson Trust,
Sandra Lorenz, and Allen Lorenz (collectively referred to as the Lorenzes). Don Loverso's leasehold interest subsequently passed to his
daughter, appellant/cross-respondent Elaine Loverso, trustee of the Don and Carmelina Loverso Family Trust (Loverso).
In 1976, Don Loverso assigned his leasehold interest to an entity in which David A. Read was a partner; through a series of subsequent
transactions, Read became the personal assignee. On January 17, 1992, Read and respondents Arthur D. Struble and
Barbara Struble entered into negotiations regarding a subsequent assignment of the lease.
January 17, 1992, Read and respondents Arthur D. Struble and Barbara Struble entered into negotiations
regarding a subsequent assignment of the lease. The Strubles formed a corporation, respondent/cross-appellant
Beltio, Ltd., to conduct the motel's business. On January 23, 1992, the Lorenzes purported to terminate the lease
according to its terms. However, Beltio, Ltd. refused to relinquish possession. On August 27, 1992, Beltio, Ltd.
filed for bankruptcy.
The district court entered judgment in favor of the Lorenzes, but refused to pierce Beltio, Ltd.'s corporate
veil and hold the Strubles personally liable.
On appeal, the parties dispute whether the Lorenzes validly terminated the lease on January 23, 1992, and
whether Read validly assigned the lease to Beltio, Ltd. prior to January 23, 1992. Additionally, Beltio, Ltd. and
the Strubles contend that the district court violated the bankruptcy court's automatic stay of this case by holding
a bench trial and entering a judgment awarding the Lorenzes and Loverso damages. The Lorenzes and Loverso
allege that the district court erred by refusing to pierce Beltio, Ltd.'s corporate veil, which would have subjected
the Strubles to personal liability for unlawful possession of the motel.
FACTS
On January 18, 1965, the Gundersons entered into a fifty-five year lease agreement, in which they would
lease their land in downtown Reno to Don Loverso, who would build a motel on that land. Under the terms of
the lease, the lessee was to pay the lessor $1,100.00 per month for rent and a percentage of the profits, called an
override. The lease provided that if the lessee defaulted, the lessor could send notice to cure within thirty days.
If the defects were not cured within that time, the lessor could physically enter the property and declare the lease
terminated. Over the years, Don Loverso assigned the lease several times until Read became the lessee.
On December 19, 1991, pursuant to the lease, the Lorenzes sent Read a notice of default providing thirty
days to cure certain defects: specifically, overdue property tax payments, unpaid rent, and unpaid override
payments. The Lorenzes also sent a notice to quit with five days to cure, pursuant to NRS 40.2516, a provision
governing unlawful detainer actions. These notices were served on Read on December 23, 1991. On January 17,
1992, the Lorenzes sent another notice to Read listing new defects and giving thirty days to cure. In this notice,
the Lorenzes specified that they were not waiving the named defects in the prior notices.
Also on January 17, 1992, the Strubles allegedly formed an oral agreement with Read, in which Read
assigned his interest in the lease to Beltio, Ltd., a corporation wholly owned by the Strubles
and formed solely for the purpose of acquiring the lease.
the lease to Beltio, Ltd., a corporation wholly owned by the Strubles and formed solely for the purpose of
acquiring the lease. On that day, Mr. Struble wrote a personal check in the amount of $977.00 for the motel's
property taxes. On January 20, 1992, Mr. Struble and Read allegedly signed a written agreement of assignment.
In exchange, Mr. Struble gave Read a promissory note secured by property in Colorado.
1
The Strubles claim to
have taken possession of the motel on January 20, 1992.
On January 23, 1992, thirty-one days after Read was served with the December 1991 notice of default and
notice to quit, the Lorenzes and their attorney entered the property and, pursuant to the lease agreement, declared
the lease terminated. Those in control of the motel refused to relinquish possession and escorted the parties off
the property.
On January 23, 1992, the corporate bylaws for Beltio, Ltd. were signed, and on January 30, 1992, the
Secretary of State issued a certificate of incorporation for Beltio, Ltd.
On January 28, 1992, Read and the Strubles, on behalf of Beltio, Ltd., signed another copy of the same
assignment agreement and had it notarized. Although the signatures and notarization occurred on January 28,
1992, this second agreement was dated January 20, 1992. Upon signing the agreement, the Strubles and Read
purposely destroyed the original January 20, 1992 agreement.
On February 4, 1992, the Lorenzes filed a complaint in the district court against Read for a declaratory
judgment that the lease was terminated on January 23, 1992, and seeking damages for waste committed on the
property. In addition, the Lorenzes filed an application for a writ of restitution.
On February 10, 1992, Beltio, Ltd. held a meeting of its board of directors
2
to ratify the January 1992
assignment from Read. In April 1992, the state district court granted Loverso's motion to intervene as a
defendant in the Lorenzes' action as the legal representative of the original lessee, Don Loverso. On August 17,
1992, the Lorenzes filed a motion for summary judgment, alleging that no genuine issues
of material fact existed regarding the lease's termination on January 23, 1992.
__________

1
The Strubles sold the Colorado property to Beltio, Ltd. in exchange for an installment note in which
Beltio, Ltd. would pay the Strubles $97,000.00. Beltio, Ltd. then paid Read with a $85,000.00 promissory
note secured by the Colorado property that Beltio, Ltd. now owned. However, this Colorado property had
apparently already been foreclosed upon.

2
The Strubles are sole shareholders and directors of Beltio, Ltd. In addition, Mr. Struble is the president, and
Ms. Struble is the secretary/treasurer. At trial, Ms. Struble testified that Mr. Struble conducted all the finances of
Beltio, Ltd. The only tasks that Ms. Struble performed as secretary/treasurer of Beltio, Ltd. were attending the
meetings between Mr. Struble and herself, signing all corporate documents, and whatever need[ed] to be
done when Mr. Struble was out of town. This included occasionally buying supplies at Costco or depositing
rent checks.
1992, the Lorenzes filed a motion for summary judgment, alleging that no genuine issues of material fact existed
regarding the lease's termination on January 23, 1992.
On August 27, 1992, Beltio, Ltd. filed for bankruptcy in federal court, which triggered the automatic stay
pursuant to 11 U.S.C. 362. The bankruptcy court required the motel to remain in Beltio, Ltd.'s possession until
further order. On September 22, 1992, the district court granted the Lorenzes a writ of restitution, concluding
that the lease was terminated on January 23, 1992. The district court subsequently voided its writ of restitution
upon being informed of the bankruptcy proceedings.
On December 2, 1992, the bankruptcy court reaffirmed the automatic stay with respect to Beltio, Ltd.'s assets
(which consisted solely of its interest in the motel lease), but lifted the stay so as to allow the state district court
to decide what interest, if any, Debtor, Beltio, Ltd., as intervenor, may have in the original land lease between
the Lorenzes and Loverso.
On December 10, 1992, Beltio, Ltd. and the Strubles collectively filed in district court their motion to
intervene in the Lorenzes' action, which the district court subsequently granted. The district court also conducted
a hearing to determine Beltio, Ltd.'s interest in the lease.
On December 30, 1992, the district court issued its special findings and order. It determined that (1) the lease
was terminated by the Lorenzes' re-entry on January 23, 1992; (2) if Beltio, Ltd. had the lease, it was subject to
the same right of re-entry that the Lorenzes had against Read; and (3) Beltio, Ltd. never had the lease because
the lease terminated prior to Read's assignment to Beltio, Ltd. on January 28, 1992. Although, by this order, the
district court essentially granted the Lorenzes' August 17, 1992 motion for summary judgment, the court never
issued a final judgment.
On March 31, 1993, the bankruptcy court issued an order modifying the automatic stay on the state court
proceedings against Beltio, Ltd.:
[T]he automatic stay is lifted for the sole purpose of allowing litigation to continue in [the state court
case], to allow all issues as to all parties to be resolved and adjudicated, including but not necessarily
limited to deciding what interest, if any, debtor, BELTIO, LTD., as intervenor, may have in the original
land lease between LORENZ and LOVERSO, and resolving the issues in this case by jury trial, if
appropriate.
In early 1993, the state court litigation was reassigned to a new judge, who ordered the refiling of all
pleadings. Therefore, on September 24, 1993, the Lorenzes filed another motion for summary judgment,
which incorporated the August 17, 1992 motion, alleging that the lease terminated on
January 23, 1992.
mary judgment, which incorporated the August 17, 1992 motion, alleging that the lease terminated on January
23, 1992. Beltio, Ltd. never filed an opposition to the September 24, 1993 motion. The Lorenzes also filed a
motion to confirm the December 30, 1992 special findings and order, which had essentially granted the August
17, 1992 motion. On October 28, 1993, the Lorenzes filed a request for submission because Beltio, Ltd. had
failed to oppose the September 24, 1993 motion for summary judgment.
Meanwhile, pursuant to an October 6, 1993 judicially supervised settlement compromise, the Lorenzes
agreed to merge their land interest with Loverso's master lease interest; therefore, the Lorenzes and Loverso
became equal co-owners in both the land and the motel. The Lorenzes and Loverso, whose interests were now
aligned, further agreed to dismiss Read from the proceedings.
On November 3, 1993, the district court granted the Lorenzes' motion for summary judgment and confirmed
the prior judge's December 30, 1992 special findings that the lease had terminated on January 23, 1992, and that
Beltio, Ltd. never acquired a lawful interest in the lease. On November 15, 16, and 17, 1993, the district court
conducted a bench trial limited to the issues of whether Beltio, Ltd. was the alter ego of the Strubles and what
damages Beltio, Ltd. owed the Lorenzes and Loverso for its unlawful possession of the motel. At the conclusion
of trial, the district court determined that the Lorenzes and Loverso were entitled to damages in the amount of
$38,773.40 plus attorney's fees and costs. Additionally, the court determined that Beltio, Ltd. was not the alter
ego of the Strubles and thus refused to pierce Beltio, Ltd.'s corporate veil.
Thereafter, on November 19, 1993, Beltio, Ltd. filed a motion to reconsider the court's November 3, 1993
summary judgment order, claiming that its attorney never received the motion. It also moved the court to
reconsider the damages award from trial, arguing that the district court's award of damages violated the
bankruptcy court's automatic stay. On December 15, 1993, the state district court denied Beltio, Ltd.'s motions to
reconsider the orders granting summary judgment and awarding damages. The district court further issued its
findings of fact, conclusions of law, and final judgment, finding that the lease terminated on January 23, 1992,
Read never validly assigned the lease to Beltio, Ltd., and Beltio, Ltd. did not have lawful possession of the
motel. On January 14, 1994, Beltio, Ltd. filed its notice of appeal from the final judgment. On January 24, 1994,
the Lorenzes and Loverso filed their notice of appeal.
3

__________

3
On December 9, 1993, the bankruptcy court ordered that Beltio, Ltd. retain possession of the motel until this
court resolves the instant appeal. Accordingly, Beltio, Ltd. continues to possess the motel as of the date of this
opinion.
DISCUSSION
I. The district court's finding that the lease terminated on January 23, 1992
A. The September 24, 1993 unopposed summary judgment motion
[Headnote 1]
On November 3, 1993, pursuant to NRCP 56(e) and DCR 13(3),
4
the district court granted the Lorenzes'
September 24, 1993 unopposed summary judgment motion which alleged that the lease ended on January 23,
1992. At the same time, the district court also granted the Lorenzes' motion to confirm the prior judge's
December 30, 1992 special findings, determining that the lease terminated on January 23, 1992. Beltio, Ltd. did
file an opposition to the motion to confirm.
On November 19, 1993, Beltio, Ltd. filed a motion for reconsideration of the November 3, 1993 summary
judgment order, claiming it never received the September 24, 1993 motion for summary judgment because the
Lorenzes sent it to the wrong address. The Lorenzes responded, claiming that the summary judgment motion was
enclosed in the same envelope as several other motions to which Beltio, Ltd. did respond. The Lorenzes filed
two sworn affidavits with their response to Beltio, Ltd.'s motion. One affidavit stated that the motion for
summary judgment was placed in the same envelope as seven other motions, to which Beltio, Ltd. did respond.
Another affidavit stated that although the address on the certificate of service reflected a typographical error, the
secretary typed the correct address on the envelope. After reviewing the pleadings and attached affidavits, the
district court denied the motion for reconsideration.
[Headnote 2]
On appeal, Beltio, Ltd. again argues that it did not receive the September 24, 1993 summary judgment
motion. A district court's determinations of fact will not be set aside unless they are clearly erroneous. Hermann
Trust v. Varco-Pruden Buildings, 106 Nev. 564, 566, 796 P.2d 590, 592 (1990). Here, after reviewing the
affidavits supplied by the Lorenzes, the district court determined that their version of the facts was
more credible.
__________

4
NRCP 56(e) provides in part, If [the non-moving party] does not so respond, summary judgment, if
appropriate, shall be entered against him. DCR 13(3) provides in part, Failure of the opposing party to serve
and file his written opposition may be construed as an admission that the motion is meritorious and a consent to
granting the same.
mined that their version of the facts was more credible.
5
As the record supports the district court's factual
findings with regard to the Lorenzes' service of their motion for summary judgment, we will not substitute our
judgment for that of the district court. Accordingly, we conclude that the district court did not err in denying
Beltio, Ltd.'s motion for reconsideration.
6

B. Termination of the lease on January 23, 1992
[Headnote 3]
Beltio, Ltd. argues that due to alleged defects of the December 1991 and January 1992 notices, the Lorenzes'
January 23, 1992 re-entry did not serve as a valid termination of the lease. Specifically, Beltio, Ltd. alleges that
issuing both a thirty-day notice and a five-day notice created an irreconcilable ambiguity, and thus, the lease
did not terminate on January 23, 1992. We disagree.
[Headnote 4]
When the parties do not dispute the facts, the interpretation of a contract is a question of law, which we
review de novo. Washoe County v. Transcontinental Ins., 110 Nev. 798, 800, 878 P.2d 306, 307-08 (1994).
With regard to factual determinations, [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). Substantial evidence has been defined as that which a reasonable mind might accept as
adequate to support a conclusion.' State, Emp. Security v. Hilton Hotels, 102 Nev. 606, 608, 729 P.2d 497,
49S {19S6) {quoting Richardson v. Perales, 402 U.S. 3S9 {1971)).
__________

5
We reject Beltio, Ltd.'s contention, raised for the first time on appeal, that the excusable neglect standard
of NRCP 60(b) mandates that the summary judgment be set aside.

6
We note that on October 28, 1993, the Lorenzes filed a request for submission of the summary judgment
motion. Beltio, Ltd. still failed to file an opposition. Also, after summary judgment was granted, Beltio, Ltd.
fully participated in the damages trial, with complete knowledge of the issues, and without protesting the grant of
summary judgment. Therefore, even if Beltio, Ltd. did not receive the motion, we conclude that it had ample
opportunity to inform the court prior to its ruling on the motion and prior to proceeding to trial.
Moreover, throughout these proceedings, Beltio, Ltd. had many opportunities other than the September 24,
1993 summary judgment motion to argue its interest in the motel. For example, Beltio, Ltd. opposed the
September 24, 1993 motion to confirm the December 30, 1992 order which stated that the lease had terminated,
leaving Beltio, Ltd. with no interest. As the issues in the summary judgment motion were litigated and decided
many times throughout the record, we conclude that any opposition filed by Beltio, Ltd. to the September 24,
1993 summary judgment motion would not have changed the outcome, and therefore, reversal on this issue is not
warranted.
729 P.2d 497, 498 (1986) (quoting Richardson v. Perales, 402 U.S. 389 (1971)).
The parties do not contest the plain meaning of the language in the default provision of the lease and agree
that the December 1991 notice of default was served more than thirty days before re-entry. Although the parties
debate whether Read subsequently effectuated a cure, we conclude that there was substantial evidence to support
the prior judge's finding, which was subsequently adopted by the district court, that the Lorenzes' re-entry on
January 23, 1992 terminated the lease pursuant to the December 1991 notice of default.
That the Lorenzes also invoked the statutory unlawful detainer provision by sending a five-day notice to quit
does not alter the fact that the district court found that they had validly ended the lease pursuant to its own terms.
See International Industries v. United Mortgage Co., 96 Nev. 150, 154, 606 P.2d 163, 166 (1980) (upholding the
termination of a lease pursuant to its terms where the lessee failed to cure within thirty days of the lessor's notice
to cure); see also Davidsohn v. Doyle, 108 Nev. 145, 147, 825 P.2d 1227, 1230 (1992) (holding that a lessor
who seeks termination under a lease provision is not required to comply with the statutory notice requirements
for unlawful detainer). Likewise, NRS 40.252(1) provides only that it is unlawful to contract to shorten the
five-day notice period provided by statute.
Based on our review of the relevant facts and applicable law, we conclude that the district court properly
determined that the lease terminated on January 23, 1992.
II. Validity of the lease assignment from Read to Beltio, Ltd.
[Headnote 5]
On January 20, 1992, Mr. Struble, who was fully aware of the December 1991 notices of default, entered
into a contract with Read, assigning the lease to Beltio, Ltd. In exchange, Mr. Struble gave Read a promissory
note secured by property in Colorado, which was also involved in litigation. Mr. Struble claims he took
possession of the motel on January 20, 1992, by securing fire insurance, paying $977.00 for property taxes,
obtaining a business license, and commencing rehabilitation of dilapidated rooms.
On January 28, 1992, Mr. Struble and Read executed another copy of the same assignment contract in front
of a notary public; this contract was dated January 20, 1992. They then destroyed the original contract, which
had been signed on January 20, 1992. The parties do not dispute these facts. The issue presented is whether the
assignment legally took effect on January 20, 1992, or on January 28, 1992. Thus, Beltio, Ltd. either acquired a
lawful interest in the lease three days prior to its termination, or Beltio, Ltd. never acquired a lawful
interest in the lease because it was terminated prior to the assignment.
Beltio, Ltd. never acquired a lawful interest in the lease because it was terminated prior to the assignment.
[Headnote 6]
By dating the second contract as January 20, 1992, Mr. Struble and Read agreed on their intention to give
effect to the contract as of January 20, 1992, rather than eight days later.
[T]he parties are in the best position to know what was intended by the language employed. . . . It is to be
assumed that the parties to a contract know best what was meant by its terms and are the least likely to
be mistaken as to its intention . . . . In case of doubt or uncertainty, therefore, the courts will generally
follow the parties' own construction of their language, at least if that construction is reasonable.
17A Am. Jur. 2d Contracts 357 (1991) (emphasis added) (footnotes omitted).
As the only parties to the January 28, 1992 assignment agreement, Mr. Struble and Read are in the best
position to know if they intended to assign the motel lease on January 20, 1992, or on January 28, 1992.
Although they destroyed the January 20, 1992 document, they did so only because the January 28, 1992
document was notarized. That second document still contained the date January 20, 1992, thus evidencing their
intention to give it effect as of that date. Accordingly, we conclude that the district court erred in determining
that the assignment became effective on January 28, 1992.
[Headnote 7]
However, upon assignment, Beltio, Ltd. acquired the same right, title, and interest in the motel that Read
possessed on that day. 6A C.J.S. Assignments 73 (1975). Thus, the assignment to Beltio, Ltd. did not eliminate
the effectiveness of the notices of default sent by the Lorenzes to Read. Rather, Beltio, Ltd. knowingly took
possession of the motel subject to the notices. Therefore, we conclude that on January 23, 1992, when the lease
was terminated, Beltio, Ltd.'s leasehold interest terminated as well, and it became a holdover-tenant liable for
damages.
7

__________

7
The Lorenzes and Loverso further claim that Beltio, Ltd. could not have acquired an interest in the lease on
January 20, 1992, because it did not become a corporation until January 30, 1992, when the Secretary of State
issued a certificate of incorporation. We conclude that this contention lacks merit.
On February 20, 1992, the directors of Beltio, Ltd., the Strubles, ratified the January 1992 assignment contract
pursuant to NRS 78.135(3), which provides:
Any contract or conveyance, otherwise lawful, made in the name of a corporation, which is authorized or
ratified by the directors, or is done
Therefore, any error in determination of the assignment date was harmless. See NRCP 61.
III. No violation of the bankruptcy court's stay
[Headnote 8]
Beltio, Ltd. contends that the trial was conducted by the district court in violation of the bankruptcy court's
automatic stay of proceedings. In its March 31, 1993 order, the bankruptcy court lifted the stay:
to allow all issues as to all parties to be resolved and adjudicated, including but not necessarily limited
to deciding what interest, if any, debtor, BELTIO, LTD., as intervenor, may have in the original land
lease between LORENZ and LOVERSO, and resolving the issues in this case by jury trial, if appropriate.
(Emphasis added.)
[Headnote 9]
Any action taken in violation of the automatic stay is rendered void and without effect. In re Schwartz, 954
F.2d 569, 571 (9th Cir. 1992). Therefore, Beltio, Ltd. and the Strubles contend that if the district court
conducted the damages trial in violation of the stay, the judgment determining damages is void.
[Headnotes 10, 11]
While the bankruptcy court has jurisdiction over the debtor's estate, which includes all legal and equitable
interests in property, state law defines what those interests are. Wilson v. Bill Barry Enterprises, Inc., 822 F.2d
859, 861 (9th Cir. 1987). A mere possessory interest in real property, even if no legal interest in that property
exists, falls within the confines of the automatic stay. In re 48th Street Steakhouse, Inc., 835 F.2d 427, 430 (2d
Cir. 1987). However, the bankruptcy court may lift the stay for specific issues to be determined in state court.
See Wilson, 822 F.2d at 861.
The parties do not dispute that the stay was lifted with regard to determining what interest, if any, Beltio, Ltd.
had in the lease; what is disputed is whether lifting the stay permitted the district court to determine the amount
of damages Beltio, Ltd., as debtor, owed its creditors, the Lorenzes and Loverso.
__________
within the scope of the authority, actual or apparent, given by the directors, binds the corporation, and the
corporation acquires rights thereunder, whether the contract is executed or is wholly or in part executory.
See also Jacobson v. Stern, 96 Nev. 56, 60-61, 605 P.2d 198, 201 (1980) (holding that if a pre-incorporation
contract is made by the promoter and, when eventually formed, the corporation expressly or impliedly ratifies
the contract, it becomes a valid obligation of the corporation).
owed its creditors, the Lorenzes and Loverso. We conclude that this determination did not violate the stay.
The language of the bankruptcy court's order lifting the stay was broad and not specifically limited to the
issue of Beltio, Ltd.'s interest in the lease. Accordingly, we conclude that the amount of damages that Beltio,
Ltd. owed the Lorenzes and Loverso as a holdover tenant fell within the language of the order lifting the stay.
Likewise, we conclude that the district court was authorized to reach the alter ego issue, addressed below,
pursuant to the bankruptcy court's order. If the Strubles were the Beltio, Ltd.'s alter ego, then they would have
been liable on the judgment. Therefore, these issues were properly resolved by the district court.
IV. Alter ego doctrine
[Headnote 12]
At the conclusion of the bench trial, the district court determined that the Strubles were not the alter ego of
Beltio, Ltd., and thus, they were not personally liable for Beltio, Ltd.'s debts. The Lorenzes and Loverso contend
that this decision was in error.
[Headnote 13]
The district court's determination with regard to the alter ego doctrine will be upheld on appeal if substantial
evidence exists to support the decision. Mosa v. Wilson-Bates Furniture Co., 94 Nev. 521, 524, 583 P.2d 453,
455 (1978). We acknowledge that [t]he corporate cloak is not lightly thrown aside. Baer v. Amos J. Walker,
Inc., 85 Nev. 219, 220, 452 P.2d 916, 916 (1969). However, we conclude that the evidence does not support the
district court's conclusion.
[Headnote 14]
The requirements for finding alter ego and piercing the corporate veil are:
(1) The corporation must be influenced and governed by the person asserted to be its 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 fiction of separate entity would, under the circumstances,
sanction a fraud or promote injustice.
Ecklund v. Nevada Wholesale Lumber Co., 93 Nev. 196, 197, 562 P.2d 479, 479-80 (1977) (quoting McCleary
Cattle Co. v. Sewell, 73 Nev. 279, 282, 317 P.2d 957, 959 (1957)).
First, the parties do not dispute that the Strubles influenced and governed Beltio, Ltd. The Strubles were the
sole shareholders and directors.
directors. Mr. Struble was president and ran the business, while Ms. Struble was named secretary/treasurer.
Second, the Strubles each testified that they formed Beltio, Ltd. in accordance with Nevada law and in
general, they adhered to corporate formalities, such as conducting shareholder and director meetings and
keeping minutes. If these were the only facts presented below, we could easily conclude that the district court
correctly determined that a unity of interest and ownership did not exist and, therefore, the alter ego doctrine
should not apply. However, in this case, other facts were presented which overwhelmingly demonstrate that
Beltio, Ltd. had no apparent independent business operation and existed solely for the purpose of conducting
the personal business of the Strubles. Caple v. Raynel Campers, Inc., 90 Nev. 341, 344, 526 P.2d 334, 336
(1974). Therefore, we conclude that under the limited facts of this case, such a unity exists as a matter of law.
[Headnote 15]
Some factors to be considered when determining if a unity exists in an alter ego analysis include, but are not
limited to, commingling of funds, undercapitalization, unauthorized diversion of funds, treatment of corporate
assets as the individual's own, and failure to observe corporate formalities. Polaris Industrial Corp. v. Kaplan,
103 Nev. 598, 601, 747 P.2d 884, 887 (1987). No one of these factors alone is determinative to apply the alter
ego doctrine. See North Arlington Med. v. Sanchez Constr., 86 Nev. 515, 522, 471 P.2d 240, 244 (1970)
(undercapitalization alone is insufficient to pierce the corporate veil).
Here, the Strubles commingled corporate funds and even failed to secure a bank account for Beltio, Ltd. until
required to do so by the bankruptcy court, one year and eight months after Beltio, Ltd. was formed. The Strubles
contend that Beltio, Ltd. used the services of a property management company which maintained a bank account
in its own name for Beltio, Ltd.'s business. However, no payments were made by Beltio, Ltd. for the
management company's services, nor were any checks regularly issued to Beltio, Ltd. Only one check was ever
issued by the management company; this check was issued at the termination of its relationship with Beltio, Ltd.,
and the check was made out to Mr. Struble, not Beltio, Ltd. Accordingly, Mr. Struble personally acquired money
due the corporation.
Afterward, rather than open a corporate bank account in Beltio, Ltd.'s name, Mr. Struble conducted Beltio,
Ltd.'s business through his sole proprietorship, Trident Real Estate, thus commingling corporate and
non-corporate funds. This act shows the absence of a separate business operation from Mr. Struble's personal
business. Additionally, Ms. Struble, the apparent secretaryJtreasurer of Beltio, Ltd. was not a
signatory on the Trident account.
tary/treasurer of Beltio, Ltd. was not a signatory on the Trident account.
Moreover, Ms. Struble was the secretary/treasurer in name only and served no real function for Beltio, Ltd.
She testified at trial that although she was the named secretary/treasurer, she knew and did almost nothing with
regard to Beltio, Ltd.'s business affairs. Rather, only Mr. Struble ran the business and kept all financial records.
Ms. Struble further testified that although she signed all corporate documents as needed, she was unaware of the
significance of most of the documents. Beltio, Ltd.'s lack of a functional secretary/treasurer, along with its lack
of a corporate bank account, demonstrates Beltio, Ltd.'s disregard of some corporate formalities.
Furthermore, Beltio, Ltd. was capitalized only with a $97,000.00 installment note from the Strubles,
secured by the Strubles' Colorado property. The security was illusory because the property offered by the
Strubles to secure Beltio, Ltd. was involved in extensive litigation, culminating in foreclosure by another
creditor of the Strubles. Thus, the Strubles furnished no security to Beltio, Ltd. Beltio, Ltd., in turn, issued a
$85,000.00 promissory note to Read in exchange for assignment of the motel lease. This note to Read was
secured by the installment note with the artificial security from the Strubles. When Beltio, Ltd. failed to pay
Read on its promissory note, Read acquired the apparently worthless installment note from the Strubles secured
by the foreclosed Colorado property. Thus, Beltio, Ltd. was clearly undercapitalized and essentially paid nothing
to Read for the lease assignment.
Accordingly, although some corporate formalities were observed, a unity of interest and ownership existed
between the Strubles and Beltio, Ltd. The Strubles commingled corporate and non-corporate funds, treated
Beltio, Ltd.'s finances as their own, disregarded certain corporate formalities, and undercapitalized Beltio, Ltd.
Third, failure to pierce Beltio, Ltd.'s corporate veil by applying the alter ego doctrine will result in an
injustice and possibly sanction a fraud. If the Strubles are not held personally liable for Beltio, Ltd.'s debt, the
Lorenzes will never have a chance to receive the rent or other payments they deserve because Beltio, Ltd. filed
for bankruptcy. As of this date, Beltio, Ltd. and the Strubles continue to manage the motel and profit from their
business venture. While Beltio, Ltd. never paid Read for the lease assignment, nor paid the Lorenzes rent or
override payments, Beltio, Ltd. was able to pay the Strubles several payments on the installment note.
Accordingly, we conclude that all three requirements to applying the alter ego doctrine are satisfied as a matter
of law, and therefore, Beltio, Ltd.'s corporate veil must be pierced.
of law, and therefore, Beltio, Ltd.'s corporate veil must be pierced.
CONCLUSION
We conclude that Beltio, Ltd. was assigned the lease on January 20, 1992, and three days later, January 23,
1992, the lease was validly terminated when the Lorenzes re-entered the property. Therefore, Beltio, Ltd. has
had no lawful interest in the lease since January 23, 1992. We further conclude that the district court properly
held a bench trial to assess the amount of damages Beltio, Ltd. owed the Lorenzes and Loverso for this unlawful
possession. Accordingly, we affirm that portion of the judgment below. Finally, we conclude that the alter ego
doctrine applies, and that Beltio, Ltd.'s corporate veil should be pierced. Therefore, we reverse the portion of the
judgment declining to apply the alter ego doctrine and remand this matter to the district court for further
proceedings consistent with this opinion.
____________
114 Nev. 810, 810 (1998) State, Dep't of Transp. v. Hill
THE STATE OF NEVADA, ex rel., DEPARTMENT OF TRANSPORTATION, Appellant, v. LEWIS HILL,
Individually; ORA LEE HILL, Individually; and EMANUEL HILL, Individually, Respondents.
No. 27762
September 1, 1998 963 P.2d 480
Appeal from a judgment in favor of respondents. First Judicial District Court, Carson City; Michael R.
Griffin, Judge.
Occupants of automobile involved in roll-over accident that killed one passenger, brought
claims for personal injury and emotional distress against Department of Transportation. The
district court entered judgment on jury verdicts on behalf of occupants, and Department of
Transportation appealed. The supreme court, Rose, J., held that: (1) passenger's emotional
distress verdict was supported by her witnessing death of in-law, and (2) negligent infliction
of emotional distress was a separate and distinct cause of action under municipal tort liability
statute; overruling State v. Eaton, 101 Nev. 705, 710 P.2d 1370 (1985).
Affirmed.
Springer, C.J., and Young, J., dissented in part.
Frankie Sue Del Papa, Attorney General, and Roger D. Comstock, Senior Deputy Attorney General, Carson
City, for Appellant.
Bradley, Drendel & Jeanney, Reno, for Respondents.
1. Damages.
Passenger in automobile who witnessed death of her sister-in-law in roll-over accident was closely related to deceased for
purposes of bringing an emotional distress claim against Department of Transportation, even though she was not a blood relative,
where passenger and sister-in-law were best friends for nearly four decades, spoke almost on a daily basis, saw each other several times
a week, and travelled together.
2. Damages.
Fact-finder in a claim for negligent infliction of emotional distress should have the opportunity to assess the nature and quality
of the relationship between the plaintiff and the victim whose injury or death was witnessed by the plaintiff.
3. Damages.
Whether a plaintiff can recover for negligent infliction of emotional distress after witnessing injury to another based on the
plaintiff's relationship to the victim is generally a question of fact.
4. Damages.
Where undisputed evidence exists concerning the nature of the relationship between a witness and victim, the issue of whether a
plaintiff can recover for negligent infliction of emotional distress after witnessing injury to another based on the plaintiff's relationship
to the victim may be resolved as a matter of law.
5. Automobiles; Damages.
Passenger's personal injury and negligent infliction of emotional distress claims against Department of Transportation arising
out of roll-over accident were separate and distinct causes of action and subject to their own statutory cap under municipal tort liability
statute. NRS 41.035.
6. Damages.
Claim for negligent infliction of emotional distress rests on facts separate, distinct and independent from those germane to a claim
for personal injuries; overruling State v. Eaton, 101 Nev. 705, 710 P.2d 1370 (1985).
OPINION
The winter storms of 1992-93 extensively damaged Interstate 80 (I-80) west of Reno. The State Department of Transportation (the
State or NDOT) applied a pothole filler to a stretch of the highway near the Gold Ranch Casino in Verdi. On March 13, 1993, that stretch
of road had become slick and hazardous when rain mixed with the road filler. That evening, respondents Lewis Hill (Lewis) and Ora Lee
Hill (Ora Lee) were driving from San Francisco to Reno with their spouses. Ora Lee is married to Lewis' older brother, Emanuel Hill
(Emanuel), and Lewis was married to Earnestine Hill (Earnestine).
As a result of NDOT's admitted negligence, the Hills' vehicle hit a slick spot of road, spun out of control, and flipped over several
times.
eral times. Lewis, Ora Lee, and Emanuel received relatively minor injuries; however, Earnestine, the only
occupant who had not been wearing a seat belt, was ejected from the vehicle and sustained fatal injuries. The
wrongful death claims of Lewis and of Lewis and Earnestine's son were settled prior to trial. At trial Lewis, Ora
Lee, and Emanuel brought claims for personal injuries. Additionally, Lewis and Ora Lee brought claims for
negligent infliction of emotional distress (NIED). Emanuel did not claim emotional distress because he had no
recollection of the accident.
The jury awarded Lewis a total of $50,244.05 on his claims ($15,244.05 for personal injuries and $35,000.00
for emotional distress). Ora Lee received $11,795.50 for her personal injuries along with $10,000.00 for
emotional distress. Emanuel received $33,024.41 for his personal injuries. The State appeals the verdicts
pertaining to Lewis and Ora Lee. It asserts that pursuant to statute, Lewis could not collect more than a total of
$50,000.00 from the State, and asks this court to reduce his award accordingly. The State further asserts that Ora
Lee did not satisfy the prima facie requirements of a claim for NIED, and asks this court to vacate her
$10,000.00 award.
FACTS
This case arose out of a March 13, 1993 single-car rollover, which occurred in the eastbound lanes of I-80
near the Gold Ranch Casino in Verdi. On March 13, 1993, Lewis was driving his 1989 Blazer from San
Francisco to Reno for a weekend of recreation with his wife, Earnestine, his brother, Emanuel, and his brother's
wife, Ora Lee. All of the occupants, except for Earnestine, were wearing seat belts.
The two couples had each been married approximately thirty-five years. They had all known each other as
school children in Alabama; the couples had moved to California and had lived within twenty miles of each
other for the thirty years preceding the accident. Emanuel and Ora Lee testified that Lewis and Earnestine were
their closest friends, and that the couples had travelled together numerous times throughout the years, often
sharing hotel rooms. Ora Lee had known Earnestine for over thirty-five years. The three survivors testified that
Earnestine and Ora Lee were exceedingly close, seeing each other at least twice a week and talking on the
telephone several times each week. Ora Lee stated that she and Earnestine were more like sisters than
sisters-in-law, and that she was closer to Earnestine than to her two blood sisters.
Sometime around noon on March 13, 1993, the two couples left San Francisco on their way to the Sands
Hotel/Casino in Reno.
Reno. Several minutes before 6:00 p.m. they passed the Gold Ranch Casino outside of Verdi, traveling east.
Near the Gold Ranch overpass, Lewis' vehicle hit a slick spot on I-80 where NDOT had recently repaired a patch
of road. The vehicle went into a spin and rolled over, ultimately coming to rest on its passenger side in the
median.
Once the vehicle stopped, Ora Lee unfastened her seat belt and crawled out of the back window. Lewis used
a bystander's knife, cut himself out of his seat belt and also crawled out of the vehicle. Emanuel's right hand and
forearm were trapped under the vehicle's passenger-side door. Earnestine was not in the vehicle, and Lewis and
Ora Lee called out to her. They saw Earnestine lying to the south of the vehicle and attempted to go to her aid;
however, they were restrained by several on-lookers who told Lewis and Ora Lee that they didn't want to see
what had happened to Earnestine.
Ora Lee then noticed that her sixty-nine year old husband, Emanuel, was still in the car; she called out to him
several times, and when he finally nodded his head, Ora Lee exclaimed, Oh, thank God, he's alive. Shortly
thereafter (at approximately 6:25 p.m.), Lewis and Ora Lee were taken by ambulance to Washoe Medical
Center. Earnestine was pronounced dead at the scene at 6:42 p.m. Ora Lee and Lewis testified that they knew
that Earnestine was seriously injured when they left the accident scene; however, they did not find out about her
death until approximately two hours after they had arrived at Washoe Medical Center.
At the time Ora Lee learned of Earnestine's death, she was also informed that Emanuel had survived, but had
sustained injuries to his right arm and handa dislocated, broken wrist and several broken fingers. Ora Lee,
Lewis, and Emanuel were released late that night. The next day, a witness to the accident drove Lewis, Ora Lee,
and Emanuel to their homes in the San Francisco area. Emanuel testified that he did not remember being driven
home and could not recollect what had transpired between the time of the accident and his trip back to the bay
area.
Emanuel's injuries required subsequent surgical treatment, and Ora Lee testified at trial that he still did not
have full use of his right arm. Notwithstanding, Emanuel was able to return to his job as a school crossing guard
the following school year. By the time of trial, Lewis and Ora Lee had made nearly complete physical
recoveries; however, testimony indicated that Ora Lee and Lewis were still quite upset by the accident and
Earnestine's death. Emanuel testified that Ora Lee cried frequently, had little appetite, and had lost a lot of
weight since the accident.
At trial, NDOT conceded liability and the amount of damages to be paid was the only issue. The jury
awarded Lewis a total of $50,244.05 on his claims {$15,244.05 for personal injuries and
$35,000.00 for emotional distress), Ora Lee received $11,795.50 for her personal injuries
along with $10,000.00 for emotional distress, and Emanuel received $33,024.41 for his
personal injuries.
$50,244.05 on his claims ($15,244.05 for personal injuries and $35,000.00 for emotional distress), Ora Lee
received $11,795.50 for her personal injuries along with $10,000.00 for emotional distress, and Emanuel
received $33,024.41 for his personal injuries.
At trial, it appeared that Ora Lee sought emotional distress damages for witnessing injury to both Earnestine
and Emanuel.
1
The verdict did not apportion Ora Lee's emotional distress damages between the effects of
seeing Earnestine and Emanuel injured. The State claims that, as a matter of law, Ora Lee could not recover for
emotional distress because she was not closely related to Earnestine. It further contends that no damages
should have been awarded to Ora Lee based upon emotional distress incurred in seeing Emanuel trapped beneath
the vehicle because he was not seriously injured. The State also appeals the jury's award to Lewis to the extent it
exceeded $50,000.00 (i.e., $244.05), claiming that the verdict contravened the language and policy of NRS
41.035, which limits recovery from the State to $50,000.00 for each cause of action.
DISCUSSION
The State preserved the issues pertaining to the viability of Ora Lee's NIED claim
Ora Lee argues that the State failed to preserve for review its assertion that Ora Lee was not a sufficiently
close relative' to Earnestine, and its contention that Emanuel's injuries were insufficiently severe to give rise
to a NIED claim. We conclude that Ora Lee's contentions are without merit. The record shows that the State
argued at trial that Ora Lee was not closely related to Earnestine, and that Emanuel did not incur the serious
injuries which are required as a condition precedent to a plaintiff being able to recover damages for NIED.
Accordingly, we will review the merits of the subsequent issues on appeal.
Ora Lee was entitled to the NIED award for witnessing the death of Earnestine
[Headnote 1]
At trial, the district court instructed the jury that Earnestine and Ora Lee were closely related as a matter of
law. In State v. Eaton, 101 Nev. 705, 71S, 710 P.2d 1370, 1379 {19S5), where a mother
sought damages for emotional distress after witnessing the death of her child, this court
first "recognize[d] a cause of action for 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.
__________

1
During closing arguments, Ora Lee's counsel stated:
There's a much more serious component in Ora Lee's damages, and that goes to this component of
emotional distress for having witnessed the death of Earnestine Hill, having witnessed Emanuel Hill
trapped underneath the car. . . .
I would ask that on Ora Lee's behalf, for having witnessed her friend of 40 years, her passing, an
event like that for $75,000.
(Emphasis added.)
101 Nev. 705, 718, 710 P.2d 1370, 1379 (1985), where a mother sought damages for emotional distress after
witnessing the death of her child, this court first recognize[d] a cause of action for 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. (Emphasis added.) In Eaton, this court expressly adopted the test for
foreseeability of emotional harm as expressed in Dillon v. Legg, 441 P.2d 912 (Cal. 1968).
This court quoted Dillon's articulation of factors for trial courts to consider in determining the foreseeability
of emotional injury to a particular plaintiff:
(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a
distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from
the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident
from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted
with an absence of any relationship or the presence of only a distant relationship.
Eaton, 101 Nev. at 716, 710 P.2d at 1377-78 (quoting Dillon, 441 P.2d at 916) (emphasis
added).
In Dillon, the court explained its rationale for abolishing the old zone of danger rule and expanding
bystander liability to include those who witness severe injury to a victim with whom they share a close
relationship:
The case thus illustrates the fallacy of the rule that would deny recovery in the one situation and grant it
in the other . . . . [W]e can hardly justify relief to the sister for trauma which she suffered upon
apprehension of the child's death and yet deny it to the mother merely because of a happenstance that the
sister was some few yards closer to the accident. The instant case exposes the hopeless artificiality of the
zone-of-danger rule.
State v. Eaton, 101 Nev. 705, 713, 710 P.2d 1370, 1375 (1985) (quoting Dillon, 441 P.2d at
915) (emphasis added).
Ora Lee and Earnestine were more than in-laws, they were best and dearest of friends for almost forty years;
Ora Lee was closer to Earnestine than to her own sisters. We believe that to preclude Ora Lee from recovery for
the shock of witnessing the death of such a loved one for want of a legal or blood relationship would be the
height of hopeless artificiality. For example, a rule that would deny recovery to a plaintiff who merely
because of happenstance" witnesses the death or injury to his fiance in an accident
which occurs on the way to the wedding ceremony, yet permits recovery if an accident
occurs on the couple's way to the wedding reception, is fallacious.
because of happenstance witnesses the death or injury to his fiance in an accident which occurs on the way to
the wedding ceremony, yet permits recovery if an accident occurs on the couple's way to the wedding reception,
is fallacious.
Although there is some extrajurisdictional case law rigidly mandating the presence of a legal or blood
relationship as a prerequisite for recovery on a NIED claim, substantial dissenting jurisprudence co-exists. Other
jurisdictions have specifically held that the absence of a legal or blood relationship between a bystander and a
victim should not foreclose recovery under a Dillon analysis. See Leong v. Takasaki, 520 P.2d 758 (Haw. 1974).
As aptly stated by the Hawaii Supreme Court, the factors formulated in Dillon . . . should be utilized to
determine the genuineness and degree of mental distress, rather than to bar recovery. Campbell v. Animal
Quarantine Station, 632 P.2d 1066, 1069 (Haw. 1981).
[Headnotes 2, 3]
Therefore, we conclude that whether a plaintiff can recover for NIED after witnessing injury to another based
on the plaintiff's relationship to the victim is generally a question of fact. The fact-finder should have the
opportunity to assess the nature and quality of the relationship between the plaintiff and the victim whose injury
or death was witnessed by the plaintiff. See Paugh v. Hanks, 451 N.E.2d 759, 767 (Ohio 1983) ( We decline to
draw an absolute boundary around the class of persons whose peril may stimulate the mental distress. This
usually will be a jury question bearing on the reasonable reaction to the event . . . . ' ) (quoting Hunsley v.
Giard, 553 P.2d 1096 (Wash. 1976)). However, as noted by Justice Maupin in his concurrence, there will be
cases where the district court can determine that, as a matter of law, the relationship is not sufficiently close to
merit presentation to a jury. We encourage the district courts to scrutinize the closeness of the relationship when
questioned in these cases prior to trial.
[Headnote 4]
Although we have just announced that whether a witness is closely related to the victim is generally a
question of fact, where undisputed evidence exists concerning the nature of the relationship, the issue may be
resolved as a matter of law. Cf. Rockwell v. Sun Harbor Budget Suites, 112 Nev. 1217, 1225, 925 P.2d 1175,
1180 (1996). The evidence showed that Ora Lee and Earnestine had been best friends for nearly four decades.
They spoke almost on a daily basis and saw each other several times a week. These two women travelled
together and were closer than blood sisters.
In this case, the facts clearly supported the judge's determination that Ora Lee and Earnestine were closely
related such that Ora Lee's emotional distress was great in witnessing Earnestine's violent death.
2
We affirm the
award of Ora Lee's emotional distress damages on this ground.
3

That portion of Lewis' judgment exceeding $50,000.00 should be sustained because a claim for NIED is a
separate cause of action
[Headnote 5]
1. An award for damages in an action sounding in tort brought under NRS 41.031 [waiving the
State's sovereign immunity] or against a present or former officer or employee of the state or any political
subdivision, immune contractor or state legislator arising out of an act or omission within the scope of his
public duties or employment may not exceed the sum of $50,000, exclusive of interest computed from the
date of judgment, to or for the benefit of any claimant. An award may not include any amount as
exemplary or punitive damages.
(Emphasis added.)
__________

2
Although the facts in this case supported a finding of close relationship as a matter of law, we note that
where, based on the facts, it is equally clear that the plaintiff and the victim were not closely related (i.e., recent
acquaintances, etc.), such a finding would also be appropriate as a matter of law.

3
The submission to the jury of the emotional distress claim for witnessing the injury to Emanuel along with
the death of Ernestine was error because the injuries to Emanuel were not major or life threatening. However,
unlike the appellants in Stickler v. Quilici, 98 Nev. 595, 596, 655 P.2d 527, 527-28 (1982), the State did not
request an instruction or verdict form requiring the jury to distinguish between damages awarded for witnessing
the death of Ernestine, and those awarded for witnessing injury to Emanuel. Although the State made several
objections to the verdict form, none addressed this lack of apportionment; therefore, any such objection is
waived on appeal. See Building Trades v. Thompson, 68 Nev. 384, 409, 234 P.2d 581, 593 (1951).
In contrast to Stickler, in the instant case it is not impossible to determine the basis for the jury's award.
Stickler, 98 Nev. at 597, 655 P.2d at 528. The jury was instructed that damages could not be awarded unless Ora
Lee was aware that [the accident] caused death or serious injury to a loved one (emphasis added), and we
presume that the jury followed its directive. Furthermore, Ora Lee sustained her burden of proof in a manner
supporting the award of emotional distress damages. Compare Stickler, 98 Nev. at 597, 655 P.2d at 528. Her
emotional distress argument at trial focused primar-ily on her witnessing Ernestine's death, and the amount
awarded was reasonable on that basis alone. Under these singular circumstances we do not feel obligated to
reverse Ora Lee's emotional distress damages simply because there was some evidence presented with regard to
her witnessing Emanuel's injuries.
This court has recognized that where a wife joins her action for personal injuries with her action for the
wrongful death of her husband, she has two separate actions for the purposes of NRS 41.035, and is entitled to
separate recovery up to the statutory cap on each action. State v. Webster, 88 Nev. 690, 695, 504 P.2d 1316,
1320 (1972). Although joined in one complaint, an action for wrongful death and an action for personal injuries
suffered by the plaintiff in the same accident are separate, distinct and independent. They rest on different facts,
and may be separately maintained. Id. (citations omitted). The Webster court reasoned that the term action'
[as used in NRS 41.035] is the wrong done, not the measure of compensation or the character of the relief
sought[.] Id. at 696, 504 P.2d at 1320.
[Headnote 6]
A claim for NIED rests on facts separate, distinct and independent from those germane to a claim for
personal injuries.
4
To have a cause of action for NIED, Lewis had to show that he apprehended the serious
injury to his loved one. However, to prove his cause of action for personal injuries, Lewis had to demonstrate to
the fact-finder the extent of his bodily harm (medical expenses, missed work, etc.). Thus, each claim could be
separately maintained, and each claim was subject to its own $50,000.00 statutory cap. To the extent that any
language in State v. Eaton, 101 Nev. 705, 710 P.2d 1370 (1985), is inconsistent with this holding, Eaton is
overruled.
CONCLUSION
Ora Lee's $10,000.00 emotional distress verdict was supported by her witnessing the death of Earnestine.
We, therefore, affirm the award of emotional distress damages to Ora Lee. We further conclude that for purposes
of NRS 41.035, NIED is a separate and distinct cause of action; therefore, we affirm Lewis' judgment below.
Shearing, J., concurs.
__________

4
Therefore, contrary to Justice Young's assertion, this rule would not allow[] a plaintiff to maintain separate
actions for a broken arm and a twisted knee received in one accident. Because the elements of a personal injury
action and those for NIED are distinctly different, a plaintiff need not have a personal injury claim to bring a
claim for NIED; likewise, he need not have suffered emotional distress to bring a claim for personal injuries.
There were two separate and distinct wrongs done to Lewis. The emotional distress for which he seeks
compensation did not arise out of his personal injuries but from witnessing the death of his wife. To adopt
Justice Young's reasoning would be to ignore the holding of State v. Webster, 88 Nev. 690, 504 P.2d 1316
(1972). This we decline to do.
I agree that Ora Lee was eligible to assert an emotional distress claim under State v. Eaton, 101 Nev. 705,
710 P.2d 1370 (1985). As Earnestine's sister-in-law, Ora Lee was closely related to Earnestine, as a matter of
law, for the purpose of standing to assert such a claim.
I note, however, that our adoption of Dillon in Eaton has inevitably required re-examination of the standing
issues raised in these matters. I write separately because I would prefer, while this doctrine is still in its
developmental stage, to consider these claims, on appeal, on a case-by-case basis. Specifically, I would not
adopt a rigid rule restricting standing, nor, as suggested by Rose, J., would I adopt a general rule that standing is
a jury question to be resolved, based upon the subjective nature of the relationship between a bystander and the
physically injured party. Instead, I recognize that some individuals, as a matter of law, will not have standing to
assert an Eaton emotional distress claim while others, as a matter of law, will have standing. In a few close
cases, the trial court may not be able to determine the standing question as a matter of law. Only in these close
cases should the trial court submit the standing issue to the jury.
I also note that, where the issue of bystander recovery is submitted to the jury, whether in close cases or cases
where standing has been determined as a matter of law, the trial court must separately instruct that the closeness
of the relationship is an issue of fact with respect to damages.
Turning to the dissenting portion of the separate opinion of Young, J., my colleague raises a most interesting
issue concerning the application of separate liability caps with regard to Lewis Hill's claims for his own
personal injuries and his additional NIED damages sustained for witnessing the death of his wife. See NRS
41.035 (defining the limits of liability of government entities under Nevada's qualified waiver of sovereign
immunity). The majority observes that the dissent ignores the holding of State v. Webster, 88 Nev. 690, 504
P.2d 1316 (1972). Webster implicated multiple caps in the context of separate claims arising from a single
incident by a single plaintiff for her own personal injuries and for wrongful death damages arising from fatal
injuries to a relative which included damages for grief and sorrow. The dissent notes that Lewis has already
received a settlement for his separate wrongful death claim, and that the imposition of a separate cap would
create a duplicate recovery, arguing that both NIED and wrongful death recoveries are based upon infliction of
emotional distress. Thus, the dissent reasons that the majority has expanded the qualified waiver of sovereign
immunity beyond that contemplated by the legislature.
Certainly, in addition to his wrongful death settlement, Lewis has now received separate jury awards for
his own personal injuries and for his emotional distress arising from apprehending the fatal injuries suffered by
his wife. As this court has stated, an NIED claim constitutes an independent and separate cause of action. Thus,
if Webster is taken to its logical conclusion, the majority correctly implicates three separate liability caps.
We have not departed or retreated from Webster in the twenty-six years since it was decided. If the dissent is
correct, we would arguably have to overrule Webster because it was wrongly decided. Simply stated, the
Webster scenario, at best, only offers distinctions without any substantive differences.
1
At this point, we should
defer to the legislature on the question of whether we misconstrued the meaning of causes of action in 1972,
and whether we continue to do so today.
Springer, C.J., concurring in part and dissenting in part:
I concur in the court's affirming the judgment of the trial court; but, I strongly disagree with the plurality's
suggestion that the absence of a legal or blood relationship between a bystander and a victim should not
foreclose recovery in an emotional distress case. If such became a rule of law, it would permit anyone to
prosecute an emotional distress claim merely by showing that (as put in the plurality opinion) he apprehended
[a] serious injury to his loved one.
Whatever the term loved one might encompass, extending this narrow tort to any plaintiff who might claim
to love some one or another not only creates an undefinable and unmanageable class of plaintiffs, it goes far
beyond the generally recognized bounds of this tort. If the plurality's proposition were ever adopted by a
majority of this court, it would be in direct contradiction of our rule in State v. Eaton, 101 Nev. 705, 716, 710
P.2d 1370, 1377-78 (quoting Dillon v. Legg, 441 P.2d 912, 916 (Cal. 1969)), that the plaintiff and the victim
[must be] closely related. (Emphasis added.) Best friends and loved ones are not related.
The term related, as used in Eaton, has the traditional meaning of being related by blood or marriage. I
would agree with the trial court that the relationship of the sisters-in-law comes within the definition of closely
related, and is not a distant relationship, as these terms are employed in Eaton. As I have always
understood the word "related," it necessarily applies only to one's "relations," which is to
say, persons with whom one is "related by blood or marriage."
__________

1
While Lewis did settle his wrongful death claim, the injury components, although similar, are different. See
NRS 41.085(4). Grief and sorrow under NRS 41.085(4) may be distinguished from damages arising from
apprehending a loved one's catastrophic injuries. Thus, because claims for direct injuries, wrongful death and
NIED damages are separate actions as defined in Webster, separate caps are implicated.
understood the word related, it necessarily applies only to one's relations, which is to say, persons with
whom one is related by blood or marriage. At common law and traditionally, one could be related either by
consanguinity or by affinity. Consanguinity denotes relationship by blood. Affinity denotes relationship by
marriage. In dissenting, I do not propose a rule that would identify the line between those mentioned in Dillon
who are closely related and those who bear a distant relationship; but I am prepared to accept sisters-in-law
as a close enough relationship to permit recovery in this case under Dillon, and that is the reason that I concur in
the result reached by the majority.
Dillon and Eaton speak of close and distant relationships. I take this to mean that persons who are not related
1
cannot be the subject of this tort action. Thus, good friends, admired celebrities and dearly-loved pets are
excluded.
It would be very disturbing if the court were ever to adopt the rule suggested by the plurality, namely, that
the absence of a legal or blood relationship between a bystander and a victim would not foreclose recovery, it
would vastly expand the scope of liability under this tort. Under such a rule, anyone could claim to have a close
relationship (as defined by the plurality) with one's boss, a close acquaintance or an admired rock starjust
about anybodyand recover money for the distress suffered when witnessing injury to whomever one is so
closely related. Juries will now be asked to inspect the nature and quality of the relationship between the
plaintiff and the victim, whatever in the world that expression might mean, and award damages, I guess, based
on the nature and quality of the relationship. I consider this rule to be a very ill-advised one and, therefore,
dissent.
Young, J., concurring in part and dissenting in part:
I agree with the opinion of Chief Justice Springer with respect to the issue of what relationship is required to
support a claim for NIED. However, I write separately because I am troubled by the majority's willingness to
brush aside the specific provisions of NRS 41.035 on the grounds that Lewis' claim for emotional distress was an
action separate from his claim for physical injury. This decision is unsupported by case law and represents
ill-advised public policy.
It is important to note at the outset that Lewis' wrongful death claim was settled prior to trial.
__________

1
I remember reading in one of Norman Cousin's books that, mathematically, every person on earth is related
to all others by no less than the sixteenth degreesixteenth cousins. Thus, although we are all related, I
believe that in defining closely related in the context of this tort, I see the sister-in-law, brother-in-law
relationship as being at the outer limits of the close relationship that is required for tort liability.
claim was settled prior to trial. To the extent his damage award at trial related to injuries caused by Earnestine's
death, that award was based on a negligent infliction of emotional distress theory.
The majority relies on our decision in State v. Webster, 88 Nev. 690, 504 P.2d 1316 (1972). However,
Webster supports a conclusion opposite from the one the majority makes. In Webster, the plaintiff brought an
action for the wrongful death of her husband and an action for her own personal injuries. We held that, vis--vis
NRS 41.035, the term action' is the wrong done and not the measure of compensation or the character of the
relief sought and, therefore, the plaintiff's wrongful death claim was an action separate from her personal injury
claim.
In my view, emotional distress and physical injury are not separate wrongs; they are merely separate species
of personal injury, a single class of wrong. While the plaintiff claiming physical injury seeks recovery for
damage done to his or her body, the plaintiff claiming emotional distress requests compensation for injuries to
his or her psyche. However, the majority, relying on certain language from Webster, states that [a] claim for
negligent infliction of emotional distress rests on facts separate, distinct, and independent from those germane to
a claim for personal injuries, and, therefore, the two injuries give rise to separate actions. I believe that the
majority here uses isolated language from Webster to subvert the primary holding of that case; the majority
seems to assume that Webster holds that injuries based on different facts are necessarily separate wrongs.
The facts which a plaintiff must show at trial in order to prove any two injuries are, to some extent,
necessarily separate and distinct from each other. Thus, the majority's interpretation of Webster would allow a
plaintiff to maintain separate actions for every individual injury. This is analogous to allowing a plaintiff to
maintain separate actions for a broken arm and a twisted knee received in one accident. The majority seeks to
distinguish this admittedly absurd example from the present case by stating that a plaintiff need not have a
personal injury claim to bring an action for negligent infliction of emotional distress; likewise, he need not have
suffered emotional distress to bring a claim for personal injuries. However, this is no answer. A plaintiff need
not have suffered a broken arm to bring an action for a knee injury, and the reverse is also true.
Moreover, even different damage theories based upon a single injury require proof of separate and distinct
facts. A personal injury plaintiff may recover damages for past and future pain and suffering, for loss of
consortium, for loss of earnings before trial, for future loss of earnings, for the cost of medical services incurred,
and for future medical expenses, just to name a few damage theories.
damage theories. In order to recover under each of these theories, the plaintiff must prove facts not required in
order to prove the others. The majority's decision today seems to imply that each of these damage theories gives
rise to a separate cause of action.
I must emphasize that contrary to the majority's assertion, my position is not that Webster was decided
incorrectly. Rather, I contend that the majority reads Webster so broadly as to utterly eviscerate the provisions of
NRS 41.035. The legislature has determined that the State's liability in negligence should be limited to
$50,000.00 per action. Even though Lewis' recovery exceeded this limit by only $244.05, I fear that the
majority's decision today may have the effect of multiplying this figure several times. Such a radical change in
the liability which public entities must be prepared to absorb is not ours to effect; it is the legislature's. I believe
that the majority's fragmentation of injury claims into separate actions subverts the plain language of NRS
41.035. Therefore, I respectfully dissent.
____________
114 Nev. 823, 823 (1998) Executive Mgmt. v. Ticor Title Ins. Co.
EXECUTIVE MANAGEMENT, LTD., a California Corporation, Appellant, v. TICOR TITLE INSURANCE
COMPANY, a Foreign Corporation; BARBARA MARKS, an Individual; the MANLEY MARKS and
BARBARa MARKS 1988 TRUST, BARBARA MARKS, Trustee; MARKS PLAZA, a Nevada
Corporation; PALMALL PROPERTIES, a Nevada Corporation; and ARTHUR SHIPKEY, an
Individual, Respondents.
No. 27991
September 1, 1998 963 P.2d 465
Appeal from an order and judgment of the district court dismissing a third amended complaint. Eighth
Judicial District Court, Clark County; Donald M. Mosley, Judge.
After landowner, vendor's escrow agent, and common vendor to landowner and adjoining
landowner prevailed as codefendants in adjoining landowner's quiet title action, landowner
sued escrow agent, adjoining landowner, and vendor, alleging negligence, fraud, and other
claims. The district court dismissed, based on res judicata. Landowner appealed. The supreme
court held that: (1) as a matter of first impression, judgment entered in previous action in
which the parties had been codefendants but had not filed any permissive cross-claims against
each other did not have any claim preclusion effect; (2) issue preclusion did not apply to
landowner's claims; (3) abuse of process claim against adjoining landowner was not
compulsory counterclaim in quiet title action; and
landowner was not compulsory counterclaim in quiet title action; and (4) ex parte
conversation between trial judge in landowner's action and the former judge in quiet title
action did not violate Code of Judicial Conduct and did not prejudice landowner.
George R. Carter, Las Vegas, for Appellant.
Lionel Sawyer & Collins and David N. Frederick and Suvinder S. Ahluwalia, Las Vegas; Levinson &
Liebermann and Peter M. Hebert, Beverly Hills, California, for Respondent Ticor.
Ralph J. Rohay, Las Vegas, for Respondents Marks.
Cohen, Johnson & Day and David Colvin, Las Vegas, for Respondents Palmall and Shipkey.
Supreme court would review trial court's dismissal order as if it were a summary judgment, where trial court asked defendants to
file a motion to dismiss after they had presented their motion for summary judgment, but the trial court's review of plaintiff's claims
went beyond the pleadings. Trial court, in dismissing based on res judicata, reviewed various affidavits and the transcript of earlier trial
in which the plaintiff and defendants in the present case were codefendants.
Order granting summary judgment is reviewed de novo.
3. Judgment.
For issue preclusion purposes, a judgment in favor of or against several defendants settles nothing as to their relative rights and
liabilities inter se, unless their hostile and conflicting claims were actually brought in issue, litigated and determined.
4. Judgment.
For issue preclusion to apply, three pertinent elements must be present: (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 or in privity with a party to the prior litigation.
5. Judgment.
When dealing with subsequent litigation between former codefendants, civil procedure rule governing permissive cross-claims
must be considered in conjunction with the common law rules of claim preclusion and issue preclusion. NRCP 13(g).
6. Judgment.
Judgment entered in a previous action in which the parties had been codefendants but had not filed any permissive cross-claims
against each other does not have any claim preclusion effect, because there has not been any adjudication between the parties on any
cause of action, but judgment may have issue preclusion effect, if the three-part issue preclusion test is satisfied.
7. Judgment.
Judgment entered for defendants in quiet title action, in which escrow agent, landowner, and common vendor to landowner and
quiet title claimant were codefendants, did not satisfy identity-of-issues requirement for issue preclusion as to landowner's subsequent
suit against escrow agent. Intensely factual issues in subsequent case regarding whether escrow agent's alleged negligence and fraud
resulted in conveyance of the same lot to both landowner and quiet title claimant were not actually and necessarily litigated as
permissive cross-claims in the quiet title action, and escrow agent and landowner had expressly agreed in connection with quiet title
action that landowner's claims against escrow agent would be preserved if escrow agent undertook defense of landowner. NRCP 13(g).
8. Judgment.
Genuine issues of material fact as to existence of special confidence between landowner and escrow agent precluded summary
judgment as to landlowner's constructive fraud claim against escrow agent, relating to conveyance of same lot to both landowner and
adjoining landowner.
9. Set-Off and Counterclaim.
Claims of landowner, as defendant in quiet title action, against quiet title claimant were compulsory counterclaims, and thus,
landowner's failure to assert the claims precluded landowner from asserting them in subsequent action. In subsequent action,
landowner claimed that claimant should have known that disputed lot had been mistakenly conveyed to claimant, that claimant acted
negligently, and that claimant slandered landowner's title to lot adjoining the disputed lot and tortiously interfered with sale of
adjoining lot by filing lis pendens, and such claims arose from same transaction or occurence as quiet title action. NRCP 13(a).
10. Set-Off and Counterclaim.
Abuse of process claim of landowner, as defendant in quiet title action, against quiet title claimant was not a compulsory
counterclaim, and thus, landowner's failure to assert the claim did not preclude landowner from asserting the claim in subsequent
action. Quiet title action did not actually or necessarily litigate landowner's claim that quiet title claimant had ulterior purpose in
willfully pursuing quiet title claim and filing lis pendens against landowner's property while knowing that the disputed lot had been
mistakenly conveyed to claimant. NRCP 13(a).
11. Process.
Fundamental elements of tort of abuse of process are: (1) an ulterior purpose, and (2) a willful act in the use of the process not
proper in the regular conduct of the proceeding.
Error, if any, was harmless where trial judge, before dismissing action based on res judicata, held ex parte conversation with the
judge in the prior action regarding the degree to which issues were presented in the prior action, as trial judge did not rely on such
conversation in dismssing the subsequent action, but instead relied on transcripts of prior action and testimony from all parties. Code
of Jud.Conduct, Canon 3 (B)(7).
13. Judges.
Trial judge was permitted by Code of Judicial Conduct to consult with another judge, even though the other judge had left the
bench by the time he was consulted. Code of Jud.Conduct, Canon 3(B)(7)(c).
14. Judges.
Code of Judicial Conduct does not require disqualification of judge as remedy for judge's ex parte communication with another
judge. Code of Jud.Conduct, Canon 3(B), (E).
OPINION
Per Curiam:
Respondent Palmall Properties, Inc. (Palmall) sold several contiguous parcels of land to two different buyers in two separate
transactions. Lot 1 was sold to respondents Barbara and Manley Marks (the Markses), and lots 2 and 3 were sold to appellant Executive
Management, Ltd. (Executive). Respondent Ticor Title Insurance Co. (Ticor) served as escrow agent in both transactions. When the
Markses' deed was first recorded, it erroneously contained a description of lots 1 and 2. The Executive deed was subsequently recorded
describing lots 2 and 3. Shortly after both deeds were recorded, Ticor re-recorded the Markses' deed so as to remove lot 2 from that deed.
Three years later, the Markses sued Executive to quiet title to lot 2 in their favor and sued Ticor and Palmall for, inter alia, negligence,
breach of contract, and fraud in conveying lot 2 to both Executive and the Markses.
Executive then sued the Markses, Ticor, and Palmall, asserting various causes of action, also arising out of the sale of lots 1, 2, and 3.
Executive's suit was eventually dismissed as being barred by the doctrine of res judicata with relation to the case first filed by the Markses.
Executive appeals the judgment dismissing its complaint.
FACTS
This matter arises out of two 1985 real estate transactions that culminated in a thirteen-day trial (hereinafter referred to as case I),
which commenced on January 22, 1991, before District Judge J. Charles Thompson. The district court issued its findings of fact and
conclusions of law on July 26, 1991, followed by a judgment on October 23, 1991. The judgment was subsequently appealed,
cross-appealed, and argued before this court. We dismissed both the appeal and cross-appeal. Marks v. Executive Management, Ltd.,
Docket No. 22935 (Order Dismissing Appeal, March 25, 1993).
During the pendency of the case I trial, one of the defendants filed suit (hereinafter referred to as case II) against the plaintiffs, and
eventually added in most of its codefendants from case I. On September 11, 1995, District Court Judge Donald M. Mosley dismissed case II
as being barred by the doctrine of res judicata in relation to case I.
judicata in relation to case I. The plaintiffs in case II now appeal that dismissal.
The primary parties in both cases I and II are: Palmall, Palmall's president and majority shareholder, Arthur
H. Shipkey (Shipkey), Ticor, Executive, and the Markses.
1
Both cases arise out of the following facts, as
documented by the parties and Judge Thompson in case I: Palmall owned several contiguous parcels (lots 1, 2,
and 3) of undeveloped real estate off of Casino Drive in Laughlin, Nevada. In May of 1985, Palmall (through
Shipkey) agreed to sell lots 2 and 3 to Executive for $1,200,000. Shipkey reserved an easement for ingress and
egress over lot 2 for the benefit of lot 1. At approximately the same time, Palmall agreed to sell lot 1 to the
Markses for $275,000.
In 1983, Shipkey had begun proceedings to subdivide the original lot 1 (300' x 120') into lots 1 (220' x 120')
and 2 (80' x 120'); however, the parcelization map showing the subdivision of lot 1 was not recorded until
October 25, 1985. In January of 1986, Palmall and the Markses closed escrow; however, the recorded deed
contained a defective legal description, describing lot 1 as 300' x 120', rather than the post-subdivision
description of 220' x 120'. Later that month, Palmall and Executive closed escrow, and that recorded deed
contained the correct descriptions of lots 2 (80' x 120') and 3. Thus, by the end of January 1986, the records
showed that both Executive and the Markses owned the same 80' x 120' parcel of land fronting Casino Drive.
Ticor served as escrow agent for both the Palmall/Marks and Palmall/Executive transactions. Ticor's title
search prior to the close of the Markses' escrow did not uncover the subdivision map. Judge Thompson found
that when the legal description of lot 1 was first submitted to Ticor, the description was 300' x 120'. The district
court further found that Shipkey knew that this description was inaccurate, but he planned to provide a corrected
legal description prior to the close of the Palmall/Marks escrow. Shipkey subsequently provided proper legal
descriptions for lots 1 (220' x 120') and 2 (80' x 120') to a Ticor employee following recordation of the
subdivision map, and prior to the close of the Palmall/Marks escrow. Shipkey delivered the corrected legal
description to a Ticor employee on January 13, 1986, at the same time he delivered a quitclaim deed relating to
the Palmall/Executive escrow. Judge Thompson noted that Shipkey had failed to mark the documents or
identify the escrows to which the property descriptions applied. The Ticor employee failed to place a copy of
the subdivision map in Ticor's escrow file for the Palmall/Marks transaction.
__________

1
Prior to the filing of case I, the Markses assigned their interest in the real estate at issue to Casino Properties
which then conveyed that interest to Marks Plaza. Accordingly, Marks Plaza also became a named party in both
cases.
The Markses' deed describing lots 1 and 2 was recorded on January 17, 1986. Executive's deed describing
lots 2 and 3 was not recorded until January 28, 1986. In February of 1986, Palmall informed Ticor that the legal
description in the Markses' deed erroneously included the perimeters of lot 2. Without prior notice to Executive
or the Markses, Ticor re-recorded the Palmall/Marks deed so as to describe the boundaries of the Markses'
landlot 1as 220' x 120'.
Three years later, on January 4, 1989, the Markses filed suit (case I) against Executive, Palmall, Shipkey, and
Ticor, alleging ownership of the 80' x 120' lot 2 included in the first recording of their deed. On March 15, 1989,
the Markses filed a lis pendens against Executive's entire property (lots 2 and 3). The Markses' complaint against
Executive sought to quiet title to lot 2 in their favor. The gravamen of the case I complaint was that Ticor had
negligently or intentionally recorded conflicting documents and was, therefore, liable to the Markses under
theories of negligence and breach of the escrow contract.
The case I complaint further alleged that Ticor had slandered the Markses' title and asserted that Ticor had
conspired with Palmall/Shipkey to intentionally and fraudulently convey[] the same property to the Markses
and Executive. The Markses also claimed that Ticor had breached its title insurance contract with them,
breached its fiduciary duty, acted in bad faith, and violated its statutory obligations by failing to defend them in
their attempt to acquire clear title to lot 2. The Markses' complaint also sought an injunction against a party
attempting to foreclose on lot 2 by way of a deed of trust issued by Executive.
Upon being served in case I, Executive contacted a law firm, which in turn contacted Ticor. Ticor informed
Executive that separate counsel would not be necessary, and agreed to defend Executive's title against the
Markses without reservation of rights. Case I proceeded to trial with Ticor and Executive sharing the counsel of
R. Gardner Jolley (Jolley). On the fourth day of the case I trial, February 21, 1991, Judge Thompson responded
in chambers to a concern raised by Executive's president about a possible conflict of interest with Jolley's dual
representation of Ticor and Executive; Judge Thompson offered to declare a mistrial to allow Executive to seek
independent counsel.
During this in-chambers discussion, Judge Thompson noted: It's quite possible that Executive Management
has claims against Ticor. They have not pursued it here. . . . Whether it's a compulsory claim, I don't know.
Executive chose to proceed with the trial of case I, but the day after this in-chambers discussion sent the
following letter to Jolley, stating in pertinent part:
Executive Management is fully aware that if Executive Management is not the
prevailing party relating to the property which is the subject matter of [case I],
erty which is the subject matter of [case I], Executive Management may have potential
claims against Ticor Title, along with the other defendants in the lawsuit. Additionally,
the issue of a potential conflict in your office representing both Ticor Title and
Executive Management has previously been discussed regarding the fact that there may
be future potential litigation involving Ticor Title.
This letter is to confirm the telephone conversation . . . whereby Executive
Management agreed to waive any potential conflict as it relates to your office
representing both Executive Management as our attorneys and also Ticor Title in [case
I], but solely on the condition that allowing your office to continue in [case I] shall not
be considered a waiver of any rights that Executive Management may have under its
title insurance policy against Ticor or other claims Executive Management may have
against any other defendants in the action . . . .
That same day, Executive filed suit (case II) against the Markses to quiet title to lot 2 in its favor and for
slandering its title to lot 2. Executive claimed that the Markses had knowingly misrepresented to others that they
owned lot 2 and had maliciously filed a lis pendens against Executive's lots 2 and 3, thereby impair[ing] the
vendibility of that property. Executive alleged damages in that the lis pendens filed against lots 2 and 3 had
interfered with a multi-million dollar sale of that real estate to a third party who had planned to develop the
property into a hotel/casino. Executive also attributed its failure to make payments on the deed of trust and,
therefore, the impending foreclosure on lots 2 and 3, to its inability to sell the real estate with clouded title. The
case I trial continued for eight more days; however, Judge Thompson did not issue any findings or conclusions
until the end of July, 1991.
Meanwhile, on April 26, 1991, the Markses filed a counterclaim against Executive in case II, seeking to quiet
title to lot 2 in their favor or, in the alternative, an easement in their favor over lot 2. The Markses also
impleaded Ticor, Shipkey, and Palmall as third-party defendants reiterating their claims against these parties that
were first raised in case I. On May 7, 1991, following the district court's preliminary finding that title should be
quieted in favor of Executive, the Markses petitioned the district court to consolidate case II with the still
pending case I.
Executive and Ticor opposed the consolidation motion, arguing that there [were] no common questions of
law or fact between the two cases since the issue in [case I] was who got title to Parcel 2, while the issue in [case
II] is whether or not the Markses are liable for wrongfully placing a lis pendens on Executive Management's
property . . . ."
Management's property . . . . On June 24, 1991, Judge Thompson denied the Markses' motion to consolidate
cases I and II.
On July 26, 1991, Judge Thompson issued his complete findings of fact and conclusions of law in case I. The
district court referred to the testimony of Shipkey's real estate broker, Tom Patton. Patton stated that prior to the
sale of lot 1 to the Markses, he paced off approximately 80 feet of Parcel 2 in front of [the Markses], then
paced off the 220 feet of Parcel 1, and told them that the sale would include Parcel 1 but not Parcel 2. Mrs.
Marks denied walking the property with Patton.
The district court found that Mrs. Marks retained architectural engineer William Lobato to submit a
development plan for a shopping center to the Clark County Planning Commission. Shipkey then submitted a
zoning application on behalf of the Markses as an escrow condition. The district court noted that the Markses'
zoning file contained legal descriptions of lots 1 and 2, in addition to Patton's handwritten note indicating that
the application only covered lot 1.
The district court further noted that at least two months before closing, Mrs. Marks told Lobato that the
parcel she believed she was buying . . . had only 220 front feet. The district court referred to testimony that
disclosed Barbara Marks has extensive experience in dealing with real estate and real estate transactions
concerning commercial property. Notwithstanding the evidence that Mrs. Marks knew that she was only
purchasing lot 1 (220' x 120'), the district court found that Mrs. Marks became aware of the fact that Shipkey had
provided Ticor with legal description of the land to be sold to the Markses which included lot 2, and Mrs. Marks
believed that she would receive Parcel 2 from Shipkey in the transaction.
The district court found that Palmall/Shipkey had intended to convey lot 1 (220' x 120') to the Markses, and
lot 2 (80' x 120') to Executive, subject only to an easement for ingress and egress in favor of the Markses.
Concluding that there had been no meeting of the minds between the Marks and Shipkey with regard to the
conveyance of lot 2, the district court reformed the Palmall/Marks contract so that the Markses were entitled
only to lot 1. Title to lot 2 (80' x 120') was quieted in Executive, subject to the Markses' easement.
Judge Thompson dismissed the Markses' action against Palmall/Shipkey because Ticor had closed escrow
on a parcel of property (Parcel 2) that had not been intended to be conveyed [by] Shipkey to Marks. Because
the district court found that there was not a contract between the Markses and Palmall for the sale of lot 2, it
concluded that there could be no damages. The court further found that the Markses had failed to
present "any competent evidence" of damages.
found that the Markses had failed to present any competent evidence of damages. With regard to the Markses'
claims against Ticor, the district court found:
Ticor was not in breach of contract to the Marks as to the title policy since its duty was
only to insure the property sold by Palmall to the Marks. Since it is a finding of the
Court that Palmall only intended to sell Parcel 1 to the Marks, the title policy only
insured the sale of Parcel 1 to the Marks.
. . . .
Although Ticor may have been negligent in not attaching the correct property
description to the . . . [Markses'] Deed . . . , the Court finds that Ticor is not liable for
its handling of the escrow because the [Markses] suffered no damages as a proximate
result thereof, since even if the correct legal description had been used, the Marks
would have only received Parcel 1.
2

. . . .
Ticor did not act intentionally, fraudulently, maliciously or in bad faith in the
performance of this [sic] contractual and/or fiduciary duties, if any . . . .
Ticor did not conspire with Palmall or any other person to record fraudulent deeds,
slander title or otherwise to harm the Marks.
(Emphasis and footnote added.) The court also concluded that Ticor had not committed any
unfair trade practices, and all of the Markses' claims against Ticor were dismissed with
prejudice. The district court issued its final judgment in October 1991. The judgment did not
expressly incorporate the findings of fact and conclusions of law; it simply quieted title of lot
2 in Executive's favor, subject to an easement, and dismissed the Markses' damages claims
against all defendants.
Prior to this judgment in case I, on July 31, 1991, Executive amended its complaint in case II, adding claims
against Palmall, Shipkey, and Ticor. A year later, on October 20, 1992, the district court once again granted
Executive leave to amend its case II complaint. Executive withdrew its quiet title claim, but now charged Ticor,
Palmall, and Shipkey with negligence, gross negligence, negligent misrepresentation, breach of fiduciary duty,
constructive fraud, and breach of implied and express contract. Executive further asserted claims against Ticor
for fraudulent concealment, bad faith, breach of the duty of good faith and fair dealing, statutory unfair practices,
and malpractice. Executive added claims of negligence, gross negligence, negligent misrepresentation, abuse
of process, and intentional interference with contractual relations to its slander of title
claim against the Markses.
__________

2
The district court further concluded that [a]ny additional claims of negligence would have had to been
established by the introduction of expert testimony of which there was none.
tion, abuse of process, and intentional interference with contractual relations to its slander of title claim against
the Markses.
In the amended complaint, Executive asserts that it did not discover Ticor's negligence in searching title
records until the case I trial. Executive further asserted that following Shipkey's testimony in the case I trial,
Executive learned that Shipkey had conspired with the Markses to record lot 2 in the Markses' deed; Executive
argues that this was done so as to facilitate a zoning change sought by the Markses who were building a
shopping center on the property purchased from Palmall.
By early 1993, Executive had changed counsel at least three times. On January 11, 1993, the discovery
commissioner filed a report recommending dismissal of case II, citing Executive's failure to conduct an early
case conference. Following a February 12, 1993 hearing on the issue of dismissal, Judge Mosley set aside the
discovery commissioner's recommendation and allowed case II to proceed. Of particular note, Judge Mosley
stated that this case was not a typical . . . lack of prosecution case and continued:
I have never been reluctant to exercise the discretion afforded me under 41(e) and . . . I
am very unsympathetic to failure to comply with discovery requirements.
And I will say also as an aside that when I see four attorneys in a case [(referring to
Executive's chain of counsel)], my eyebrows raise and that is just the way it is. But I
think that the problems we have here were visited on this case primarily because we
had so many attorneys and this [case I] situation rather clouded the issue here. We were
waiting for a decision from the Supreme Court among other things. And it looks to me
just to be a gallimaufry [sic] of mistakes or omissions largely because of the various
attorneys, I imagine, in the other case. It is so complicated procedurally.
I cannot escape from the conclusion that [the discovery commissioner's]
recommendation in this case is overly harsh.
. . . .
On January 13, 1995, Executive filed a motion for expedited trial setting; the motion was
opposed by Palmall/Shipkey, and subsequently denied on February 7, 1995. A bench trial for
case II was scheduled to commence January 2, 1996.
In March of 1995, Palmall/Shipkey filed a motion for summary judgment, arguing no genuine issue of
material fact existed due to collateral estoppel and the lack of a fiduciary duty by Palmall/Shipkey to Executive.
The Markses opposed Palmall/Shipkey's summary judgment motion, arguing that SHIPKEY is the most
culpable since his actions in selling a single piece of property to two {2) separate parties created
all the problems herein. . . .
gle piece of property to two (2) separate parties created all the problems herein. . . . What has not been litigated
in any manner is Executive Management's action against him.
After noting that his law clerk had concluded that case II had been resolved in case I, Judge Mosley
requested a motion to dismiss. The Markses filed a motion to dismiss in which Palmall/Shipkey joined. The
Markses' motion was predicated on principles of res judicatacollateral estoppel, statute of limitations and
substantive issues of law.
3

On July 25, 1995, Judge Mosley granted the motion to dismiss case II stating:
I think I heard this earlier on, but I spoke to Judge Thompson and his recollection of
this was that there was a full hearing of the issues or an opportunity given to fully hear
the issues, and the parties he said elected to go forward.
I cannot escape from the conclusion that if another trial is allowed, we are going to
spend about two-thirds of the time that was spent in [case I] going over the identical
issues, the facts, the whole scenario, and then we're going to put a little different twist
on it at the end and pray for some additional rulings.
And the result could well be that my ruling would be inconsistent with Judge
Thompson's, and we would be expending another week or whatever it might be giving a
rehearing of facts in the initial [case I] trial.
Judicial economy or from an economy sense won't allow that to occur. I'm going to
grant the motion to dismiss proffered by the defense.
On September 15, 1995, judgment issued dismissing case II as to all defendants. Executive appeals from this
judgment arguing that dismissal was erroneous because the issues raised in case I did not have preclusive effect
on those raised in case II, and because Judge Mosley relied on an out-of-court conversation with former District
Judge Thompson in deciding to dismiss case II.
4

DISCUSSION
Ticor asserts that the district court dismissed this case based on a failure to prosecute, not on the merits,
and that [t]he Court properly exercised its discretion to dismiss this action for failure to prosecute under
N.R.C.P. 41{e) due to the chronic lack of diligence by Executive Management."
__________

3
In several sentences within the nine-page brief accompanying the motion to dismiss, the Markses
erroneously cite NRCP 41(B)it should be NRCP 41(e)noting that the court has the discretion to dismiss
Executive's claim for failure to prosecute and that in February 1996, dismissal would become mandatory under
the five-year rule.

4
It appears that the Markses are no longer pursuing their counterclaims against any of the parties, and no
cross-appeal has been filed.
failure to prosecute under N.R.C.P. 41(e) due to the chronic lack of diligence by Executive Management.
Having reviewed the transcript of the district court's hearing on the motion to dismiss, we find no mention by the
court of NRCP 41(e), Executive's failure to prosecute, or any chastisement for Executive's alleged chronic lack
of diligence. Ticor did urge the court to consider dismissal on 41(e) grounds; however, we conclude that
passages throughout the transcript indicate that Judge Mosley's decision to dismiss was based upon his belief
that the issues of case II were or could have been litigated in case I. Therefore, because we conclude that the
facts do not indicate that dismissal was based upon NRCP 41(e), we will not affirm the dismissal on the ground
that Executive failed to prosecute case II.
[Headnote 1]
Judge Mosley asked the case II defendants to file a motion to dismiss after they had presented their motion
for summary judgment; however, the circumstances reflect that the motion to dismiss led to a review of
Executive's claims that went beyond the pleadings; Judge Mosley reviewed various affidavits and the transcript
of case I. We have stated that [w]hen a district court errs in failing to expressly consider respondent's motion
as one for summary judgment,' this court is not obliged to reverse,' but simply review[s] the dismissal order as
if it were a summary judgment.' Schneider v. Continental Assurance Co., 110 Nev. 1270, 1271, 885 P.2d 572,
573 (1994) (alteration in original) (quoting Thompson v. City of North Las Vegas, 108 Nev. 435, 438-39, 833
P.2d 1132, 1134 (1992)).
[Headnote 2]
We therefore construe the district court's judgment as granting summary judgment on the basis of res judicata
under NRCP 56, and an order granting summary judgment is reviewed de novo. Tore, Ltd. v. Church, 105 Nev.
183, 185, 772 P.2d 1281, 1282 (1989). To resolve the case before us, we must now consider the application of
two related, but separate areas of law(1) the doctrine of res judicata, and (2) the law of compulsory and
permissive counterclaims and cross-claims set forth in NRCP 13.
Generally, the doctrine of res judicata precludes parties . . . from relitigating a cause of action or an issue
which has been finally determined by a court . . . . University of Nevada v. Tarkanian, 110 Nev. 581, 598, 879
P.2d 1180, 1191 (1994). We have recognized that there are two different species of res judicata . . . issue
preclusion and claim preclusion. Id. at 598, 879 P.2d at 1191. Although often used to describe both species,
in its strictest sense, the term res judicata refers only to claim preclusion. Pomeroy v. Waitkus, 517 P.2d 396,
399 (Colo. 1974).
Pursuant to the rule of claim preclusion, [a] valid and final judgment on a claim precludes a second action
on that claim or any part of it. Tarkanian, 110 Nev. at 599, 879 P.2d at 1191. Claim preclusion applies when a
second suit is brought against the same party on the same claim. In re Medomak Canning, 111 B.R. 371, 373
n.1 (Bankr. D. Me. 1990). If, as in the instant case, the prior judgment is in favor of defendant, plaintiff is
barred' from bringing another claim based on the same cause of action. Id. We have further stated that [t]he
modern view is that claim preclusion embraces all grounds of recovery that were asserted in a suit, as well as
those that could have been asserted, and thus has a broader reach than [issue preclusion]. Tarkanian, 110 Nev.
at 600, 879 P.2d at 1191.
[Headnote 3]
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.' Id. 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]. Id. 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.
5
Pomeroy, 517 P.2d at 399.
[Headnote 4]
Adopting the language from Justice Traynor's opinion in Bernhard v. Bank of America National Trust &
Savings Ass'n, 122 P.2d 892 (Cal. 1942), we have stated:
For res judicata to apply, three pertinent elements must be present: (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 or in privity with a party to the prior litigation.
__________

5
To the extent our opinion in University of Nevada v. Tarkanian, 110 Nev. 581, 600, 879 P.2d 1180, 1192
(1994), suggests that a relevant inquiry is whether the issue might have been properly litigated in the district
court, it is hereby modified. (Emphasis added.) We note in that opinion, we went on to clarify: For res
judicata purposes, a judgment against several defendants settles nothing as to their relative rights and liabilities
inter se, unless their hostile and conflicting claims were actually brought in issue, litigated and determined. Id.
(Emphasis added.) This is a correct statement of the law pertaining to issue preclusion and is equally applicable
where there has been a judgment in favor of multiple defendants.
Tarkanian, 110 Nev. at 598, 879 P.2d at 1191. However, Justice Traynor's oft-cited tripartite
test is somewhat misleading in that it refers only to identity of issues, which is relevant to the
doctrine of issue preclusion, but makes no mention of the identity of claims relevant to a
claim preclusion analysis. Accordingly, we hereafter construe this language as stating the
applicable test for issue preclusion, rather than for res judicata which encompasses the rule of
claim preclusion.
[Headnote 5]
When dealing with subsequent litigation between former codefendants, our rules governing cross-claims
must also be considered in conjunction with the common law rules of preclusion. NRCP 13(g), modeled after
Federal Rule of Civil Procedure 13 (FRCP 13), provides:
. . . Cross-Claim Against Co-Party. A pleading may state as a cross-claim any claim by one party
against a co-party arising out of the transaction or occurrence that is the subject matter either of the
original action or of a counterclaim therein or relating to any property that is the subject matter of the
original action. . . .
(Emphasis added.) The language of this rule is clearly permissive as contrasted with the compulsory language of
NRCP 13(a) which provides that: A pleading shall state as a counterclaim any claim which at the time of
serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence
that is the subject matter of the opposing party's claim . . . . (Emphasis added.)
[Headnote 6]
Although a case of first impression in Nevada, many other courts and commentators have addressed the
effect of permissive cross-claim rules on the doctrines of issue and claim preclusion. As noted in one prominent
treatise discussing the interaction of FRCP 13 and res judicata: A party who decides not to bring his claim
under Rule 13(g) will not be barred by res judicata, waiver, or estoppel from asserting it in a later action, as he
would if the claim were a compulsory counterclaim under Rule 13(a). 6 Charles Alan Wright, et al., Federal
Practice and Procedure 1431 (2d ed. 1990).
Likewise, the Ninth Circuit has held that a judgment entered in a previous action in which the parties had
been codefendants who had not filed any cross-claims against each other did not have any res judicata [(meaning
claim preclusion)] effect because there had not been any adjudication between the parties on any cause of
action. Steen v. John Hancock Mut. Life Ins. Co., 106 F.3d 904, 911 {9th Cir. 1997); see also
Peterson v. Watt, 666 F.2d 361, 363 {9th Cir. 19S2) {noting that where a party to an
action has an FRCP 13{g) permissive cross-claim, the party has the option to pursue that
claim in an independent action, and holding that "if such a claim is neither asserted nor
litigated, the parties cannot be barred from asserting it in a later action by principles of
res judicata, waiver, or estoppel").
904, 911 (9th Cir. 1997); see also Peterson v. Watt, 666 F.2d 361, 363 (9th Cir. 1982) (noting that where a party
to an action has an FRCP 13(g) permissive cross-claim, the party has the option to pursue that claim in an
independent action, and holding that if such a claim is neither asserted nor litigated, the parties cannot be barred
from asserting it in a later action by principles of res judicata, waiver, or estoppel).
There is conflicting jurisprudence; however, many other courts have reached conclusions similar to the Ninth
Circuit. See, e.g., Potomac Design, Inc. v. Eurocal Trading, Inc., 839 F. Supp. 364, 368 (D. Md. 1993) (quoting
American Industrial Leasing Co. v. Law, 458 F. Supp. 764, 769 (D. Md. 1978)) ([B]ecause cross-claims are
permissive under Maryland law, a party who does not assert a cross-claim is not barred by res judicata in a
subsequent action.' ); Houlihan v. Fimon, 454 N.W.2d 633, 637 (Minn. Ct. App. 1990) (concluding that
plaintiff was not required to bring a cross-claim against former codefendants in prior action as it would have
made her cross-claim mandatory rather than permissive); Israel v. Farmers Mut. Ins. Ass'n of Iowa, 339 N.W.2d
143, 146 (Iowa 1983) (holding that where cross-claim was permissive, claim preclusion was an invalid defense
in subsequent suit against former codefendants).
Although courts have held that applying claim preclusion to subsequent litigation between former
codefendants would have the effect of negating permissive cross-claim rules, some courts have recognized that
issue preclusion may be raised as a viable defense. See, e.g., McClellan v. Columbus I-70 West Auto-Truckstop,
525 F. Supp. 1233, 1234 (D. Ill. 1981) (noting that under Illinois law, parties need not have been on opposite
sides in the prior litigation for issue preclusion to apply); Davis v. O'Brien, 326 A.2d 511, 512 (Pa. Super. Ct.
1974) (holding that for issue preclusion to apply, parties need not have been adversaries in prior action and may
have been merely codefendants). However, as a practical matter, the Ninth Circuit has noted that federal
courts generally do not apply collateral estoppel, or issue preclusion, between parties who were codefendants in
the prior action,' because the prior action is usually not considered the actual, full, and fair litigation' necessary
to apply collateral estoppel,' Steen, 106 F.3d at 911 (quoting Alumax Mill Prods. v. Congress Fin. Corp., 912
F.2d 996, 1012 (8th Cir. 1990)).
[Headnote 7]
Considering Executive's claims against former codefendants Palmall/Shipkey and Ticor, we adopt the
reasoning of the Ninth Circuit and conclude that these respondents may not rely on claim preclusion as an
affirmative defense. Any claims Executive might have had against these respondents during the pendency of case
I were permissive pursuant to the express language of NRCP 13{g).
were permissive pursuant to the express language of NRCP 13(g). We will not allow the doctrine of claim
preclusion to convert the permissive character of NRCP 13(g) into a compulsory mandate.
However, we further conclude that issue preclusion is an available defense where Justice Traynor's three-part
test, quoted supra, has been satisfied. The ruling in case I was final and on the merits, and the same parties
involved in case I are involved in case II. Thus, the only question is whether the issues raised by Executive in
case II are identical to those which were actually and necessarily decided in case I. See Tarkanian, 110 Nev. at
598, 879 P.2d at 1191. We conclude that they are not.
Executive's case II complaint charges Palmall/Shipkey with negligence, gross negligence, and negligent
misrepresentation, breach of fiduciary duty and constructive fraud, and breach of implied and express contracts.
The same claims are made against Ticor, with additional claims of misrepresentation and fraudulent
concealment, bad faith and breach of the duty of good faith and fair dealing, statutory unfair practices, and
escrow and title insurance malpractice.
Executive asserts that Palmall/Shipkey and Ticor negligently prepared, executed, delivered and recorded
the Markses' January 17, 1986 deed. This deed erroneously included a legal description of lot 2, which
Palmall/Shipkey had previously quitclaimed to Executive on January 13, 1986, but which was not recorded until
January 28, 1986. Executive claims that but for Palmall/Shipkey's negligent delay in filing the parcel map
subdividing the property into lots 1 and 2, and the delay in recording Executive's quitclaim deed, Executive
would not have been damaged by the cloud upon its title to lot 2. Executive further asserts that Ticor
negligently failed to warn Executive Management of a potential conflict of interest that existed in Ticor's
defending both its interests and [Executive's].
Executive's complaint also charges that both Palmall/Shipkey and Ticor had a fiduciary duty to deal with
[Executive] with the utmost honesty and good faith. Ticor allegedly breached this duty by concealing facts from
Executive, providing shared counsel in case I notwithstanding conflicts between the interests of Executive and
Ticor, failing to communicate with Executive during the litigation of case I, and entering into case I stipulations
with parties adverse to Executive, namely, the party attempting to foreclose on Executive's lots 2 and 3.
6
With
regard to PalmallJShipkey, the case II complaint alleges that they had a fiduciary duty
not to jeopardize the sale of lot 2 to Executive by their transactions with the Markses.
__________

6
According to Executive, it had no knowledge of Ticor's alleged negligence in searching the title records and
attaching an erroneous legal description to the Markses' deed, nor did it know of Ticor's re-recording of the
Markses' deed in February 1986 until trial commenced in case I. Executive also maintains that it was not until
Shipkey testified during case I that it gained knowledge of Shipkey's alleged agreement with the Marks to delay
delivery of
With regard to Palmall/Shipkey, the case II complaint alleges that they had a fiduciary duty not to jeopardize
the sale of lot 2 to Executive by their transactions with the Markses. Executive claims that through a course of
dealing which involved two sales, representations of easement rights and parcelling[,] Palmall/Shipkey engaged
in constructive fraud.
Additionally in its case II complaint, Executive maintains that Palmall/Shipkey breached an implied and
express sale contract to convey full legal title to lots 2 and 3 to Executive, in that they failed to timely record the
parcelization map and Executive's quitclaim deed. Ticor allegedly breached its implied and express contract to
carry out the escrow and convey marketable title . . . in a professional, competent manner. By failing to
immediately inform Executive of the cloud on its title to lot 2, to adequately disclose potential conflicts
resulting from a joint defense, and to provide Executive with independent counsel, Executive maintains that this
contract was breached.
Executive's complaint further asserts that Ticor's allegedly negligent and improper conduct during its
representation of Executive gave rise to claims of negligent misrepresentation and fraudulent concealment.
Specifically, Executive charges that Ticor failed to apprise Executive of pertinent information during the
pendency of case I, including potential counterclaims against the Markses and conflicts of interest between Ticor
and Executive. Executive maintains that Ticor wilfully misled and fraudulently concealed evidence of its
negligence from Executive during the case I proceedings. Moreover, Executive asserts that Ticor improperly
refused to protect lot 3 from the cloud of title over lot 2; although Ticor sought an injunction against foreclosure
of lot 2, because the insurance contract also covered lot 3 and Ticor did not seek an injunction against
foreclosure on lot 3 or attempt to expunge or bond around the recorded Lis Pendens[,] Ticor allegedly failed
to protect Executive's interests. Executive's complaint contends that these and other alleged derelictions set forth
in the previous claims also gave rise to claims of bad faith and breach of the duty of good faith and fair dealing,
statutory unfair practices, and escrow and title malpractice.
We conclude that none of these intensely factual issues was actually and necessarily litigated during the
course of the Markses' case against Executive, Ticor, and Palmall/Shipkey. The fact that Palmall/Shipkey
intended to sell lots 2 and 3 to Executive and lot 1 to the Markses does not satisfy the identity of issues
requirement necessary to successfully preclude litigation of the instant case under the rule of issue preclusion.
Although the district court found in case I that the Markses had not shown PalmallJShipkey
had breached their contract with the Markses, this finding does not negate the viability of
Executive's subsequent complaint.
__________
Executive's deed so as to facilitate the Markses' attempt to obtain zoning for their proposed shopping center.
trict court found in case I that the Markses had not shown Palmall/Shipkey had breached their contract with the
Markses, this finding does not negate the viability of Executive's subsequent complaint. We also note that in case
I, the court expressly found that the Markses had failed to make a showing of damages which, of course, was
fatal to many of their claims. It has yet to be determined if, and to what extent, Executive has been damaged by
the respondents' alleged conduct.
Likewise, the district court's findings in case I pertaining to the Markses' claims against Ticor have no
preclusive effect on the instant matter. The court addressed only the Markses' rights under their contract with
Ticor, and expressly found that Ticor may have been negligent but, again, the Markses suffered no damages
and failed to present necessary expert testimony on other possible negligence claims. Although the district court
found that Ticor did not conspire with Palmall/Shipkey or anyone else to record fraudulent deeds, we note that
the only conspiracy alleged by Executive was between Palmall/Shipkey and the Markses. Furthermore, the
findings in case I that Ticor did not commit unfair trade practices, nor did it act in bad faith in the performance
of any contractual or fiduciary duties owed to the Markses, do not address these issues as they pertain to
Executive and its relationship with Ticor. Therefore, we conclude that none of Executive's claims against Ticor
7
or Palmall/Shipkey was properly barred under the doctrine of issue preclusion.
8
We reverse the district
court's dismissal of Executive's claims against Ticor and remand this case for further
proceedings on all of the causes of action set forth against Ticor in the case II complaint.
__________

7
Moreover, the February 22, 1991 correspondence memorializing a conversation between Executive and
Ticor indicates that the parties expressly agreed that Executive's claims against Ticor had been preserved. As
noted by one learned commentator, an agreement of the parties in a prior suit may negate the preclusive effect of
any judgment in that suit. Allan D. Vestal, Res Judicata/Preclusion 402-03 (1969). Professor Vestal further
explains:
Waiver of the preclusive effect of the first judgment may also be found in the conduct of a party in
Suit I. What the courts are really saying is that the litigant so acted in the first suit that it would be
inequitable to allow him to rely on the first judgment as preclusive.
Id. at 547.

8
We reject Ticor's argument that because it made no reservation of rights in its defense of Executive, Ticor
and Executive's shared case I counsel could have no conflict of interest. As an initial matter, Ticor's defense of
Executive without reservation of rights does not, of itself, render impossible a conflict of interest arising out of
joint representation. Whether there was indeed a conflict of interest arising out of the joint representation of
Ticor and Executive, and whether such joint representation was the cause of any damages (however remote the
possibility of damages may be under these circumstances) should be resolved at trial.
Secondly, Ticor raises the reservation of rights issue in an attempt to rebut Executive's assertion that res
judicata should not apply because it had no knowledge of certain claims against Ticor until the case I trial due to
the alleged conflict of interest. Because we hold that res judicata does not preclude litigation of the instant case,
Ticor's argument is not relevant.
trict court's dismissal of Executive's claims against Ticor and remand this case for further proceedings on all of
the causes of action set forth against Ticor in the case II complaint.
As an alternative argument, Palmall/Shipkey assert that Executive's cause of action for breach of fiduciary
duty and constructive fraud cannot lie as a matter of law. In Long v. Towne, 98 Nev. 11, 13, 639 P.2d 528,
529-30 (1982), we explained that: Constructive fraud is the breach of some legal or equitable duty which,
irrespective of moral guilt, the law declares fraudulent because of its tendency to deceive others or to violate
confidence. Constructive fraud may arise when there has been a breach of duty arising out of a fiduciary or
confidential relationship. Id. at 13, 639 P.2d at 530. Such a relationship exists where one reposes a special
confidence in another so that the latter, in equity and good conscience, is bound to act in good faith and with due
regard to the interests of the one reposing the confidence. Id. In Long, we noted that [g]enerally, no fiduciary
obligations exist between a buyer and seller of property and concluded, on the facts at issue in that case, that the
buyer had reposed no special confidence in the seller. Id.; see also Mullen v. Cogdell, 643 N.E.2d 390, 401
(Ind. Ct. App. 1994) (recognizing that a fiduciary relationship does not exist between a buyer and seller in an
arms length transaction). In fact, [the buyer] stated that she did not trust [the seller]. Long, 98 Nev. at 13, 639
P.2d at 530. Furthermore, in Long we concluded that the seller had not misrepresented or concealed any
material fact. Id. at 13, 639 P.2d at 530.
[Headnote 8]
In its reply brief, Executive seems to concede the point that there is no fiduciary relationship between a buyer
and seller of real property, but maintains that the absence of such a relationship is not fatal to its cause of action
for constructive fraud. We agree and conclude that although Executive's breach of fiduciary duty claim will not
lie against Palmall/Shipkey, there are factual questions concerning the issue of special confidence yet to be
resolved, and thus a claim for constructive fraud may be viable. See Mullen, 643 N.E.2d at 401 (holding that
existence of a fiduciary relationship is not the only basis for a claim of constructive fraud and that such a claim
may arise between buyers and sellers). Accordingly, we affirm that portion of the district court's judgment
dismissing Executive's breach of fiduciary duty claim against Palmall/Shipkey, but we reverse the dismissal of
all remaining claims against Palmall/Shipkey and remand this case for further proceedings thereon. We must
next consider Executive's claims against the Markses.
Related to the common law doctrines of issue and claim preclusion is the law of compulsory
counterclaims, labeled by one commentator as "preclusion by rule."
sion is the law of compulsory counterclaims, labeled by one commentator as preclusion by rule. Allan D.
Vestal, Res Judicata/Preclusion 158 (1969). Nevada's civil procedure rule on compulsory counterclaims mirrors
the language of its federal counterpart, FRCP 13(a). NRCP 13(a) provides in pertinent part:
Compulsory Counterclaims. A pleading shall state as a counterclaim any claim
which at the time of serving the pleading the pleader has against any opposing party, if
it arises out of the transaction or occurrence that is the subject matter of the opposing
party's claim . . . .
(Emphasis added.)
[Headnote 9]
Pursuant to NRCP 13(a), we conclude that the majority of Executive's causes of action against the Markses
were compulsory. In case II, Executive's third amended complaint sought recovery from the Markses for
negligence, gross negligence, negligent misrepresentation, intentional interference with contractual relations,
slander of title, and abuse of process. Executive asserts that the Markses were negligent or grossly negligent in
filing a quiet title action against Executive in case I because, according to Executive, the Markses knew or
should have known that they did not own lot 2.
Slander of title involves false and malicious communications, disparaging to one's title in land, and causing
special damage. Higgins v. Higgins, 103 Nev. 443, 445, 744 P.2d 530, 531 (1987) (citations omitted).
Executive asserts that the Markses intentionally or negligently represented to others that they owned lot 2 and
filed the lis pendens even though they knew that they did not own lot 2. Executive claims that as a result of the
lis pendens it could not sell the property, was unable to make payments on the property, and thereby lost the
property through foreclosure. Executive asserts that the Markses intentionally interfered with its contract with
Palmall. According to Executive's complaint, the Markses were aware of the fact that the Executive/Palmall deal
encompassed both lots 2 and 3 and attempted to wrongfully take lot 2 through a frivolous lawsuit. Executive
alleges that the Markses further interfered with later sales to third parties by placing the lis pendens on lots 2 and
3 thereby causing land sale contracts to fail.
We conclude that all of Executive's claims, with the exception of that for abuse of process, were compulsory
counterclaims. The purpose of NRCP 13(a) is to make an actor' of the defendant so that circuity of action is
discouraged and the speedy settlement of all controversies between the parties can be accomplished in one
action. Great W. Land & Cattle v. District Ct., S6 Nev. 2S2, 2S5, 467 P.2d 1019, 1021 {1970).
Ct., 86 Nev. 282, 285, 467 P.2d 1019, 1021 (1970). We conclude that Executive should have attempted to
resolve its various negligence, slander of title, and tortious contractual interference claims against the Markses in
case I. These claims arose out of the same transaction or occurrence litigated in case Inamely, who owned lot
2. Because the Markses filed the lis pendens on Executive's property as part of their quiet title suit and this filing
is part of the basis of Executive's case II claims against the Markses, we conclude that NRCP 13(a) applied. See
generally MacDonald v. Krause, 77 Nev. 312, 362 P.2d 724 (1961) (discussing the breadth of the phrase same
transaction or occurrence). Therefore, the district court did not err in dismissing these claims against the
Markses.
[Headnote 10]
Executive alleges abuse of process in that the Markses filed suit in an attempt to wrongfully take away its
title to lot 2; the complaint further asserts that this alleged abuse of process led to the Lis Pendens which
effectively prevented [Executive] from selling its property for millions of dollars. We conclude that this claim
was not compulsory and, therefore, is not barred by the rule of claim preclusion. See Yaklevich v. Kemp,
Schaeffer, 626 N.E.2d 115, 119 (Ohio 1994) (holding under a civil procedure rule similar to NRCP 13(a), that
abuse of process is not a compulsory counterclaim which must be brought in the underlying litigation); 6
Charles A. Wright et al., Federal Practice & Procedure 1410 (2d ed. 1990) (stating that claim preclusion
never bars a party from suing independently on a permissive counterclaim).
[Headnote 11]
The fundamental elements of this tort consist of (1) an ulterior purpose, and (2) a willful act in the use of the
process not proper in the regular conduct of the proceeding. Dutt v. Kremp, 111 Nev. 567, 575, 894 P.2d 354,
357 (1995). These issues were not actually and necessarily litigated during the pendency of case I; therefore, the
rule of issue preclusion is not implicated. Moreover, we are not persuaded by the Markses' argument that
because they were awarded an easement in case I and, at one point, the case I district court found that Mrs.
Marks believed she would receive lot 2, there can be no showing of the requisite ulterior motive necessary for an
abuse of process claim. These questions must be resolved by the fact-finder and, therefore, summary judgment is
not appropriate. Accordingly, we conclude that the district court erred in dismissing Executive's abuse of process
claim against the Markses. We reverse this part of the judgment and remand for further proceedings on this
claim.
[Headnotes 12, 13]
Turning to Executive's final contention: As quoted in the factual recitation, in granting the motion to dismiss
against Executive, Judge Mosley stated, I spoke to Judge Thompson and his recollection of this was that there
was a full hearing of the issues or an opportunity given to fully hear the issues, and the parties he said elected to
go forward. Executive asserts that Judge Mosley violated Canon 3(B)(7) of the Nevada Code of Judicial
Conduct
9
by basing his decision on an ex parte conversation with Judge Thompson. Because of this alleged
violation, Executive maintains that the case must be remanded and randomly assigned to a different judge.
[Headnote 14]
Although the case will be remanded, in part, on the basis of the substantive law set forth above, we do not
agree that assignment to a different judge is necessary.
10
Canon 3(B)(7)(c) clearly permits a judge to consult
with another judge. Notwithstanding Executive's assertion that Judge Mosley had this conversation with Judge
Thompson after Thompson had left the bench to become an assistant district attorney, it does not appear that
Judge Mosley violated any of the judicial canons.
Furthermore, having reviewed the entire transcript from which the above quoted statement was taken, we
conclude that Judge Mosley did not rely on his conversation with Judge Thompson in deciding to dismiss
Executive's case pursuant to the doctrine of res judicata; Judge Mosley heard testimony from all parties on the
issue and reviewed the transcript of case I. Judge Mosley's independent review of the pleadings, affidavits, and
testimony could have formed the basis of his decision to dismiss Executive's case pursuant to the doctrine of res
judicata. Therefore, we conclude that there was no prejudice to Executive warranting reassignment to a different
district court judge. Thus, even if it was error for Judge Mosley to discuss the matter with Judge Thompson, such
error was harmless.
__________

9
Canon 3(B)(7) provides in part:
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 except that:
. . . .
(c) A judge may consult with . . . other judges.
(Emphasis added.)

10
We note that the Code of Judicial Conduct does not provide such a remedy for violation of Canon 3(B),
and we do not believe that disqualification is required under Canon 3(E).
CONCLUSION
We conclude that Executive's claims against the Markses, with the exception of the abuse of process claim,
were compulsory counterclaims; therefore, the district court did not err in dismissing those claims in a
subsequent suit. However, we reverse that portion of the district court's judgment with respect to Executive's
abuse of process claim and remand this case for further proceedings on that claim against the Markses.
We conclude that Executive's claims against Ticor and Palmall/Shipkey were not barred by the doctrine of
res judicata pursuant to the rule of claim preclusion because any claims against these former codefendants were
permissive in nature. Furthermore, the issues raised by Executive in case II were not identical to those raised in
case I, nor were they actually and necessarily litigated therein. Therefore, the rule of issue preclusion does not
bar Executive's present complaint against Ticor and Palmall/Shipkey. However, because there is generally not a
fiduciary relationship between a buyer and seller of real property, Executive's claim against Palmall/Shipkey for
breach of fiduci-ary duty will not lie and was properly dismissed by the district court. Therefore, with the
exception of Executive's fiduciary duty claim against Palmall/Shipkey, we reverse that portion of the judgment
dismissing all other claims against Palmall/Shipkey and all claims against Ticor, and remand for further
proceedings.
Because we conclude that the district court did not err in consulting with Judge Thompson and, if it did, such
error was harmless, there is no need to assign a different district court judge on remand of this matter.
11

____________
114 Nev. 845, 845 (1998) Holderer v. Aetna Cas. and Sur. Co.
GAYLE HOLDERER, Appellant/Cross-Respondent, v. AETNA CASUALTY AND SURETY COMPANY,
No. 28405
September 1, 1998 963 P.2d 459
Appeal and cross-appeal from a judgment entered pursuant to a jury verdict finding appellant forty percent
negligent in a personal injury action. Second Judicial District Court, Washoe County; Steven R. Kosach, Judge.
Motorist injured in automobile collision sued other motorist. The district court
reduced damages awarded to motorist in accordance with jury finding of comparative
negligence.
__________

11
The Honorable Cliff Young, Justice, did not participate in the decision of this matter.
ance with jury finding of comparative negligence. Motorist appealed from apportionment of
fault. The supreme court, Rose, J., held that: (1) trial judge acted improperly when he
expressed his negative feelings toward personal injury attorneys during voir dire and
trivialized the proceedings by making facetious comments to jury panel; (2) probative value
of evidence pertaining to motorist's alleged improper acquisition of prescription medication
was substantially outweighed by the danger of unfair prejudice; and (3) evidence of her
prescription drug use was insufficient to establish her comparative negligence in causing the
accident.
[Rehearing granted in part December 2, 1998]
Robert H. Perry, Ltd., Reno, for Appellant/Cross-Respondent.
Hamilton & McMahon, Ltd. and Lynn Cresalia Thompson, Reno, for Respondent/Cross-Appellant.
1. Trial.
Trial judge in personal injury case acted improperly when he expressed his negative feelings toward personal injury attorneys
during voir dire and trivialized the proceedings by facetiously commenting to jury panel that he could be writing his grocery list
during trial.
Failure to object to a trial judge's conduct will not necessarily preclude judicial review when judicial deportment is of an
inappropriate but nonegregious nature.
3. Evidence.
In automobile accident case, probative value of evidence pertaining to plaintiff's alleged improper acquisition of prescription
medication was substantially outweighed by the danger of unfair prejudice. NRS 48.025.
4. Automobiles.
Evidence that motorist had taken sleeping pills and antidepressants the night before an automobile accident was insufficient to
establish her comparative negligence in causing the accident, absent evidence that her prescription drug use affected her reaction time
or was a contributing cause of the accident.
OPINION
On December 24, 1992, appellant/cross-respondent Gayle Holderer was involved in an automobile accident on Mt. Rose Highway with
another vehicle driven by Lester A. Smith. Holderer, who sustained injuries as a result of the accident, filed a civil complaint against Smith
alleging that Smith's negligence caused the accident and her injuries. Holderer's underinsured motorist insurance carrier,
respondentJcross-appellant Aetna Casualty and Surety Company {Aetna), intervened as a defendant in order to
ascertain Holderer's rights pursuant to her underinsured motorist policy.
motorist insurance carrier, respondent/cross-appellant Aetna Casualty and Surety Company (Aetna), intervened
as a defendant in order to ascertain Holderer's rights pursuant to her underinsured motorist policy. At the
conclusion of trial, Holderer obtained a favorable jury verdict and was awarded $181,000.00 in damages.
However, the jury found Holderer forty percent comparatively negligent and thus the district court reduced her
damages to $108,600.00.
Holderer now appeals, arguing inter alia that the jury's apportionment of comparative fault was contrary to
the evidence adduced at trial, prejudicial comments were made by the trial judge, and the district court
erroneously admitted evidence of Holderer's alleged improper acquisition of prescription medications without
permitting her witnesses to explain that there was no impropriety. We agree. Accordingly, we reverse the
judgment below and remand for a new trial.
FACTS
Just before 10:00 a.m., on December 24, 1992, Holderer was travelling eastbound on Mt. Rose Highway
from her residence in Incline Village enroute to Reno. It had snowed the night before, leaving the roads wet and
sandy. Holderer was travelling at or below the posted speed limit of forty-five miles per hour. Simultaneously,
Smith, who was travelling north on Country Club Drive, approached the intersection of Mt. Rose Highway with
the intent to make a left turn.
As Holderer approached the intersection of Mt. Rose Highway and Country Club Drive, she saw Smith's
vehicle approach the intersection from the right on Country Club Drive. Smith's entry onto the Mt. Rose
Highway was controlled by a stop sign. Smith's vehicle entered the intersection, crossing into Holderer's lane of
travel. Holderer sounded her horn, but Smith's vehicle did not stop. Holderer applied the brakes and turned the
wheels slightly to the left to avoid a collision. However, Holderer's wheels locked, sending her vehicle into a
skid toward the center line of Mt. Rose Highway. Smith's vehicle continued moving across the highway, and
Holderer's vehicle struck Smith's vehicle slightly across the center line.
Smith and his wife were severely injured in the collision and taken via CareFlight helicopter to Washoe
Medical Center. Smith later stated that he never saw Holderer's vehicle and that he knew vehicles on Mt. Rose
Highway had the right-of-way at the Country Club Drive intersection. Smith also stated that his field of vision
along Mt. Rose Highway was blocked by four-foot snowbanks, so he slowly moved his vehicle forward past the
stop sign for a better view. However, Smith said he did not see or hear Holderer's vehicle until the moment of
impact.
Nevada Highway Patrol Trooper Mark Allen Zacha responded to the accident, arriving at 10:22 a.m. Trooper
Zacha had previously received formal training in accident investigation and had also trained other officers in the
field; he was the first law enforcement officer to arrive at the accident scene.
Trooper Zacha testified that three to four-foot high snowbanks were piled on either side of Mt. Rose
Highway on the morning of December 24, 1992. However, Trooper Zacha also stated that the conditions were
sunny and that there was no snow on the road twenty minutes after the accident. Trooper Zacha surmised that
because of the obvious skid marks and the short time it took for him to respond, it was highly improbable that
ice was on the road at the time of the collision. Trooper Zacha testified that there was no evidence whatsoever
that Holderer was travelling in excess of the speed limit or that she did anything improper to have caused the
accident.
On November 10, 1994, Holderer filed a civil complaint against Smith, alleging that Smith's negligence had
proximately caused the accident and her injuries. Aetna, Holderer's underinsured motorist insurance carrier,
intervened as a defendant in order to ascertain Holderer's rights pursuant to her underinsured motorist policy.
On December 11, 1995, during voir dire, the following colloquy took place between a potential juror and the
district court judge.
THE COURT: . . . . Keeping in mind all of the questions asked, is there any juror
who cannot be fair and impartial to both sides in this case, or all three sides, as a matter
of fact?
Yes, Mr. Silsby?
MR. SILSBY: I'm not big on personal-injury attorneys. I'm sorry. I don't
THE COURT: Well, you know, as a matter of fact, I'm not either.
Holderer's counsel did not object. The potential juror was subsequently excused because of
his expressed bias toward personal injury attorneys.
After the completion of jury selection, the judge read certain procedural instructions to the jury. At one point,
the judge stated, You'll see me write notes. Occasionally I sign documents while I'm here, tomorrow morning
stuff and that kind of thing. If you see me writing, don't take any special significance out of that because it could
be my grocery list. Again, there was no objection from Holderer's or Aetna's counsel.
On December 11, 1995, the jury trial commenced. Immediately prior to the start of trial, Aetna's counsel
handed Holderer's counsel a check in the amount of $50,000.00 from Aetna.
Holderer's counsel a check in the amount of $50,000.00 from Aetna. Aetna's counsel stated that the money was
not conditional on Holderer's dismissal of any claims and that the money had no strings attached.
During trial, and over Holderer's objections, the district court admitted testimonial evidence that showed
Holderer had been receiving mental health counseling for several years for the treatment of anxiety attacks,
obsessive compulsive disorder, panic disorder, and emotional problems. The district court also admitted
evidence of Holderer's use of the prescription psychiatric medications Xanax and Dalmane. While Aetna's expert
witness testified that Holderer's medications could have affected her reflex and reaction time, Holderer's treating
physician testified that the prescriptions she took the night before the accident would not have adversely affected
her reaction time or ability to drive a car the next day.
Additionally, the district court admitted pharmacy records of Holderer's prescriptions, but excluded certain
testimony from pharmacist Karen Barb. Holderer proffered the testimony of Barb, who was the custodian of the
pharmacy's prescription records, to rebut the inference raised by Aetna's cross-examination of Holderer's treating
physician that Holderer had unlawfully obtained her prescription medications. The district court prevented Barb
from testifying that Holderer's prescription refill request had come from the office of Holderer's treating
physician and not from Holderer.
On December 15, 1995, the jury returned a verdict in favor of Holderer, awarding her $181,000.000 in
damages. However, the jury also found Holderer forty percent comparatively negligent and thus the district court
reduced her damages to $108,600.00.
On February 1, 1996, approximately one week after the entry of judgment, Aetna filed a motion to amend the
judgment pursuant to NRCP 59(e).
1
Aetna argued that because Smith's insurance carrier was paying the first
$100,000.00 of Holderer's damages, and Aetna had already tendered a check for $50,000.00 to Holderer, Aetna
was thus entitled to receive a recoupment of approximately $42,000.00. Aetna alleged that the $50,000.00 check
tendered before trial was intended as a good faith advance payment to Holderer in anticipation that the liability
against Smith would exceed $100,000.00.
On May 29, 1996, the district court denied Aetna's NRCP 59(e) motion to amend the judgment. The district
court found that Aetna had failed to provide any primary authority for its requested relief,
and concluded that had Aetna intended the $50,000.00 check to be an advance tender of
Holderer's claim, "[Aetna] should have made that clear upon presentment."
__________

1
NRCP 59(e) provides:
Motion to Alter or Amend a Judgment. A motion to alter or amend the judgment shall be served not later
than 10 days after service of written notice of entry of the judgment.
Aetna had failed to provide any primary authority for its requested relief, and concluded that had Aetna intended
the $50,000.00 check to be an advance tender of Holderer's claim, [Aetna] should have made that clear upon
presentment.
Holderer now appeals from the jury's apportionment of fault, and Aetna cross-appeals from the district
court's denial of its NRCP 59(e) motion.
2

DISCUSSION
The district court judge made improper comments during trial
[Headnote 1]
Holderer first argues that the district court judge acted improperly when he expressed his negative feelings
toward personal injury attorneys and by trivializing the proceedings by facetiously commenting that he could be
writing his grocery list during trial. We agree.
[Headnote 2]
When judicial misconduct occurs, normally it must be preserved for appellate review by an objection or
motion for a mistrial. However, this court has held that the failure to object to a trial judge's conduct will not
necessarily preclude judicial review when judicial deportment is of an inappropriate but non-egregious nature.
Parodi v. Washoe Medical Ctr., 111 Nev. 365, 368, 892 P.2d 588, 591 (1995). In this case as in Parodi, lack of
an objection should not preclude our review of this judicial misconduct.
__________

2
Aetna further argues on cross-appeal that the district court erred in awarding costs to Holderer and in
denying its NRCP 59(e) motion to alter or amend the judgment. This motion sought recoupment of a portion of
Aetna's tender of $50,000.00 in underinsured motorist benefits just prior to the commencement of trial. Because
this matter is remanded for a new trial on liability and damages, the cross-appeal is moot. However, some
comment on this issue is appropriate for guidance on remand.
With the tender, assuming that any judgment obtained exceeded $100,000.00, Holderer was, ostensibly,
guaranteed a total of $150,000.00 in third-party and first-party insurance proceeds (the policy covering Lester
Smith provided $100,000.00 in basic liability limits). Because the tender was made with no strings attached,
and because an ordinary person would reasonably conclude that the tender was unconditional, the district court
properly refused the request for repayment of the difference between the net judgment of $108,600.00 and the
total of Smith's $100,000.00 of liability coverage and Aetna's tender of $50,000.00. However, there is legitimate
concern as to whether the tender, which was made pursuant to Pemberton v. Farmers Ins. Exchange, 109 Nev.
789, 858 P.2d 380 (1993), should be subject to repayment when the net recovery does not exceed the amount of
the tender. On this point, we note that the unconditional no strings attached offer was a contractual payment
entitling Aetna to an equitable set-off against any judgment obtained. Where such a tender ultimately exceeds the
net judgment, the no strings attached nature of the payment precludes recoupment. However, under
Pemberton, a conditional payment requiring recoupment would be evidence of good faith, although not
determinative of the issue.
an objection should not preclude our review of this judicial misconduct.
In Parodi, we explained that judges can exert substantial influence upon jurors by their actions or words.
The average juror is a layman; the average layman looks with most profound respect
to the presiding judge; and the jury is, as a rule, alert to any remark that will indicate
favor or disfavor on the part of the trial judge. Human opinion is ofttimes formed upon
circumstances meager and insignificant in their outward appearance; and the words and
utterances of a trial judge, sitting with a jury in attendance, are liable, however
unintentional, to mold the opinion of the members of the jury to the extent that one or
the other side of the controversy may be prejudiced or injured thereby.
Id. at 367-68, 892 P.2d at 589-90 (citations omitted). In Parodi, the same district court judge
led the jury in a standing ovation when the appellants' counsel returned late from a court
recess. Additionally, he joked about the jurors' solemn oath and made light of several matters
that came up during voir dire.
While the errors in the instant case are less egregious than in Parodi, they still put Holderer's counsel in a
poor light and trivialized the proceedings. Considered in isolation, the district court judge's comments may not
have risen to the level of reversible error; however, reversal of this case is required when these errors are
coupled with the other errors noted in this opinion.
Holderer's alleged improper acquisition of prescription medications
Both parties have vigorously contested the propriety of the district court's ruling limiting the pharmacist's
testimony regarding the contents of the pharmacy's prescription record. Holderer attempted to proffer the
pharmacist's testimony to rebut the inference, raised by Aetna's cross-examination of Holderer's treating
physician, that Holderer had unlawfully obtained prescription medications. This evidence would have explained
the pharmacist's records and informed the jury that the prescriptions in question were called in by Holderer's
physician's office. The district court prohibited the pharmacist's testimony on hearsay grounds.
[Headnote 3]
We decline to address the parties' specific hearsay arguments pertaining to the admissibility or
inadmissibility of the pharmacist's testimony but instead conclude that evidence indicating Holderer may have
improperly acquired prescription medications was error. Aetna's cross-examination of Holderer's treating
physician, the thrust of which suggested that Holderer had unlawfully obtained her prescription medications,
was of negligible relevance in this personal injury case.
in this personal injury case. Because of its marginal relevance and inflammatory nature, we conclude that the
probative value of evidence pertaining to Holderer's alleged improper acquisition of prescription medication was
substantially outweighed by the danger of unfair prejudice. See NRS 48.025; cf. Land Resources Dev. v. Kaiser
Aetna, 100 Nev. 29, 34-35, 676 P.2d 235, 238 (1984) (concluding that the district court did not err in admitting
evidence where the probative value of such evidence was not substantially outweighed by the danger of unfair
prejudice).
Accordingly, on remand we instruct the district court to exclude all evidence suggesting that Holderer may
have obtained her medication unlawfully.
Insufficient evidence presented to establish causal connection between Holderer's prescription medication
usage and the accident
[Headnote 4]
Holderer makes one additional point that we believe merits comment since this case will, in all probability,
be retried. Holderer argues that her prescription medication usage should not have been received in evidence
because there was no evidence of any impairment or inappropriate action on her part which indicated that her
prescription medication usage contributed to the cause of the accident.
3
While her prescription medication
usage should not have been admitted on the issue of liability because evidence of causation (i.e., how the
medication usage contributed to the accident) was lacking and the probative value of such evidence was
substantially outweighed by the danger of unfair prejudice, it was admissible as to Holderer's claim for future
lost earningswhether she could effectively perform as an attorney. However, this does illuminate the fact that
there was insufficient evidence presented to establish the causal link between Holderer's prescription medication
usage and the accident.
The evidence surrounding the accident and the conditions of the accident scene itself were not in dispute and
indicated that Holderer's conduct was both lawful and reasonable. She was proceeding up the mountain on the
main highway within the speed limit exercising the right-of-way.
__________

3
Holderer also argues that the district court erred in admitting evidence of her former SIIS claims, along with
evidence that she had been partially supported by the man with whom she had been cohabiting. These arguments
are not persuasive. Because of Holderer's past and present injuries involving her lower lumbar spine, we
conclude that the brief reference to SIIS records reflecting Holderer's 1985 treatment for problems with her
cervical spine was relevant. Likewise, evidence that Holderer had been supported by the man with whom she had
cohabited was relevant to show her past earnings and work history. Accordingly, the district court did not err in
admitting such evidence.
limit exercising the right-of-way. When Holderer noticed Smith pulling out from a side street in violation of a
stop sign, she steered her vehicle to the left and forcefully applied the brakes. Smith could not refute these facts
because he had no recollection of the accident. Trooper Zacha stated that there was no indication that Holderer
did anything improper to cause the accident.
Aetna could not refute these facts except to emphasize Holderer's long term usage of sleeping pills and
antidepressants and the fact that she took a strong dose the night before the accident. Holderer's treating
physician testified that the prescriptions taken the night before the accident would not have affected her reaction
time or ability to operate a motor vehicle the next day. Although Aetna's expert witness testified that Holderer's
dosage of Xanax, which was the largest dosage of the antidepressant he had ever seen, could have affected her
reaction time at the time of the accident, he did not explain the extent of the alleged impairment or how such
impairment contributed to the accident. Other than speculating that Holderer's reactive abilities could have been
affected, Aetna never demonstrated that Holderer's prescription medication use was a contributing cause of the
accident.
The only evidence suggesting that Holderer was in any way impaired during the accident was the testimony
offered by Aetna's expert witness indicating that she might have been under the influence of an antidepressant at
the time of the accident. There was a complete lack of any further evidence establishing the extent of Holderer's
alleged impairment or how the impairment caused or contributed to the accident.
Accordingly, due to a lack of evidence indicating Holderer's actual impairment or how her alleged
impairment in any way contributed to the accident, and due to the improper admission of certain testimony, this
matter must be remanded for a new trial on the issues of comparative negligence and damages.
4
See Kroeger
Properties v. Silver State Title, 102 Nev. 112, 114, 715 P.2d 1328, 1330 (1986) (explaining that a new trial may
be granted due to insufficient evidence where there is plain error or manifest injustice).
CONCLUSION
We conclude that the district court judge's comments, in combination with the admission of evidence
pertaining to Holderer's alleged improper acquisition of prescription medications, constituted reversible error.
__________

4
Because the inflammatory nature of the evidence that should have been excluded may have had an impact
on the damage award, the jury on re-trial should be required to resolve anew the entirety of the liability and
damage issues.
Accordingly, we reverse the judgment below and remand for a new trial consistent with this opinion.
Springer, C.J., and Shearing and Young, JJ., concur.
While I agree entirely with the majority, I write separately to expand on the issue arising from the trial court's
interaction with a prospective juror concerning personal injury attorneys.
In this day and age, derision of the legal profession has become standard fare. This is as unfortunate as it is
unfair to almost every lawyer in this land. As we in the profession understand, lawyers perform vital functions in
our democracy. Without lawyers doing their jobs every day in and out of the courtroom, protection of basic
human rights and freedoms would literally disappear. This is so whether the attorney practices personal injury
law, prosecutes criminal actions, defends persons accused of criminal misconduct, or engages in any other
specialty of the law.
The trial judge below clearly intended to mollify the prospective juror and, without question, had no intent to
prejudice Ms. Holderer's case. However, the remark did have the potential of re-enforcing an attitude based upon
ignorance of the role attorneys' play in our society. In stating my absolute belief that this trial judge, a respected
jurist of ability and integrity, shares my beliefs regarding the nobility of our profession, I wish to express my
hope that this is the last time we have an opportunity to comment on such an issue.
____________
114 Nev. 854, 854 (1998) Born v. Eisenman
SHARON BORN, Appellant, v. EUGENE EISENMAN, M.D., and SHELDON
FREEDMAN, M.D., Respondents.
No. 29303
September 1, 1998 962 P.2d 1227
Appeal from an order of the district court denying a motion for a new trial. Eighth Judicial District Court,
Clark County; Donald M. Mosley, Judge.
Patient sued surgeons for medical malpractice in performing abdominal surgery. The
district court entered judgment on verdict for surgeons and denied motion for new trial.
Patient appealed. The supreme court held that: (1) patient was entitled to proposed jury
instruction on res ipsa loquitur, and (2) prior court case describing similar surgical event was
admissible in support of expert's opinion that her condition was medically possible, in
refutation of defense argument that severing of bowel by suture could not have happened.
William E. Freedman, Chtd., and Liesl K. Freedman, Las Vegas, for Appellant.
Galatz, Earl & Bulla, Las Vegas, for Respondent Eisenman.
Rawlings, Olson, Cannon, Gormley & Desruisseaux, and John D. Nitz, Las Vegas, for Respondent
Freedman.
All medical malpractice plaintiff need do to warrant instruction under statutory medical malpractice res ipsa loquitur rule is
present some evidence of existence of one or more of factual predicates enumerated in statute, and if trier of fact finds that one or more
of factual predicates exist, then presumption must be applied. NRS 41A.100.
Statutory medical malpractice res ipsa loquitur rule, which required giving of res ipsa loquitur instruction when surgical
procedure was performed on the wrong organ or the wrong part of a patient's body, required giving of instruction in case where patient
alleged that left ureter was ligated during surgery to remove her left ovary and uterus, and that her small bowel was transected during
surgery to repair the ligated ureter, NRS 41A.100(1)(e).
3. Evidence.
In medical malpractice case, prior court case describing similar surgical event was admissible in support of expert's opinion that
patient's condition was medically possible, in refutation of defense argument that severing of bowel by suture could not have happened.
NRS 50.285.
4. Evidence.
Expert may base his opinion on relevant articles and reported cases in his field of expertise and cite such material as the basis
for his opinion or conclusion. NRS 50.285.
5. New Trial.
When attorney attacks opposing counsel in presence of jury, it constitutes grounds for new trial if it appears that prejudice may
have resulted. Test is not necessarily that misconduct complained of had prejudicial effect upon jury, but that it might have done so.
OPINION
Per Curiam:
Two surgeries were performed on appellant Sharon Born in January 1986. The first was a hysterectomy performed by respondent Dr.
Eugene Eisenman during which complications developed because the right ureter had been ligated. The second surgery was performed by
both Dr. Eisenman and respondent Dr. Sheldon Freedman to repair the ligated ureter. Born continued to experience pain in her abdomen
and exploratory abdominal surgery was performed more than two years later. The surgeon who performed the exploratory surgery testified
that he discovered that Born's small intestine was almost severed and opined that it was probably transected or
transfixed in the surgery to repair the ureter, eventually causing the small intestine damage.
small intestine was almost severed and opined that it was probably transected or transfixed in the surgery to
repair the ureter, eventually causing the small intestine damage. It was his opinion that other internal bodily
tissue surrounded the perforated intestine and permitted it to function substantially as it would have without the
opening.
At trial, the district court precluded Born from presenting evidence to establish the applicability of the res
ipsa loquitur doctrine as now codified in NRS 41A.100. The district court also prohibited Born or her medical
experts from referring to a case where a similar phenomenon was observed, but permitted the respondents to
present testimony and argue that this condition could not have occurred as it is unknown to medical science.
We conclude that both rulings of the district court were erroneous. This compels us to reverse the judgment
entered in this case and remand for a new trial.
FACTS
On January 8, 1986, respondent Dr. Eugene Eisenman performed an abdominal hysterectomy (removal of the
uterus) and left salpingo oophorectomy (surgical removal of a uterine tube and ovary) on appellant Sharon Born.
Born was discharged on January 13, 1986. On January 16, 1986, Born presented to Sunrise Hospital emergency
room complaining of severe pelvic pain. Dr. Eisenman ordered tests which indicated that Born's left ureter had a
blockage.
Dr. Eisenman requested that respondent Dr. Sheldon Freedman, a board certified urologist, consult on Born's
case. Dr. Freedman determined that Born's left ureter had been ligated by a suture at the time of the January 8,
1986 surgery. Dr. Freedman performed a left ureteroneocystostomy (surgical transplantation of the ureter to a
different site in the bladder). During this procedure, Dr. Eisenman noticed that Born's right ovary was more
diseased than originally thought and Dr. Eisenman performed a right oophorectomy (removal of the right ovary).
Dr. Freedman and Dr. Eisenman testified that they both participated in the closure of the patient's abdomen after
completing the surgery.
After the January 16, 1986 surgery, Born began complaining of pain. During the next two and one half years,
Born continued to feel ill and specifically complained of pain in the left side of her abdomen. She sought
treatment at both the UCLA Medical Center and the Mayo Clinic. On August 3, 1988, an exploratory
laparotomy was performed by Dr. Donald Pointer and Dr. Richard Groom. During this procedure Dr. Pointer
encountered a portion of the small bowel that was open. It was Dr. Pointer's opinion that the bowel had been
transected or transfixed during the closure procedure performed by respondents on January 16, 1986. Dr.
Pointer found that through the body's natural healing process, the bowel had been sealed
by the omentum {internal tissue).
Pointer found that through the body's natural healing process, the bowel had been sealed by the omentum
(internal tissue). Later in August 1988, a procedure was performed to repair the opening in Born's small bowel.
Born filed a complaint against Dr. Eisenman for negligently ligating her ureter during her hysterectomy, and
a second complaint against Drs. Eisenman and Freedman for transecting or transfixing her small bowel during
the surgical procedure to repair the ligated ureter. The complaints were consolidated for pretrial discovery and
trial.
On March 14, 1996, a pretrial conference was held, and the parties filed pretrial statements which set forth
the facts each expected to prove at trial. Born stated in her pretrial memorandum the factual basis of the claims,
and asserted that Dr. Eisenman was negligent in ligating her ureter when performing the hysterectomy, and that
Drs. Eisenman and Freedman were negligent in transecting or transfixing the small bowel when the surgery to
repair the ligated ureter was performed. Born asserted that the doctrine of res ipsa loquitur was applicable to
both cases.
Drs. Eisenman and Freedman filed a joint pretrial memorandum and asserted that neither surgery was
negligently performed. Respondents further asserted that if the small bowel was damaged, it was done by Dr.
Pointer during the exploratory surgery and not during the second surgery performed by respondents, because it is
difficult to identify the organs in an abdomen that has developed adhesions from prior surgeries. The
respondents' primary defense was to dispute Born's condition as described by Dr. Pointer; they asserted that
Born's bowel could not have remained open and completely sealed by the omentum for a 2 year period as is
alleged by the Plaintiff. Such a theory has never been described in any medical literature, and for various
medical reasons would appear to be impossible.
In their pretrial memorandum the respondents also asserted that the doctrine of res ipsa loquitur was not
applicable to either surgery and that the district court should preclude reference to a medical case described in
Edwards v. Quackenbush, 149 P.2d 809 (Colo. 1944), where a similar condition to the one alleged by Born was
discussed. A motion in limine was also filed to prohibit any reference to the Quackenbush case. After the pretrial
conference, the district court entered an order precluding Born from presenting a res ipsa loquitur theory to the
jury, and also ordered that the Quackenbush case would not be referred to or mentioned at trial.
Trial commenced on April 15, 1996, and continued through April 24, 1996. Born's expert witness, Dr.
Joseph Schmidt, testified that Born's allegations of medical negligence were valid. Dr. Schmidt opined that
during the surgery to repair the ligated ureter a suture was completely placed through the small
bowel and within six to eight weeks after the surgery, the suture had worked all the way
through the small bowel, leaving a gaping hole in the small bowel.
a suture was completely placed through the small bowel and within six to eight weeks after the surgery, the
suture had worked all the way through the small bowel, leaving a gaping hole in the small bowel. The
respondents' expert witnesses testified that if the suture had gone through the small bowel and then been tied off
to close the incision, it would close the small bowel and cause an immediate bowel obstruction, and that such an
obstruction would cause a distended abdomen, excruciating pain in the abdomen, projectile vomiting, and
peritonitis. Because Born did not experience any of these extreme symptoms, respondents' experts stated that it
was medically impossible to live for two and one half years in the condition Dr. Schmidt described. They further
stated that such a development as Born alleged was unknown to medical science.
After a short deliberation, the jury found in favor of respondents on both of the consolidated cases. Born
filed a motion for a new trial asserting that Dr. Eisenman's attorney, Neil Galatz, made derogatory comments
about Born's counsel and medical experts at the trial and that the remarks, in all probability, were heard by the
jury.
We conclude that the district court erred in denying the application of the doctrine of res ipsa loquitur to the
facts of the two surgeries and in prohibiting Born from referring to the Quackenbush case.
DISCUSSION
Applicability of the res ipsa loquitur doctrine
The doctrine commonly known as res ipsa loquitur has been codified in NRS 41A.100(1)(d) and (e) and
reads as follows:
1. Liability for personal injury or death is not imposed upon any provider of medical
care based on alleged negligence in the performance of that care unless evidence
consisting of expert medical testimony, material from recognized medical texts or
treatises or the regulations of the licensed medical facility wherein the alleged
negligence occurred is presented to demonstrate the alleged deviation from the accepted
standard of care in the specific circumstances of the case and to prove causation of the
alleged personal injury or death, except that such evidence is not required and a
rebuttable presumption that the personal injury or death was caused by negligence
arises where evidence is presented that the personal injury or death occurred in any one
or more of the following circumstances:
. . . .
(d) An injury was suffered during the course of treatment to a part of the body not
directly involved in the treatment or proximate thereto; or
(e) A surgical procedure was performed on the wrong patient or the wrong organ, limb
or part of a patient's body.
[Headnote 1]
This court recently decided the case of Johnson v. Egtedar, 112 Nev. 428, 915 P.2d 271 (1996), and had
occasion to review whether a res ipsa loquitur instruction should be given when similar facts to the case at bar
were presented. In that case, we stated that the more traditional res ipsa loquitur doctrine has been replaced by
NRS 41A.100, and we explained that the circumstances upon which the instruction should be given is governed
by that statute.
[A]ll a plaintiff need do to warrant an instruction under the statutory medical malpractice res ipsa
loquitur rule is present some evidence of the existence of one or more of the factual predicates
enumerated in the statute. If the trier of fact then finds that one or more of the factual predicates exist,
then the presumption must be applied. This is the approach taken in Nev. J.I. 6.17.
Id. at 434, 915 P.2d at 274 (emphasis added).
[Headnote 2]
The respondents claimed that the doctrine of res ipsa loquitur did not apply and the issue was argued at a
pretrial conference. The district court ruled as a matter of law that the doctrine was inapplicable. This was error
because the issue is largely determined on the facts presented and a plaintiff should be given the opportunity of
eliciting evidence to satisfy one of the five factual predicates contained in NRS 41A.100. From the facts
presented in the pretrial memorandums, it would appear that subsection (e) had been satisfied.
The pretrial memorandums indicated that Dr. Eisenman was performing surgery to remove Born's left ovary
and uterus, and Born asserted that the left ureter was ligated in the process. When the surgery to repair the
ligated left ureter and additional removal of the diseased right ovary was performed by respondents, Born
alleged that her small bowel was transected or transfixed in the closure procedure. The evidence presented at
trial supported the factual allegations made in the pretrial memorandums. In each surgery NRS 41A.100(1)(e)
would apply because a surgical procedure was performed on the wrong organ or the wrong part of a patient's
body. Because it was shown that the factual predicate existed for the admission of the res ipsa loquitur
instruction, the district court was obligated to give the instruction, and the entry of the order precluding the
applicability of the doctrine in this case was reversible error.
Relevance of similar incident
[Headnote 3]
The theory of the defense was that severing the bowel with a suture could not have happened as the plaintiff
claimed because: (1) the condition would have resulted in great pain and eventual death; and (2) a partially
severed bowel could not be sealed off by the omentum. Respondents' medical experts testified to these facts and
counsel for both physicians strenuously argued these points in their closing arguments. However, a similar event
is reported in a Colorado Supreme Court case, Edwards v. Quackenbush, 149 P.2d 809 (Colo. 1944), and
supports Born's position that her condition was medically possible. In Quackenbush, there was an allegation that
a small portion of the ileum was cut during an appendectomy procedure. The Quackenbush case summarized the
medical contentions as follows:
[T]hat had the ileum been severed completely the early death of the plaintiff from peritonitis, caused
by the consequent flooding of the abdominal cavity with fecal matter, would have been almost inevitable,
and since she had not perished, expressed as their opinion, that the intestine had not been severed in the
appendectomy. Plaintiffs met this theory with expert medical testimony to the effect, as it was said the
second operation actually revealed, that through nature's protective processes, the upper end of the
severed bowel, following the line of least resistance, had become adherent to the abdominal wall at the
place of incision and there had formed a seal whereby the fecal matter from the organs above was
discharged on the outside of the abdomen and that point, and that coincidentally the lower severed end of
the intestine, being deprived of fluid, had sealed off and taken a position of repose.
Id. at 811-12. Likewise, Born's expert, Dr. Schmidt, testified that the omentum is the body's
antibiotic because it is able to take away any products of infection and that it has the
capability of surrounding the small bowel. If Dr. Schmidt had been permitted to mention the
Quackenbush case, he would have testified that the medical facts of the two cases were
similar, but there is always some situation that makes one just a little bit different than the
other.
[Headnote 4]
We conclude that Born should have been able to refute with whatever competent evidence was available the
assertion that it was impossible for her to have suffered the injury as alleged. The Quackenbush case was such
evidence and Born should have been able to present it in her case-in-chief and use it when cross-examining the
respondents' medical experts.
ining the respondents' medical experts. While Dr. Schmidt candidly stated that the
Quackenbush case was not identical, he should have been able to refer to its similarities when
giving his expert opinion. An expert may base his opinion on relevant articles and reported
cases in his field of expertise and cite such material as the basis for his opinion or conclusion.
NRS 50.285. The district court abused its discretion by prohibiting Born from referring to the
Quackenbush case, but permitting the respondents and their experts to assert that Born's
condition was a phenomenon unknown to medical science.
Improper remarks by defense counsel
Born cites three prejudicial statements made by Mr. Galatz, attorney for Dr. Eisenman, and asserts that these
comments were heard by the jury since Mr. Galatz sat next to the jury box. The alleged first instance occurred
during the testimony of Dr. Lawrence Gardner when Born's counsel asked for a side bar. When Mr. Galatz rose
from his chair, he said in a loud voice this is outrageous referring to Born's counsel asking for the side bar and
the matter to be discussed with the court out of the hearing of the jury. Mr. Galatz allegedly repeated this phrase
again as he approached the bench and a third time to the court. In each instance, Born's counsel states that they
asked Mr. Galatz not to speak in such a manner to prevent the jury from hearing his comments. They claim that
these requests were disregarded by Mr. Galatz.
During the testimony of Dr. Freedman the court called a recess so that counsel could meet in chambers to
argue an evidentiary point. With several jurors still in the courtroom, Born states that Mr. Galatz referred to
Born's counsel and co-counsel as lying sons of bitches. As counsel approached the judge's desk in chambers to
discuss the matter, Born further claims that Mr. Galatz again referred to her counsel as lying sons of bitches,
and that the court rebuked Mr. Galatz for using such profanity.
The third instance allegedly happened during the testimony of Dr. Schmidt, an expert witness for Born. Born
states that during this testimony Mr. Galatz stated the word whore in a loud voice. Born's attorney objected to
this statement and the objection was noted by the district court without ruling on it or taking any other
prophylactic action. Born asserts that the jury surely heard this comment because the court clerk and the court
reporter heard the remark. Mr. Galatz admits to making the whore remark, and stated during oral argument
before this court that the comment may have been justified, but denies making the other comments attributed to
him. He also argues that none of the statements were heard by the jury, thus no prejudice to Born resulted.
[Headnote 5]
Making improper comments by counsel which may prejudice the jury against the other party, his or her
counsel, or witnesses, is clearly misconduct by an attorney. Cases that have dealt with similar situations have
uniformly condemned such statements as fundamentally prejudicial. In Davis v. Sams, 542 P.2d 943, 944 (Okla.
1975), one attorney used abusive language and made derogatory remarks concerning the other attorney's
ancestry in the presence of several jurors. The court stated:
The parties have a right, of which they may not be lawfully deprived, to have the facts of the case
determined by a jury upon which the possibility of undue influence has not been exerted. Where an
attorney attacks opposing counsel in the presence of the jury, it constitutes grounds for a new trial if it
appears that prejudice may have resulted. The test in a matter of this sort is not necessarily that the
misconduct complained of had a prejudicial effect upon the jury, but that it might have done so.
Id. (citations omitted).
The problem we face in assessing this claim of error is that contemporaneous objections were not made at
each instance of alleged misconduct and the district court took no action when the objection was made to the
whore comment. When such conduct is brought to the district court's attention by objection or motion for a
mistrial, it is incumbent upon the district court to determine whether the remark was made and heard by the jury.
If it cannot be established that the remark was made or that the jury heard it, the issue can be brought to an end.
But if the jury has heard the improper comment, they should be asked if they can ignore it and, if they can,
admonished to disregard the remark. However, if there is a reasonable indication that prejudice may have
occurred to one party, the district court is obligated to declare a mistrial. Of course, the matter should be referred
by the district court to the State Bar of Nevada pursuant to Canon 3(D)(2) of the Nevada Code of Judicial
Conduct, if an attorney has committed misconduct in his or her courtroom.
In the case before us, we are in no position to conclude that the remarks were made, except for the comments
Mr. Galatz admits to making. Whether the jury heard this or the other alleged comments is disputed. If we were
not reversing this case on other grounds, we would remand this matter to the district court for a hearing to
determine whether these remarks were made and heard by the jury. If the answer were in the affirmative, a new
trial would be mandated because the improper remarks went to the heart of the credibility of Born's expert
witness and counsel.
CONCLUSION
The district court erred when it did not give a res ipsa loquitur instruction pertaining to both surgeries. It also
was error for the district court to preclude reference to a medical case similar to Born's, especially since the
respondents were claiming that such a condition as Born claimed to have suffered was unknown to medical
science. Accordingly, we reverse and remand for a new trial consistent with the principles stated in this opinion.
1

____________
114 Nev. 863, 863 (1998) Hamlett v. Reynolds
RICHARD RONALD HAMLETT, Appellant, v. MARY FRANCES REYNOLDS,
Respondent.
No. 29060
September 1, 1998 963 P.2d 457
Appeal from an order of the district court sanctioning appellant for failure to comply with discovery orders
and entering a default judgment against appellant. Eighth Judicial District Court, Family Division, Clark County;
Gloria S. Sanchez, Judge.
Wife brought action against husband seeking divorce and damages in excess of $2,000,000. The district
court entered default judgment against husband, and, following prove-up hearing, awarded wife $2,467,624.32
in damages. Husband appealed. The supreme court held that: (1) striking husband's answer and entering default
against him was warranted by his repeated failure to comply with discovery orders; (2) district court did not err
in permitting wife to amend her complaint to conform to evidence presented at prove-up hearing; and (3)
restricting husband's participation in prove-up hearing to cross-examination of wife's witnesses was not abuse of
discretion.
Affirmed.
[Rehearing denied February 26, 1999]
David K. Winter, Las Vegas, for Appellant.
Dowling, Myers & Helm, Las Vegas, for Respondent.
Where district courts have the authority to impose discovery sanctions, the supreme court will not reverse sanctions absent a clear
showing of abuse of discretion; however, where the sanction imposed is dismissal with prejudice, a somewhat heightened standard of
review applies. NRCP 37(b).
__________

1
this appeal.
2. Divorce.
Striking husband's answer and entering default against him in action by wife for divorce was warranted by husband's repeated
failure to comply with discovery orders, where husband offered no explanation for his failure to comply. NRCP 37(b).
3. Divorce.
District court did not err in permitting wife to amend her complaint to conform to evidence presented at prove-up hearing on
wife's damage claim against husband, even though default judgment had been entered against husband, where default was entered due
to husband's repeated failures to comply with court's discovery orders, and wife adequately supported her damage claim at prove-up
hearing. NRCP 54(c).
4. Judgment.
The extent to which a defaulting party will participate in prove-up hearing is a decision properly delegated to the trial courts,
and the trial courts should make this determination on a case-by-case basis. NRCP 55(b)(2).
5. Judgment.
In deciding the extent to which a defaulted party will be permitted to participate in prove-up, if at all, trial courts should
remember that the purpose of conducting a hearing after default is to determine the amount of damages and establish the truth of any
averment, and to that end, trial courts should determine the extent to which full participation by the defaulted party will facilitate the
truth-seeking process. NRCP 55(b)(2).
The supreme court will not reverse the district court's decision as to a defaulted party's participation in prove-up, absent a clear
abuse of discretion. NRCP 55(b)(2).
7. Divorce.
Restricting defaulted husband's participation in prove-up hearing to cross-examination of wife's witnesses, while not allowing
husband to present his own evidence, was not abuse of discretion, where default was entered against husband for his repeated failures
to comply with discovery orders. NRCP 55(b)(2).
OPINION
Per Curiam:
Richard Hamlett and Mary Reynolds were married in 1984. In September of 1994, Reynolds filed a complaint for divorce
seeking damages from Hamlett in excess of $2,000,000.00. The damages arose from a loan transaction and a stock purchase agreement.
Despite orders from both the discovery commissioner and the district court, as well as the imposition of monetary sanctions,
Hamlett consistently refused to comply with Reynolds' discovery requests. More specifically, in response to Reynolds' requests for
particular indexed documents, Hamlett often produced a mass of seemingly irrelevant and unidentified documents. Finally, in January of
1996, following a year of futile attempts to force Hamlett into compliance, the district court struck Hamlett's answer and entered a
default against him as a sanction for his continued failure to comply with discovery orders.
answer and entered a default against him as a sanction for his continued failure to comply with discovery orders.
Prior to conducting a prove-up hearing to determine damages, the district court ratified the parties'
stipulation regarding Hamlett's participation in the prove-up. The stipulation provided that at the prove-up
hearing on the default, Hamlett's counsel would be permitted to cross-examine Reynolds' witnesses but not
present evidence. Prior to the prove-up hearing, Reynolds filed a pretrial memorandum in which she sought
leave to amend her complaint to conform to the evidence she planned to present at the prove-up hearing.
The district court held the prove-up hearing in May of 1996, after which it allowed Reynolds to amend
her complaint to conform with the evidence presented, awarded Reynolds $2,467,624.32 for repayment of the
loan and granted Reynolds a decree of divorce. Hamlett filed this timely appeal.
On appeal, Hamlett first argues that the district court abused its discretion in striking his answer and
entering default against him as a sanction for his failure to comply with discovery orders.
[Headnote 1]
Where district courts have the authority to impose discovery sanctions, this court will not reverse
sanctions absent a clear showing of abuse of discretion. Young v. Johnny Ribeiro Building, 106 Nev. 88, 92, 787
P.2d 777, 779 (1990); see NRCP 37(b) (providing that district courts may make any orders as are just for a
party's failure to comply with discovery orders). Where the sanction imposed is dismissal with prejudice,
however, a somewhat heightened standard of review applies. Young, 106 Nev. at 92, 787 P.2d at 779.
This court has stated that it will uphold default judgments where the normal adversary process has
been halted due to an unresponsive party, because diligent parties are entitled to be protected against
interminable delay and uncertainty as to their legal rights. Skeen v. Valley Bank of Nevada, 89 Nev. 301, 303,
511 P.2d 1053, 1054 (1973).
[Headnote 2]
After reviewing the record, we conclude that striking Hamlett's answer and entering default against him
was an appropriate response by the district court to Hamlett's continued failure to sufficiently comply with
discovery orders. The record indicates that the discovery commissioner and the district court gave Hamlett clear
directives and several opportunities to comply with discovery orders. Our review of the record indicates that
Hamlett's constant failure to follow those orders was unexplained and unwarranted. Therefore, we conclude that
the district court did not abuse its discretion by striking Hamlett's answer and entering default against him.
Hamlett next argues that the district court erred in allowing Reynolds to amend her complaint to
conform to the evidence presented at the prove-up hearing, in violation of NRCP 54(c).
1
In Kelly
Broadcasting v. Sovereign Broadcasting, 96 Nev. 188, 193, 606 P.2d 1089, 1092 (1980), this court noted
that a party ordinarily is not entitled to amend a complaint once default judgment has been entered. This court
held, however, that when default has been entered due to a party's failure to comply with court orders and there
has been some evidence presented to support the proposed amendment, a district court may, at its discretion,
grant a party leave to amend. Id.
[Headnote 3]
Here, as in Kelly Broadcasting, Hamlett failed to abide by court orders demanding that he produce
adequate discovery materials. Furthermore, at the prove-up hearing, the district court found that Reynolds had
adequately supported her claim for over $2,000,000.00 in damages from Hamlett. Accordingly, we conclude that
the district court did not err in permitting Reynolds to amend her complaint to conform to the evidence presented
at prove-up.
In his final assignment of error, Hamlett argues that the district court abused its discretion by restricting
his participation to cross-examination of Reynolds' witnesses.
NRCP 55(b)(2), regarding default procedures, provides that if it is necessary . . . to determine the
amount of damages . . . , the court may conduct such hearings or order such references as it deems necessary and
proper. NRCP 55(b)(2) does not mandate that the defaulted party be given the opportunity to participate in a
prove-up hearing.
[Headnote 4]
This court has not had occasion to consider the degree to which a defaulted party should participate in a
default prove-up hearing. The language of NRCP 55(b)(2) that the court may conduct such hearings or order
such references as it deems necessary and proper suggests to us an intent to give trial courts broad discretion in
determining how prove-up hearings should be conducted. Thus, we conclude that the extent to which a
defaulting party will participate in prove-up is a decision properly delegated to the trial
courts.
__________

1
NRCP 54(c) provides:
(c) Demand for Judgment. A judgment by default shall not be different in kind from or exceed in
amount that prayed for in the demand for judgment, except that where the prayer is for damages in excess
of $10,000 the judgment shall be in such amount as the court shall determine. Except as to a party against
whom a judgment is entered by default, every final judgment shall grant the relief to which the party in
whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.
participate in prove-up is a decision properly delegated to the trial courts. The trial courts should make this
determination on a case-by-case basis and not according to static rules implemented by this court.
[Headnotes 5, 6]
In deciding the extent to which a defaulted party will be permitted to participate in prove-up, if at all,
trial courts should remember that the purpose of conducting a hearing after default, according to NRCP 55(b)(2),
is to determine the amount of damages and establish the truth of any averment. To that end, trial courts should
determine the extent to which full participation by the defaulted party will facilitate the truth-seeking process.
This court will not reverse the district court's decision as to participation, absent a clear abuse of the discretion
granted it by NRCP 55(b)(2).
[Headnote 7]
Here, the district court allowed Hamlett's attorney to cross examine Reynolds' witnesses but did not
allow Hamlett to present his own evidence. We conclude that the district court acted well within its discretion in
so limiting Hamlett's participation. Allowing Hamlett to introduce evidence, which he consistently refused to
produce during discovery, would have been inequitable.
Having reached the foregoing conclusions, we affirm the district court's order entering default judgment
against Hamlett and granting Reynolds $2,467,624.32 in damages.
____________
114 Nev. 867, 867 (1998) Roever v. State
LERLENE EVONNE ROEVER, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 29647
September 2, 1998 963 P.2d 503
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 possession of a controlled substance. Fifth Judicial District
Court, Nye County; John P. Davis, Judge.
Defendant was convicted in the district court of first degree murder with use of deadly
weapon and possession of controlled substance, and her motion for new trial was denied.
Defendant appealed. The supreme court reversed and remanded for new trial. 111 Nev. 1052,
901 P.2d 145 (1995). Defendant was convicted in the district court of same offenses, and she
appealed. The supreme court, Young J., held that: (1) allowing state to present bad character
evidence as rebuttal to good character defense defendant has not yet presented was
erroneous;
ent bad character evidence as rebuttal to good character defense defendant has not yet
presented was erroneous; (2) evidence of defendant's bad acts was inadmissible under statute,
providing methods of proving character; (3) even if clear and convincing evidence established
existence of prior bad acts and acts were relevant to crime charged, any probative value was
substantially outweighed by danger of unfair prejudice as a matter of law, and thus, prior bad
acts were not admissible under statute allowing evidence for purposes other than providing
character; and (4) testimonial evidence regarding specific prior bad acts was improper
impeachment testimony.
Rehearing denied. 115 Nev.
-----
, 979 P.25 1285 (1999).
Harry R. Gensler, Public Defender, and Harold Kuehn, Assistant Public Defender, Nye County, for
Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Robert S. Beckett, District Attorney, and Kirk D.
Vitto, Deputy District Attorney, Nye County, for Respondent.
1. Criminal Law.
Allowing state to present bad character evidence as rebuttal to good character defense defendant has not yet presented was
erroneous. Defendant did not open door to character rebuttal by merely stipulating to admission of videotape containing defendant's
statement that she was peace-loving person, who would not hurt a fly and whose credibility should not be questioned and state was
first to use videotape in case-in-chief. NRS 48.045(1)(a).
2. Criminal Law.
Before the issue of defendant's good character can be said to be raised, which would permit the introduction of rebuttal character
evidence, it must have been raised in substance if not in so many words, and the issue so raised must be one to which the prejudicial
evidence is relevant. NRS 48.045(1)(a).
3. Criminal Law.
Evidence of defendant's bad acts was inadmissible under statute, providing methods of proving character, where state failed to
confront defendant on witness stand with specific instances of bad conduct and statements. NRS 48.055.
4. Criminal Law.
Even if clear and convincing evidence established existence of murder defendant's prior bad acts and acts were relevant to crime
charged, any probative value was substantially outweighed by danger of unfair prejudice as a matter of law, and thus, prior bad acts
were inadmissible under statute allowing bad acts evidence for purposes other than proving character, where much bad acts evidence
was inflammatory, speculative and utterly fantastic. NRS 48.045(2).
5. Criminal Law.
For prior bad act of defendant to be deemed admissible, trial court must determine, outside presence of jury, that: (1) incident is
relevant to crime charged;
crime charged; (2) act is proven by clear and convincing evidence; and (3) probative value of evidence is not substantially outweighed
by danger of unfair prejudice.
6. Criminal Law.
A trial court's determination to admit or exclude prior bad acts evidence will not be disturbed on appeal absent manifest error.
7. Criminal Law.
The use of specific conduct to show a propensity to commit the crime charged is prohibited and is commonly regarded as
sufficient grounds for reversal.
8. Witnesses.
Testimonial evidence regarding specific prior bad acts by defendant was improper impeachment testimony, where acts were not
used to demonstrate defendant's propensity toward untruthfulness. NRS 50.085.
9. Witnesses.
Testimonial evidence regarding defendant's propensity toward untruthfulness would be admissible on remand to impeach
defendant, provided defendant testified, defendant's testimony was in proper form and such impeachment was admitted only in form of
opinion. NRS 50.085.
OPINION
Appellant Lerlene Evonne Roever (Roever) was previously convicted of one count of first degree murder of her boyfriend, Ian
Wilhite (Wilhite), and one count of possession of a controlled substance, marijuana. On appeal, we reversed Roever's conviction and
remanded for a new trial. Roever v. State, 111 Nev. 1052, 901 P.2d 145 (1995).
At Roever's second trial, the jury again returned a guilty verdict for first degree murder and possession of marijuana. The district court
sentenced her to two consecutive terms of life in prison with the possibility of parole for the murder count and one year in prison for the
possession count.
Roever and Wilhite lived together in a trailer home in Pahrump, Nevada, with Roever's three children. On the morning of January 16,
1993, Roever called the police to report that she had found Wilhite lying dead in their master bedroom. The cause of death was attributed to
a single bullet found in the base of his skull. The medical examiner determined that Wilhite was shot while sleeping the previous night and
that the wound was not self-inflicted. Roever told police that she and Wilhite had argued about his infidelities the previous evening and that
she spent the night on the couch in the living room of the trailer. She also told police that she had not heard any noise the night before.
Although Roever possessed a handgun, the police recovered only an empty handgun box. Further, because the bullet fragments were
severely damaged, the medical examiner could not determine the type of bullet or firearm used in the murder.
were severely damaged, the medical examiner could not determine the type of bullet or firearm used in the
murder.
Roever was arrested and charged with murder and possession of a controlled substance. Her theory of
defense to the murder charge was that an unknown third party entered the trailer during the night, murdered
Wilhite, and left the residence and its environs without being seen. The State's theory of the case was that Roever
was the only person with a possible motive and opportunity to shoot Wilhite.
At trial, the parties stipulated to playing a videotaped interview between Roever and Detective Frank Ruas
(Detective Ruas) during the State's case-in-chief. The interview was replete with self-serving statements by
Roever. Thereafter, also during its case-in-chief, the State called a series of character witnesses who testified to
numerous prior statements allegedly made by Roever and to prior acts in which she was allegedly involved.
Roever argues on appeal that the following testimony was improperly admitted over objection and without a
hearing required by Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985):
1. Marlene Chidester, Roever's neighbor, testified that Roever had described in detail how she murdered her
mother in a bathtub and watched her mother's teeth float in the water, that she had snapped her newborn baby's
neck, and that she had scalped an African-American schoolgirl and cut out her teeth while Roever was
experiencing a blackout.
2. Dominick Roever, Roever's son, testified that Roever and her ex-husband, Craig Bruske (Bruske),
would fight violently and once she attacked Bruske with a knife.
3. Gloria and William Lambert, Roever's acquaintances, each testified that Roever had told them that she
gutted an ex-beau.
4. Bruske testified that Roever killed a classmate and has a personality disorder causing her to speak in
different voices, experience blackouts, and forget what happened to her. Bruske further testified that Roever
drank excessively, neglected her children, and tried to kill him with a knife.
5. Wanda Harrer, Bruske's mother, testified that Roever once threatened a woman in a bar with a cue stick.
6. Carole Kay Phillips (Phillips), Roever's employer, testified that Roever was a thief and a liar.
7. Yolanda Wilhite Connelly, Wilhite's sister, testified that Roever once bit Wilhite.
The State contends that Roever called her character into question when she stated during her taped interview
with Detective Ruas that she was a peace-loving person, who would not hurt a fly and whose credibility should
not be questioned. Therefore, the State asserts that the bad act testimony was admissible under NRS
48.045(1)(a) as rebuttal character evidence. The State also alleges that the evidence was admissible
under NRS 4S.045{2) to establish that Roever had committed criminal acts while
experiencing a blackout and that she was capable of concocting fantastic or incredible
stories.
alleges that the evidence was admissible under NRS 48.045(2) to establish that Roever had committed criminal
acts while experiencing a blackout and that she was capable of concocting fantastic or incredible stories.
[Headnotes 1, 2]
Initially, the bad character testimony should never have been introduced because it was not in rebuttal to a
defense made by the accused. NRS 48.045(1)(a) permits admission of character evidence when the defendant
offers his or her good character into evidence and the prosecution introduces evidence to rebut the defense.
However,
[b]efore an issue can be said to be raised, which would permit the introduction of such evidence so
obviously prejudicial to the accused, it must have been raised in substance if not in so many words, and the
issue so raised must be one to which the prejudicial evidence is relevant. . . . The prosecution cannot credit
the accused with fancy defences in order to rebut them at the outset with some damning piece of prejudice.'
McCormick on Evidence 190 at 452 n.54 (Edward W. Cleary, 2d ed. 1972) (quoting Lord Sumner in
Thompson v. The King, App. Cas. 221, 232 (1918)).
Taylor v. State, 109 Nev. 849, 854, 858 P.2d 843, 846-47 (1993). Here, Roever did not use her videotaped
statements as evidence of her good character to be rebutted by the State. We reject the State's contention that
Roever opened the door to character rebuttal merely by stipulating to the admission of the videotape; it was, in
fact, the State that first used the tape in its case-in-chief. Therefore, we conclude that the district court erred by
allowing the State to rebut character evidence that had not yet been presented by the accused.
[Headnote 3]
Second, NRS 48.055 allows permissible character evidence to be admitted at trial only in the form of the
witness's opinion of the defendant or the defendant's reputation. Evidence of specific acts is admissible only
upon cross-examination or when the defendant's character is an essential element of the charge. The testimony
presented here was clearly not in the proper form. Further, the State concedes that it did not confront Roever on
the witness stand under NRS 48.055 with the specific instances of conduct and statements under scrutiny.
Accordingly, the testimonial evidence at issue was improperly admitted as rebuttal character evidence, pursuant
to NRS 48.045(1)(a) or NRS 48.055.
[Headnotes 4-6]
Third, we conclude that the evidence was improperly admitted pursuant to NRS 4S.045{2).
pursuant to NRS 48.045(2). NRS 48.045(2) proscribes evidence of other acts to prove character, although such
evidence is offered for other purposes. The district court is required to conduct a hearing to determine whether
evidence of other acts is admissible. 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). A trial court's determination to admit or exclude such evidence will
not be disturbed on appeal absent manifest error. Petrocelli, 101 Nev. at 52, 692 P.2d at 508.
[Headnote 7]
Even had the district court conducted the required hearing prior to admitting the bad act evidence, this
evidence should still have been excluded. Much of the bad act evidence admitted was so inflammatory,
speculative, and utterly fantastic as to bear practically no probative value. Moreover,
[t]he use of uncharged bad acts to convict a defendant is heavily disfavored in our system of criminal
justice. Such evidence is likely to be prejudicial or irrelevant, and forces the accused to defend himself
against vague and unsubstantiated charges. . . . Evidence of uncharged misconduct may unduly influence
the jury, and result in a conviction of the accused because the jury believes he is a bad person. . . . The
use of specific conduct to show a propensity to commit the crime charged is clearly prohibited by Nevada
law, . . . and is commonly regarded as sufficient grounds for reversal.
Taylor, 109 Nev. at 854, 858 P.2d at 847 (quoting Berner v. State, 104 Nev. 695, 696-97, 765 P.2d 1144,
1145-46 (1988)). Accordingly, even if clear and convincing evidence established the existence of these acts and
the acts were relevant to the crime charged, we conclude that any probative value was substantially outweighed
by the danger of unfair prejudice as a matter of law. Tinch, 113 Nev. at 1176, 946 P.2d at 1064-65.
[Headnotes 8, 9]
Fourth, the State alternatively argues that the testimonial evidence in dispute could properly be used to
impeach Roever, who testified on her own behalf. We conclude that this argument is without merit because NRS
50.085 permits such impeachment only as it relates to the witness's propensity for truthfulness or untruthfulness.
Only portions of Phillips' testimony discussed Roever's propensity toward untruthfulness and, therefore, could
properly be used as impeachment against Roever if she testifies again and her testimony is in the proper form.
Such impeachment may be admitted only in the form of an opinion.
may be admitted only in the form of an opinion. NRS 50.085(1). Any specific acts cannot be raised through
extrinsic evidence. NRS 50.085(3). The prior acts at issue here were generally not used to demonstrate Roever's
propensity toward untruthfulness, and the State impermissibly used extrinsic evidence by calling other witnesses
to testify about those acts. Consequently, this evidence, with the exception of some of Phillips' testimony, was
not proper impeachment.
We conclude that the prior bad act evidence was improperly admitted and served only to violate Roever's
fundamental right to a fair trial. Accordingly, we must reverse her conviction and remand this matter for a new
trial. In light of this conclusion, we need not address Roever's other contentions to this court.
Springer, C.J., and Rose, J., concur.
I agree that Roever should be granted a new trial. However, I do not agree with all of the majority's analysis
of the testimony of Marlene Chidester, Gloria and William Lambert, and Craig Bruske. Roever's taped statement
that she was a peace-loving person who would not hurt a fly, was introduced into evidence by stipulation. I
would hold that this statement would have opened the door to evidence of Roever's prior inconsistent statements
through the testimony of Chidester, the Lamberts and possibly Bruske. This would have been appropriate
impeachment and admissible, not for the truth of the matter asserted, but as bearing on her credibility.
The fact that the evidence ordinarily would not have been admissible because it related to character, does not
mean that it cannot be used to impeach the defendant. In U.S. v. Lara, 956 F.2d 994 (10th Cir. 1992), the court
admitted evidence of another pending prosecution against defendant, over the objection that other bad act
evidence should not have been admitted. However, the defendant had testified that he had never been arrested
and had never been prosecuted for anything else. The Tenth Circuit affirmed the conviction saying:
The defendant's testimony could reasonably be taken as an assertion that the indictment in the instant case
was the only trouble he had ever had with the law. This answer was misleading in light of the fact that the
defendant was at the time under indictment in another case. Evidence of the other prosecution was not
introduced to show the defendant's bad character. Rather, it was used to challenge the truthfulness of his
testimony. Rule 404(b) [comparable to NRS 48.045(2)] shields a defendant from unfair prejudice but it is
not a license to give misleading or false testimony. Under the circumstances, the use of this
evidence for impeachment was a permissible "other purpose" under Rule 404{b).
cumstances, the use of this evidence for impeachment was a permissible other purpose under Rule
404(b). Cf. United States v. Stockton, 788 F.2d 210, 219 n. 15 (4th Cir.) (Impeachment may qualify as a
permissible use of prior bad acts under Rule 404(b)), cert. denied, 479 U.S. 840, 107 S. Ct. 147, 93
L.Ed.2d 89 (1986).
Roever's statements that she was peace-loving came in on tape, and Roever was never asked about the
statements she had made. Before extrinsic evidence of prior inconsistent statements may be introduced, the
witness must be afforded an opportunity to explain or deny the statements. NRS 50.135(2)(b).
Of course, the evidence must also be tested under NRS 48.035(1) to determine whether its probative value is
substan-tially outweighed by the danger of unfair prejudice, of confusion of the issues or of misleading the jury.
This is a determination to be made by the trial judge.
I agree that admission of the purported character rebuttal warrants retrial of this matter. I write separately
to comment further on the State's use of this evidence.
Admissibility of character evidence under NRS 48.045
At trial, during the State's case in chief, the parties stipulated to playing a taped interview between Roever
and Detective Frank Ruas. The interview was replete with self-serving statements by Roever that, in my view,
placed her good character in issue. Thereafter, also during its case in chief, the State called a series of rebuttal
character witnesses who testified to numerous statements allegedly made by Roever and to separate prior
incidents in which she was allegedly involved.
1
These include alleged statements by Roever that she had (1)
murdered her mother in a bathtub and watched her mother's teeth float in the water; (2) snapped her newborn
baby's neck; (3) scalped an African-American school girl and cut out her teeth during a blackout; (4) gutted
her ex-boyfriend and (5) threatened to kill the victim in this case on several occasions. There was further
testimony on character rebuttal that she had killed a classmate, suffered from a personality disorder,
experienced blackouts, drank excessively, neglected her children, and tried to kill her former spouse with a
knife.
NRS 48.045(1) articulates the general rule regarding the admissibility of character evidence in the context of
a criminal trial:
__________

1
Upon inquiry at oral argument, Roever's counsel indicated that, in light of the stipulation allowing her
statement to be admitted as a defense exhibit and played during the State's case in chief, the chronological order
of the presentation of the alleged inadmissible evidence was not at issue on appeal.
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:
(a) Evidence of his character or a trait of his character offered by an accused, and
similar evidence offered by the prosecution to rebut such evidence . . . .
The State contends that Roever placed her character at issue when she stated during her taped
interview with the police that she was a peace-loving person, who would not hurt a fly and
whose credibility should not be questioned. At oral argument, the State asserted that the
bad acts testimony was admissible under NRS 48.045(1)(a) as rebuttal character evidence
and under NRS 48.045(2), to establish that Roever had committed criminal acts while
blacked out and that she was capable of concocting fantastic or incredible stories. Under
these theories, the district court allowed the State to rebut Roever's character evidence with
statements and conduct to which we now refer.
2
Here, although I conclude that Roever
placed her character in issue by stipulating to the admission of the tape, I also conclude that
the rebuttal evidence was improperly admitted.
NRS 48.055 provides the available mechanism for proving character under NRS 48.045:
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.
NRS 48.045 and NRS 48.055(1) mirror Federal Rules of Evidence 404 and 405. With the exception of
allowing opinion testimony in addition to reputation testimony to establish character, Federal Rules of Evidence
404 and 405 adopt traditional common law principles of admissibility of character evidence. At common law,
specific instances of conduct were not admissible to prove the good character of an accused or to prove bad
character in rebuttal. See Falknor, Extrinsic Policies Affecting Admissibility, 10 Rutgers L. Rev. 574, 584 (1956)
(referred to in committee notes to FRE 404 and 405).
__________

2
Although the State conceded at oral argument that the evidence given by Chidester, Mr. and Mrs. Lambert
and Bruske was introduced to rebut Roever's evidence of good character and not for impeachment via prior bad
acts, the State has argued in the alternative, in its brief, that admissibility could also be based on such grounds.
notes to FRE 404 and 405). NRS 45.045(2) codifies this principle.
3
Thus, the legislative history of these
provisions confirms that such character evidence should be limited to opinion or reputation. Here, the State
concedes that it did not confront Roever on the witness stand with the specific instances of conduct and
statements now under scrutiny. Thus, with the exception of the threats to Wilhite and, possibly, the evidence of
attempts to murder her former spouse, see NRS 48.045(2) and Petrocelli v. State, 101 Nev. 46, 692 P.2d 503
(1985), the district court improperly allowed the State to introduce the aforementioned evidence.
4

Even if there was a doctrinal basis for the admissibility of this character evidence, its introduction would
also run afoul of the district court's discretion under NRS 48.035
5
because much of this evidence was so
inflammatory, speculative and utterly fantastic as to have almost no probative value absent some independent
corroboration.
I also agree, subject to the exceptions noted above, that the alleged statements and specific instances of
conduct were not admissible under NRS 48.045(2) for the other purposes of proving that she had committed
acts of violence during blackouts, or that she was capable of concocting fantastic or incredible stories. Again,
under NRS 48.035, the probative value of this evidence, i.e., to prove that she could have perpetrated the murder
without a specific recollection of having done so, was speculative at best. Further, if this evidence was calculated
to prove her capability to fabricate, it was of marginal relevance as well as patently prejudicial. Thus, even if a
hearing had been conducted under Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985),
6
it would have
been improper to admit this evidence.
__________

3
NRS 48.045(2):
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
See footnote No. 10 for exceptions to this ruling, including the evidence of threats Roever made against
Wilhite prior to his demise.

5
NRS 48.035(1) states: Although relevant, evidence is not admissible if its probative value is substantially
outweighed by the danger of unfair prejudice, of confusion of the issues or of misleading the jury.

6
The State has argued in its brief and at oral argument that the need to conduct a Petrocelli hearing was
obviated because the State did not seek admission of the extraneous evidence in question for other purposes such
as motive, intent, etc. This contradicts the State's arguments that the evidence was also probative to prove that
Roever had blackouts and was capable of concocting incredible stories. NRS 48.045(2) is implicated when
specific instances of conduct are used for purposes other than character such as motive or intent, etc. The rule
is not restricted to the exceptions which are noted in the statute by way of example.
Further, the State has repeatedly taken the position in this matter that the
have been improper to admit this evidence. See Tinch v. State, 113 Nev. 1170, 946 P.2d 1061 (1997).
7

The State also sought affirmance on the basis that the offending character evidence was admissible to attack
Roever's credibility under NRS 50.085.
8
See NRS 48.045(1)(c).
9
However, character impeachment must be
limited to opinions regarding truthfulness or untruthfulness. See NRS 50.085(1)(a), (b). As noted, the State
introduced specific acts of misconduct through the testimony of third parties. Thus, the character impeachment
in question was not limited to opinions.
Further, there was no attempt to bring these statements and alleged incidents into the case through
cross-examination of Roever herself. Thus, the specific instances of conduct of which Roever complains on
appeal, if introduced as prior bad acts to attack Roever's credibility, were introduced extrinsically in violation
of NRS 50.085(3):
Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility,
other than conviction of crime, may not be proved by extrinsic evidence. They may, however, if relevant
to truthfulness, be inquired into on cross-examination of the witness himself or on cross-examination
of a witness who testifies to an opinion of his character for truthfulness or
untruthfulness, subject to the general limitations upon relevant evidence and the
limitations upon interrogation and subject to the provisions of NRS 50.090.
__________
defendant's failure to ask for such a hearing precludes her from arguing the point on appeal. This argument
underscores an apparent lack of understanding of the process. While it is true that the failure to hold such
hearings does not always prejudice fundamental rights so as to warrant reversal, it is generally the burden of the
State to bring matters implicating NRS 48.045(2) to the attention of the trial court.

7
This court has established the following prerequisites before prior bad acts evidence can be admitted: (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, 113
Nev. at 1176, 946 P.2d at 1064-65 (citing Walker v. State, 112 Nev. 819, 824, 921 P.2d 923, 926 (1996)).

8
NRS 50.085 states in part:
1. Opinion evidence as to the character of a witness is admissible to attack or support his credibility
but subject to these limitations:
(a) Opinions are limited to truthfulness or untruthfulness; and
(b) Opinions of truthful character are admissible only after the introduction of opinion evidence of
untruthfulness or other evidence impugning his character for truthfulness.
2. Evidence of the reputation of a witness for truthfulness or untruthfulness is inadmissible.

9
NRS 48.045(1)(c):
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:
. . . .
(c) Unless excluded by NRS 50.090, evidence of the character of a witness, offered to attack or
support his credibility, within the limits provided by NRS 50.085.
examination of a witness who testifies to an opinion of his character for truthfulness or untruthfulness,
subject to the general limitations upon relevant evidence and the limitations upon interrogation and
subject to the provisions of NRS 50.090.
NRS 50.085.
10
Here, Roever may have been subject to impeachment through
cross-examination with regard to the bad acts discussed by the majority, assuming a good
faith basis to inquire into them and assuming the interrogation would not violate NRS 48.035.
The State, however, (1) chose not to confront her directly with the extraneous events, and (2)
the extrinsic proof of them was improper with or without confrontation.
11

I now turn to the possibility that the errors committed might be subject to a harmless error analysis. I reject
adoption of such an alternative, despite persuasive circumstantial evidence suggesting that Roever is the only
person who could have committed the murder of Ian Wilhite. Although the evidence of Roever's guilt seems
quite strong, the errors with regard to the so-called character rebuttal are so profound that our utilization of the
harmless error doctrine would set a most dangerous precedent. Thus, I would urge the State to exercise restraint
in its next attempt to seek a conviction.
__________

10
Such a ruling would not compel exclusion of all of the statements and incidents attributed to Roever. By
way of example, her threats against Wilhite voiced to third persons, including Lambert; her statements to
Chidester shortly after the killing to the effect that she knew how to take care of people who got in her way;
her statements regarding disagreements with Wilhite; any statements regarding how Wilhite died or the facts
leading up to his death; and references to her daughter's diary on cross-examination of the daughter. These must
be separately evaluated with regard to other rules of evidence, including, but not limited to, NRS 48.035.
On retrial, if Roever places her character in issue, Chidester, Mr. and Mrs. Lambert and Bruske could testify
as character witnesses in rebuttal within the confines of this court's rulings and, I believe, the views set forth in
this separate opinion. Then, specific positive instances of conduct by Roever could be explored on their
cross-examinations, and specific negative instances could be explored on Roever's cross-examination, if she
testifies.

11
Under NRS 50.085(3), had Roever been specifically confronted with the extraneous events alleged by
these witnesses, her denial of them would not have opened the door to their admission under the traditional
approach taken in NRS 50.085. However, under a modern doctrine of specific contradiction, a doctrine we
have yet to embrace, a witness may be subject to collateral impeachment by contradictory evidence from third
parties. Although this case is not appropriate for an examination of such a rule, we should, in an appropriate
future case, examine whether witnesses should be insulated from false testimony under the extrinsic evidence
rule of NRS 50.085(3).
____________
114 Nev. 879, 879 (1998) Washoe Co. School Dist. v. Bowen
WASHOE COUNTY SCHOOL DISTRICT, Appellant, v. PEGGY BOWEN, Respondent.
No. 30177
September 2, 1998 962 P.2d 1233
This is an appeal from an order denying a petition for judicial review. Second Judicial District Court,
Washoe County; Mills Lane, Judge.
School district petitioned for judicial review of administrative decision ordering district to pay school teacher
temporary total disability (TTD) benefits through summer recess. The district court denied petition, and district
appealed. The supreme court held that teacher, who was unable to engage in seasonal work during summer
recess, was entitled to receive TTD benefits during recess under workers' compensation laws.
Affirmed.
McDonald, Carano, Wilson, McCune, Bergin, Frankovich & Hicks, and Timothy E. Rowe, Reno, for
Appellant.
David R. Houston, Reno, for Respondent.
Workers' Compensation.
Injured teacher, who was unable to engage in seasonal work during summer recess, was entitled to receive temporary total
disability (TTD) benefits during recess under workers' compensation laws; laws do not expressly prohibit receipt of TTD benefits
during periods of inactivity when claimant is compensated on annualized basis for fixed period of employment less than one year. NRS
616A.340, 616C.400, 616C.475.
OPINION
Per Curiam:
Peggy Bowen (Bowen) is a schoolteacher employed by the Washoe County School District (School District). The School District
utilizes a standard contract requiring 183 days of service in return for a salary annualized over twelve months. Bowen teaches during the
traditional school year from September through May, with recesses during the three summer months.
FACTS
In April of 1995, Bowen underwent surgery in connection with a compensable work-related injury. She was temporarily disabled
thereafter, until released for return to her teaching duties in late August of 1995. Throughout the entire period of her disability, including
the months when school was not in session, the School District paid Bowen her full monthly wage.
including the months when school was not in session, the School District paid Bowen her full monthly wage.
During the months school was in session, Bowen also received Temporary Total Disability (TTD)
payments, which she tendered back to the School District. This enabled her to receive credit against any sick
leave used as a result of her injury. However, when the regular nine-month school year concluded, the School
District terminated Bowen's TTD benefits. The School District justified this position on the grounds that Bowen
suffered no wage losses during the summer because (1) she continued to receive her pay and (2) her sick leave
accumulations were unaffected during the recess.
Bowen also held positions with the Nevada State Board of Education (Board of Education) and the Nevada
State Indian Commission (Indian Commission). Although she worked at these positions throughout the entire
year of 1995, Bowen opted not to collect the additional income from these endeavors between April and October
because of her concern that the School District would refuse payment of her TTD benefits. In subsequent legal
proceedings, the School District asserted that her voluntary choice to forego the income did not compel a finding
of statutory disablement.
Bowen challenged the School District's denial of TTD benefits during the summer months. The Department
of Administration hearing officer affirmed the School District's termination of TTD benefits, concluding that
Bowen's continued receipt of regular paychecks mandated a finding that there was no wage loss for the purpose
of NRS 616.585, the Nevada TTD statute.
1

Thereafter, an appeals officer reversed the hearing officer's decision and ordered the School District to pay
TTD benefits through the summer recess, ending August 21, 1995.
The district court denied the School District's petition for judicial review because Bowen's temporary
disability precluded her from obtaining summer employment. The district court reasoned that, although Bowen
received her salary in twelve monthly installments, her salary was actually earned during the 183-day school
year; thus, because she had pursued independent employment during prior summer recesses, her temporary
disability did not cease for compensation purposes during the 1995 summer recess.
DISCUSSION
The sole issue on appeal is whether an injured classroom instructor who is unable to engage in seasonal work
during a summer recess, is entitled to receive temporary total disability benefits during the
recess under NRS 616C.475, 616A.340, and 616C.400.
__________

1
NRS 616.585 is now NRS 616C.475 and discusses temporary total disability compensation.
mer recess, is entitled to receive temporary total disability benefits during the recess under NRS 616C.475,
616A.340, and 616C.400.
2

__________

2
Previously NRS 616.585, 616.117, and 616.570.
NRS 616C.475 states:
Amount and duration of compensation; limitations.
1. Except as otherwise provided in this section, NRS 616C.175 and 616C.390, every employee in the
employ of an employer, within the provisions of chapters 616A to 616D, inclusive, of NRS, who is
injured by accident arising out of and in the course of employment, or his dependents, is entitled to
receive for the period of temporary total disability, 66
2
/3 percent of the average monthly wage.
2. Except as otherwise provided in NRS 616B.185 and 616B.186, an injured employee or his
dependents are not entitled to accrue or be paid any benefits for a temporary total disability during the
time the injured employee is incarcerated. The injured employee or his dependents are entitled to receive
such benefits when the injured employee is released from incarceration if he is certified as temporarily
totally disabled by a physician or chiropractor.
3. If a claim for the period of temporary total disability is allowed, the first payment pursuant to this
section must be issued by the insurer within 14 working days after receipt of the initial certification of
disability and regularly thereafter.
4. Any increase in compensation and benefits effected by the amendment of subsection 1 is not
retroactive.
5. Payments for temporary total disability must cease when:
(a) A physician or chiropractor determines that the employee is physically capable of any gainful
employment for which the employee is suited, after giving consideration to the employee's education,
training and experience;
(b) The employer offers the employee light-duty employment or employment that is modified
according to the limitations or restrictions imposed by a physician or chiropractor pursuant to subsection
7; or
(c) Except as otherwise provided in NRS 616B.185 and 616B.186, the employee is incarcerated.
6. Each insurer may, with each check that it issues to an injured employee for a temporary total
disability, include a form approved by the division for the injured employee to request continued
compensation for the temporary total disability.
7. A certification of disability issued by a physician or chiropractor must:
(a) Include the period of disability and a description of any physical limitations or restrictions
imposed upon the work of the employee;
(b) Specify whether the limitations or restrictions are permanent or temporary; and
(c) Be signed by the treating physician or chiropractor authorized pursuant to NRS 616B.515 or
616B.527.
8. If certification of disability specifies that the physical limitations or restrictions are temporary, the
employer of the employee at the time of his accident is not required to comply with NRS 616C.545 to
616C.575, inclusive, and 616C.590 or the regulations adopted by the division governing vocational
rehabilitation services if the employer offers the employee a position that is substantially similar to the
employee's position at the time of his injury in relation to the location of the employment, the hours he is
required to work and the salary he will be paid.
NRS 616A.340 states in part:
Total disability means incapacity resulting from an accident arising
Because this matter requires an interpretation of the statutory scheme for payment of disability benefits, we
choose to undertake an independent review and address this matter anew. State v. State Engineer, 104 Nev. 709,
766 P.2d 263 (1988).
The School District concedes that Nevada's statutory scheme does not specifically define temporary total
disability in one specific statute. However, it does contend that NRS 616A.340, 616C.400, and 616C.475, when
read together, define the complete concept of total disability under our workers' compensation laws. The
School District further contends that Bowen was not entitled to TTD benefits during the 1995 summer recess
because she continued to receive a full monthly wage, thus suffering no wage loss, a prerequisite to the right to
receive TTD benefits. Bowen argues in response that the income received from the School District during the
summer months was actually pre-earned during the nine-month traditional instruction period. Bowen further
argues that, because her disability prevented her from earning income from other sources during the summer
months of 1995, she was entitled to TTD benefits. We agree.
The Nevada TTD statutory scheme does not expressly prohibit receipt of TTD benefits during periods of
inactivity where an employee is compensated on an annualized basis for a fixed period of employment less than
one year. Here, the employee pre-earned the installment salary payments made during the summer recess and
was incapacitated from accepting seasonal employment as a result of a work-related injury. While the School
District correctly notes that no regular salary was lost due to the industrial disability, and while the stated
purpose of the TTD payments was to alleviate the loss of sick leave due to work-related injuries, Bowen was
rendered unable to pursue summer employment within the meaning of NRS 616A.3403 {" '[t]otal
disability' . . . [includes] . . . incapacity . . . which prevents the covered workman from
engaging . . . in any occupation").
__________
out of and in the course of employment which prevents the covered workman from engaging, for
remuneration or profit, in any occupation for which he is or becomes reasonably fitted by education,
training or experience.
NRS 616C.400 states in part:
Minimum duration of incapacity.
1. Temporary compensation benefits must not be paid under chapters 616A to 616D, inclusive, of
NRS for an injury which does not incapacitate the employee for at least 5 consecutive days, or 5
cumulative days within a 20-day period, from earning full wages, but if the incapacity extends for 5 or
more consecutive days, or 5 cumulative days within a 20-day period, compensation must then be
computed from the date of the injury.
2. The period prescribed in this section does not apply to accident benefits, whether they are
furnished pursuant to NRS 616C.255 or 616C.265, if the injured employee is otherwise covered by the
provisions of chapters 616A to 616D, inclusive, of NRS and entitled to those benefits.
the meaning of NRS 616A.340
3
( [t]otal disability' . . . [includes] . . . incapacity . . . which prevents the
covered workman from engaging . . . in any occupation). Thus, an additional statutorily intended purpose exists
for the TTD benefits. We, therefore, conclude that Bowen was not prohibited from seeking TTD payments
during the 1995 summer recess.
Accordingly, we hereby affirm the lower court's decision denying judicial review.
4

____________
114 Nev. 883, 883 (1998) Elvik v. State
PETER QUINN ELVIK, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 29830
September 2, 1998 965 P.2d 281
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count each of first-degree murder
with the use of a deadly weapon and robbery with the use of a deadly weapon. First Judicial District Court,
Carson City; Michael R. Griffin, Judge.
Juvenile defendant was convicted of murder and robbery following a jury trial in the district court and he
appealed. The supreme court held that: (1) defendant's right against being shackled in the jury's presence was not
violated; (2) defendant waived his Miranda rights; (3) defendant's confession was not involuntary or coerced; (4)
defendant did not have to be certified as an adult before being tried for robbery; (5) defendant waived his right
to a timely arraignment; (6) testimony of defendant's girlfriend relating defendant's inculpatory statements was
admissible; (7) a jury instruction on reasonable doubt did not violate due process; (8) a knowledge of
wrongfulness instruction was not needed; and (9) the court did not rush the jury to reach a verdict before a
holiday.
Affirmed.
Dennis A. Cameron, Reno; Matthew Kurilich, Jr., Tustin, California, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Noel Waters, District
Attorney, and Anne M. Langer, Deputy District Attorney, Carson City, for Respondent.
__________

3
The renunciations of salary for her additional positions with the school board and the Indian Commission
were irrelevant to her eligibility for TTD benefits. We agree that the simple refusal to accept the additional
salary did not facilitate Bowen's claim of disability. Thus, it was unnecessary for her to refuse this separate
compensation.

4
The Honorable Charles Springer, Chief Justice, did not participate in the decision of this appeal.
114 Nev. 883, 884 (1998) Elvik v. State
Waters, District Attorney, and Anne M. Langer, Deputy District Attorney, Carson City, for
Respondent.
1. Criminal Law.
Defendant's rights are violated when he is made to appear before a jury in shackles during the guilt phase of a trial. When such
error has occurred, it is the supreme court's duty to reverse a conviction unless it is clear that the defendant was not prejudiced.
2. Criminal Law.
Defendant may be shackled at sentencing, but only when used as a last resort to protect an essential state interest, such as
maintaining public safety or assuring the decorum of the proceedings.
3. Criminal Law.
Allowing an armed guard to stand near defendant during the reenactment of the shooting incident for which defendant was
being tried did not violate his right against being shackled in the jury's presence, especially since the trial court tried to minimize any
prejudice by instructing counsel to control defendant's movement around the courtroom to keep the guard from being near him.
4. Criminal Law.
Allowing heavily armed police officers to be posted around the courthouse in view of the jury during the penalty phase of a
murder and robbery trial did not violate defendant's right against being shackled in the jury's presence, where defendant had made
escape plans and was being accused of prior lethal action, albeit in claimed self-defense, and where no less restrictive alternative was
proposed.
5. Criminal Law.
Defendant's reply yea, I guess after an interrogating officer recited his Miranda rights and asked if he wished to speak was not
ambiguous and sufficed as a waiver of his rights, where his colloquial style of verbal expression throughout the interrogation was
consistent with his reply, suggesting that his choice of words was not indicative of an unwillingness to speak.
6. Criminal Law.
When a defendant waives his Miranda rights and makes a statement during a custodial interrogation, the state bears the burden
of proving voluntariness, based on the totality of the circumstances, by a preponderance of the evidence.
7. Criminal Law.
Absence of a parent during the interrogation of a 14-year-old suspect should be considered in reviewing the totality of the
circumstances bearing on the voluntariness of his statements.
8. Criminal Law.
Failure of interrogating officers to inform a juvenile murder suspect that his statements could be used against him in an adult
trial in criminal court was not alone sufficient to render his statements inadmissible, where the nature of the charges and the identity of
the interrogator reflected the existence of an unquestionably adversary police atmosphere and the suspect was reasonably mature and
sophisticated with regard to the nature of the process, in that he was of above-average intelligence and had been arrested on at least one
previous occasion.
9. Criminal Law.
Although the fact that a juvenile murder suspect did not have his mother or an attorney present during an interrogation, coupled
with the interrogating officers' persistent refusal to accept his claimed failure to remember the shooting, cast
some doubt on the voluntariness of his confession, the confession was not involuntary or coerced given the
totality of the circumstances, particularly the suspect's intelligence and experience with the criminal justice
system.
114 Nev. 883, 885 (1998) Elvik v. State
interrogating officers' persistent refusal to accept his claimed failure to remember the shooting, cast some doubt on the voluntariness of
his confession, the confession was not involuntary or coerced given the totality of the circumstances, particularly the suspect's
intelligence and experience with the criminal justice system.
10. Criminal Law.
Confession is inadmissible unless freely and voluntarily given.
11. Criminal Law.
To be voluntary, a confession must be the product of a rational intellect and a free will.
12. Criminal Law.
Court deciding whether a confession is the product of a free will employs a totality of the circumstances test to determine
whether the defendant's will was overborne when he confessed.
13. Criminal Law.
Confession obtained by physical intimidation or psychological pressure is inadmissible.
14. Criminal Law.
District court's decision regarding the voluntariness of a confession is final unless such finding is plainly untenable.
15. Criminal Law.
Claims of ineffective assistance of counsel may not be raised on direct appeal unless there has already been an evidentiary
hearing. U.S. Const. amend. 6.
16. Infants.
Robbery which a juvenile was accused of committing was not a delinquent act, and thus certification was not needed before
the juvenile could be tried as an adult, where the robbery arose out of the same facts as the murder for which the juvenile was also
being charged, as murder was an offense excluded from the statutory definition of delinquent act. NRS 62.040(1)(b)(1), 62.080(2)(b).
17. Criminal Law.
Defendant's waiver of his Miranda rights and confession within 48 hours of his arrest effected a waiver of his right to a timely
arraignment, and, alternatively, established that he was not prejudiced by a 14-day delay between his arrest and arraignment, especially
since he had to be extradited to Nevada and the arraignment occurred within 48 hours of his arrival. U.S. Const. amend. 4; NRS
171.178(1), (3).
18. Criminal Law.
Testimony of a murder and robbery defendant's girlfriend concerning defendant's pre-offense statement that he wanted to rob a
store for money to buy a car so he could be reunited with her and his post-offense statement that he wanted to shoot the police and flee
from the motel at which the victim's car had been discovered were not hearsay, as they were his own statements offered against him;
and, alternatively, they were within the exception to the hearsay rule for statements conveying a then-existing intent, plan, motive, or
design. NRS 51.035(3)(a), 51.105(1).
19. Homicide.
Testimony of a juvenile defendant's girlfriend concerning defendant's pre-offense statement that he wanted to rob a store for
money to buy a car so he could be reunited with her and his post-offense statement that he wanted to shoot the police and flee from the
motel at which the victim's car had been discovered where relevant to his prosecution for murder and robbery, as they bore on
the plausibility of his self-defense defense, and were not unduly prejudicial, despite the claim that they
merely displayed false bravado;
114 Nev. 883, 886 (1998) Elvik v. State
murder and robbery, as they bore on the plausibility of his self-defense defense, and were not unduly prejudicial, despite the claim that
they merely displayed false bravado; thus, they were admissible. NRS 48.015, 48.035(1).
20. Criminal Law.
District court has discretion to admit or to exclude evidence after balancing the prejudicial effect against the probative value.
NRS 48.035(1).
21. Criminal Law.
Decision to admit evidence is within the sound discretion of the district court and will not be disturbed unless it is manifestly
wrong.
Instruction defining reasonable doubt to mean such a doubt as would govern or control a person in the more weighty affairs
of life did not violate defendant's due process rights. U.S. Const. amend. 14; NRS 175.211.
23. Criminal Law.
Juvenile defendant charged with murder and robbery was not entitled to have the jury instructed that children between the ages
of 8 and 14 cannot be punished without clear proof of knowledge of wrongfulness, where he was relying on a self-defense defense,
offered no defense of insanity, and did not otherwise put his capacity to discriminate between right and wrong at issue; and,
alternatively, any error was harmless, insofar as the evidence clearly proved that he understood the wrongfulness of his actions. NRS
194.010.
24. Criminal Law.
Court's statement to jury that they might have to deliberate on an upcoming holiday if they did not reach a verdict, coupled with
the jury's deliberation until 9:50 p.m. on the eve of the holiday after a partial day of trial, did not demonstrate that the court was biased
or otherwise rushed the jury's verdict, where the court gave defendant the opportunity to have the deliberations start and then take the
holiday off and he chose to leave the matter to the court's discretion.
OPINION
Per Curiam:
At the time of the events leading to his conviction, the appellant, Peter Quinn Elvik, was fourteen years old and lived with his
grandparents in Carson City, Nevada. Until approximately one week before Elvik committed the charged offenses, he resided with his
mother in Tustin, California, where he had a thirteen-year-old girlfriend. Several hours before dawn on August 31, 1995, Elvik took a
twelve-gauge shotgun from his grandparents' home and walked 14.7 miles to the Carson City Gun Range. A sixty-two-year-old man named
William Gibson arrived at the range shortly thereafter and commenced target shooting with a pistol. Elvik shot Mr. Gibson several times
with the twelve-gauge shotgun, took Mr. Gibson's pistol, and fled in Mr. Gibson's car.
1
On the following day, police
officers located Mr.
__________

1
Elvik concedes that he shot Mr. Gibson, but claims that, after Elvik made a statement about Mr. Gibson's
car keys, Mr. Gibson began to draw his pistol from its holster, causing Elvik to fire the shotgun in self-defense.
114 Nev. 883, 887 (1998) Elvik v. State
On the following day, police officers located Mr. Gibson's car in the parking lot of a motel in Costa Mesa,
California. Elvik and his girlfriend were registered at the motel and fled when the police arrived. Elvik's
girlfriend was apprehended near the motel shortly thereafter, and Elvik was arrested near his mother's home on
the following evening.
After his arrest, Elvik was taken to the Tustin Police Department, where Tustin police detectives interrogated
him for two hours and twenty minutes. Elvik's mother was not present at the interrogation, and he did not yet
have legal counsel. The detectives informed Elvik of his Miranda rights,
2
and he agreed to speak with the
detectives. During the interrogation, Elvik repeatedly claimed that he did not remember being involved in the
shooting because he was under the effects of a large dose of LSD at the time; however, near the end of the
interrogation, Elvik discussed the shooting incident. Elvik was then booked into the Orange County Juvenile
Hall. The following day, Elvik signed a written waiver of his Miranda rights and was interrogated by one of the
Tustin detectives and two detectives from the Carson City Sheriff's Office for approximately ninety minutes.
A Nevada arrest warrant and criminal complaint were filed on September 4, 1995, and, on September 6,
1995, Elvik was charged with open murder with the use of a deadly weapon
3
(Count I) and robbery with the use
of a deadly weapon
4
(Count II). Elvik was extradited to Carson City on September 14, 1995, and formally
arraigned on September 15, 1995. Elvik was tried before a jury and, following a conviction on each count, the
district court sentenced Elvik to a prison term of life with the possibility of parole for Count I, plus an identical
term for a deadly weapon enhancement. For Count II, Elvik was sentenced to a term of 48 to 150 months, plus
an identical term for a deadly weapon enhancement. All of the terms are to run consecutively.
Restraint during trial
[Headnotes 1, 2]
Elvik claims that he was physically restrained in the jury's presence during the guilt and penalty phase of his
trial, in violation of his constitutional rights. A defendant's rights are violated when he is made to appear before a
jury in shackles during the guilt phase of a trial, and, when such error has occurred, it is our duty to reverse a
conviction unless it is clear that the defendant was not prejudiced thereby. Grooms v. State, 96 Nev. 142, 144,
605 P.2d 1145, 1146 {19S0) {citations omitted) {emphasis added).
__________

2
See Miranda v. Arizona, 384 U.S. 436, 479 (1966).

3
NRS 200.010, NRS 200.020, NRS 200.030 and NRS 193.165.

4
NRS 200.380 and NRS 193.165.
114 Nev. 883, 888 (1998) Elvik v. State
605 P.2d 1145, 1146 (1980) (citations omitted) (emphasis added). However, constitutional protection is
diminished during the penalty phase because the defendant is no longer entitled to a presumption of innocence.
See Canape v. State, 109 Nev. 864, 872, 859 P.2d 1023, 1028 (1993). A defendant may be shackled at
sentencing, but only when used as a last resort to protect an essential state interestsuch as maintaining public
safety or assuring the decorum of the proceedings. Duckett v. Godinez, 67 F.3d 734, 747 (9th Cir. 1995).
As an initial matter, the parties disagree about whether Elvik was shackled for the entire duration of the trial,
or only during the penalty phase.
5
This distinction is important because, although the United States Court of
Appeals for the Ninth Circuit applies the same standard to both the guilt and penalty phases of a trial, see
Duckett, 67 F.3d at 748, this court in Grooms set forth a rule against shackling during the guilt phase in the
absence of exceptional circumstances. Grooms, 96 Nev. at 144, 605 P.2d at 1146.
As evidence that he was shackled during the guilt phase of his trial, Elvik offers only a portion of the guilt
phase trial transcript in which the parties discussed, outside the presence of the jury, the State's request to have
Elvik step down from the witness stand to participate in a reenactment of the shooting incident. The court stated:
Mr. Elvik has got to be taken out of restraints and put out there. And I'll let you do this, but you will do
itwhen you're done with that, I won't have him wandering around again.
Although the district court did use the term restraints in reference to Elvik, we also note that Elvik's
counsel did not object to Elvik's alleged restraint during the guilt phase, and offers no other evidence that Elvik
was restrained at this time. Elvik discusses the rules for penalty phase shackling in his opening brief, and does
not discuss the evidence that he was shackled during the guilt phase until his reply brief.
6
Accordingly, the
State had no opportunity to address Elvik's contention with specificity.
In light of the paucity of evidence on this issue, we are particularly mindful of the State's motion to strike
selected portions of Elvik's opening brief, which included affidavits from the court bailiff and a deputy sheriff
who were present at Elvik's trial. The bailiff and the deputy sheriff, who supervised Elvik as he entered and
exited the courthouse, each signed a sworn affidavit stating that Elvik was not shackled or otherwise restrained
while in the courthouse during the guilt phase of his trial. Based on these affidavits, Elvik's counsel's
failure to object to the alleged guilt phase shackling, and the lack of clear evidence
supporting Elvik's allegation, we believe that the district court's reference merely
reflected an error or a poor choice of words, and that Elvik was not shackled during the
guilt phase of his trial.
__________

5
The district court's reasons for imposing high security in the courtroom are discussed below, in the analysis
of Elvik's objection to the posting of heavily armed guards during the penalty phase of his trial.

6
See NRAP 28(c) (Reply briefs shall be limited to answering any new matter set forth in the opposing
brief.).
114 Nev. 883, 889 (1998) Elvik v. State
davits, Elvik's counsel's failure to object to the alleged guilt phase shackling, and the lack of clear evidence
supporting Elvik's allegation, we believe that the district court's reference merely reflected an error or a poor
choice of words, and that Elvik was not shackled during the guilt phase of his trial.
[Headnote 3]
Elvik next argues that the district court erred in allowing an armed guard to stand near him during the
reenactment of the shooting incident. Elvik cites no authority suggesting that a guard positioned in close
proximity to a defendant violates the constitutional protections discussed above. Moreover, the district court
apparently sought to minimize any potential prejudice to Elvik, as it instructed counsel to control Elvik's
movement around the courtroom in order to minimize [the guard] being anyplace close. Accordingly, we
conclude that this argument is meritless.
[Headnote 4]
Finally, Elvik argues that the district court erred in allowing heavily armed police officers to be posted
around the courthouse, in view of the jury, during the penalty phase. Elvik's counsel informed the district court
that he had witnessed the jurors walking past police officers armed with automatic weapons, and moved for a
mistrial on the basis of potential prejudice to Elvik.
The district court advised counsel that high security was necessary because police officers had informed the
court that they had monitored Elvik's telephone calls placed from the jail, and that Elvik had conveyed to a
friend a plan to escape from the courtroom, and had solicited his help. Elvik had hidden a piece of wire with
which he hoped to pick the lock of his handcuffs during a bathroom visit. He then planned to jump from the
window of the courthouse and escape in a car driven by one of his friends. Police later located and confiscated
the wire, but the district court was still concerned that Elvik, with aid from his friends, might attempt to escape.
As a deterrent to any such attempt, the district court requested the heavily armed police officers' presence, and
warned Elvik that neither he nor his friends should attempt to effect an escape. The district court later explained
to the jury that high security was frequently used in emotionally-charged cases, and that it did not mean
anything as it relates to [Elvik's] sentencing.
Although Elvik provides no authority directly concerning the use of armed guards during a penalty phase
proceeding, we conclude that, even under the analysis for shackling a defendant during such proceedings, Elvik's
constitutional rights were not violated. The Ninth Circuit Court of Appeals held in Duckett that shackling is
permissible during penalty phase proceedings if two requirements are satisfied.
114 Nev. 883, 890 (1998) Elvik v. State
requirements are satisfied. First, the court must be persuaded by compelling circumstances that some measure
is needed to maintain security in the courtroom. Duckett, 67 F.3d at 748. Second, the court must pursue less
restrictive alternatives. Id. Elvik's escape plans and prior lethal action, albeit in claimed self-defense, constituted
compelling circumstances. We are aware of no apparent less restrictive alternative, and note that Elvik fails to
suggest one. Accordingly, we conclude that the district court complied with the requirements set forth in
Duckett.
Elvik's inculpatory statements
[Headnote 5]
Elvik argues that the district court erred in admitting the statements that he made during the interrogation
conducted by Tustin police officers on the evening of his arrest because he did not knowingly waive his Miranda
rights, his mother was not present, he was not informed that his statement could be used against him in criminal
court and he could be tried as an adult, and his statements were coerced. Elvik first claims that he did not waive
his Miranda rights because, after one of the officers recited the rights and asked Elvik if he wished to speak to
the officers, Elvik replied yea, I guess. Elvik insists that this reply was ambiguous, and did not constitute a
formal waiver.
We conclude that the language of Elvik's reply was sufficient to indicate his agreement to speak with the
officers. Elvik's colloquial style of verbal expression throughout the interrogation was consistent with his reply,
suggesting that his choice of the words yea, I guess, rather than yes, was not indicative of an unwillingness
to speak to the officers. For example, the officer who read Elvik his Miranda rights stopped after each passage
to ask Elvik if he understood, to which Elvik's replies were ah huh, yeah, yeah, and ah huh, respectively.
Elvik next contends that the interrogating officers violated two requirements that apply only to the
interrogation of juveniles. Specifically, the officers did not allow Elvik's mother to be present during the
interrogation, and did not advise him that his statements could be used in criminal court. Elvik's mother was
present at the police station during Elvik's interrogation, and signed a consent form to allow the interrogation,
but she was not allowed to be present during the interrogation.
[Headnotes 6, 7]
When a defendant waives his Miranda rights and makes a statement during a custodial interrogation, the
State bears the burden of proving voluntariness, based on the totality of the circumstances, by a preponderance
of the evidence. Quiriconi v. State, 96 Nev. 766, 772, 616 P.2d 1111, 1114 (1980). Although Elvik provides
no authority requiring the presence of a parent during the interrogation of a juvenile, we
believe that, in light of Elvik's age, the absence of a parent during his interrogation should
be considered in reviewing the totality of the circumstances bearing on the voluntariness
of his statements.
114 Nev. 883, 891 (1998) Elvik v. State
provides no authority requiring the presence of a parent during the interrogation of a juvenile, we believe that, in
light of Elvik's age, the absence of a parent during his interrogation should be considered in reviewing the
totality of the circumstances bearing on the voluntariness of his statements. See People v. Lara, 432 P.2d 202
(Cal. 1967) (age and presence of parent are factors in determining voluntariness).
[Headnote 8]
The interrogating officers failed to inform Elvik that his statements could be used against him in an adult trial
in criminal court.
Clearly, neither police officers nor juvenile authorities should be allowed to mislead a youth in order to
obtain a confession. A juvenile should be advised of his rights and informed of the possibility of an adult
trial. But where the nature of the charges and the identity of the interrogator reflect the existence of an
unquestionably adversary police atmosphere and the suspect is reasonably mature and sophisticated with
regard to the nature of the process, resulting statements will be admissible in a criminal trial provided that
the record otherwise supports a finding of voluntariness.
Quiriconi, 96 Nev. at 771, 616 P.2d at 1114 (citation omitted). Although Elvik was not informed of the
possibility of an adult trial, he knew that he was being questioned by police investigators who wished to discuss
the shooting incident, and the interrogation took place at a police station. Hence, the nature of the charges and
the identity of the interrogator reflected the existence of an unquestionably adversary police atmosphere. We
further note that Elvik was reasonably mature and sophisticated with regard to the nature of the process, as he is
of above average intelligence and had been arrested on at least one previous occasion.
7
Accordingly, we
conclude that the interrogating officers' failure to explain to Elvik that his statements could be
used against him in an adult trial in criminal court is not alone sufficient to render Elvik's
statements inadmissible.
[Headnotes 9-13]
Finally, Elvik argues that his statements were not voluntary because the interrogation was coercive. A
confession is inadmissible unless freely and voluntarily given, Rowbottom v. State, 105 Nev. 472, 482, 779 P.2d
934, 940 (1989), and, [i]n order to be voluntary, a confession must be the product of a 'rational
intellect and a free will.' " Passama v. State, 103 Nev. 212, 213-14, 735 P.2d 321, 322
{19S7) {quoting Blackburn v. Alabama, 361 U.S. 199, 20S {1960)).
__________

7
Elvik was arrested for the present offense and interrogated six days before his fifteenth birthday. A
psychologist testified that Elvik performed quite highly on an intelligence test. The State claims that Elvik was
also arrested on at least one prior occasion, for stealing a car from his mother's car lot, and was read his Miranda
rights at that time.
114 Nev. 883, 892 (1998) Elvik v. State
voluntary, a confession must be the product of a rational intellect and a free will.' Passama v. State, 103 Nev.
212, 213-14, 735 P.2d 321, 322 (1987) (quoting Blackburn v. Alabama, 361 U.S. 199, 208 (1960)). In
determining whether a confession is the product of a free will, this court employs a totality of the circumstances
test to determine whether the defendant's will was overborne when he confessed. Passama, 103 Nev. at 214,
735 P.2d at 323; see also Schneckloth v. Bustamonte, 412 U.S. 218 (1973). However, a confession obtained by
physical intimidation or psychological pressure is inadmissible. Thompson v. State, 108 Nev. 749, 753, 838
P.2d 452, 455 (1992) (citations omitted).
The officers did not threaten Elvik during the interrogation, and Elvik does not allege any specific instance of
physical or psychological intimidation. False promises or misleading statements also do not appear to be an
issue, as the officers indicated that they could not promise Elvik lenient treatment if he agreed to talk about the
shooting incident. Although the officers did not intimidate or mislead Elvik, Elvik argues that the officers
applied prolonged psychological pressure, to which he was particularly vulnerable at the time.
Throughout the interrogation, Elvik claimed that he did not remember shooting Mr. Gibson. Despite Elvik's
insistence, the officers repeatedly stated that Elvik did remember, and attempted to persuade Elvik to discuss the
incident. The officers appealed to Elvik's conscience, suggested that his girlfriend and his mother would want
him to tell the truth, and told him that things would be better for him in the future if he would tell the truth. Elvik
raises numerous examples of the coercive pressure he claims to have been under during the interrogation;
however, a line by line discussion of the interrogation would not facilitate our analysis.
The United States Supreme Court, in Gallegos v. Colorado, 370 U.S. 49, 54 (1962), recognized that
juveniles are more susceptible than adults to high pressure interviewing tactics when a parent or attorney is not
present:
[A] 14-year-old boy, no matter how sophisticated, is unlikely to have any conception of
what will confront him when he is made accessible only to the police. That is to say, we
deal with a person who is not equal to the police in knowledge and understanding of the
consequences of the questions and answers being recorded and who is unable to know
how to protect his own interests or how to get the benefits of his constitutional rights. . .
.
. . . A lawyer or an adult relative or friend could have given the petitioner the
protection which his own immaturity could not.
114 Nev. 883, 893 (1998) Elvik v. State
We conclude that the investigators' tactics did not involve physical or psychological intimidation and, therefore,
were not alone coercive. Despite this conclusion, we also acknowledge that the totality of the circumstances
attendant to the interrogation were such as to create a close question concerning the voluntariness of Elvik's
inculpatory statements.
[Headnote 14]
The fact that Elvik did not have his mother or an attorney present, coupled with Elvik's youth and the
officers' persistent refusal to accept Elvik's claimed failure to remember the shooting, cast some doubt on the
voluntariness of Elvik's statements. However, Elvik's intelligence and experience with the criminal justice system
also bear on the voluntariness of his statements. The [district court's] decision regarding voluntariness is final
unless such finding is plainly untenable. Boggs v. State, 95 Nev. 911, 913-14, 604 P.2d 107, 109 (1979). Both
the district court and the jury determined that Elvik's statements were made voluntarily and, although competing
factors create a close question in this case, we conclude that the district court's finding was not plainly untenable.
8

Elvik next contends that his statements made at the second interrogation, which occurred on the day
following his arrest, were also inadmissible. Elvik argues that the second interrogation was tainted by the
impropriety of the first interrogation, and that the officers who conducted the second interrogation also failed to
inform Elvik that he could face criminal charges and be tried as an adult. Based on our analysis of the first
interrogation, we conclude that the district court's finding that Elvik's statements made at the second
interrogation were voluntary was not plainly untenable.
Effectiveness of counsel
[Headnote 15]
Elvik claims that he was denied effective assistance of counsel, based on various instances in which Elvik's
counsel failed to object, failed to file a motion, or failed to submit a jury instruction. Appellants can claim
ineffective assistance of counsel at post-conviction proceedings; however, [s]uch claims may not be raised on
direct appeal, unless there has already been an evidentiary hearing. Feazell v. State, 111 Nev. 1446, 1449, 906
P.2d 727, 729 (1995) (citations omitted). The State contends, and Elvik does not deny, that Elvik's
claim of ineffective assistance of counsel has yet to be considered at an evidentiary
hearing.
__________

8
Following a hearing on Elvik's motion to suppress the statements that he made during each of the
interrogations, the district court determined that Elvik's statements were voluntary. The legal standards for
determining voluntariness were also submitted to the jury, as required by Laursen v. State, 97 Nev. 568, 634
P.2d 1230 (1981).
114 Nev. 883, 894 (1998) Elvik v. State
Elvik does not deny, that Elvik's claim of ineffective assistance of counsel has yet to be considered at an
evidentiary hearing. Thus, we decline to consider Elvik's argument.
Elvik's motion to dismiss the robbery count
[Headnote 16]
Elvik argues that, because he was not certified as an adult with respect to the robbery count, the district court
erred in refusing to dismiss the robbery count. Former NRS 62.080(2) (amended 1997) provided, in pertinent
part, that:
If a child 14 years of age or older is charged with:
. . . .
(b) Any offense involving the use or threatened use of a deadly weapon or an attempt to commit such
an offense, and the child was 14 years of age or older at the time he allegedly committed the offense
charged, the juvenile division of the district court, after full investigation, shall certify the child for proper
criminal proceedings to any court which would have jurisdiction to try the offense if committed by an
adult . . . .
The certification requirement of former NRS 62.080(2)(b) is based on the assumption that the juvenile division
of the district court has initial jurisdiction over the matter. The juvenile division has exclusive original
jurisdiction over a child who commits a delinquent act. NRS 62.040(1). The statutory definition of a delinquent
act, at the time of Elvik's trial, did not include [m]urder or attempted murder or any related crime arising out of
the same facts as the murder or attempted murder. NRS 62.040(1)(b)(1) (amended 1997).
This court has held that a juvenile defendant does not need to be certified as an adult when the charged
offense is excluded from the statutory definition of a delinquent act. Shaw v. State, 104 Nev. 100, 102-03, 753
P.2d 888, 889 (1988). The robbery in this case arose out of the same facts as the murder and, therefore, was not
a delinquent act under NRS 62.040(1)(b)(1). Accordingly, we conclude that the district court did not err in
denying Elvik's motion to dismiss the robbery count.
Failure to bring Elvik before a magistrate in a timely manner
[Headnote 17]
Elvik claims that he was arrested on September 1, 1995, interrogated on September 1-2, 1995, extradited to
Carson City on September 14, 1995, and formally arraigned on September 15, 1995. Elvik argues that the
fourteen-day period between his arrest and his arraignment violated his right to a timely arraignment,
warranting dismissal of the case or suppression of evidence.
114 Nev. 883, 895 (1998) Elvik v. State
warranting dismissal of the case or suppression of evidence. Elvik moved for dismissal or preclusion of evidence
on this basis, but the district court denied his motion.
Pursuant to NRS 171.178(1), a person who has been arrested must be brought before a magistrate without
unnecessary delay.
9
The purpose of NRS 171.178(1) is to ensure that the accused is promptly informed of his
privilege against self-incrimination. Huebner v. State, 103 Nev. 29, 32, 731 P.2d 1330, 1333 (1987). Failure to
bring a defendant before a magistrate without unnecessary delay does not warrant reversal absent a showing of
prejudice to the defendant's constitutional rights. Id.
Elvik was apprised of his Miranda rights, waived those rights, and made inculpatory statements in the hours
immediately following his arrest. A similar situation was recently addressed in Powell v. State, 113 Nev. 41, 930
P.2d 1123 (1997), in which we concluded that failure to bring the defendant before a magistrate within the
required time period did not warrant exclusion of the defendant's subsequent confession because the defendant
had made inculpatory statements at the time of his arrest, before the delay in bringing him before a magistrate.
Our holding in Powell was consistent with Deutscher v. State, 95 Nev. 669, 680, 601 P.2d 407, 414 (1979)
(citations omitted), vacated on other grounds sub nom. Angelone, Director, Nevada Dept. of Prisons v.
Deutscher, 500 U.S. 901 (1991), in which this court opined:
We subscribe to the rule of law which provides that when an accused voluntarily waives his right to
silence and his right to counsel, he concurrently waives his right to be seasonably arraigned. The reason
for this rule is that the primary purpose of an arraignment is to inform the defendant of his rights. But a
delay in arraignment is not prejudicial when a defendant has already been advised of his rights, was
promptly so advised, and voluntarily waived those rights.
Based on Powell and Deutscher, Elvik's waiver of his Miranda rights and subsequent
inculpatory statements, which occurred within forty-eight hours of his arrest, effected a
waiver of his right to a timely arraignment and, alternatively, establish that his constitutional
rights were not prejudiced by the delay. Moreover, Elvik was arraigned within forty-eight
hours of his arrival in Carson City, and the State's delay in arraigning Elvik prior to his arrival
in Nevada was necessary because Elvik's physical presence in Nevada was required to bring
him before a magistrate.
__________

9
A magistrate may order the release of a person who has not been brought before the magistrate within
seventy-two hours if the magistrate is not satisfied with the prosecution's explanation for the delay. NRS
171.178(3). Moreover, the United States Supreme Court has held that a delay of forty-eight hours presumptively
violates the Fourth Amendment. County of Riverside v. McLaughlin, 500 U.S. 44 (1991).
114 Nev. 883, 896 (1998) Elvik v. State
in Nevada was required to bring him before a magistrate. Based on these considerations, we
conclude that the district court did not err in denying Elvik's motion to dismiss the charges
against him or to suppress his inculpatory statements.
Elvik's girlfriend's testimony
[Headnote 18]
At Elvik's trial, Elvik's girlfriend testified that Elvik made incriminating statements to her bearing on his
involvement in the charged offense. Specifically, she testified that Elvik told her, in the days immediately
preceding the offense, that he wanted to rob a store and get some money to buy a car so he could come back
down. Elvik's girlfriend also testified that Elvik stated, as they prepared to flee from the motel at which the
police discovered Mr. Gibson's automobile, that [h]e wanted to shoot the police and leave in the car that [they]
had come in.
The district court permitted Elvik's girlfriend's testimony concerning the incriminating statements that Elvik
allegedly made to her based on its determination that Elvik's statements were admissible to show that [Elvik]
act[ed] in either motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or
accident under [NRS] 48.045. Elvik argues, without authority, that the district court erred in permitting the
testimony because it constituted inadmissible hearsay. Alternatively, Elvik argues that his statements were
merely a display of false bravado, and should have been excluded because they were more prejudicial than
probative. See NRS 48.035(1).
NRS 51.035 provides, in pertinent part, that:
Hearsay means a statement offered in evidence to prove the truth of the matter
asserted unless:
. . . .
3. The statement is offered against a party and is:
(a) His own statement, in either his individual or representative capacity;
. . . .
Elvik's statements, as related by his girlfriend, were his own statements, and were offered against him. As
such, the statements fell under NRS 51.035(3)(a) and, therefore, did not constitute hearsay. Moreover, NRS
51.105(1) provides that [a] statement of the declarant's then existing state of mind, emotion, sensation or
physical condition, such as intent, plan, motive, design, mental feeling, pain and bodily health, is not
inadmissible under the hearsay rule. Each of Elvik's statements at issue conveyed a then existing intent, plan,
motive, [or] design. Accordingly, we conclude that, even if Elvik's statements did constitute hearsay, they
would be admissible pursuant to NRS 51.105(1).
114 Nev. 883, 897 (1998) Elvik v. State
[Headnote 19]
We further conclude that the statements were relevant; they bear on the plausibility of Elvik's claim that he
did not intend to kill Mr. Gibson for the purpose of stealing his automobile but, rather, shot Mr. Gibson because
he believed that Mr. Gibson was drawing a handgun for the purpose of shooting Elvik. Elvik's self-defense
argument is clearly inconsistent with his stated plan to commit a robbery as a means to obtain an automobile and
to shoot police officers rather than surrendering and explaining that he fired in self-defense. See NRS 48.015 (
[R]elevant evidence' means evidence having 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.).
[Headnotes 20, 21]
Finally, the district court concluded that the unfair prejudicial effect of Elvik's statements did not
substantially outweigh their probative value. See NRS 48.035(1). The district court has discretion to admit or to
exclude evidence after balancing the prejudicial effect against the probative value. Petrocelli v. State, 101 Nev.
46, 52, 692 P.2d 503, 508 (1985). The decision to admit evidence is within the sound discretion of the district
court and will not be disturbed unless it is manifestly wrong. Wesley v. State, 112 Nev. 503, 510, 916 P.2d 793,
798 (1996). Based on the previously discussed relevance of Elvik's statements, we conclude that the district
court was not manifestly wrong in admitting Elvik's girlfriend's testimony.
The reasonable doubt instruction
[Headnote 22]
Elvik argues that his constitutional right to due process was violated by the jury instruction offered to define
reasonable doubt. The instruction at issue provided, in pertinent part:
A reasonable doubt is one based on reason. It is not mere possible doubt, but it is such a doubt as would
be actual, not mere possibility or speculation.
(Emphasis added.) Elvik contends that the govern or control language of the instruction inflates the degree of
doubt required to constitute a reasonable doubt, and impermissibly shifts the burden of proof to the defendant.
Elvik also focuses on the characterization of reasonable doubt as an 'actual and substantial'
doubt," and contends that this language is also impermissible.
114 Nev. 883, 898 (1998) Elvik v. State
acterization of reasonable doubt as an actual and substantial' doubt, and contends that this
language is also impermissible. Elvik bases his arguments on Cage v. Louisiana, 498 U.S. 39
(1990) (words substantial and grave coupled with moral certainty understated degree of
proof required), overruled on other grounds by Estelle v. McGuire, 502 U.S. 62, 72 n.4
(1991).
The jury instruction at issue in this case, which is a verbatim excerpt of language appearing in NRS 175.211,
was addressed by this court in Lord v. State, 107 Nev. 28, 806 P.2d 548 (1991).
10
This court held that the
instruction was clearly distinguishable from the instruction condemned in Cage, and did not violate the
defendant's due process rights. Moreover, Elvik's objection to the characterization of reasonable doubt as an
actual and substantial doubt is misplaced; the instruction in this case did not include the word substantial,
and, in any event, this court in Lord approved the phrase actual and substantial as a characterization of
reasonable doubt. Thus, Elvik's argument is without merit.
The jury instruction on knowledge of wrongfulness
[Headnote 23]
Elvik argues that the district court erred in refusing to issue one of Elvik's proposed jury instructions. Elvik
claims, and the State does not deny, that the district court refused Elvik's request to issue an instruction which
stated:
All persons are liable to punishment except those belonging to the following class as
it applies to this case:
Children between the ages of eight years and fourteen years, in the absence of clear
proof that at the time of committing the act charged against them they knew its
wrongfulness. Peter Elvik was fourteen years old on August 31, 1995.
Elvik's proposed instruction was based on NRS 194.010, which provides, in pertinent part:
All persons are liable to punishment except those belonging to the following classes:
. . . .
2. Children between the ages of 8 years and 14 years, in the absence of clear proof
that at the time of committing the act charged against them they knew its wrongfulness.
Although Elvik's proposed instruction fairly restates the provisions of NRS 194.010, we conclude
that, based on the facts of this case, the district court did not err in refusing to issue the
instruction.
__________

10
The only difference between the pertinent portions of the instruction presently at issue and the instruction
in Lord is that the Lord instruction characterized reasonable doubt as an actual and substantial doubt, id. at
38-40, 806 P.2d at 554-55, whereas the word substantial does not appear in the present instruction. This
omission reflects the legislature's removal of the word substantial from NRS 175.211 in 1991.
114 Nev. 883, 899 (1998) Elvik v. State
sions of NRS 194.010, we conclude that, based on the facts of this case, the district court did not err in refusing
to issue the instruction. A district court need not instruct the jury on principles that are redundant with or
rendered nugatory by other issues before the jury, or that do not bear on the disposition of the case. Elvik's
defense rested on a claim that Elvik believed that he was defending himself. The jury had to reject Elvik's claim
of self-defense in order to convict him of murder. Elvik offered no affirmative defense of insanity, and did not
otherwise put his capacity to discriminate between right and wrong at issue. Hence, under the circumstances and
arguments of the case, the jury's rejection of the self-defense claim and determination that Elvik was guilty of
murder beyond a reasonable doubt implicitly involved a conclusion that clear proof established that Elvik knew
the wrongfulness of his actions.
Even if the district court erred in refusing to issue Elvik's jury instruction, we conclude that any error was
harmless. The aforementioned evidence of Elvik's plan to commit a robbery in order to procure an automobile,
attempts to evade police officers after the crime, and evasive answers to the officers' questions constitute clear
proof that Elvik understood the wrongfulness of his actions. See Poole v. State, 97 Nev. 175, 625 P.2d 1163
(1981) (thirteen-year-old's attempt to hide murder weapon and fabrication of alibi constituted sufficient
knowledge of wrongfulness under NRS 194.010).
Improper influence
[Headnote 24]
Elvik contends that the district court prejudiced him by rushing the jury's deliberation in order to complete
the proceedings before Nevada Day. On the day before the jury's verdict, two days before Nevada Day, the
district court informed the members of the jury that they might have to deliberate into the evening of the
following day and that, if a verdict was not reached, the jury might have to deliberate on Nevada Day as well.
After these remarks, the court asked the jurors if deliberating on Nevada Day would interfere with their Nevada
Day commitments, and was advised by two of the jurors that it would be a problem. The court then asked the
attorneys if they wanted to have the deliberations start and then take Nevada Day off. Elvik's counsel
responded, I leave it to your discretion, Your Honor.
On the following day, October 30, 1996, the jury commenced deliberation at 4:05 p.m., without objection by
Elvik's counsel, and returned a guilty verdict at 9:50 p.m. The State claims that the jurors enjoyed a lengthy
recess that day between a brief examination of a witness at 9:00 a.m. and the time that the jury reconvened at
1:30 p.m.
114 Nev. 883, 900 (1998) Elvik v. State
We conclude that the district court's statements to the jury, coupled with the jury's deliberation until 9:50
p.m. after a partial day of trial, are not sufficient to demonstrate that the court was biased or otherwise rushed the
jury's verdict. Although the jurors' own plans for Nevada Day could conceivably have influenced the duration of
the deliberation, the district court did not force Elvik to accept the possibility of jury deliberation on Nevada
Day. Instead, the district court gave Elvik the opportunity to have the deliberations start and then take Nevada
Day off. Elvik's counsel chose to leave the matter to the district court's discretion, rather than to raise concerns
about possible bias or influence, and did not object to the jury's commencement of deliberation at 4:05 p.m. on
the evening before Nevada Day. Thus, Elvik's argument is without merit.
Cumulative error
Elvik argues that the cumulative effect of the alleged errors discussed in this appeal deprived him of his
constitutional right to a fair trial. See Big Pond v. State, 101 Nev. 1, 3, 692 P.2d 1288, 1289 (1985) (reversal of
conviction warranted by cumulative effect of errors). Based upon our aforementioned conclusions regarding
Elvik's claims of error, the cumulative effect of any such error clearly was not sufficient to deprive Elvik of his
right to a fair trial.
Based on the foregoing analysis, we affirm the judgment of the district court in its entirety.
____________
114 Nev. 900, 900 (1998) Qualls v. State
STEVEN QUALLS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 30956
September 2, 1998 961 P.2d 765
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of principal to attempted
murder with the use of a deadly weapon. Fourth Judicial District Court, Elko County; Jack B. Ames, Judge.
The supreme court held that: (1) trial court's failure to conduct on-the-record hearing prior to admission of
evidence of other wrongs may be cause for reversal but does not mandate reversal; (2) any error in trial court's
failure to conduct on-the-record hearing prior to admitting evidence of defendant's gang affiliation was harmless;
and (3) any error in trial court's failure to sua sponte give limiting instruction on use of other wrongs evidence
was harmless.
Affirmed.
Puccinelli & Puccinelli, and Alvin R. Kacin, Elko, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Gary D. Woodbury, District Attorney, Robert J.
Lowe, Deputy District Attorney, Elko County, for Respondent.
1. Criminal Law.
Prior to admission of evidence of other wrongs, trial court must conduct hearing on the record and determine that evidence is
relevant to the crime charged, that the other act is proven by clear and convincing evidence, and that probative value of the other act is
not substantially outweighed by danger of unfair prejudice. NRS 48.045(1), (2).
2. Criminal Law.
Trial court's determination to admit or exclude evidence is to be given great deference and will not be reversed absent manifest
error.
3. Criminal Law.
Trial court's failure to conduct on-the-record hearing prior to admission of evidence of other wrongs may be cause for reversal but
does not mandate reversal, in absence of any prejudicial effect. Better practice is to conduct on-the-record hearings, as without record,
supreme court lacks opportunity for meaningful review of trial court's admissibility determination. NRS 48.045(2).
4. Criminal Law.
Erroneous admission of evidence of other bad acts is subject to review for harmless or prejudicial error.
5. Criminal Law.
Trial court's failure to conduct proper hearing on record prior to admission of evidence of prior wrongs is cause for reversal on
appeal unless record is sufficient for appellate court to determine that evidence is admissible, or result would have been the same if trial
court had not admitted the evidence. NRS 48.045(2).
6. Criminal Law.
Any error in trial court's failure to conduct on-the-record hearing prior to admitting evidence of gang affiliation or wannabe
status of defendant charged with attempted murder was harmless, as challenged evidence was admissible to prove motive. NRS 48.045.
7. Criminal Law.
Any error in trial court's failure to sua sponte give limiting instruction on use of other wrongs evidence in trial for attempted
murder was harmless, especially given fact that state did not attempt to show that defendant had participated in any gang-related
criminal activity other than charged offense.
OPINION
Per Curiam:
Steven Qualls appeals from a judgment of conviction of principal to attempted murder with the use of a deadly weapon. We conclude
that the district court's admission of other bad act evidence without conducting a Petrocelli
1
hearing and without instructing the
jury on the limited use of the evidence amounted to harmless error.
__________

1
Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985).
the jury on the limited use of the evidence amounted to harmless error. Therefore, we affirm the conviction.
FACTS
On December 18, 1996, shots were fired into an occupied residence in Elko, Nevada. At trial, the State's
theory of the case was that Qualls and his co-defendant attempted to kill a young female because of her
association with a member of the Bloods gang. In support of its case, the State introduced evidence which tended
to show that Qualls affiliated himself with or was a wannabe member of a rival gangthe Crips. This
evidence was admitted over Qualls' objection and without conducting an on-the-record hearing to determine the
evidence's admissibility or instructing the jury on the limited use of the evidence.
DISCUSSION
Qualls concedes that the evidence of his gang-affiliation or wannabe status may have been admissible to
show motive; however, he contends that his conviction should nevertheless be reversed because the trial court
should have conducted its balancing of the evidence's probative value versus prejudicial effect on the record and
should have instructed the jury on the limited use of the evidence. We conclude that Qualls' contentions lack
merit; however, we take this opportunity to clarify the standard of review on appeal from the admission of
evidence showing other bad acts.
[Headnotes 1, 2]
Under Nevada's rules of criminal evidence, evidence of other wrongs cannot be admitted at trial solely for
the purpose of proving that a defendant has a certain character trait and acted in conformity with that trait on the
particular occasion in question. NRS 48.045(1). However, evidence of other wrongs may be admitted for other
purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of
mistake or accident. NRS 48.045(2). Prior to admission of such evidence, the trial court must conduct a hearing
on the record 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. 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 trial court's
determination to admit or exclude evidence is to be given great deference and will not be reversed absent
manifest error. Bletcher v. State, 111 Nev. 1477, 1480, 907 P.2d 978, 980 (1995) (citing Kazalyn v. State, 108
Nev. 67, 825 P.2d 578 (1992)); Petrocelli, 101 Nev. at 52, 692 P.2d at 508.
[Headnote 3]
Where the trial court admits evidence under NRS 48.045(2) without first conducting an on-the-record
hearing, this court may be deprived of the opportunity for meaningful review of the trial court's admissibility
determination. See Meek v. State, 112 Nev. 1288, 1292-93, 930 P.2d 1104, 1107-08 (1996); Armstrong, 110
Nev. at 1323-24, 885 P.2d at 601; see also Walker v. State, 112 Nev. 819, 921 P.2d 923 (1996) (trial court errs
when it fails to conduct a Petrocelli hearing prior to admission of evidence of other bad acts). Therefore, we
remind trial courts that the efficient administration of justice depends on their conscientious adherence to the
dictates of our previous decisions requiring on-the-record hearings. Nonetheless, we reject Qualls' suggestion
that reversal on appeal is required where the trial court fails to conduct a proper Petrocelli hearing prior to
admitting evidence of other bad acts.
[Headnotes 4, 5]
We have routinely treated the erroneous admission of evidence of other bad acts as subject to review for
harmless or prejudicial error.
2
Moreover, NRS 177.255 requires this court to give judgment without regard to
technical error or defect which does not affect the substantial rights of the parties. See also NRS 47.040 (error
may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is
affected). Therefore, a rule of automatic reversal for failure to conduct a proper Petrocelli hearing, regardless of
a lack of prejudicial effect caused by the admission of the evidence, cannot be justified. Accordingly, the trial
court's failure to adhere to the procedural requirement of a proper, on-the-record hearing prior to admission of
such evidence may be cause for reversal but does not mandate reversal in all cases.
3
See Felder v. State, 107
Nev. 237, 241, 810 P.2d 755, 757 (1991); see also Wesley v. State, 112 Nev. 503, 512, 916 P.2d 793, 799-800
(1996), cert. denied, 117 S. Ct. 1268 (1997). We, therefore, hold that the trial court's failure to conduct a proper
hearing on the record is cause for reversal on appeal unless: (1) the record is sufficient for this court to determine
that the evidence is admissible under the test for admissibility of bad acts evidence set forth in Tinch; or (2)
where the result would have been the same if the trial court had not admitted the evidence, see Big Pond
v. State, 101 Nev. 1, 3, 692 P.2d 12SS, 12S9 {19S5).
__________

2
See, e.g., Bradley v. State, 109 Nev. 1090, 1093, 864 P.2d 1272, 1274 (1993); Kazalyn, 108 Nev. at 74, 825
P.2d at 582; Kimberly v. State, 104 Nev. 336, 338, 757 P.2d 1326, 1328 (1988); Gehrke v. State, 96 Nev. 581,
585, 613 P.2d 1028, 1030 (1980).

3
To the extent that some of our language in Meek, Walker, and Armstrong could be construed as inconsistent
with our holding in this case, we expressly disapprove of such interpretations.
ted the evidence, see Big Pond v. State, 101 Nev. 1, 3, 692 P.2d 1288, 1289 (1985).
[Headnotes 6, 7]
After reviewing the record in the instant case, we conclude that evidence showing appellant's gang affiliation
or wannabe status was admissible under NRS 48.045 to prove motive. See Tinch, 113 Nev. at 1176, 946 P.2d
at 1065 (gang-affiliation evidence may be relevant and not substantially outweighed by unfair prejudice when it
tends to prove motive) (citing Lay v. State, 110 Nev. 1189, 1196, 886 Nev. 448, 452 (1994)). Therefore, the trial
court's failure to conduct a Petrocelli hearing prior to admitting this evidence amounted to harmless error. We
further conclude that the district court's failure to sua sponte give a limiting instruction on the use of the other
bad acts evidence, if error at all, was harmless, especially given the fact that the State did not attempt to show
Qualls had participated in any other gang-related criminal activity. See Johnson v. State, 92 Nev. 405, 407, 551
P.2d 241, 242 (1976) (harmless-error analysis applies to the failure to give a limiting instruction).
Qualls further contends that: (1) his confession should have been suppressed; (2) the jury was improperly
instructed on the elements of principal to attempted murder and on the requisite knowledge and control over a
weapon possessed by a co-defendant; (3) the district court erred by allowing improper rebuttal testimony; and
(4) insufficient evidence was adduced to support the conviction. We have reviewed each of these issues and
conclude that they lack merit and do not need to be addressed.
CONCLUSION
For the foregoing reasons, we affirm the judgment of conviction.
____________
114 Nev. 904, 904 (1998) Dossey v. State
JERRY MELVIN DOSSEY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 27891
September 4, 1998 964 P.2d 782
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count each of 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. Second
Judicial District Court, Washoe County; James A. Stone, Judge.
Defendant was convicted in the district court of one count of driving under the influence, one count of
driving while having 0.10 percent or more by weight of alcohol in his blood, and one count of having a blood
alcohol level of 0.10 percent or more by weight of alcohol in his blood within two hours of driving, and he
appealed. The supreme court held that: (1) endorsement of lab technician who tested defendant's blood sample
for alcohol content as lab technician, rather than by name, was sufficient; (2) prosecutor's comments during
closing argument did not constitute misconduct; and (3) vacation of two counts of conviction was required.
Affirmed in part; vacated in part.
Michael R. Specchio, Public Defender and Mary Lou Wilson, Deputy Public Defender, Washoe County, 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.
Whether the state may be allowed to endorse the name of a witness on the information is largely within the trial court's discretion,
and absent an abuse of that discretion or a substantial injury to the defendant, this court will not reverse an order permitting such an
endorsement. NRS 173.045(2).
2. Criminal Law.
Absent evidence to the contrary, an unendorsed witness is presumed to have been unknown to the district attorney.
3. Criminal Law.
Endorsement of lab technician who tested defendant's blood sample for alcohol content as lab technician, rather than by name,
was sufficient, and thus admission of lab technician's testimony in prosecution for driving under the influence was not abuse of
discretion, where state was unaware of lab technician's name until just prior to trial, only two or three lab technicians at facility where
sample was tested were qualified to perform such tests, defendant could have ascertained identity of lab technician with reasonable
effort, and defense counsel was able to prepare effective cross-examination of lab technician without knowing her exact identity. NRS
173.045(2).
4. Criminal Law.
Prosecutor's comments during closing argument that no testimony to anything beyond the facts in this case was presented, and
that there has been no evidence presented that anything out of the ordinary happened did not impermissibly shift burden of proof to
defendant in prosecution for driving under the influence, where sufficient evidence existed to prove defendant guilty, including
testimony of deputy sheriff that defendant was driving erratically, that defendant's penis was exposed, that defendant was urinating on
himself, that defendant was mixing up his words and slurring his speech and smelled of alcohol, and that it took defendant three
attempts to exit his automobile, and by testimony of lab technician that defendant's blood alcohol content was .272
percent one and a half hours after he was stopped by deputy.
technician that defendant's blood alcohol content was .272 percent one and a half hours after he was stopped by deputy. NRS
484.379(1).
5. Criminal Law.
Defendant's convictions for one count of driving under the influence, one count of driving while having 0.10 percent or more by
weight of alcohol in his blood, and one count of having a blood alcohol level of 0.10 percent or more by weight of alcohol in his blood
within two hours of driving were redundant, and thus two of those convictions would be vacated, where offenses were each subsections
of same statute, and defined alternative means of committing same offense. NRS 484.379.
OPINION
Per Curiam:
FACTS
On April 25, 1995, at 11:35 p.m., Deputy Sheriff Douglas R. Brady was travelling eastbound on Parr Boulevard in Washoe County,
when he encountered a vehicle driving westbound in Brady's lane, heading straight toward him. The other vehicle overcompensated,
swerving back toward the correct lane and off the road until it bounced over the railroad tracks running alongside the westbound lane.
Brady made a U-turn and conducted a traffic stop.
Appellant Jerry Melvin Dossey was sitting in the driver's seat with the fly of his pants open and his penis exposed. Brady further
observed Dossey urinating on himself. Brady testified that Dossey's exact words were that he knew he was too driving to be drunk but . . .
was only a home from a block. Brady noticed that Dossey smelled of alcohol and had slurred speech and bloodshot watery eyes. After
Brady asked him to step out of his vehicle so Brady could conduct a field sobriety test, Dossey made three attempts to comply before he
was able to exit the car. Dossey was also unsteady on his feet. Brady conducted several sobriety tests, all of which Dossey failed. Dossey
was arrested, taken to the police station, and given a blood alcohol test.
On April 26, 1995, Sierra Nevada Laboratories received Dossey's blood sample, and on April 27, 1995, Dorothy Walrath, a lab
technician qualified to analyze blood for alcohol content, conducted two tests to determine Dossey's blood alcohol level. The results were
0.274 and 0.272 percent of alcohol by weight in Dossey's blood.
On June 23, 1995, the state filed an information, charging Dossey with one count of driving under the influence, one count of driving
while having 0.10 percent or more by weight of alcohol in his blood, and one count of having a blood alcohol level of 0.10 percent or more
by weight of alcohol in his blood within two hours of driving, all in violation of NRS 4S4.379{1).
hours of driving, all in violation of NRS 484.379(1). These counts were not charged in the alternative. Dossey's
jury trial commenced September 25, 1995, resulting in guilty verdicts on all three counts. He was subsequently
sentenced to three terms of six years in prison, each to run concurrently.
DISCUSSION
Endorsement of a witness
Dossey first contends that the district court erred by allowing Walrath, the lab technician who performed the
blood analysis, to testify. He argues that because the information only endorsed Walrath as Sierra Nevada
Laboratories: lab technician, her name was not properly endorsed as required by NRS 173.045(2).
1
The state
responds that it did not know the name of the specific lab technician who analyzed Dossey's blood until shortly
before trial. The state further points out that Dossey never attempted to obtain Walrath's name prior to trial.
[Headnotes 1, 2]
Whether the state may be allowed to endorse the name of a witness on the information is largely within the
trial court's discretion, and absent an abuse of that discretion or a substantial injury to the defendant, this court
will not reverse an order permitting such an endorsement. Dalby v. State, 81 Nev. 517, 519, 406 P.2d 916, 917
(1965). Further, [a]bsent evidence to the contrary, an unendorsed witness is presumed to have been unknown to
the district attorney. Redmen v. State, 108 Nev. 227, 233, 828 P.2d 395, 399 (1992), overruled on other
grounds by Alford v. State, 111 Nev. 1409, 906 P.2d 714 (1995).
[Headnote 3]
We conclude that, under the circumstances of this case, endorsing Walrath as Sierra Nevada Laboratories:
lab technician was a sufficient endorsement because she was only one of two or three technicians at that facility
qualified to analyze blood alcohol content, and with only minimal and reasonable efforts, Dossey could have
found out Walrath's name if that information was imperative.
__________

1
In 1995, NRS 173.045(2) stated:
The district attorney or the attorney general shall endorse thereon the names of such witnesses as are
known to him at the time of filing the information, and shall also endorse upon the information the names
of such other witnesses as may become known to him before the trial at such time as the court may, by
rule or otherwise, prescribe; but this does not preclude the calling of witnesses whose names, or the
materiality of whose testimony, are first learned by the district attorney or the attorney general upon the
trial. He shall include with each name the address of the witness if known to him. He shall not endorse
the name of any witness whom he does not reasonably expect to call.
In addition, even if the state erred by not previously endorsing Walrath by name, the proper remedy is a
continuance, not exclusion of the witness's testimony as Dossey requested. See id. at 234, 828 P.2d at 400;
Barker v. State, 95 Nev. 309, 315, 594 P.2d 719, 722-23 (1979). Dossey never requested a continuance.
Moreover, we note that Dossey incurred no substantial injury as his attorney was able to conduct a well-prepared
and extensive cross-examination of Walrath, even without previously knowing her name. Accordingly, we
conclude that the district court did not abuse its discretion.
Prosecutorial misconduct
[Headnote 4]
Next, Dossey argues that the prosecutor committed misconduct in her closing argument by shifting the
burden of proof to the defense. The prosecutor argued:
You have heard talk throughout all the proceedings in this trial of hypothetically this could have
happened, that could have happened.
But no testimony to anything beyond the facts in this case was presented.
. . . .
There has been no evidence presented that anything out of the ordinary happened.
Dossey objected, and the district court overruled his objection.
We conclude that the prosecutor's remark did not constitute misconduct. See Sanders v. State, 96 Nev. 341,
609 P.2d 324 (1980). Moreover, overwhelming evidence exists to prove that Dossey violated NRS 484.379(1).
Brady testified that Dossey was driving erratically, his penis was exposed, he was urinating in his pants, he told
Brady specifically that he was too driving to be drunk but . . . was only a home from a block, he smelled of
alcohol, he had slurred speech and bloodshot watery eyes, it took three attempts for Dossey to exit his vehicle,
and he failed the field sobriety test. Also, Walrath testified that Dossey's blood alcohol content was 0.272
percent one and one-half hours after he was stopped. Accordingly, we conclude that this argument lacks merit.
Redundant conviction
[Headnote 5]
We conclude that Dossey's conviction is redundant and therefore vacate two counts of his conviction. In
Albitre v. State, 103 Nev. 281, 738 P.2d 1307 (1987), this court reversed as redundant two counts of
reckless driving causing death and two counts of involuntary manslaughter while
upholding the appellant's conviction of two counts of felony driving under the influence
causing death.
two counts of reckless driving causing death and two counts of involuntary manslaughter while upholding the
appellant's conviction of two counts of felony driving under the influence causing death. This court held:
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.
We conclude that the same error was committed here. NRS 484.379(1) states:
1. It is unlawful for any person who:
(a) Is under the influence of intoxicating liquor;
(b) Has 0.10 percent or more by weight of alcohol in his blood; or
(c) Is found by measurement within 2 hours after driving or being in actual physical
control of a vehicle to have 0.10 percent or more by weight of alcohol in his blood,
to drive or be in actual physical control of a vehicle on a highway or on premises to
which the public has access.
Dossey was charged and convicted of each subsection, resulting in three separate counts.
We conclude that the legislature intended the subsections of this statute to define alternative means of
committing a single offense, not separable offenses permitting a conviction of multiple counts based on a single
act. See, e.g., Long v. State, 109 Nev. 523, 528, 853 P.2d 112, 115 (1993) (holding that [u]nder the plain
language of NRS 484.379, a person driving a vehicle may violate NRS 484.379 in either of two ways: by driving
while under the influence of intoxicating liquor or by driving while having 0.10 percent or more by weight of
alcohol in the blood
2
); accord Blume v. State, 112 Nev. 472, 915 P.2d 282 (1996).
__________

2
Long does not explain that NRS 484.379(1) may be violated in three circumstances because the third
circumstance set out in NRS 484.379(1)(c) (having 0.10 percent or more by weight of alcohol in the blood
within two hours after driving) was added to NRS in the 1993 legislative session, after Long. 1993 Nev. Stat.,
ch. 249, 1, at 539.
The district court erred by failing to instruct the jury that it could find Dossey guilty of only one count under
NRS 484.379(1). Accordingly, we affirm Dossey's conviction and sentence on one count alleging violation of
NRS 484.379(1)(a). We vacate his conviction and sentences on the remaining two counts.
____________
114 Nev. 910, 910 (1998) Flores v. State
EULOGIO FLORES, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 30339
September 4, 1998 965 P.2d 901
Appeal from a judgment of conviction of one count of robbery with use of a deadly weapon and one count of
attempted murder with use of a deadly weapon. Eighth Judicial District Court, Clark County; Mark W. Gibbons,
Judge.
1

The supreme court held that: (1) allowing juror-inspired questions in criminal case is not prejudicial per se,
but is matter committed to sound discretion of trial court; (2) practice of juror-questioning did not violate
defendant's constitutional right to trial by a fair and impartial jury; and (3) jury-questioning did not violate
statute which forbids jurors from forming or expressing opinions about case before presentation of all evidence.
Affirmed.
Morgan D. Harris, Public Defender, Stephen M. Immerman and Kevin V. Williams, Deputy Public
Defenders, Clark County, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, James Tufteland,
Chief Deputy District Attorney and Christopher Laurent, Deputy District Attorney, Clark County, for
Respondent.
1. Witnesses.
Practice of jury-questioning of witnesses is firmly rooted in both common law and American jurisprudence.
2. Witnesses.
Allowing juror-inspired questioning of witnesses in criminal case is not prejudicial per se, but is matter committed to sound
discretion of trial court.
3. Witnesses.
Inclusion of juror questions in questioning of witnesses must incorporate certain procedural safeguards to minimize
attendant risks, including:
__________

1
Judge Michael P. Gibbons of the Ninth Judicial District Court was the trial judge in this case and Judge
Mark W. Gibbons was the sentencing judge.
porate certain procedural safeguards to minimize attendant risks, including: (1) initial jury instructions explaining that questions must
be factual in nature and designed to clarify information already presented; (2) requirement that jurors submit their questions in writing;
(3) determinations regarding admissibility of questions must be conducted outside presence of jury; (4) counsel must have opportunity
to object to each question outside presence of jury; (5) admonition that only questions permissible under rules of evidence will be
asked; (6) counsel is permitted to ask follow-up questions; and (7) admonition that jurors must not place undue weight on responses to
their questions.
4. Witnesses.
Practice of juror-questioning of witnesses did not violate defendant's constitutional right to trial by a fair and impartial jury, where
district court employed sufficient safeguards to eliminate risk of prejudice. U.S. Const. amend. 6.
5. Witnesses.
Juror-questioning of witnesses did not violate statute which forbids jurors from forming or expressing opinions about case before
presentation of all evidence, since it was assumed that district court's admonition to refrain from doing so was followed, and questions
sought factual information. NRS 175.401(3).
6. Witnesses.
Proper question from juror does not imply that juror formed any opinion any more that it does when judge asks a question.
OPINION
Per Curiam:
Appellant Eulogio Flores robbed a cab driver at gunpoint, stole the cab and shot at the cab driver before fleeing the scene. He was
apprehended after a lengthy police chase. A jury found Flores guilty of one count of robbery with a deadly weapon and one count of
attempted murder with a deadly weapon. At trial, the district court permitted the jurors to submit written questions for the witnesses.
Flores appeals his conviction, claiming that the practice of jury-questioning violated NRS 175.401 and his Sixth Amendment right to a
fair trial by an impartial jury.
Flores argues that this practice caused jurors to abandon their constitutional role as neutral and detached fact-finders and assume an
advocacy role.
Before the presentation of evidence at Flores's trial, the district court instructed jurors to write their unanswered questions on a piece of
paper and pass the paper to the bailiff without disturbing the proceedings. During a recess, the district court reviewed the questions and
entertained the objections of counsel. The district court then deemed several jury questions admissible, which counsel then asked the
witnesses.
Although this court has not addressed the issue of whether jurors may submit questions for witnesses at trial,
we welcome this opportunity to condone the practice and discuss its proper implementation in Nevada.
[Headnote 1]
The practice of jury-questioning is firmly rooted in both the common law and American jurisprudence. See
State v. Kendall, 57 S.E. 340 (N.C. 1907); 3 Sir William Blackstone, Commentaries on the Laws of England
373 (William D. Lewis ed., 1922) (1765); Michael A. Wolff, Comment, A Survey of Theory and Use, 55 Mo. L.
Rev. 817 (1990). The United States Circuit Courts of Appeal and a majority of state courts have accepted the
practice of jury-questioning as a matter within the sound discretion of the trial judge. See United States v. Bush,
47 F.3d 511, 514 (2d Cir. 1995); see, e.g., People v. Cummings, 850 P.2d 1, 48 (Cal. 1993); State v. Graves,
907 P.2d 963, 967 (Mont. 1995); State v. Johnson, 784 P.2d 1135, 1144-45 (Utah 1989). Many jurisdictions that
permit juror questioning celebrate its benefits. See, e.g., United States v. Sutton, 970 F.2d 1001, 1005 (1st Cir.
1992). These benefits include: (1) increased juror attentiveness; (2) the potential for jurors to more completely
comprehend the evidence; (3) the opportunity for trial attorneys to better understand the jurors' thought
processes and their perception of the case weaknesses; and (4) greater juror satisfaction regarding their role at
trial. State v. Taylor, 544 P.2d 714, 716-17 (Ariz. 1976); Commonwealth v. Urena, 632 N.E.2d 1200, 1204 n.5
(Mass. 1994).
The significant advantages associated with jury-questioning must be considered in light of the dangers
inherent in the practice. Perhaps the most frequently cited drawbacks of the practice are that jurors may assign
disproportionate weight to evidence elicited in response to their own questions and that jury-questioning
transforms the adversary process into an inquisitorial process. DeBenedetto v. Goodyear Tire & Rubber Co.,
754 F.2d 512 (4th Cir. 1985); Morrison v. State, 815 S.W.2d 766 (Tex. Crim. App. 1991). Acting as inquisitors,
jurors may stray from their prescribed role as neutral fact-finders and prematurely evaluate the evidence.
Sometimes, attorneys refrain from raising objections to juror questions to avoid offending jurors. Inclusion of
juror-initiated questions also raises concern that the government may satisfy its burden of proof beyond a
reasonable doubt by means of juror-initiated evidence.
[Headnotes 2, 3]
Despite these potential disadvantages, we join the majority of jurisdictions which acknowledge the practice
of jury-questioning as an innovation that can significantly enhance the truth-seeking function
of the trial process.
as an innovation that can significantly enhance the truth-seeking function of the trial process. We hold that
allowing juror-inspired questions in a criminal case is not prejudicial per se, but is a matter committed to the
sound discretion of the trial court. Sutton, 970 F.2d at 1005. To minimize the risk of prejudice, however, the
practice must be carefully controlled by the court. Accordingly, inclusion of juror questions must incorporate
certain procedural safeguards to minimize the attendant risks. These safeguards include: (1) initial jury
instructions explaining that questions must be factual in nature and designed to clarify information already
presented; (2) the requirement that jurors submit their questions in writing; (3) determinations regarding the
admissibility of the questions must be conducted outside the presence of the jury; (4) counsel must have the
opportunity to object to each question outside the presence of the jury; (5) an admonition that only questions
permissible under the rules of evidence will be asked; (6) counsel is permitted to ask follow-up questions; and
(7) an admonition that jurors must not place undue weight on the responses to their questions.
[Headnote 4]
In the case before us, the district court employed the foregoing safeguards. These were sufficient to eliminate
the risk of prejudice to Flores. Consequently, we conclude that the practice of juror-questioning, as implemented
by the district court here, did not violate Flores's Sixth Amendment right to trial by a fair and impartial jury.
[Headnotes 5, 6]
Flores argues that the jury-questioning violated NRS 175.401(3), which forbids jurors from forming or
expressing opinions about the case before the presentation of all evidence. Flores argues that the jurors'
questions reveal their premature opinions about the case. We disagree. The jury questions are seeking factual
information. A proper question does not imply that a juror formed any opinion any more than it does when a
judge asks a question. The jurors are given an admonition pursuant to NRS 175.401.
NRS 175.401 states, in pertinent part:
At each adjournment of the court, whether the jurors are permitted to separate or depart for home
overnight, or are kept in charge of officers, they must be admonished by the judge or another officer of
the court that it is their duty not to:
. . . .
3. If they have not been charged, form or express any opinion on any subject connected with
the trial until the cause is finally submitted to them.
opinion on any subject connected with the trial until the cause is finally submitted to
them.
We must presume that the instructions were followed. See Richardson v. Marsh, 481 U.S.
200, 211 (1987).
2

____________
114 Nev. 914, 914 (1998) Wade v. State
TIMOTHY FRANK WADE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 29235
September 24, 1998 966 P.2d 160
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of conspiracy to sell a
controlled substance and one count of sale of twenty-eight grams or more of methamphetamine. Second Judicial
District Court, Washoe County; Mark Handelsman, Judge.
Defendant was convicted in the district court of conspiracy to sell a controlled substance and sale of
methamphetamine, and he appealed. The supreme court held that: (1) taped conversations between defendant
and informant were not hearsay, and (2) failure by the State to disclose to defendant confidential informant file
in the possession of the federal Drug Enforcement Administration (DEA) was not a Brady violation.
Affirmed.
[Rehearing pending]
John B. Routsis and William J. Routsis II, Reno, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Richard Gammick, District Attorney, and Terrence P.
McCarthy, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
The determination of whether to admit evidence is within the sound discretion of the district court, and that determination will not
be distrubed unless manifestly wrong.
2. Criminal Law.
Taped conversations between defendant and informant pursuant to drug investigation were not hearsay, but were admissible in
narcotics prosecution for the limited purpose of providing a context for statements made by defendant. NRS 51.035.
__________

2
this appeal.
114 Nev. 914, 915 (1998) Wade v. State
3. Criminal Law.
Failure by the State to disclose to defendant in drug prosecution confidential informant (CI) file in the possession of the federal
Drug Enforcement Administration (DEA) was not a Brady violation; State did not possess CI file, State had no authority to order DEA
to produce file, and defendant could have used alternative methods to obtain information in CI file.
OPINION
Per Curiam:
The primary claims of error address a federal agency's refusal to disclose allegedly exculpatory evidence and the district court's
determination to admit taped conversations between the appellant and an unavailable confidential informant. For the reasons discussed
below, we affirm the appellant's conviction.
FACTS
Appellant, Timothy Wade (Wade), became the target of a federal investigation for drug trafficking in northern Nevada.
1
On or
about January 18, 1994, the federal Drug Enforcement Agency (DEA) placed a confidential informant, Clay
Hodges (Hodges), on Wade's case. The DEA used Hodges to arrange drug deals and meetings between Wade
and DEA agents, specifically, Agents Maria Cartagena (Agent Cartagena) and Ronald Davis (Agent Davis).
Thereafter, Hodges arranged for Agent Cartagena to purchase two pounds of methamphetamine from Wade,
Nancy Lyn Woods (Woods) and Heriberto Islas (Islas), for $21,000.
Per DEA instructions, Hodges taped several telephone and face-to-face conversations with Wade between
January 18, 1994, and February 2, 1994. The record indicates that, over Wade's objection, five tapes containing
numerous conversations between Hodges and Wade were admitted at trial and played for the jury during the
State's case-in-chief.
2
In violation of his instructions, Hodges removed the wire for approximately six minutes
during one of the face-to-face conversations with Wade, resulting in six minutes of silence on the tape. The jury
was apprised of this gap. Other taped conversations presented at trial were between Wade and Agent Cartagena.
On February 2, 1994, Agent Cartagena, equipped with a wire and accompanied by additional undercover
officers, agreed to meet Wade at a Reno hotel to consummate the drug transaction.
__________

1
The record is unclear as to when Wade first became suspected of drug trafficking.

2
The record further indicates that the DEA transcribed nearly all of the conversations, face-to-face and by
telephone, except a final conversation between Wade and Agent Cartagena the day before Wade's arrest.
114 Nev. 914, 916 (1998) Wade v. State
meet Wade at a Reno hotel to consummate the drug transaction. Wade, Woods, and Islas were all present at the
hotel cafe and assisted in the exchange of money for methamphetamine. After the exchange, Agent Cartagena
and back-up law enforcement officers arrested Wade, Islas, and Woods for conspiracy to sell a controlled
substance and for trafficking. For unknown reasons, the United States Attorney's Office decided not to prosecute
this case. The matter was then taken over by the Washoe County District Attorney's Office.
Among over ninety-four items that Wade requested during the discovery process, he specifically requested
the State to disclose the confidential informant file (CI file) on Hodges and all recorded telephone
conversations. Wade also requested that the State produce Islas and Hodges as material witnesses.
3

The district court held a pre-trial hearing to determine whether the tapes were admissible and whether the
State committed discovery violations by refusing to disclose or produce exculpatory evidence consisting of the
CI file on Hodges, complete transcripts of the taped conversations and/or the tapes themselves, and witnesses
material to Wade's defense. During this hearing, the State maintained that it had an open file policy; that is, it
had disclosed all discoverable information to Wade. Upon further explanation, the State informed the district
court that the DEA, without referring to any specific documents, refused to disclose all the information it
possessed on Hodges. Agent Cartagena also testified that certain confidential information on Hodges remained
in his CI file, despite Hodges' deactivation as a DEA informant.
4
The State corroborated this representation
by stating that some of the information was confidential and, therefore, nondiscoverable.
Failing in its efforts to locate Hodges prior to trial, the State apprised the district court and the defense that,
even if Hodges could not be located, it did not intend to utilize Hodges' dialogue on the tapes in lieu of his
testimony. Rather, it maintained that Hodges' taped statements would be only used for the limited purpose of
providing a context for Wade's conversations.
5

At trial, Wade was convicted of conspiracy to sell a controlled substance and sale of twenty-eight or more
grams of methamphetamines. At oral argument before this court, counsel for Wade primarily assigned
error to the district court's admission of the tapes and the State's failure to disclose
potentially exculpatory evidence.6
__________

3
After the arrest, Islas became an informant for the DEA, but disappeared sometime prior to trial. Wade does
not contend on appeal that Islas' unavailability denied him a fair trial. However, he does argue that Hodges'
unavailability caused him to suffer undue prejudice.

4
At trial, Agent Cartagena explained that the DEA determined that it no longer had any use for Hodges'
services and, therefore, ceased using him as an informant. She further stated that under normal circumstances,
when this occurs, the agency loses contact with the former DEA informant.

5
Wade's prior counsel met with Hodges and did, in fact, interview him prior to his disappearance.
114 Nev. 914, 917 (1998) Wade v. State
primarily assigned error to the district court's admission of the tapes and the State's failure to disclose potentially
exculpatory evidence.
6

DISCUSSION
Admissibility of the taped conversations between Wade and Hodges
[Headnote 1]
The determination of whether to admit evidence is within the sound discretion of the district court, and that
determination will not be disturbed unless manifestly wrong. Petrocelli v. State, 101 Nev. 46, 52, 692 P.2d 503,
508 (1985).
In admitting the taped conversations, the district court relied on United States v. Tangeman, 30 F.3d 950 (8th
Cir. 1994). See also United States v. Inadi, 475 U.S. 387, 398 n.11 (1986); United States v. McKneely, 69 F.3d
1067 (10th Cir. 1995). Wade objected to the admission of these tapes on three grounds: (1) the State's failure to
establish a chain of custody; (2) the fact that Hodges' unavailability prevented Hodges from testifying that he
consented to being taped; and (3) hearsay.
7

In Tangeman, an informant's statements on a tape recorded conversation with a defendant were determined to
be nonhearsay. Tangeman, 30 F.3d at 952. The court analyzed the case based upon a defendant's right to
confront witnesses pursuant to the Sixth Amendment because the informant there had also become unavailable.
Id. In holding that the tapes were nonhearsay, the court stated:
We agree with the district court . . . that [the informant's] statements were offered to provide context for
Tangeman's admissions and not to prove the truth of the matters asserted therein.
__________

6
Wade did not address an issue at oral argument that he discusses at length in his opening brief. The issue
involves a failed cooperation agreement with the DEA that would have enabled him to receive a
recommendation from the DEA for a lesser sentence in exchange for information pertaining to drug trafficking
in northern Nevada. Wade argues that the State breached the cooperation agreement. The district court found
that Wade had failed to provide substantial assistance to the DEA and, therefore, was not entitled to receive a
recommendation for a lesser sentence. Because sufficient evidence exists to support the district court's ruling, we
conclude that this argument lacks merit. Therefore, we choose to focus on the two issues upon which Wade
focused at oral argument.

7
Having reviewed the record, we conclude that the district court correctly found that the State established a
proper chain of custody for the tapes and that Hodges consented to being taped when he agreed to wear a wire
and record his conversations with Wade. Accordingly, we conclude that Wade's first two grounds lack merit.
We, therefore, only address in detail Wade's hearsay argument, upon which he focused at oral argument.
114 Nev. 914, 918 (1998) Wade v. State
admissions and not to prove the truth of the matters asserted therein. The court also cautioned the jury that
voices in the recordings other than Tangeman's were to be considered only to place Tangeman's statements
in context.
Id. at 952.
[Headnote 2]
We agree with the rationale in Tangeman and, therefore, adopt that federal court's approach when such
circumstances present themselves. Accordingly, we conclude that the State did not introduce Hodges' statements
on the tapes to prove the truth of the matter asserted, but only for the limited purpose of providing a context for
Wade's statements. See NRS 51.035. The record reflects that the State argued this precise rationale before the
district court at the time Wade objected to admission of the tapes below. Because we adopt the approach taken
in Tangeman, we further conclude that the tapes are nonhearsay and, therefore, their admission into evidence did
not violate Wade's rights of confrontation.
Failure to disclose the CI file
[Headnote 3]
Although we have previously addressed the State's duty to provide the defendant with all potentially
exculpatory evidence in its control or possession, we have yet to consider the novel situation where an
independent federal agency refuses to disclose what it regards as confidential information contained in an
internal CI file. See Roberts v. State, 110 Nev. 1121, 881 P.2d 1 (1994) (discussing Brady v. Maryland, 373
U.S. 83 (1963) (requiring prosecutor to disclose to an accused favorable evidence material to either guilt or
punishment)); see also U.S. v. Spires, 3 F.3d 1234 (9th Cir. 1993).
In Roberts, the defendant made a specific Brady request for a CI file on the informant well in advance of
trial. Roberts, 110 Nev. at 1131, 881 P.2d at 7. The district court held three hearings to determine what
information, if any, should be disclosed. Id. The district court ultimately ordered disclosure of the CI file on a
Las Vegas Metropolitan Police Department's informant, to which the State had access. Id. at 1132, 881 P.2d at 3.
The prosecution failed to produce the file or to submit it to the court for in camera review following the
defendant's specific materiality claim. Id. at 1132, 881 P.2d at 9. In reversing Roberts' conviction, this court
stated:
[I]t cannot be said that the district court judge ruled Roberts' entrapment claim without merit, for the
judge instructed the jury on entrapment, indicating that Roberts presented evidence at
trial sufficient to require an instruction on this theory.
114 Nev. 914, 919 (1998) Wade v. State
jury on entrapment, indicating that Roberts presented evidence at trial sufficient to require an instruction
on this theory. Accordingly, relevant impeachment evidence in Noel's [the informant's] CI file, as it
relates to the alleged offense and Roberts' claim of entrapment, would have been admissible at trial.
Id. at 1133, 881 P.2d at 8.
In this case, the DEA refused to disclose the CI file on Hodges to the State. Given the prosecution's
disclosure of the entirety of the DEA materials disclosed to it, and the testimony of DEA agents assigned to the
case that certain confidential information was nondiscoverable, the record strongly suggests that not even the
State was privy to the information contained in the CI file.
We conclude that the case at bar is readily distinguishable from Roberts. In Roberts, the working relationship
between the state and local police compelled the conclusion that they were a single entity for the purposes of
providing discovery in criminal prosecutions. Further, the prosecution actively possessed the CI file in Roberts.
We emphasize that the State may not circumvent the discovery process by claiming that a local police
department, an agent of the State, refuses to disclose such documents. Therefore, when this situation presents
itself, the Brady rule applies. See United States v. Bagley, 473 U.S. 667 (1985).
At oral argument, Wade's counsel conceded that he did not believe that the State had any knowledge of the
DEA's CI file on Hodges. Wade's counsel further represented that the only reason he knew that a CI file on
Hodges must exist was due to his own experience. Relying on Kyles v. Whitley, 514 U.S. 419 (1995), Wade
maintains that the failures to disclose made it impossible for him to establish an entrapment defense without the
CI file on Hodges. Claiming that he had no alternative method to obtain the file, Wade urges reversal of his
conviction. We disagree.
In Kyles, the United States Supreme Court held that (1) in determining whether evidence not disclosed by the
State was material, and, therefore, in violation of Brady v. Maryland, 373 U.S. 83 (1963), the cumulative
effect of all suppressed evidence favorable to the defendant is considered, rather than considering each item of
evidence individually; and (2) favorable evidence that the State failed to disclose to the defendant would have
made a different result reasonably probable, and thus, nondisclosure of such evidence amounted to a Brady
violation. Kyles, 514 U.S. at 419.
While we recognize that Wade intended to present an entrapment defense, we do not agree with his
contention that he had no alternative way of obtaining the CI file. We hasten to point out that the record
does not reflect that Wade, despite suspecting that a CI file on Hodges existed but had
not been disclosed, at any time requested an in camera hearing per Roberts.
114 Nev. 914, 920 (1998) Wade v. State
that the record does not reflect that Wade, despite suspecting that a CI file on Hodges existed but had not been
disclosed, at any time requested an in camera hearing per Roberts. Further, contrary to Wade's counsel's
representation to this court, pursuant to 28 C.F.R. 16.26 (1997),
8
Wade could have attempted to subpoena the
CI file directly from the DEA, given that the State was not in a position of authority to order the DEA to disclose
the evidence.
Further, we are persuaded by Ferguson v. State, 487 S.E.2d 467, 468 (Ga. 1997), in which a defendant on
trial for trafficking claimed that the State violated Brady by failing to disclose that its witness had a prior
criminal history and by failing to reveal an arrangement between a witness and the FBI. The court held that:
In order to show that the State violated Brady by failing to reveal a deal with one of its witnesses, a
defendant must show that the State possessed evidence of the deal; that the defendant did not possess the
evidence nor could he obtain it himself with any reasonable diligence; that the State suppressed evidence
of the deal; and that, had the evidence of the deal been disclosed to the defendant, there existed a
reasonable probability that the result at trial would have been different.
Id. (citing Burgeson v. State, 475 S.E.2d 580, 638 (Ga. 1996)).
After applying these standards, the court in Ferguson held that the defendant failed to carry his burden of
showing a Brady violation. Id. The court stated that the state prosecutor disclosed all the information to the
defense that it possessed regarding the federal arrangement. The court further relied on an earlier Georgia case in
which the court stated, Brady requires information to be revealed only when it is possessed by the prosecutor
or any one over whom the prosecutor has authority.
__________

8
28 C.F.R. 16.26 states in part:
Considerations in determining whether production or disclosure should be made pursuant to a
demand.
(a) In deciding whether to make disclosures pursuant to a demand, Department officials and
attorneys should consider:
(1) Whether such disclosure is appropriate under the rules of procedure governing the
case or matter in which the demand arose, and
(2) Whether disclosure is appropriate under the relevant substantive law concerning
privilege.
(b) Among the demands in response to which disclosure will not be made by any Department
official are those demands with respect to which any of the following factors exist:
. . . .
(3) Disclosure would reveal classified information, unless appropriately declassified
by the originating agency,
(4) Disclosure would reveal a confidential source or informant, unless the
investigative agency and the source or informant have no objection.
114 Nev. 914, 921 (1998) Wade v. State
one over whom the prosecutor has authority.' Id. at 469 (quoting Zant v. Moon, 440 S.E.2d 657 (Ga. 1994)).
We conclude that the instant case presents a similar situation, in that the State did not possess the CI file.
Further, the State was not in a position of authority to order the federal DEA, an entity that did not act as an
agent of the State prosecution, to cooperate. We agree with the court's rationale in Ferguson and, therefore,
conclude that Wade also fails to carry his burden of showing a Brady violation. Further, because Wade could
have employed alternative methods to obtain the information contained in the CI file on Hodges, we conclude
that no Brady violation occurred.
Having concluded that Wade's remaining allegations lack merit and do not warrant discussion, we hereby
affirm Wade's judgment of conviction.
____________
114 Nev. 921, 921 (1998) Marvelle v. State
MARK ANDRE MARVELLE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 28004
September 24, 1998 966 P.2d 151
Appeal from judgment of conviction of one count of sexual assault of a child under fourteen years of age and
two counts of lewdness with a child under fourteen years of age. Ninth Judicial District Court, Douglas County;
Michael P. Gibbons, Judge.
The supreme court, Springer, C. J., held that: (1) trial court's refusal to permit psychological examination of
complainant denied defendant fair trial, and (2) testimony of state's witnesses as to complainant's mental and
emotional state and veracity constituted expert testimony.
William Cole, Zephyr Cove, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Scott W. Doyle, District Attorney, Kristine L.
Brown, Deputy District Attorney, Dina Salvucci, Deputy District Attorney, Douglas County, for Respondent.
1. Criminal Law.
Trial court's refusal to permit psychological examination of child sexual abuse complainant denied defendant fair trial and required
reversal.
sal. Evidence at trial provided reasonable basis for believing that complainant's mental or emotional state affected her veracity, state
called expert witnesses to testify to complainant's mental and emotional competence and to her veracity, despite having stated it would
not call experts, state's case rested almost entirely upon complainant's veracity, and defendant clearly called complainant's veracity into
question.
2. Criminal Law.
For purpose of determining defendant's entitlement to psychological evaluation of child sexual abuse complainant, opinion
testimony of self-styled marriage and family therapist, school counselor, and police specialist in child abuse investigations,
confirming complainant's emotional stability and veracity and setting forth behavioral patterns and responses associated with victims
of child sexual abuse, constituted expert testimony, even though no witness had degree or license in psychology or psychiatry.
3. Criminal Law.
Expert testimony concerning behavioral patterns and responses associated with victims of child sexual abuse puts child
complainant's behavioral and psychological characteristics at issue, thus requiring defense to have access to psychological evaluation
of complainant.
4. Criminal Law.
District court has discretion to grant request for psychological evaluation of child sexual abuse complainant, based on facts and
circumstances of each case, after considering: whether state has employed expert in psychiatry or psychology to examine complainant;
whether there is compelling need to protect complainant; whether evidence of the crime has little or no corroboration beyond
complainant's testimony; and whether there is reasonable basis to believe that complainant's mental or emotional state may have
affected her veracity.
5. Witnesses.
It is improper for one witness to vouch for the testimony of another.
6. Criminal Law.
Expert is not permitted to testify to truthfulness of a witness.
OPINION
This is an appeal from convictions of child sexual abuse which resulted in appellant Mark Marvelle's receiving a mandatory sentence
of life imprisonment with the possibility of parole. Marvelle was released on bail pending this appeal.
1

Marvelle's appeal is based principally upon the contentions that (1) the trial court erred in denying a
psychological examination of the fifteen-year-old complaining witness, who claimed to have been molested
in 1990;
__________

1
It is worth noting that the trial judge made the following comment during sentencing: This penalty is too
severe for the nature of this particular crime and for what your background shows. I think you could be a
productive person and a life sentence is not appropriate.
been molested in 1990; (2) the State misrepresented its intentions when, in response to Marvelle's motion for a
psychological evaluation of the complainant, it advised the court that it did not intend to call any experts; and
(3) he was denied a fair trial because the State's case rested almost exclusively on unopposable expert opinion
evidence and vouching relating to the complaining witness's mental state and veracity, while he was denied the
right to present his own expert testimony relating to mental state and veracity.
The State's principal response to Marvelle's contentions is that the witnesses who testified that the
complainant was a competent and believable witness were not, strictly speaking, experts in the field of
psychiatry or psychology and that, therefore, Marvelle was not prejudiced by the State's calling of these
witnesses or by the district court's denial of his motion for an independent psychological examination of the
complainant.
We conclude that Marvelle was entitled to a psychological evaluation of the complaining witness. We also
conclude that the testimony of the State's witnesses appears to be of a sufficiently expert nature that the State
incorrectly advised the district court when it informed the court that it did not intend to call any experts.
Finally, we conclude that it was unfair to permit an array of persons of varying degrees of expertise in
psychology and the behavioral sciences to have access to the complaining witness and testify favorably for the
State, while Marvelle was denied access to the complainant and thereby denied the right to present opposing
evidence relating to the complainant's mental state and veracity. For these reasons we reverse the conviction and
remand for a new trial.
The charges against Marvelle arose out of one incident claimed by his fifteen-year-old accuser, Tammy, to
have taken place during the summer of 1990. Marvelle and Tammy's mother were dating, and Marvelle was
living with Tammy and her mother at the time of the incident. According to the State's brief, the incident took
place during July or August of 1990, at a time when Tammy was laying [sic] down on top of the covers next
to Marvelle. Tammy did not report the alleged incident until four years later. The occasion of Tammy's
mentioning the event was a meeting with a school counselor in which Tammy was complaining about the
difficulties that she was having with her mother, difficulties relating to her mother's spending the night with a
person who Tammy believed was a child molester, and difficulties relating to her mother's threats to commit
suicide. During her conversation with her counselor, Tammy told her counselor that she had been molested
when she was ten years old, describing an incident in which she claimed that she had
taken her clothes off at Marvelle's request and that Marvelle had engaged in several
sexual activities with her.
had been molested when she was ten years old, describing an incident in which she claimed that she had taken
her clothes off at Marvelle's request and that Marvelle had engaged in several sexual activities with her.
All parties agree that there was only one incident of claimed sexual abuse and that Tammy's charges are
uncorroborated. The State concedes that this case is based entirely on whether Tammy is telling the truth.
Based upon information developed during preparation of the defense, defense counsel moved the court for a
psychological examination of [Tammy]. The motion referred to claimed false allegations made by [Tammy] .
. . based upon the conflicts that her mother has in her relationships with men and upon the relationship of the
mother and daughter. Perhaps of most concern to defense counsel was Tammy's relationship with her real
father, who ran an escort service and who was thought by Tammy to be involved in pornography. Tammy at one
time claimed that her father never has tried anything with me; but later, at trial, there was testimony that
Tammy's real father had molested her at about the time Tammy claimed that Marvelle was the one who
molested her. Still, Tammy expressed no enmity against her real father and said that she and her friend were
going to become madams, following in the footsteps of her father.
Attached to Marvelle's motion for psychological evaluation is a copy of Tammy's psychological history and
case notes (Contact Summary), taken by Tammy's therapist, Capa Casale, who testified for the State during
trial. The motion recites that Marvelle received information that [Tammy] in March of 1995 filled [sic] another
allegation of sexual assault. The motion, as a whole, makes out a strong case that Tammy had a very disturbed
family life and raises the possibility that she was molested by her real father.
The preliminary examination and trial confirmed that Tammy was a very troubled young woman and that she
had an extremely unhappy childhood. Tammy herself testified that from the time she was about five years old,
her mother often threatened to abandon her. Her mother was violent, and on one occasion, Tammy called 911 as
a result of her mother's battery upon her. On another occasion, police were dispatched to Tammy's home and
were told by Tammy's mother that she was going to kill Tammy if Tammy was not removed from the home.
Tammy admitted to having an active sex life and claimed that her mother had no objections to these activities so
long as she did not engage in sex with adults.
Although Tammy expressed no objection to having a psychological evaluation and there is no issue of her
protection in this case, the trial court denied Marvelle's motion. As stated, we conclude that the trial court
erred by denying the motion.
REFUSAL TO ORDER PSYCHOLOGICAL EXAMINATION
WHILE PERMITTING STATE'S WITNESSES TO
TESTIFY ON TAMMY'S MENTAL
STATE AND VERACITY
It is not easy to understand why the court denied Marvelle's motion. The motion makes a pretty clear case
that Tammy was suffering from the kinds of emotional and psychological problems that call for an independent
evaluation. Tammy was already under the care of a therapist and had no objection to seeing one appointed by the
court. Given the fact that Tammy waited for over four years before mentioning the episode, the fact that she
herself had no objection to the evaluation, and the fact that the State's entire, uncorroborated case rested upon
Tammy's veracity, one would think that the evaluation would be ordered as a matter of course.
The trial judge took a rather different and unique approach in deciding not to grant the evaluation. The trial
judge apparently took the position that psychiatrists and psychologists are unable to say when a witness is or is
not telling the truth and that, therefore, there was no point in bringing one into the case. The trial judge
commented: [W]ith a psychological examination, how would they, a therapist or psychiatrist, be able to
determine if she's telling the truth? The answer to this rhetorical question is, of course, that a therapist cannot
tell and cannot testify as to whether Tammy was telling the truth. The main problem with this case, however, is
that Tammy's therapist, Casale, testified concerning the psychological manifestations connected with her stated
assumptions that Marvelle was guilty as charged and that there was no other perpetrator.
[Headnote 1]
Marvelle did not move for a psychological evaluation because he wanted someone to testify that Tammy was
not telling the truth; what Marvelle was after was an evaluation that would cast some light, from his
perspective, on the kind of emotional problems that Tammy was having and the effect that these problems might
have on her capacity to fabricate charges against him. There is much that the behavioral sciences would have to
offer in Marvelle's defense, especially in light of the fact that the State's entire case was based on
testimony, expert and otherwise, that Tammy was mentally and emotionally competent
and telling the truth.
entire case was based on testimony, expert and otherwise, that Tammy was mentally and emotionally competent
and telling the truth. This is the root of the prejudice suffered by Marvellethat others were allowed to testify as
to Tammy's mental state and demeanor
2
and that Marvelle had no way to defend himself against this
testimony.
[Headnote 2]
During his trial, Marvelle heard a number of child sex-abuse experts testify on the consistency and veracity
of Tammy's story. Marvelle makes a credible argument that most of these experts violated the State's
representation that it would not rely on the testimony of experts, at least not as experts in the field of psychology.
For example, consider Capa Casale. Although Casale was not yet qualified for licensure, she was acting in all
respects as a psychologist and styled herself as a marriage and family therapist. Therapist Casale gave therapy
to Tammy and kept notes that are indistinguishable from the clinical notes maintained by true clinical experts.
Therapist Casale testified in psychological jargon, using such current psychological terms as
"subconsciously," "denial stage," and "anger stage.
__________

2
School counselor Carol Bocks testified as to Tammy's demeanor, testifying that Tammy's story was
consistent and that she did not seriously . . . doubt something like this, an allegation that you were hearing
and that there was no more than one perpetrator. Bocks was not a psychologist, but she identified herself as a
counselor, whose job it is to deal with the emotional problems of students. She testified as to her experience in
dealing with child sex-abuse cases; and, although she did not claim to be a therapist, as did Capa Casale, she
presented herself as having a certain degree of expertise in child behaviorsufficient, in any event, to testify
that Tammy's story was consistent, that she had no doubts about Tammy's veracity, and that there was no
perpetrator other than the accused Marvelle.
Another example of expert testimony being offered by a witness who might not qualify as being truly an
expert is that of a specialist in child abuse investigations, Police Officer Steve Fiori. Based on his experience
and expertise in investigating child sex-abuse cases, Officer Fiori opined that Tammy's story was indeed factual
and that from it he knew that something had transpired. This officer, along with other witnesses, vouched for
Tammy's story, and did so not from the perspective of a percipient witness but, rather, as an expert who knows a
guilty sex offender when he sees one. Although the State's representation that it would not call any experts may
not have been violated by calling child sex-abuse experts Bocks and Fiori to give their opinions, Marvelle
certainly was put to a great disadvantage by this opinion evidence going to the jury when he had no opportunity
to present contrary evidence of comparable weight.
Finally, mention should be made of another expert, Detective Paul Pabon, who presented himself not as a
behavioral or psychological expert, but, rather, as an expert in the field of who-dunnit. Detective Pabon
testified that, based on his experience and training, it was his belief that Mr. Marvelle was the perpetrator.
This is mentioned not because it constituted a violation of the State's promise not to call any experts but merely
as an illustration of the kind of evidence that the State relied on to convict Marvellejust bring in people who
will say he is guilty.
cal jargon, using such current psychological terms as subconsciously, denial stage, and anger stage. See,
e.g., Elisabeth Kbler-Ross, On Death and Dying (1969).
Among therapist Casale's statements to the jury was this: I believe that it's very common [] for a person
when they [sic] really begin to face the fact that they [sic] were molested to become angry at people in their lives
who subconsciously allowed that to happen. Casale further gave her opinion on the subject of the actual or
psychological or other type of benefit that might have arisen from Tammy's telling her story and capped off her
testimony by telling the jury that there was no other perpetrator than Marvelle.
Not only did the prosecution introduce expert psychological testimony relating to Tammy's behavioral
characteristics and her mental and emotional state, as it related to the objective truth of her testimony, but it also
pursued this subject in final argument. In referring to therapist Casale's testimony, the prosecutor, relying on the
therapist's psychological jargon, told the jury that Tammy's psychological problems all fit right into what
Capa Casale was saying, namely, that once you have [] disclosed this awful secret, you've come out of the
denial stage where you've now actually now admitted out loud that it happened to you. Then, referring again to
Casale's psychological testimony, the prosecutor argued that Tammy had gone through the denial stage and
had escalate[d] into some sort of anger phase, which she saw in Tammy's anger and rebellion to her mother.
Casale held herself out as a therapist, and it is difficult indeed to maintain that she was not offering expert
psychological testimony to the jury.
[Headnote 3]
In cases such as this, where a State's expert testifies concerning behavioral patterns and responses associated
with victims of child sexual abuse, courts have recognized that this type of testimony puts the child's behavioral
and psychological characteristics at issue, thus requiring the defense to have access to a psychological
evaluation. Anderson v. State, 749 P.2d 369, 371 (Alaska Ct. App. 1988). It is simply not fair in this case to
allow testimony of this kind to be brought in by the State but not by Marvelle.
[Headnote 4]
A district court has discretion to grant a request for a psychological evaluation of a child-victim, based on the
facts and circumstances of each case, after considering four factors: (1) whether the State has employed an
expert in psychiatry or psychology to examine the child; (2) whether there is a compelling need to protect
the child;
need to protect the child; (3) whether evidence of the crime has little or no corroboration beyond the child's
testimony; and (4) whether there is a reasonable basis to believe that the child's mental or emotional state may
have affected her veracity. Keeney v. State, 109 Nev. 220, 226, 850 P.2d 311, 314 (1993). The district court
concluded in this case that there was no compelling reason to protect the child and that there was little or no
corroboration; consequently, the court's decision to deny a psychological evaluation had to be based on Keeney
factors 1 and 4, namely, that the State was not going to call any experts and that Tammy's mental or emotional
state could not reasonably have affected her veracity.
We conclude that the trial court erred in its consideration of the two, mentioned factors. First, it cannot be
denied that the State's case rested almost entirely on Tammy's veracity. Marvelle's motion makes it very clear
that the central issue in this case was going to be Tammy's mental and emotional problems and the effect that
these had upon her veracity. Then, as it turned out, four witnesses, to varying degrees, based their testimony
against Marvelle on psychological or pseudo-psychological grounds. The trial court was unjustified in basing its
decision on the State's not employing an expert in the behavioral sciences because, as discussed above, this case
was a one-sided battle of the experts, with the State having all of the experts and Marvelle having, through no
fault of his own, no experts.
With regard to the question of whether there was a basis to believe that Tammy's emotional or mental state
may have affected her veracity, there is much reason, beyond her four-year delay in telling her story, to believe
that Tammy's mental and emotional condition may have contributed to her telling the story that she did. For
example, Tammy had confided to her friend that her real father had molested her at about the time that the
incident in question occurred. Tammy told another friend that she refused to visit her real father because of
something that had happened between the two. Further, another friend of Tammy's testified that Tammy used
drugs, that she was manipulative, and that she would lie.
In Washington v. State, 96 Nev. 305, 307, 608 P.2d 1101, 1103 (1980), this court stated:
Generally, there is no compelling reason for a psychiatric examination 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.
(Citations omitted.) In the present case, there is little or no corroboration, and Marvelle, most certainly,
questioned the effect of Tammy's emotional or mental condition upon her veracity.
Tammy's emotional or mental condition upon her veracity. In Lickey v. State, 108 Nev. 191, 195, 827 P.2d 824,
826 (1992), this court concluded that
unless competent evidence presents a compelling reason to protect the victim, it is error to deny a
defendant the assistance of a defense psychologist or psychiatrist to examine the child-victim and testify
at trial when the State is provided such assistance. Because police officers and the State's experts were
permitted to conduct over a dozen interviews with the child-victim, the defendant should have been
afforded at least one.
Under Lickey, since protect[ing] the victim is not an issue in the present case, it would appear to be error
to deny a defendant the assistance of a defense psychologist or psychiatrist to examine the child-victim and
testify at trial when the State is provided such assistance. Id.
The State argues that it did nothing contrary to the trial court's recital that the State had indicated it had not
employed it's [sic] own expert and did not intend to call any experts. First, claims the State, at no time did it
actually employ any experts; so, the State claims, this representation to the court was accurate. The State
cannot rely on the fact that it did not employ an expert. If, for example, Tammy's mother had employed the
services of a psychiatrist and that psychiatrist testified for the prosecution, the State could not escape the ruling
in Lickey merely because the psychiatrist was not in the State's employ. The point in Lickey is that it is not fair to
deny a defendant the assistance of a defense psychologist or psychiatrist . . . when the State is provided such
assistance. Thus, it does not matter whether the experts were employed by the State or not; what matters is
whether the State was assisted by behavioral experts while Marvelle was denied such assistance.
The State contends not only that it did not employ any experts but also that the witnesses for the State were
not experts in the field of psychiatry or psychology. Although one might argue that an expert in these fields
must be a licensed professional, in today's world there are many people who testify in the field of behavioral
science who are not licensed psychiatrists or psychologists. Capa Casale is an example of one of these kinds of
experts. The State's brief tells us that Casale was Tammy's treating therapist and that she was a clinical
administrator, marriage and family therapist for Basic Recovery Associates. According to the State's brief,
Casale's practice dealt mostly with marriage and family problems. Casale began seeing Tammy as a patient in
November, 1994.
Although the State represented to the court that it did not intend to call any experts, it is hard to say that
practicing therapist Casale, who (again, according to the State's brief) testified that she had seen her patient
six times from November 1994 to January 1995 and had discussions with Tammy concerning the details of
the sexual assault, about Tammy's own sexuality, and about family issues, conflicts between Tammy and her
mother, was not an expert. Even given therapist Casale's psychological examination, diagnosis and therapy of
Tammy, the State still maintains that it cannot be said that such expert' testimony in and of itself justified an
independent psychological evaluation by a defense expert. Unless we were to hold that all those who give
expert psychological testimony must be degreed and licensed psychologists or psychiatrists, the State's position
cannot be upheld. Jurors are not generally aware of the differences in credentials among the multiplicity of
behavioral experts. When a therapist who has examined and treated patient Tammy comes to the witness
stand and explains to the jury, in psychological terms, how Tammy had been in a denial stage after she was
molested and that this ripened into an anger stage precipitated by her mother's conduct, it must look to jurors
very much like expert psychological testimony, testimony that is to be believed absent any expert opinion to the
contrary.
In sum, then, the trial court was not justified in deciding to deny expert assistance to Marvelle on the basis
that Tammy did not appear to be incompetent or that expert testimony could not enlighten the jury's
understanding of mental or emotional influences on Tammy's veracity. Neither was the trial court justified in
denying expert assistance to Marvelle on the basis of the State's representation that it did not intend to call any
experts. Although none of the witnesses who were called by the State to shore up Tammy's testimony were
licensed experts in the field of psychiatry or psychology, therapist Casale, and to a lesser extent the other
witnesses called by the State, testified in the manner of psychological experts, testified in opinion form, and
testified in such a way that it was unfair not to permit Marvelle to defend himself with comparable experts who
could offer comparable psychological and behavioral expertise. See, supra, footnote 2.
WITNESS VOUCHING
Four witnesses were permitted to vouch for Tammy's testimony. Tammy's school counselor was asked if the
child's demeanor or statements were suspicious, and she answered that the child's statements were consistent.
The counselor also testified that she had no doubt as to the perpetrator's identity, namely, Marvelle. She went
on to opine that children's allegations of this type are almost always valid.
almost always valid. The police officer who first took the child's statement was permitted to recite the statement
to the jury. The officer then testified that the statement was factual, that nothing the child stated was suspicious,
and that he knew that something had transpired. A sheriff's deputy was permitted to relay the entire investigation
scenario that occurred prior to his involvement, to state the facts of his interview with the child, and then to give
his opinion that the child was telling the truth. Further, as previously discussed, the therapist Casale was
permitted to give her expert opinion, testify to the molestation as told to her by the child, and then opine that the
child was coming forward to prevent such a crime from again occurring. The therapist stated that the child
identified the perpetrator as Marvelle and that she had no suspicion that there could be a perpetrator other than
the accused.
[Headnotes 5, 6]
It has long been the general rule that it is improper for one witness to vouch for the testimony of another,
State v. Oliver, 372 S.E.2d 256 (Ga. Ct. App. 1988); Shepard v. State, 538 N.E.2d 242 (Ind. 1989), and this
court has held several times that an expert is not permitted to testify to the truthfulness of a witness. Felix v.
State, 109 Nev. 151, 849 P.2d 220 (1993); Lickey v. State, 108 Nev. 191, 827 P.2d 824 (1992); Townsend v.
State, 103 Nev. 113, 734 P.2d 705 (1987). Here, we had unbridled testimony that the child was telling the truth
and that the accused was the perpetrator, as well as the numerous repetitions of the accusatory statementa
practice we have also held to be improper. Felix, 109 Nev. at 201-03, 849 P.2d at 253-55. It is true that
Marvelle's counsel failed to object to any of this testimony vouching for the child's allegations; however, when
this testimony is coupled with the State's improper expert testimony, the cumulative effect was clearly prejudicial
to Marvelle.
We conclude that the trial court erred in refusing to permit the requested psychological examination, because
there was little or no corroboration and because there was a reasonable basis for believing that Tammy's mental
or emotional state may have affected her veracity. We also conclude that the judgment of conviction must be
reversed because the trial court necessarily relied upon the State's incorrect representation that it would not
engage the testimony of experts. Finally, we conclude that Marvelle was denied a fair trial because he was
denied the opportunity to oppose the State's case by means of his own expert testimony relating to Tammy's
mental and emotional state as it affected her veracity. Based on these conclusions, we reverse the judgment of
conviction.
I would affirm the judgments convicting Marvelle of one count of sexual assault of a child under fourteen
years of age and two counts of lewdness with a child under fourteen years of age.
Determining whether to grant or deny a motion for a psychological evaluation of a child-victim lies within
the sound discretion of the trial court. Keeney v. State, 109 Nev. 220, 226, 850 P.2d 311, 315 (1993). This court
must not disturb the trial court's determination unless the trial court abused its discretion. Id. The record does not
support the conclusion that the district court abused its discretion in denying Marvelle's motion. In fact, the
record reveals that the district court considered each of the four Keeney factors before concluding that a
psychological examination of the child-victim was unwarranted.
The district judge clearly articulated his reasons for denying Marvelle's motion for psychological evaluation
of the complaining witness. The district court found that two of the Keeney factors weighed in favor of granting
Marvelle's motion. First, the district court found that the child-victim did not require protection; second, the
district court concluded that little or no evidence corroborated the child-victim's testimony. The district court
also found, however, that two Keeney factors weighed heavily against granting Marvelle's motion. The State had
not hired a psychologist or psychiatrist to examine the child-victim, and the district court concluded that no
evidence suggested that the child-victim's mental or emotional condition affected her veracity. The district court
analyzed the last Keeney factor as follows:
[T]he fourth part of the test is that, whether the victim's mental or emotional state may
have affected her veracity as a witness, and that is the real crux of this case, the way I
see it, in that the victim is now 15 years old, and that there's nothing in front of me that
indicates that she is incompetent or doesn't understand, or is not able to perceive or
recall or relate anything about what allegedly happened in this case.
In fact, the evidence appears to be the opposite, that she's able to relate it.
But, of course this is a debatable point. I asked Mr. Wright [defense counsel] what
would happen with a psychological evaluation, how would they, a therapist or
psychiatrist, be able to determine if she's telling the truth?
And I don't believe that Mr. Wright could give me an answer on that, because there
is really no answer. That's why we have jury trials. But, I'll allow you to add to that, Mr.
Wright, to make sure that this argument is preserved.
. . . .
So, looking at the four-part test, two of the four prongs were not met, so I
determined that it was inappropriate to appoint an expert in this case.
The record demonstrates that the district court considered each Keeney factor and reached an eminently
sensible conclusion. I disagree with the majority's implication that each factor must be given equal weight. The
Keeney case holds that the district court's decision must be based on the facts and circumstances surrounding
each case. Thus, although the four named factors must be considered, one factor may outweigh all others in a
particular case. Properly weighing the Keeney factors is best left to the trial court. The majority suggests that the
State hired a mental health professional to examine the victim when in fact Capa Casale was merely a therapist
who counseled the victim about her anxiety relating to the trial process. Casale was neither a psychologist or
psychiatrist who examined the victim, nor a witness called by the State to testify about her mental condition.
Casale testified about the behavior patterns of victims generally. Lickey v. State, 108 Nev. 191, 827 P.2d 824
(1992), is inapplicable here because the State did not conduct a psychological evaluation of the victim, and
furthermore, Keeney superceded Lickey.
The majority cites Anderson v. State, 749 P.2d 369 (Alaska Ct. App. 1988), in support of its conclusion that
the defense must have access to a psychological evaluation of the victim if the State proffers testimony regarding
the behavior patterns of victims generally. This reliance on Anderson, however, is misplaced. In Anderson, the
court required a psychological evaluation of the young children who were victims in order to determine whether,
despite their age, they were competent to testify at trial. Here, the district court specifically found there's
nothing in front of me that indicates that she is incompetent or doesn't understand, or is not able to perceive or
recall or relate anything about what allegedly happened in this case. At the time of trial, the child-victim was
fifteen years old and a junior high school student. The district court reasonably determined that the jury could
properly evaluate the victim's state of mind when she testified.
I would hold that because Marvelle failed to object to the admission of State witness testimony at trial, and
because I believe that admission of this testimony was not plainly erroneous, this court should not consider
Marvelle's argument regarding witness vouching. Despite this position, I will, however, respond to the majority
discussion of the State's witness testimony.
The majority incorrectly maintains that the State based its case on the testimony of witnesses who vouch for
the reliability and truthfulness of the victim. The record contradicts the majority position and demonstrates that
the State based its case on the testimony of the victim and the corroborating testimony of the
victim's mother.
timony of the victim and the corroborating testimony of the victim's mother.
The majority also mischaracterizes the testimony of Capa Casale, who counseled the victim briefly before
trial. Casale testified about the stages of the grieving process. The majority deems her testimony psychological
jargon, despite wide acceptance of this theory in the field of mental health. This court is in no position to allow
its personal opinion of the theory to affect its ruling. Testimony regarding typical victim behavior under
circumstances similar to this case certainly could have helped the jury to understand why the victim did not
report the incidents earlier. Casale testified as an expert on these matters, based on the expertese she gained
earning her undergraduate degree in social work, master's degree in marriage and family therapy, and working as
a social worker in crisis intervention at St. Mary's Hospital and counseling runaway adolescents at Community
and Runaway Youth Services. Casale's testimony about stages of grief was unrelated to her work with the victim
about the stress of the court process.
The decision to admit evidence lies within the sound discretion of the trial court. The trial court's
determination will not be overturned absent manifest error. Petrocelli v. State, 101 Nev. 46, 52, 692 P.2d 503,
508 (1985). Furthermore, NRS 50.345 specifically authorizes admission of the type of testimony offered by
Casale as an appropriate response to the arguments offered by Marvelle. NRS 50.345 provides [i]n any
prosecution for sexual assault, expert testimony is not inadmissible to show that the victim's behavior or mental
or physical condition is consistent with the behavior or condition of a victim of sexual assault. The majority
suggests that because the district court denied Marvelle's motion for a psychological evaluation of the victim,
that admission of Casale's relatively innocuous testimony about the grieving process constitutes plain error. This
suggestion is unsupported by legal authority and flies in the face of the statute and the applicable standard of
review granting deference to the trial court.
The majority improperly claims that the testimony of the victim's school counselor, the initial investigating
police officer and the police detective addressed the victim's mental health and demeanor' and maintains that
Marvelle had no way to defend himself against this testimony. No witnesses testified as to the victim's mental
health except peripherally in response to defense counsel's questions. Defense counsel cross-examined each
witness extensively in an attempt to point out inconsistencies in the victim's various statements and to question
her mental health.
Based on defense counsel's opening statement, it is clear that the defense strategy was to encourage the
various witnesses who heard the victim's testimony to repeat what the victim stated at various
times in order to point out the inconsistencies.
heard the victim's testimony to repeat what the victim stated at various times in order to point out the
inconsistencies. The defense counsel said in the opening statement, You're going to hear some real
discrepancies in [the victim's] testimony on particular facts and what happened on this occasion, and what she
told someone later, and what she told someone a third time. Defense counsel followed through in his
cross-examination of the witnesses and, in attempting to attack the victim's credibility and mental state, he
elicited much of the testimony favorable to the victim, as well as her problematic behavior.
None of the State's witnesses vouched for the victim's credibility so as to create plain error. The victim's
school counselor testified only that the victim's statements were consistent. Only when defense counsel pressed
the counselor on teenage lying, did she answer, I think if I had to pick between the two [the victim and another
teenager in the same school] as a counselor, I'd pick [the victim]. Since defense counsel elicited this testimony,
the defendant cannot now complain that its admission was erroneous.
The initial investigating officer did not vouch for the victim's credibility. He indicated that he was merely
preparing a courtesy report for another jurisdiction and that he didn't elicit much detail. He did testify that he
knew something had transpired, but he said it in the context of having enough information that it should be
reported to the police department that had jurisdiction. He was not expressing a final judgment on her credibility.
Although the detective from Douglas County testified that he believed the victim's story, his statement was in
the context of describing the interrogation technique he uses in his capacity as a police officer to test whether a
witness is in fact telling the truth. Even if admission of the statement was error, it constituted only harmless
error. The jury had to know already that the police detective believed the victim since implicit in the police
detective's decision to submit the case for prosecution is his belief in the truth of the testimony of the victim. The
majority states that admission of the police detective's statement opinion disadvantaged Marvelle because he
had no opportunity to present contrary evidence of comparable weight. Marvelle certainly took advantage of
the opportunity to conduct extensive cross-examination, and he had the opportunity to bring in any witnesses
providing contradictory testimony. He also testified himself. The jury made the ultimate determination of who
was telling the truth.
The majority questions the victim's credibility, citing the fact that the victim has had problems in her
relationships and behavior. Unfortunately, victims of sexual abuse usually have problems in these areas by the
very reason of the fact that they have been sexually abused.
sexually abused. That is why it is particularly important that the jurors see the witnesses and listen to all of the
evidence, both good and bad, so that they may judge the truth. This court is in no position to make that
determination or even to suggest that the jury's determination is wrong.
____________
114 Nev. 936, 936 (1998) Foster v. Washoe County
YOLANDA FOSTER aka YOLANDA DUFF, Individually, and as Guardian ad Litem on
Behalf of AARON DUFF and CAMERON DUFF, Her Minor Children, Appellant, v.
WASHOE COUNTY; WASHOE COUNTY SOCIAL SERVICES; COURT
APPOINTED SPECIAL ADVOCATE (CASA); SHIRLEY ALCANTAR,
Individually; NOELLE COLLEN, Individually; DOROTHY MELINE, Individually;
and JOHNYE G. COLLING, Individually, Respondents.
No. 28607
September 24, 1998 964 P.2d 788
Appeal from an order of the district court granting respondents' motion to dismiss based on statutory
immunity. Second Judicial District Court, Washoe County; Peter I. Breen, Judge.
Former wife brought action against county, employees of county social services agency, Court Appointed
Special Advocate (CASA) program and special advocate appointed for children, alleging negligence by all
defendants in connection with investigation of former husband's complaints that former wife and her current
husband had sexually abused children. All defendants filed joint motion to dismiss for failure to state a claim.
The district court granted motion, and former wife appealed. The supreme court, Shearing, J., held that: (1)
county and social services employees statutorily immune from former wife's claims; (2) social services
employees did not breach ministerial duty to report to police allegations by psychologist who interviewed
children that children claimed to have been sexually abused by their stepmother's nephew; and (3) CASA
program and advocate were entitled to absolute quasi-judicial immunity from suit.
Affirmed.
Paul E. Quade, Reno, for Appellant.
Richard Gammick, District Attorney and Brian Brown, Deputy District Attorney, Washoe County, for
Respondents.
The standard of review for a dismissal for failure to state a claim is rigorous, as the supreme court must construe the pleading
liberally and draw every fair intendment in favor of the non-moving party. NRCP 12(b)(5).
In reviewing the grant of a motion to dismiss for failure to state a claim, the supreme court must accept all factual allegations of
the complaint as true. NRCP 12(b)(5).
3. Infants.
Acts performed by county social services agency employees in investigating former husband's claims that former wife and her
current husband were sexually abusing children of former husband and wife were inherently discretionary, and thus county and
employees statutorily immune from former wife's claims that investigation was conducted in negligent fashion. NRS 41.032(2).
4. Infants.
County social services agency employees did not breach ministerial duty to report to police allegations by psychologist who
interviewed children that children claimed to have been sexually abused by their stepmother's nephew, where, shortly after psychologist
reported suspected abuse to social services employees, police detective began investigating allegations of abuse.
5. Infants.
Court Appointed Special Advocate (CASA) program and advocate appointed for children in custody dispute were entitled to
absolute quasi-judicial immunity from suit brought by former wife, alleging that CASA and advocate had been negligent in their
conduct of investigation of former husband's complaints that former wife and her current husband had sexually abused children.
OPINION
Appellant Yolanda Foster (Yolanda) filed a complaint against respondents Washoe County (the County), Washoe County Social
Services (Social Services), several Social Services employees, Court Appointed Special Advocate (CASA), and CASA Johnye G. Colling
(Colling). Yolanda alleged that the respondents had been negligent in investigating ex-husband Tyrone Duff's report that Yolanda and her
new husband, William Foster (Foster), had abused Yolanda and Duff's minor children. The district court dismissed Yolanda's complaint for
failure to state a claim, concluding that respondents were statutorily immune from suit, and that CASA and Colling were judicially immune
as well.
FACTS
Yolanda and Duff married in 1975 and had two childrenCameron in 1982, and Aaron in 1985. Their decree of divorce on
December S, 19SS, granted them joint legal custody of both children.
on December 8, 1988, granted them joint legal custody of both children. The decree granted Yolanda primary
physical custody of Cameron and Aaron and granted Duff reasonable visitation rights. On December 23, 1988,
Yolanda began a romantic relationship with Foster, a convicted felon, whom she subsequently married. Duff
filed a motion to change physical custody of the children to himself based upon Yolanda's association with
Foster. On January 25, 1989, the district court entered a temporary protection order (TPO) precluding Foster
from being in the presence of Cameron and Aaron.
Pending a full hearing, the district court modified the divorce decree, vesting Yolanda and Duff with
alternating weeks of physical custody. During a September 1989 hearing, the district court heard evidence that
Duff had been physically abusive to Yolanda and the boys, whereas Foster had never abused the boys. The court
ordered the return of primary physical custody to Yolanda, and dissolved the TPO against Foster.
In May 1990, Duff and his future-wife, Linda, alleged that Cameron and Aaron were engaging in aberrant
sexual behavior. In August 1990, Duff hired Linda Peterson, Ph.D. (Dr. Peterson) to interview Cameron and
Aaron regarding sexual abuse. During that interview, the boys stated that no one had abused them. However, in
September 1990, the boys told Dr. Peterson that Linda's nephew, identified as a twelve-year-old named Chris,
had sexually abused them while they were visiting Linda's relatives in Doyle, California. Cameron and Aaron
had spent time in Doyle prior and subsequent to the time Duff noted their allegedly aberrant sexual behavior.
On October 10, 1990, Dr. Peterson reported to Noelle Collen, an employee of Social Services, that Aaron
and Cameron had told her that a boy named Chris had forced them to perform sexual acts while they were
visiting Linda's parents. Dr. Peterson also reported that the boys had admitted lying to Duff with regard to
Foster. Dorothy Meline, a Social Services employee, signed and ratified Dr. Peterson's report, and another
Social Services employee, Shirley Alcantar, also signed the report and was assigned to investigate the claims
contained therein. No police report based upon Dr. Peterson's October 10, 1990 report was ever filed.
On October 16, 1990, Duff filed a report with Social Services alleging that Cameron and Aaron had been
abused by Yolanda and Foster. Duff subsequently filed a police report accusing Foster of sexually abusing the
boys, and applied for a TPO against Yolanda and Foster. Although not entirely clear from the complaint, it
appears that a TPO against Yolanda and Foster was granted on November 15, 1990, on an ex-parte basis, and
the boys were placed in Duff's custody.
On November 15, 1990, Detective James Overton of the Reno Police Department began investigating
Yolanda and Foster on Duff's allegations of abuse. On February 8, 1991, Duff was granted temporary physical
custody of Cameron and Aaron; the order granted Yolanda visitation on the condition that Foster not be in the
children's presence. The February 8, 1991 order vesting temporary physical custody with Duff remained
substantially in place until July 9, 1993.
However, on May 13, 1991, the Washoe County District Attorney's Office declined to proceed on Duff's
criminal complaint against Yolanda and Foster; the district attorney allegedly stated:
Cameron Duff . . . consistently stated that nothing has happened. Aaron Duff seems to give a different
story each time he is asked about any sexual misconduct. Considering the status of the child custody and
the battle that has occurred there, as well as the negative statements concerning the character of the father
. . ., I do not see how we can place any reliability on his story in trying to prove a case in this matter.
The State's case against Yolanda and Foster remains closed.
Notwithstanding the State's failure to prosecute, Yolanda alleges that unidentified Social Services employees
continued to contact Detective Overton with allegations of Yolanda's and Foster's misconduct. On June 3, 1991,
Detective Overton executed a search warrant at Yolanda's and Foster's residence, but found nothing
incriminating. In July 1991, the district court assigned a CASA to the case; CASA Colling reported to the court
that after speaking with the boys, Duff, Linda, Detective Overton, Social Services employees, Dr. Peterson, and
Yolanda, she believed that Yolanda's visitation with Cameron and Aaron should be restricted.
Prior to Colling's recommendation, Yolanda's attorney had sent a list containing the names of nineteen
people whom he suggested that Colling interview regarding the sexual abuse allegations against Yolanda and
Foster. Yolanda asserts that she met with Colling on only one occasion for a period of less than two minutes, and
that Colling never interviewed Foster or their friends, family, and neighbors. From August 26, 1991, through
March 24, 1993, various motions were filed and hearings were held concerning the custody of Cameron and
Aaron who had remained in Duff's custody. Yolanda alleges that Social Services never disclosed to the court
allegations of Cameron and Aaron against Linda's nephew, Chris, as described in Dr. Peterson's October 10,
1990 report.
Between July 6 and 9, 1993, the district court conducted hearings on a motion by Duff to modify custody, so
as to grant Duff full custody. On July 7, 1993, the lower court entertained a motion made by Cameron's and
Aaron's then-attorney requesting that primary physical custody be restored to Yolanda immediately, based upon
the testimony of several doctors.
According to Yolanda's complaint, the district court immediately returned physical custody of both boys to
Yolanda based upon expert testimony of a court-appointed psychologist that the emotional abuse inflicted upon
Aaron . . . and Cameron . . . by . . . Duff strongly outweighed the slight-to-nonexistent possibility that either or
both Mr. Foster and Yolanda . . . engaged in inappropriate sexual conduct. On July 26, 1993, the district court
found that (among other things) Duff had serious psychological and/or emotional disorders; that Duff
deliberately impaired Yolanda's relationship with her children; and that the sexual abuse allegations were
unfounded. The court awarded full legal and physical custody of Cameron and Aaron to Yolanda.
During one of the 1993 custody hearings, another Social Services employee, Michelle Lucier, had testified
that:
[T]he standard and customary procedure of SOCIAL SERVICES personnel is to direct the reporting
party to actually file a police report with a law enforcement agency regarding the sexual abuse; and, to
follow-up with the reporting party to insure that a police report had been filed with the local law
enforcement agency consistent with the intake report.
On July 7, 1995, Yolanda filed the complaint at issue, individually, and as guardian ad litem to Cameron and
Aaron. Specifically, the complaint asserts that the County, Social Services, Collen, Meline, and Alcantar were
negligent in (1) failing to follow established procedure because they failed to check that a report based on Dr.
Peterson's report had been filed with local law enforcement; and (2) failing to adequately investigate the Duff
case. The complaint further asserts that CASA Colling
1
failed to adequately investigate the wrongful
allegations of sexual misconduct against Yolanda and Foster, resulting in the same injuries stated above.
On December 4, 1995, all of the respondents filed a joint motion to dismiss the complaint asserting inter alia
that the County, Social Services, and the Social Services employees were statutorily immune from suit, that
CASA and Colling were judicially immune from suit, and that neither Social Services nor CASA
were entities subject to suit.
__________

1
We note that although the caption of the complaint names both the entity CASA and the advocate Colling,
individually, we find no allegations against CASA the entity in the complaint. We can only assume that Yolanda
is suing CASA on a theory of respondeat superior and/or that it negligently trained Colling; however, neither
theory is articulated in the complaint with respect to CASA's (the entity) liability.
cially immune from suit, and that neither Social Services nor CASA were entities subject to suit. On March 12,
1996, the district court issued an order granting the respondents' motion stating: Defendants are immune from
suit pursuant to NRS 41.032(2). As court appointed guardians, CASA has the additional protection of judicial
immunity. . . .
2
Yolanda appeals from this order, individually, and as Cameron's and Aaron's guardian ad
litem.
DISCUSSION
[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].' Breliant v. Preferred
Equities Corp., 109 Nev. 842, 845, 858 P.2d 1258, 1260 (1993) (alteration in original) (quoting Squires v.
Sierra Nev. Educational Found., 107 Nev. 902, 905, 823 P.2d 256, 257 (1991)). Moreover, [a]ll factual
allegations of the complaint must be accepted as true. Id.
Under NRS 41.032(2), the County and the named Social Services employee, are only immune from liability
for their discretionary acts and omissions, not ministerial acts.
[Headnote 3]
[N]o action may be brought under NRS 41.031 [(the State's limited waiver of
immunity)] or against an immune contractor or an officer or employee of the state or
any of its agencies or political subdivisions which is:
. . . .
2. Based upon the exercise or performance or the failure to exercise or perform a
discretionary function or duty on the part of the state or any of its agencies or political
subdivisions or of any officer, employee or immune contractor of any of these, whether
or not the discretion involved is abused.
(Emphasis added.)
The key question, then, is which kind of acts the Social Services employees were performing in the course of
their investigations. It appears that the conduct of an investigation itself involves numerous decisions on possible
approaches. Even though there may be internal departmental operating procedures, the nature of an
investigation is such that it is inherently discretionary.
__________

2
The respondents' motion to dismiss also alleged that Yolanda's individual claims were barred by the statute
of limitations. However, that claim did not form the basis of the district court's decision and this issue has not
been briefed on appeal. Therefore, it will not be considered by this court.
nature of an investigation is such that it is inherently discretionary. In Pittman v. Lower Court Counseling, 110
Nev. 359, 364, 871 P.2d 953, 956 (1994), this court stated:
We have defined a discretionary act as that which require[s] the exercise of personal deliberation,
decision and judgment. A ministerial act is an act performed by an individual in a prescribed legal
manner in accordance with law, without regard to, or the exercise of, the judgment of the individual.
(Citations omitted.) It is apparent that an investigation involves personal deliberation,
decision and judgment and cannot be construed to be ministerial.
The suggestion that standard, customary, and normal operating procedure could be equivalent to a
ministerial function in an investigation is not tenable. It is a well-established principle that:
A ministerial act is defined as absolute, certain, and imperative, involving merely the execution of a
specific duty arising from fixed designated facts or the execution of a set task imposed by a law
prescribing and defining the time, mode, and occasion of its performance with such certainty that nothing
remains for judgment or discretion, being a simple definite duty arising under and because of stated
conditions and imposed by law. A ministerial act envisions direct adherence to a governing rule or
standard with compulsory result.
57 Am. Jur. 2d Municipal, County, School and State Tort Liability 120 (1988) (emphasis
added).
Furthermore, the public policy considerations militate in favor of immunity for child abuse investigations. In
a case involving allegations of negligence in the investigation of child abuse and in the removal of a child from
parental custody, the California Court of Appeals stated:
Should we hold a state or social worker acting within the scope of his or her
employment is not absolutely immune from suits arising from the voluntary
intervention to protect a child, we would indirectly eliminate the protection afforded to
children. The state's interest in preventing child abuse will be diminished due to fear of
retaliatory suits. The state and its social workers would not take the child into custody
until the inflicted injuries could be recorded' to meet the objectively reasonable' test of
qualified immunity or until they obtain a court order which ensures absolute immunity.
Such a result negates the purpose of child protective services by postponing prevention
of further abuse to avoid liability.
We agree with the analysis of Jenkins. It is necessary to protect social workers in their
vital work from the harassment of civil suits and to prevent any dilution of the
protection afforded minors by the dependency provisions of the Welfare and
Institutions Code. Therefore, social workers must be absolutely immune from suits
alleging the improper investigation of child abuse, removal of a minor from the parental
home based upon suspicion of abuse and the instigation of dependency proceedings.
Alicia T. v. County of Los Angeles, 271 Cal. Rptr. 513, 518 (Ct. App. 1990) (citations
omitted) (quoting Jenkins v. County of Orange, 260 Cal. Rptr. 645, 650 (Ct. App. 1989)).
Thus, Yolanda's general claim that all of the respondents failed to adequately investigate the
Duff case must fail. A claim of this nature clearly implicates a discretionary function and
cannot be maintained against the County or Social Services employees.
[Headnote 4]
Yolanda's more specific claim that those involved failed to follow proper procedure in ensuring that law
enforcement followed up on allegations against Chris must also fail. Foster's own complaint refutes her claim
regarding failure to report or check that a report had been filed. A complaint of sexual abuse was made in
September, 1990, to Dr. Peterson. She reported it to Social Services in October and, shortly after, the Reno
Police Department was investigating the allegations of abuse against the two boys. Since failure to report abuse
to the police department is the sole basis for the allegation that a ministerial act was breached, and it is clear that
the report was actually made to local law enforcement, the claim fails.
[Headnote 5]
The district court's order suggests a finding of statutory immunity pursuant to NRS 41.032 for CASA and
Colling. We conclude that these defendants are more properly shielded by the doctrine of quasi-judicial
immunity. The Attorney General has specifically stated that CASA and its volunteers may be considered an arm
of the court. 91-7 Op. Att'y Gen. 7 (1991). We conclude that CASA and its volunteers are entitled to the
absolute immunity which extends to all persons who are an integral part of the judicial process. See Briscoe v.
LaHue, 460 U.S. 325, 335 (1983). Absolute immunity is . . . necessary to assure that judges, advocates, and
witnesses can perform their respective functions without harassment or intimidation. Butz v. Economou, 438
U.S. 478, 512 (1978).
Recently, we approved the application of the doctrine of quasi-judicial immunity to the
court-appointed psychologist who recommended during the 1993 custody hearings that
custody of Cameron and Aaron be returned to Yolanda.
judicial immunity to the court-appointed psychologist who recommended during the 1993 custody hearings that
custody of Cameron and Aaron be returned to Yolanda. Duff v. Lewis, 114 Nev. 564, 958 P.2d 82 (1998). We
held that quasi-judicial immunity existed, notwithstanding the fact that the psychologist's performance was found
to be deficient by a professional licensing board. Id. at 571, 958 P.2d at 87. In affirming the dismissal of Duff's
appeal, we noted that [t]he court-appointed psychologist performs a valuable and integral function in assisting
courts in evaluating cases such as the one now before us. Id. at 570, 958 P.2d at 86.
Likewise, CASA and its volunteers perform a similar function. In the instant case, the district court appointed
CASA to aid in its judicial function of determining custody of Cameron and Aaron through investigation of the
case. Therefore, CASA and Colling acted as an arm of the court and performed a function integral to the
judicial process. See Lythgoe v. Guinn, 884 P.2d 1085, 1086 (Alaska 1994) (holding that pursuant to the
doctrine of quasi-judicial immunity, a court appointed psychologist could not be held liable for negligent
investigation, misrepresentation of statements made by third parties, and failure to perform to the state's
minimum professional standards for psychologists).
CASA and its volunteers perform a valuable and integral function by assisting courts in evaluating cases
involving children. Exposure to liability could deter their acceptance of court appointments or color their
recommendations. Lavit v. Superior Court, 839 P.2d 1141, 1144 (Ariz. Ct. App. 1992). Indeed, such exposure
could produce a chilling effect upon future acceptances of court appointments and the willingness of private
citizens to volunteer their time to serve as special advocates. Seibel v. Kemble, 631 P.2d 173, 180 (Haw. 1981).
Accordingly, we conclude that CASA and Colling are entitled to absolute quasi-judicial immunity, and the
district court properly dismissed Yolanda's complaint against them.
For the foregoing reasons, we affirm the judgment of the district court.
Springer, C. J., and Rose, Young, and Maupin, JJ., concur.
____________
114 Nev. 945, 945 (1998) Musser v. Bank of America
JOSEPH L. MUSSER, MARGARET H. LOVELESS, and RICHARD G. WORTHEN,
Appellants, v. BANK OF AMERICA, as Trustee of the BRIAN KELCH
EDUCATION TRUST; FIRST INTERSTATE BANK OF NEVADA, as Trustee of
the LAURA LOUISE GUBLER TRUST; ROBERT KELCH and MARILYN KELCH
GUBLER, Respondents.
No. 29611
September 24, 1998 964 P.2d 51
Appeal from an order of the district court granting motion for summary judgment for owners/lessors of
property. Eighth Judicial District Court, Clark County; Donald M. Mosley, Judge.
Lessees sued common lessor, seeking their respective portions of condemnation awards for total takings of
the separate improved parcels. The district court granted summary judgment for lessor. Lessees appealed. The
supreme court held that lease termination clauses did not automatically extinguish lessees' right to portion of
condemnation awards, as additional lease clauses set forth allocation of awards for total condemnation, including
potential apportionments to lessees.
Springer, C.J., dissented.
Gourley, Mills & Bodily, Las Vegas, for Appellant Worthen.
Deaner Deaner Scann Curtas & Malan, Las Vegas, for Appellants Musser and Loveless.
Marquis & Aurbach, and Terry A. Coffing, Las Vegas, for Respondents.
Question of the interpretation of a contract when the facts are not in dispute is a question of law, and the supreme court thus
reviews the district court's findings de novo as a question of law, making its own independent determinations without deferring to
those of the district court.
2. Eminent Domain.
Termination clause in a lease, without accompanying language regarding how any condemnation award is to be allocated, is
sufficient to bar a lessee's claim to part of the award.
3. Eminent Domain.
If there exists a prior agreement between a landlord and tenant as to allocation of condemnation proceeds, that agreement governs
the disposition of those proceeds.
4. Eminent Domain.
Termination clause in lease, stating that lease would terminate as of date of total condemnation, did not automatically extinguish
lessee's right to a portion of the condemnation award, as additional lease clauses set forth allocation of award
for total condemnation, including potential apportionment to lessee.
to a portion of the condemnation award, as additional lease clauses set forth allocation of award for total condemnation, including
potential apportionment to lessee.
5. Eminent Domain.
Lease clauses regarding allocation of condemnation award for total or partial taking, stating that lessor would receive portion of
award attributable to the land before lessee would receive any portion attributable to diminution of leasehold interest or any
apportionment for improvements, did not preclude lessee from receiving portion of award for total taking, though lessor contended that
entire award was attributable to land because appraisers had indicated improvements were essentially valueless; lessor's interpretation
would render meaningless the clause requiring distribution to lessee for diminution of leasehold interest.
OPINION
Per Curiam:
In May of 1960, the respondents (the Owners) entered into a lease with the Travel Lodge Corporation for a parcel of land, now
commonly referred to as the Las Vegas Mobile Home Park. The duration of the lease was forty-nine years. In 1972, the Travel Lodge
Corporation assigned its interest in the lease to Richard G. Worthen, who has operated the Las Vegas Mobile Home Park since that time.
In 1962, the Owners entered into an identical lease with the Trailer Rancho Corporation for another parcel of land known as the
Treasure Lodge Mobile Home Park. This second lease was also to last for forty-nine years. This lease was subsequently transferred to
Joseph Musser and Margaret Loveless, who have operated the mobile home park since the transfer of the lease.
In 1996, McCarran International Airport condemned the entirety of both parcels in order to extend two airport runways.
1
Clark
County brought a condemnation action against the Owners. All parties stipulated to immediate occupancy by the
county on the condition that the county place a deposit with the Clerk of the Court pursuant to NRS 37.100(4).
A controversy and lawsuit immediately arose between the Owners and the Worthen, Loveless and Musser
parties (collectively, the Lessees) regarding apportionment of the condemnation award. Each party filed
motions and counter-motions for summary judgment. The Lessees argued that under the terms of the leases, they
were entitled to a portion of the condemnation award. The Owners maintained that the leases provided that they
were entitled to the entire condemnation award.
The district court concluded that the condemnation clause included in the leases provided that the
entire condemnation award should be paid to the Owners and, accordingly, granted the
Owners' motion for summary judgment.
__________

1
The runway extension will cause these properties to be exposed to noise levels exceeding FAA regulations.
included in the leases provided that the entire condemnation award should be paid to the Owners and,
accordingly, granted the Owners' motion for summary judgment. The Lessees appeal that decision.
[Headnote 1]
The question of the interpretation of a contract when the facts are not in dispute is a question of law. Grand
Hotel Gift Shop v. Granite St. Ins., 108 Nev. 811, 815, 839 P.2d 599, 602 (1992). We, therefore, review the
district court's findings de novo as a question of law. Id. This court is obligated to make its own independent
determinations and should not defer to those of the district court. Clark Co. Public Employees v. Pearson, 106
Nev. 587, 590, 798 P.2d 136, 137 (1990).
In Davis v. Nevada National Bank, 103 Nev. 220, 737 P.2d 503 (1987) this court stated:
[E]stablished doctrines of contractual interpretation [dictate that]: (1) the court shall effectuate the intent
of the parties, which may be determined in light of the surrounding circumstances if not clear from the
contract itself; and (2) ambiguities are to be construed against the party . . . who drafted the agreement or
selected the language used.
Id. at 223, 787 P.2d at 505 (citations omitted).
The dispute over whether the Lessees are entitled to a portion of the condemnation award turns primarily on
sections [1] and [2] of the parties' leases. The leases between the parties provided in pertinent part:
[1] If the whole of the premises should be taken under the power of eminent domain,
the lease term shall cease as of the date of taking. If such portion of the premises be
taken that the balance is thereby in the bona fide judgment of the Lessee rendered
unsuitable for the Lessee's purposes, Lessee may, at its option, upon thirty days notice
to Lessor, terminate this lease, if the Lessee's notice is given within 150 days of the date
of taking.
[2] Damages awarded either for a taking of the whole of the premises or part of the
premises, Lessee electing to exercise its option to terminate, shall be paid as follows:
(i) first any mortgage or other valid encumbrance, which is a lien against the premises
shall be paid,
(ii) then, Lessor shall receive any part of the award then remaining attributable to the
land, (reduced by any mortgage or other valid encumbrance which is a lien on the
premises not required to be paid by Lessee under this lease),
(iii) then, Lessee shall receive any portion of the award then remaining attributable
to a diminution in the value of its leasehold interest and
then remaining attributable to a diminution in the value of its leasehold interest and
(iv) then Lessee and Lessor shall apportion between them any part of the award then
remaining attributable to the improvements. Lessees receiving the portion of such
award that the unexpired term of the lease bears to the entire term of the lease and
Lessor receiving the balance.
[3] If less than all of the premises are taken under the power of eminent domain and
Lessee does not elect to exercise its option to terminate, the fixed minimum rent shall
be equitably and proportionately abated from the date of taking. Any damages awarded
shall be paid in the manners set forth in the preceding paragraph, except that item (1)
shall be amended to read as follows: any mortgage or other valid encumbrance which is
a lien on the premises, shall be paid in proportion to the impairment of the respective
security interests as determined by Lessor, Lessee and such mortgage or lien claimant,
or by the court if agreement cannot be reached.
The first issue we address is whether the first sentence under paragraph [1] operates as a termination clause
precluding the Lessees from receiving any portion of the condemnation proceeds.
The Owners cite several cases which hold that the presence of an automatic termination provision in a lease
constitutes a waiver of the Lessee's right to condemnation proceeds. See, e.g., United States v. Improved
Premises Known as No. 46070, Mc.Lean Ave, 54 F. Supp 469 (N.Y. 1944); United States v. Advertising
Checking Bureau, Inc., 204 F.2d 770 (7th Cir. 1953); United States v. 96,900 Sq. Ft., 65 F. Supp 833 (N.Y.
1946); Fiberglass Fabricators v. Kyleberg, 799 P.2d 371 (Co. 1990); City of Honolulu v. Market Place, Ltd.,
517 P.2d 7 (Haw. 1973); Waesch v. Redevelopment Agency of New London, 229 A.2d 352 (Conn. 1967); In Re
Site, 95 N.W. 112 (Minn. 1959). These cases do, in fact, stand for the proposition that an automatic termination
clause forecloses a lessee's right to a portion of a just compensation award. They are distinguishable from the
instant case, however, in that while the present leases contain a clause to the effect that the leases will terminate
upon total condemnation, they also include language dictating how any compensation award should be allocated
between the Owners and Lessees in such an event. In the above cited cases, the relevant leases contained
termination clauses but either expressly denied the lessee a right to apportionment, or were silent regarding how
compensation awards should be divided among lessor and lessee in the event of condemnation.
[Headnote 2]
A termination clause in a lease without accompanying language regarding how any compensation award is to
be allocated, is sufficient to bar a lessee's claim to part of the award. Pennsylvania Ave. Development Corp. v.
One Parcel of Land, 670 F.2d 289 (D.C. Cir. 1981).
2

[Headnote 3]
If there exists a prior agreement between a landlord and tenant as to allocation of condemnation proceeds,
that agreement governs the disposition of those proceeds. Pennsylvania, 670 F.2d at 292; City of Honolulu, 517
P.2d at 15. The leases in this case provide that in the event of a total condemnation, or if the Lessees, in good
faith, elect to terminate the leases in the event of a partial condemnation, the Lessees are entitled to a portion of
the award. Paragraph [2] provides that in either of these events, the condemnation award should be distributed as
follows: first, towards paying any outstanding liens or encumbrances; second, to the Lessor for any value
attributable to the land, and; third, to the Lessees for the value attributable to a diminution in the value of its
leasehold interest; and fourth, apportioned between the Lessor and Lessee for any remaining amount
attributable to improvements.
[Headnote 4]
If the termination clause operates to automatically extinguish the Lessees' right to any portion of the
condemnation award in the event of total condemnation, as the Owners claim, then the words a taking of the
whole part of the premises of paragraph [2] are meaningless. A basic rule of contract interpretation is that
[e]very word must be given effect if at all possible. Royal Indem. Co. v. Special Serv., 82 Nev. 148, 150, 413
P.2d 500, 502 (1966). A court should not interpret a contract so as to make meaningless its provisions. Phillips
v. Mercer, 94 Nev. 279, 282, 579 P.2d 174, 176 (1978). Therefore, the clause setting forth the distribution of
damages in the event of total condemnation must be given effect. The termination clause still has meaning in that
it protects the Owners from liability to the Lessees after the condemnation. See Pennsylvania Ave. Development,
670 F.2d at 289; City of Honolulu, 517 P.2d at 15.
__________

2
Some courts, however, have looked unfavorably on clauses causing the forfeiture of the lessee's entire
interest on condemnation and, where possible, have construed such provisions to avoid this harsh effect.
Pennsylvania Ave. Development Corp. v. One Parcel of Land, 670 F.2d 289, 292 (D.C. Cir. 1981); Belmont
Clothes, Inc. v. Pleet, 184 A.2d 731 (1963); 27 Am. Jur. 2d Eminent Domain 250 (1996); 2 Julius Sackman,
Nichols On Eminent Domain 5.23[2] (1997).
[Headnote 5]
The Owners also allege that because the appraisers indicate that the improvements were essentially valueless
for these purposes, the allocation clauses of the leases (paragraph [2] sections i, ii, iii and iv) apportion the entire
condemnation award to the Owners on the basis that the entire condemnation award is attributable to the land as
provided in section [2](ii) of the lease; therefore, there is nothing left for allocation under sections [2](iii) and
(iv). We disagree.
If we were to accept the Owners' interpretation that the allocation clauses apportion the entire condemnation
award to them, section (ii) would always dispose of the entire award attributable to the land and section (iv)
would always dispose of the portions of the award attributable to improvements. As a result, these two
provisions would dispose of the entire condemnation award. No portion of the award would ever be distributed
in accordance with section (iii). Section [2](iii) would be meaningless, regardless of whether the condemnation
was total or partial, or whether the lease was terminated or continued. This interpretation contradicts the
principle discussed above, that contracts should be construed so as to avoid rendering portions of them
superfluous. Taylor v. State Farm Mut. Auto. Ins. Co., 854 P.2d 1134, 1144 n. 9 (Ariz. 1993); Phillips v.
Mercer, 94 Nev. 279, 282, 579 P.2d 174, 176 (1978). Had the original parties intended section (iii) to have no
effect, they would not have included such a provision in the leases. The failure of the Lessees to pay rent is
irrelevant on the issue of whether the allocation clause in the Lease is effective.
The Owners also contend that the Lessees have remedies under NRS 342 which provide a comprehensive
statutory scheme for compensating businesses displaced by a condemnation. Cann v. Williams Land & Livestock
Co., 56 Nev. 242, 252, 48 P.2d 887, 890 (1935). Whether the Lessees are entitled to some remedy under NRS
342 is irrelevant since Chapter 342 is not an exclusive remedy. Here the parties have provided for allocation of
condemnation proceeds.
In conclusion, we hold that the Lessees are entitled to apportionment of the condemnation award under the
terms of the allocation clause of the lease between the Lessees and Owners.
Accordingly, we reverse the order granting summary judgment and remand for proceedings consistent with
this opinion.
The lease was terminated at the time of the taking, and any rights or obligations under the lease, on the part
of either lessor or lessee, cease[d]. Section [1] is categorical: If the whole of the premises should be taken . . .
the lease term shall cease as of the date of taking."
the date of taking. When the whole of the premises was taken, it follows then, syllogistically, that the lease
term ceased. There simply was no more lease after the taking. After the taking and cessation of the lease, all
claims to condemnation damages vested in the owner of the premises alone.
That the parties should provide in their lease agreement for cessation and termination of the lease upon a
stated event (taking of the whole) is to me irrefutable evidence of the parties' intention. The clearly-expressed
intention of the parties was that upon the taking of the whole the lease was over, that, after that, the lessee had no
property interest in the premises and that, accordingly, the lessee had no claim to a share in condemnation
damages.
The question in this appeal is why parties who first agree that the lease should be ended upon any taking of
the whole of the premises would also include a later provision for apportionment of condemnation damages for
either a taking of the whole of the premises or part of the premises. The majority believes that some effect
must be given to a provision that is manifestly inconsistent with the expressed intention of the parties, as earlier
stated in the lease document. I do not. I say this because the lease cease[d] with the taking of the whole; and,
consequently, the damages apportionment provisions must be seen as being inadvertent and unintended because
they are totally unreconcilable with the parties' previous, expressed intention to terminate the lease at the time of
any eminent domain taking of the whole. The district court saw it this way; and I would affirm the district
court's judgment.
____________
114 Nev. 951, 951 (1998) Ducksworth v. State
RONALD DUCKSWORTH, JR., and CARL LEE MARTIN, Appellants, v. THE STATE OF
NEVADA, Respondent.
No. 25415
September 24, 1998 966 P.2d 165
Petition for rehearing brought by the state in Ducksworth v. State, 113 Nev. 780, 942 P.2d 157 (1997).
Eighth Judicial District Court, Clark County; Sally L. Loehrer, Judge.
Defendants were convicted in the district court of two counts of murder with use of deadly
weapon, two counts of first-degree kidnapping with use of deadly weapon, and one count
each of burglary with use of deadly weapon, sexual assault with use of deadly weapon and
robbery with use of deadly weapon, and they appealed. The supreme court reversed
convictions of defendant and remanded for new trial, and affirmed convictions of
co-defendant.
co-defendant. State petitioned for rehearing, challenging reversal of defendant's conviction.
The supreme court held that refusal to sever joint trial resulted in prejudice to defendant.
Petition denied.
Gensler & Kuehn, Tonopah, for Appellant Ducksworth.
Sgro & Perry, Las Vegas, for Appellant Martin.
Chief Deputy District Attorney, and Kimberly Maxson, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Petition for rehearing will be granted only if the supreme court overlooked or misapprehended a material matter or if rehearing will
promote substantial justice.
2. Criminal Law.
Petitioner seeking rehearing may not reargue an issue already raised or raise a new issue not raised previously. NRAP 40(c).
3. Criminal Law.
In determining whether the admission of a co-defendant's incriminating statement during a joint trial violates the defendant's rights
under the Sixth Amendment's confrontation clause, the central question is whether the jury likely obeyed the court's instruction to
disregard the statement in assessing the defendant's guilt. U.S. Const. amend. 6.
4. Criminal Law.
Refusal to sever joint trial in prosecution for murder, kidnapping, burglary and sexual assault resulted in prejudice to defendant,
and thus state was not entitled to rehearing on reversal of defendant's convictions, where evidence against defendant was largely
circumstantial, and most incriminating evidence against defendant was testimony of two witnesses concerning co-defendant's
confession, even though witnesses' testimony was tailored to avoid any explicit reference to defendant.
OPINION
Per Curiam:
Appellants Ronald Ducksworth, Jr., and Carl Lee Martin were each convicted of two counts of first degree murder with a deadly
weapon, two counts of first degree kidnapping with a deadly weapon, and one count each of burglary with a deadly weapon, sexual assault
with a deadly weapon, and robbery with a deadly weapon for crimes committed on Joseph Smith, III, and his wife, Vikki Smith.
Ducksworth and Martin were each sentenced to four life terms in prison without the possibility of parole for the murder convictions and
various other sentences for the other crimes.
The joint trial of Ducksworth and Martin commenced in October 1993. At trial, the state presented evidence
through witnesses Kenya Crawl and Al Shuaid that Ducksworth confessed to his involvement in the Smiths'
murders. Apparently, Ducksworth's confession implicated Martin, but Crawl and Shuaid tailored their testimony
to avoid any explicit reference to Martin. Based on the admission of Ducksworth's statements, Martin moved the
district court pursuant to NRS 174.165(1) to sever his trial from Ducksworth's. The court denied the motion,
but instructed the jury that Ducksworth's statements were to be considered only with regard to Ducksworth and
not to Martin. The jury returned guilty verdicts on all counts against both Ducksworth and Martin.
On July 15, 1997, this court affirmed Ducksworth's conviction on all counts except for the kidnapping count.
Ducksworth v. State, 113 Nev. 780, 942 P.2d 157 (1997). This court reversed Martin's conviction and remanded
for a new trial, citing Bruton v. United States, 391 U.S. 123 (1968), and Stevens v. State, 97 Nev. 443, 634 P.2d
662 (1981). This court concluded that the district court abused its discretion in denying Martin's motion to sever
the trial. Ducksworth, 113 Nev. at 795, 942 P.2d at 167. On August 1, 1997, the state filed its petition for
rehearing challenging the reversal of Martin's conviction.
[Headnotes 1, 2]
A petition for rehearing will be granted only if this court overlooked or
misapprehended a material matter or if rehearing will promote substantial justice. A petitioner
may not reargue an issue already raised or raise a new issue not raised previously. NRAP
40(c); see also Gordon v. District Court, 114 Nev. 744, 961 P.2d 142 (1998) (citing In re
Herrmann, 100 Nev. 149, 151, 679 P.2d 246, 247 (1984)). In its petition, the state contends
that this court overlooked Lisle v. State, 113 Nev. 679, 941 P.2d 459 (1997), and Richardson
v. Marsh, 481 U.S. 200 (1987). We conclude that rehearing is not warranted on this basis.
In Bruton, the United States Supreme Court held that in a joint trial, evidence of an incriminating statement
by one defendant which expressly refers to the other defendant violates the Confrontation Clause of the Sixth
Amendment and that a limiting instruction to the jury is not sufficient to overcome the prejudice. Bruton, 391
U.S. at 127-28.
In Stevens, the statements used in a joint trial to incriminate one defendant were redacted to excise all
express references to the other defendant, Jean Stevens, who was subsequently convicted. Citing Bruton, this
court reversed Stevens' conviction, concluding that [i]t appears likely that the jury read [Stevens'] name into the
blanks in each one of [her co-defendant's] statements introduced at the trial below.
blanks in each one of [her co-defendant's] statements introduced at the trial below.
1
Stevens, 97 Nev. at 444,
634 P.2d at 663. This court further held that where the evidence of guilt is woven from circumstantial
evidence,' and it is not clear beyond a reasonable doubt that the improper use of the admission was harmless
error, then a violation of Bruton will mandate a reversal of the conviction. Id. at 445, 634 P.2d at 664 (quoting
Harrington v. California, 395 U.S. 250, 254 (1969)). Accordingly, because little evidence was presented against
Stevens, admission of her co-defendant's statements, although redacted, was extremely damaging and prejudiced
Stevens enough to warrant reversal. Id.
Based on these two cases, this court in Ducksworth reversed Martin's conviction, concluding that because
[t]he evidence against Martin was largely circumstantial and was much less convincing than was the evidence
against Ducksworth, the redacted statements prejudiced Martin. Ducksworth, 113 Nev. at 794, 942 P.2d at 166.
In its petition for rehearing, the state points out that we cited neither Lisle nor Richardson.
In Richardson, the government introduced into evidence redacted incriminating statements by Benjamin
Williams in a joint trial with Clarissa Marsh. The redacted statements were not facially incriminating to Marsh
because they made no reference to her existence; therefore, the Supreme Court held that a limiting instruction to
the jury was sufficient to overcome any prejudice to Marsh. Richardson, 481 U.S. at 208, 211. Nevertheless, the
Court remanded the case because the prosecutor sought to undo the effect of the limiting instruction by urging
the jury to use Williams' confession in evaluating [Marsh's] case. Id. at 211.
In Lisle, this court upheld Kevin Lisle's conviction when his co-defendant's confession was redacted to
replace Lisle's name with the other guy. Relying on Richardson and United States v. Enriquez-Estrada, 999
F.2d 1355, 1359 (9th Cir. 1993), we concluded that the redacted confession was not facially incriminating and,
therefore, did not offend Bruton. Lisle, 113 Nev. at 692-93, 941 P.2d at 468. We further considered and
distinguished our holding in Stevens. While the statements by Stevens' co-defendant prejudiced Stevens because
of the minimal evidence against her, in Lisle, by contrast, the evidence presented against Lisle was
overwhelming: four witnesses testified that he confessed to the murder. Id. at 693, 941 P.2d at 468. Therefore,
we concluded that the statements by Lisle's co-defendant implicating the other guy provided minimal, if any,
prejudice to Lisle.
__________

1
In a recent opinion, the United States Supreme Court reached the same conclusion, holding that Bruton's
protections applied where a co-defendant's confession was redacted to substitute blanks for the defendant's
name. Gray v. Maryland, 523 U.S. 185, 118 S. Ct. 1151 (1998).
The current case is similar to Stevens, not Lisle, because [t]he evidence against Martin was largely
circumstantial and was much less convincing than that against Ducksworth. Ducksworth, 113 Nev. at 794, 942
P.2d at 166. Accordingly, as in Stevens, Ducksworth's statements substantially prejudiced Martin.
[Headnote 3]
In determining whether admission of a co-defendant's statement violates Bruton, the central question is
whether the jury likely obeyed the court's instruction to disregard the statement in assessing the defendant's guilt.
See Richardson, 481 U.S. at 208. In Richardson, the Supreme Court reversed Marsh's conviction and remanded
the case because the prosecutor attempted to undermine the limiting instruction by utilizing Williams' statements
against her. Id. at 211.
[Headnote 4]
In the instant case, the state argued in its brief on appeal that Ducksworth's statements to Crawl and Shuaid
constituted sufficient evidence to uphold Martin's conviction and were highly damaging to Martin.
2
By
arguing that [t]he most damaging evidence of all against Martin was the testimony of Crawl and Shuaid
recounting Ducksworth's statements, the state implicitly conceded that Martin suffered actual prejudice from the
joint trial with Ducksworth.
Accordingly, our prior opinion in this matter is not inconsistent with either Lisle or Richardson, and we did
not err in reversing Martin's conviction on this issue. As we did not overlook or misapprehend any material
matter, we deny the state's petition for rehearing. NRAP 40(c).
3

__________

2
The state argued in its answering brief:
The most damaging evidence of all came from Kenya Crawl and Al Shuaid. . . . Although Ducksworth's
confession did not specifically name Martin as the other party involved at trial, there was overwhelming
evidence of Martin's involvement. . . . This, combined with the fact that Ducksworth said he was against
killing Vikki, show an obvious link between Martin and the murder of Vikki.
. . . .
Both Al Shuaid and Kenya Crawl testified that Ducksworth admitted that Vikki had been raped both
orally and anally. . . . [T]he jury could have easily concluded that both Defendants were guilty of sexual
assault. . . . Martin also might have committed the offense [of sexual assault] for the simple reason that
Ducksworth admitted to doing everything else except those crimes that occurred against Vikki.
(Emphasis added.)

3
____________
114 Nev. 956, 956 (1998) Harris v. Warden
BRADLEY V. HARRIS, Appellant, v. WARDEN, SOUTHERN DESERT
CORRECTIONAL CENTER, CHARLES WOLFF, Respondent.
No. 26911
September 24, 1998 964 P.2d 785
Appeal from an order of the district court denying a post-conviction petition for a writ of habeas corpus.
Ninth Judicial District Court, Douglas County; David R. Gamble, Judge.
Defendant filed post-conviction petition for a writ of habeas corpus almost three years
following his conviction of accessory to murder and being an ex-felon in possession of a
firearm. The district court dismissed the petition as untimely, and defendant appealed. The
supreme court held that defendant did not have good cause to excuse untimely filing of
petition.
Affirmed.
Terzich and Jackson, Ltd., Gardnerville, for Appellant.
Scott W. Doyle, District Attorney, and Kristine L. Brown, Chief Deputy District Attorney, Douglas County,
for Respondent.
1. Habeas Corpus.
An allegation that trial counsel was ineffective in failing to inform a claimant of the right to appeal from the judgment of
conviction, or any other allegation that a claimant was deprived of a direct appeal without his or her consent, does not constitute good
cause to excuse the untimely filing of a petition pursuant to statute governing the filing of habeas corpus petitions. NRS 34.726.
2. Habeas Corpus.
The good cause necessary to overcome a procedural bar created by untimely habeas petition must be some impediment external to
the defense. NRS 34.726.
3. Habeas Corpus.
Trial counsel's failure to inform defendant about his right to appeal from judgment of conviction was not good cause to excuse
filing of untimely habeas petition. NRS 34.726.
OPINION
Per Curiam:
This is an appeal from an order of the district court denying a post-conviction petition for a writ of habeas corpus. For the reasons
stated below, we affirm the order of the district court.
Appellant Bradley Harris (Harris) was convicted pursuant to a guilty plea of accessory to murder (Count I) and being an ex-felon in
possession of a firearm (Count II). The district court sentenced Harris to serve a term of five years for Count I and a
consecutive term of six years for Count II in the Nevada State Prison.
Harris to serve a term of five years for Count I and a consecutive term of six years for Count II in the Nevada
State Prison. The judgment of conviction was entered on April 1, 1992. Harris did not file a direct appeal from
the judgment of conviction.
On January 17, 1995, Harris filed a proper person post-conviction petition for a writ of habeas corpus. In the
petition, Harris contended that (1) his trial counsel was ineffective for failing to inform him of his right to appeal
from the judgment of conviction; (2) the district court's imposition of consecutive sentences for the two crimes
constituted a double jeopardy violation because the two crimes were integrally related; and (3) even if the
district court could have imposed consecutive sentences, the district court abused its discretion in doing so. In
the petition, Harris further asserted that his trial counsel's ineffectiveness for failing to inform him of his right to
appeal from the judgment of conviction constituted good cause for the delay in filing the petition.
The district court subsequently appointed counsel to represent Harris in the post-conviction proceedings. The
state moved to dismiss the habeas corpus petition, asserting that the petition was untimely filed pursuant to NRS
34.726, and that Harris failed to demonstrate good cause for the delay. Harris, with the assistance of his
court-appointed counsel, filed an opposition to the state's motion to dismiss. The district court agreed with the
state and dismissed the petition, concluding that Harris had not shown good cause to excuse the delay in filing
the petition. This appeal followed.
Unless there is good cause shown for delay, a petition that challenges the validity of a
judgment or sentence must be filed within 1 year after entry of the judgment of
conviction or, if an appeal has been taken from the judgment, within 1 year after the
supreme court issues its remittitur. For the purposes of this subsection, good cause for
delay exists if the petitioner demonstrates to the satisfaction of the court:
(a) That the delay is not the fault of the petitioner; and
(b) That dismissal of the petition as untimely will unduly prejudice the petitioner.
Harris filed his petition almost three years after the district court entered the judgment of
conviction. Therefore, Harris's petition was untimely filed and should have been dismissed
unless Harris demonstrated cause for the delay and undue prejudice.
On appeal, Harris contends that his trial counsel was ineffective for failing to advise him of his right to file a
direct appeal from the judgment of conviction or of the advantages and disadvantages of such an appeal. Harris
argues that his trial counsel's ineffectiveness constitutes good cause and prejudice to excuse the
filing of an untimely petition pursuant to NRS 34.726.
ineffectiveness constitutes good cause and prejudice to excuse the filing of an untimely petition pursuant to NRS
34.726. In support of his argument, Harris cites Lozada v. State, 110 Nev. 349, 871 P.2d 944 (1994). We
conclude that Harris's contention lacks merit.
In Lozada, Jose Manuel Lozada filed an untimely notice of appeal from his 1987 conviction. The basis for
Lozada's appeal was a claim that his trial counsel had been ineffective and had deprived him of a timely direct
appeal from the conviction without his consent.
1
We held that Lozada should raise this claim in a
post-conviction petition for a writ of habeas corpus filed in the district court. However, because Lozada had
previously filed a petition for post-conviction relief, he had to demonstrate good cause and prejudice to excuse
the filing of a successive petition pursuant to NRS 34.810.
2
Id. at 352-53, 871 P.2d at 946. We held that
Lozada could demonstrate good cause for filing a successive petition. Specifically, we concluded that the initial,
erroneous denial of Lozada's meritorious appeal deprivation claim in his prior, timely petition for
post-conviction relief constituted an impediment external to the defense, and was thus good cause for raising the
claim again in a successive habeas corpus petition.
3
Id. at 352-58, 871 P.2d at 946-49. We further concluded
that Lozada could demonstrate actual prejudice if his trial counsel's conduct in fact deprived Lozada of a direct
appeal without his consent. Id. at 358-59, 871 P.2d at 949-50.
Harris contends that if an allegation that a claimant was deprived of a direct appeal without his consent
constituted good cause and prejudice to excuse the filing of a successive petition in Lozada, then such an
allegation should also constitute good cause and prejudice to overcome the filing of an untimely petition.
__________

1
For the complete procedural history preceding this court's decision regarding Lozada's untimely direct
appeal, see Lozada, 110 Nev. at 350-52, 871 P.2d at 945-46.

2
NRS 34.810 provides in relevant part:
2. A second or successive petition must be dismissed if the judge or justice determines that it fails to
allege new or different grounds for relief and that the prior determination was on the merits or, if new and
different grounds are alleged, the judge or justice finds that the failure of the petitioner to assert those
grounds in a prior petition constituted an abuse of the writ.
3. Pursuant to subsections 1 and 2, the petitioner has the burden of pleading and proving specific
facts that demonstrate:
(a) Good cause for the petitioner's failure to present the claim or for presenting the claim again; and
(b) Actual prejudice to the petitioner.

3
In Lozada, we assumed for purposes of the appeal that appellant's appeal deprivation claim had merit. Id. at
353-54 n.3, 871 P.2d at 947 n.3.
We disagree. We did not hold in Lozada that the deprivation of a direct appeal without a defendant's consent
constituted good cause to excuse the filing of any successive petition. Rather, we held that [t]his court's and the
district court's failure to recognize that Lozada had presented a timely, meritorious claim based on the ineffective
assistance of counsel constitutes an external force which excuses the filing of a successive petition. Id. at
357-58, 871 P.2d at 949. Lozada had initially raised his claim that he was deprived of a direct appeal without his
consent in a timely filed post-conviction petition. The district court denied that timely petition, and this court
dismissed Lozada's appeal from that denial. Id. It was the initial denial of Lozada's timely presented and
meritorious claim that constituted good cause for Lozada to reassert the claim in a successive post-conviction
petition. Id. Thus, the mere allegation that a claimant was deprived of a direct appeal without his or her consent
does not alone constitute good cause and prejudice to excuse the filing of a successive petition.
[Headnotes 1, 2]
We further stated in Lozada that the mere allegation that a claimant was deprived of a direct appeal without
his or her consent does not excuse the untimely filing of a petition pursuant to NRS 34.726:
We note, however, that this conclusion is based on the fact that appellant timely and properly
presented his claim in a petition for post-conviction relief. This opinion should not be read to excuse the
untimely filing of a petition for post-conviction relief or post-conviction habeas relief simply on the
allegation that a claimant was deprived of a direct appeal from a judgment of conviction without his
consent.
Lozada, 110 Nev. at 358 n.5, 871 P.2d at 949 n.5. We now reaffirm our conclusion and hold that an allegation
that trial counsel was ineffective in failing to inform a claimant of the right to appeal from the judgment of
conviction, or any other allegation that a claimant was deprived of a direct appeal without his or her consent,
does not constitute good cause to excuse the untimely filing of a petition pursuant to NRS 34.726. Rather, a
petitioner must demonstrate some other excuse for the delay. We have held the good cause necessary to
overcome a procedural bar must be some impediment external to the defense. See Crump v. Warden, 113 Nev.
293, 934 P.2d 247 (1997); Mazzan v. Warden, 112 Nev. 838, 921 P.2d 920 (1996); Passanisi v. Director, Dep't
Prisons, 105 Nev. 63, 769 P.2d 72 (1989); see also Murray v. Carrier, 477 U.S. 478 (1986).
4

__________

4
In Murray, the United States Supreme Court defined cause for a procedural default as follows:
[Headnote 3]
Therefore, we reject Harris's contention that his trial counsel's failure to inform him of his right to appeal
from the judgment of conviction constitutes good cause to excuse the filing of an untimely petition pursuant to
NRS 34.726(1)(a).
5
Harris has failed to set forth any other excuse for the delay in filing his petition.
Accordingly, we conclude that the district court properly denied Harris's petition.
We affirm the order of the district court.
__________
[W]e think that the existence of cause for a procedural default must ordinarily turn on whether the
prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply
with the State's procedural rule. Without attempting an exhaustive catalog of such objective impediments
to compliance with a procedural rule, we note that a showing that the factual or legal basis for a claim
was not reasonably available to counsel, see Reed v. Ross, 468 U.S. [1], at 16 [1984], or that some
interference by officials, Brown v. Allen, 344 U.S. 443, 486 (1953), made compliance impracticable,
would constitute cause under this standard.
Murray, 477 U.S. at 488.

5
We note that Harris's contention that he was not advised of his right to file a direct appeal is belied by the
record. Prior to entering his guilty plea, Harris signed a guilty plea memorandum which included the following
provision:
I understand I still have the right to appeal any errors that might occur at my sentencing hearing, but
[I] am giving up the right to appeal any other defects that may exist in my case at this point or that might
have occurred if I had gone to trial.
Further, at the plea hearing before the district court, Harris acknowledged that he had read the plea
memorandum, discussed it with his counsel, and agreed to be bound by the terms.
____________
114 Nev. 961, 961 (1998) Calambro v. District Court
ALVARO CALAMBRO, by and Through LYDIA CALAMBRO, as Next Friend of
ALVARO CALAMBRO, Petitioner, v. THE SECOND JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, in and for the COUNTY OF WASHOE,
and THE HONORABLE STEVEN P. ELLIOTT, District Judge, Respondents, and
WARDEN, ELY STATE PRISON, JOHN IGNACIO, and THE ATTORNEY
GENERAL OF THE STATE OF NEVADA, FRANKIE SUE DEL PAPA, Real
Parties in Interest.
No. 32489
ALVARO CALAMBRO, by and Through His Next Friend, LYDIA CALAMBRO,
Appellant, v. WARDEN, NEVADA STATE PRISON, JOHN IGNACIO, and THE
ATTORNEY GENERAL OF THE STATE OF NEVADA, FRANKIE SUE DEL
PAPA, Respondents.
No. 32496
September 25, 1998 964 P.2d 794
Original post-conviction petition for a writ of habeas corpus and appeal from a district court order denying a
post-conviction habeas petition. Second Judicial District Court, Washoe County; Steven P. Elliott, Judge.
Defendant's first-degree murder convictions and death sentences were affirmed in the
supreme court, 111 Nev. 1015, 900 P.2d 340 (1995), 114 Nev. 106, 952 P.2d 946 (1998).
Defendant's mother, petitioner, filed for post-conviction relief seeking friend status to file
writ of habeas corpus on behalf of her son. The district court denied next friend petition.
Petitioner appealed denial and filed original post-conviction habeas petition with the supreme
court. The supreme court held that: (1) substantial evidence supported trial court's finding that
defendant was competent, and thus, petitioner lacked standing to file next friend petition, and
(2) petitioner's procedural rights were not violated.
Petition denied; order affirmed.
Franny A. Forsman, Federal Public Defender, and Michael Pescetta, Assistant Federal Public Defender, Las
Vegas, for Petitioner and Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Terrence
P. McCarthy, Deputy District Attorney, Washoe County, for Respondents and Real Parties in Interest.
1. Habeas Corpus.
To establish next friend standing to petition for writs of habeas corpus on behalf of person held in custody or who has suffered
conviction in district courts, two requirements must be met for such standing: (1) next friend must provide adequate explanation, such
as inaccessibility, mental incompetence, or other disability, why real party in interest cannot appear on his own behalf to prosecute
action; and (2) next friend must be truly dedicated to best interests of real party. Const. art 6, 6, cl. 1.
2. Habeas Corpus.
To establish standing as next friend petitioner, for purposes of filing petition for writ of habeas corpus, petitioner is required to
make high or substantial threshold showing of incompetency to gain a full evidentiary hearing, and although meaningful evidence is
necessary for such a showing, whether it is sufficient for such a showing will depend on its strength.
3. Habeas Corpus.
Substantial evidence supported district court's finding that murder defendant's mental illness had not rendered him incompetent,
and thus, petitioner lacked standing to file next friend petition seeking writ of habeas corpus on defendant's behalf. Defendant was
raised by abusive, mentally ill father, exhibited borderline mental retardation, and probably suffered from some degree of
schizophrenia, but evidence showed that schizophrenics were not necessarily delusional and could be capable of understanding their
situation, and prison records showed defendant was prescribed antipsychotic medication and had history of hearing voices, but did not
show that he could not distinguish reality from any delusions.
4. Criminal Law.
Trial court resolves conflicting evidence at a competency hearing, and supreme court will sustain trial court's findings when
substantial evidence supports them.
5. Criminal Law.
Condemned person is sane if aware of his impending execution and of the reason for it.
6. Criminal Law.
Since evidence supported finding that murder defendant was competent enough to be executed, Department of Prisons Director
did not violate statute providing that Director may petition district court to allege that convicted person is insane if there is good reason
to believe that person condemned to death has become insane, nor did he offend constitution when he did not invoke statute's
provisions. U.S. Const. amend. 14; NRS 176.435.
7. Habeas Corpus.
Under totality of circumstances petitioner, who was filing for next friend status to file writ of habeas corpus petition, received
adequate opportunity to be heard, even though murder defendant had not communicated with her in almost two years, where she had
adequate opportunity to prepare her case, and lack of communication was by defendant's choosing. Petitioner first asserted next friend
status over two years before she filed her petition in present case, at which point she should have been prepared to cite significant
evidence to support her assertion of next friend status, and moreover, she was only required to make an offer of proof at that hearing
eighteen days later, not present evidence and witnesses.
8. Habeas Corpus.
State did not ignore or violate its duty to disclose material evidence to petitioner, who was petitioning for friend status to file
petition for writ of habeas corpus on defendant's behalf, despite contention that state disclosed defendant's medical records only after
his scheduled execution date and only days before expedited hearing, where petitioner made no requests for discovery, and state
provided relevant materials to petitioner after supreme court ruled that she might have standing.
OPINION
Per Curiam:
Alvaro Calambro (Calambro) faces two death sentences for conviction of two counts of first-degree murder. Lydia Calambro
(petitioner), Calambro's mother, seeks to pursue petitions for habeas relief on his behalf as a next friend. We conclude that she has failed
to establish standing to do so.
FACTS
Calambro was scheduled to be executed on June 15, 1998. On June 9, 1998, petitioner filed the instant petition on his behalf with this
court as a next friend. Petitioner also filed a next friend petition with the district court, which denied the petition on June 10, 1998.
Petitioner appealed. On June 12, 1998, this court filed an order staying Calambro's execution and remanding to the district court for an
expedited hearing.
Calambro was charged with two counts of first-degree murder for killing Peggy Crawford and Keith Christopher in Reno in January
1994. Calambro initially pleaded guilty to Crawford's murder and not guilty to Christopher's. A three-judge panel found Calambro able to
reason and tell right from wrong and sentenced him to death for Crawford's murder. Calambro informed the district court that he wanted to
waive his appeal and proceed with his execution. The court concluded that Calambro was competent to waive his right to appeal.
Independent counsel was appointed for Calambro. In May 1995, Calambro's counsel filed in this court a memorandum of points and
authorities, stating that Calambro understood his circumstances and the consequences of his actions and had validly waived his appeal.
This court concluded that Calambro was competent to waive his appeal and affirmed his conviction and sentence. Calambro v. State, 111
Nev. 1015, 900 P.2d 340 (1995).
In March 1995, Calambro pleaded guilty to the charge of murdering Christopher. At the state's request, the district court held a
competency hearing in January 1996. The court considered testimony by two psychologists who examined Calambro. The court
expressly asked Calambro's three defense counsel if they wished to make any motion regarding Calambro's
competency, and they said no.
expressly asked Calambro's three defense counsel if they wished to make any motion regarding Calambro's
competency, and they said no. The court addressed Calambro personally and concluded that he was competent.
On July 11, 1996, a second three-judge panel sentenced Calambro to death for Christopher's murder. This court
affirmed in Calambro v. State, 114 Nev. 106, 952 P.2d 946 (1998).
In denying the next friend petition on June 10, 1998, the district court concluded that statutory law precluded
next friend status; the court did not reach the issue of Calambro's competency or even address him. On June 12,
1998, this court remanded to the district court for an expedited hearing at which Calambro could speak and
petitioner could make an offer of proof regarding Calambro's competency and her standing as a next friend.
On June 18, 1998, the state provided petitioner with about 250 pages of Nevada Department of Prison (DOP)
medical records on Calambro. On June 19, 1998, the state provided petitioner with evaluations of Calambro
made by DOP psychologist William Knapp, Ph.D., on May 30 and June 13, 1998. The district court held the
expedited hearing on June 22, 1998.
At the hearing, the district court first questioned Calambro.
COURT: . . . Do you understand the English language sufficient to understand my
questions?
CALAMBRO: Yeah.
COURT: Do you understand that you are about to be put to death?
CALAMBRO: Yeah.
COURT: Do you understand that you're being put to death due to your conviction on
the charge of murder?
CALAMBRO: Yeah.
COURT: Do you understand that it is possible for you to challenge your conviction
and sentence in a post-conviction proceeding?
CALAMBRO: Yeah.
COURT: Do you understand that if you do not pursue that challengeexcuse me.
That if you do pursue a challenge to your conviction and sentence, that you would be
entitled to a stay of your execution?
CALAMBRO: Yeah.
COURT: Well, understanding your answers to those, do you wish to forgo any further
challenges to your sentence of death and in fact be put to death? First, do you wish to
forgo any further legal challenges in this case?
CALAMBRO: No.
PESCETTA [counsel for petitioner]: Your Honor, I think that we're done. Mr.
Calambro said he does not wish to forgo further legal challenges, so I think the
purpose of this hearing is done.
forgo further legal challenges, so I think the purpose of this hearing is done.
. . . .
COURT: I am not sure that Mr. Calambro understood the question. The question, Mr.
Calambro, is: do you wish to in fact bring some challenge to your conviction and
sentence?
CALAMBRO: No.
COURT: Does that mean you wish to forgo further challenges? The word forgo
means that you do not wish to bring any further challenges.
CALAMBRO: No.
. . . .
COURT: Well, in going through the questioning, it was clear that Mr. Calambro
answered that he did not wish to pursue any further challenges when asked a simple
question. I think there is an issue with regard to the word forgo that is confusing. And
I really don't feel that it's worth pursuing further questioning of Mr. Calambro. He does
not wish to pursue further legal challenges. And that's my finding on that issue, based
on the questioning so far.
. . . .
COURT: Mr. Calambro, I am going to ask you one more question: do you wish to
bring a legal challenge to your conviction or your sentence?
CALAMBRO: No.
Petitioner requested that the court ask Calambro if he objected to his mother's bringing such a
challenge. The state objected because this court's order of remand did not provide for such a
question, and the district court refused petitioner's request.
1

Clinical psychologist, David L. Schmidt, Ph.D., testified for petitioner. He based his opinion in part on a
review of videotaped interviews of Calambro's relatives and family friends. Schmidt also reviewed Calambro's
DOP medical records and noted two antipsychotic medications, Mellaril and Haldol, prescribed for Calambro at
various times from July to November 1997. Calambro was also prescribed Prozac, an antidepressant. At one
point, Calambro was prescribed a dosage of Haldol which Schmidt described as the dose that's usually given to
what we call floridly psychotic individuals, people who are actively difficult to manage,
because of a thought disorder that's out of control."
__________

1
The state and the district court apparently assumed that the district court was authorized to address
Calambro regarding only the issues specifically covered in this court's order of June 12, 1998, and using only the
language found in that order. But nothing in our order restricted the district court in this manner. On the
contrary, when a person's competency and desire to pursue postconviction relief are central issues, the trial court
should question that person freely and attempt to elicit the person's own views and words on the proceedings and
any other relevant matters.
call floridly psychotic individuals, people who are actively difficult to manage, because of a thought disorder
that's out of control. The medical records also indicated that Calambro sometimes refused to take the
medications.
Schmidt reviewed the report by DOP psychologist Knapp, dated May 30, 1998, indicating that Calambro
showed marked derealization and depersonalization. Schmidt stated: Derealization is the belief that things are
not real, that the things going on around you are merely an illusion . . . . Depersonalization is an occurrence that's
most easily described as feeling that: I am not really testifying here, I am over there watching myself testify.
Schmidt testified that schizophrenia waxes and wanes and that sometimes schizophrenics are floridly
psychotic, meaning they're actively psychotic. Other times it's a more residual state, where there isn't as much
manifestation. According to Schmidt, some schizophrenics have encapsulated delusional systems and
function well as long as issues relating to that delusion do not arise.
Schmidt met with Calambro on June 18, 1998. At first Schmidt was unable to see Calambro because
Calambro refused, but prison authorities later placed Calambro in a visitation room with Schmidt for an hour and
a half. Schmidt found that Calambro exhibited very inappropriate affect given the severity of the discussion,
refusing to answer questions, sitting there with a little cocky grin, and laughing inappropriately at times.
Calambro said on three occasions only that he would listen to Schmidt and then would return to his cell and
watch TV when Schmidt was done. Schmidt had experience dealing with elective mutism, but despite his
efforts to get Calambro to talk, Calambro said nothing else. In eighteen years of practice, Schmidt had never
before been unable to get a person to respond to at least some of his questions. Schmidt believed that Calambro
refused to talk because he had a delusion that talking would allow the psychologist to control his thoughts.
Schmidt testified that a letter written by Calambro resembled the strange, long, rambling manifestos from
people who are schizophrenic and indicated a psychotic thought process. Based on history he received and
observation of the videotaped interviews of Calambro's father, Schmidt concluded that the father's behavior was
consistent with schizophrenia. Having a schizophrenic father increased Calambro's chances of being
schizophrenic tenfold.
Schmidt did not believe that Calambro was capable of understanding and choosing rationally among his legal
options; Schmidt believed that it is probable that [Calambro is] suffering from a mental disorder, probably
schizophrenia, that precludes his understanding the nature of what is going on and that this is
compounded by his low intellectual functioning."
standing the nature of what is going on and that this is compounded by his low intellectual functioning. Having
reviewed the information available and spoken with Calambro's mother, Schmidt did not believe that Calambro
understood the concepts of execution and death. Schmidt also stated that he required more time and information
to fully assess Calambro.
Gregory Ferebee, staff investigator with the Federal Public Defender's Office, testified that he prepared the
videotaped interviews introduced as evidence and that he required more time to investigate various matters.
Petitioner Lydia Calambro testified. She confirmed that her husband, Calambro's father, had been
hospitalized for mental illness and that he hears voices, laughs for no reason, and otherwise acts strangely.
Calambro told her in 1993 that he heard voices also. When she met Calambro at the prison two weeks earlier, he
told her that he did not understand what an execution was. Cross-examination by the state revealed that Mrs.
Calambro's command of English was extremely limited.
Finally, Maria Lourdes Bello, Vice Consul for the Philippine Consulate in Los Angeles, testified for
petitioner. Pursuant to a request made by petitioner on June 11, 1998, the consulate had been trying to obtain
medical and possible criminal records for Calambro's father from the Philippines, but had not yet been able to.
In a declaration executed on June 3, 1998, psychologist Dr. Patricia Heras concluded, based on her
evaluation of Calambro in 1995 and 1996, that Calambro was schizophrenic and that a schizophrenic patient
may experience remission of symptoms for a time and then become actively psychotic again. At Calambro's
second penalty hearing in July 1996, Dr. Heras testified that she considered Calambro psychotic when she saw
him in September 1995, but found him competent in November 1995 and at the time of the hearing; she felt that
the structure of prison life had stabilized him. At that same penalty hearing, psychologist Dr. Jeri Doane
diagnosed Calambro as a probable, possibly incipient schizophrenic.
An affidavit from Calambro's trial counsel and psychological evaluations from 1994 and 1995 indicate that
Calambro has borderline mental retardation (an IQ of 71 by one test), a psychiatric disorder, and difficulty with
English because he moved from the Philippines to the United States when he was ten. The record also indicates
that Calambro lied to authorities after his arrest when he told them that he had committed other murders and
atrocities.
At the expedited hearing, the state introduced a number of documents as an offer of proof that Calambro was
competent. Four of these documents were affidavits by Cynthia Wyett, an investigator for the Washoe
County District Attorney's Office.
gator for the Washoe County District Attorney's Office. A few days before the hearing, Wyett spoke to DOP
Chaplain Al Fry, Dr. Knapp, and two correctional officers regarding their assessment of Calambro based on their
contacts with him. Wyett executed affidavits setting forth what the four prison employees told her. According to
Wyett, Chaplain Fry spoke with Calambro on June 3, 1998. Fry and Calambro discussed the upcoming
execution, and Calambro said that he wanted to be cremated and have his ashes scattered by Fry. Fry believed
that Calambro understood he was about to be put to death, the reason for his execution, and his right to challenge
his conviction. Calambro accepted responsibility for his crimes, did not want to live in prison the rest of his life,
and professed a Christian belief in life after death. Wyett's affidavit regarding Knapp's statements accords with
Knapp's reports, which are discussed below.
The DOP medical records showed that Calambro often complained of audio and visual hallucinations,
including voices telling him to hurt himself. At times prison medical personnel considered Calambro to be a
suicide risk. Personnel noted times when Calambro paced in his cell most of the night, refused to speak or leave
his cell, and displayed flat or inappropriate affect. The records also showed that Calambro told prison personnel
that he looked forward to his execution and believed that he deserved to die and that he would rather be dead
than remain in prison.
As mentioned above, Dr. Knapp examined Calambro on May 30, 1998. Knapp made a number of
observations, including: Delusions about unrealness of his death, Believes that Death is not real. Only
pleasure & pain are real,' Not suicidal at this point, [Appearance:] Not normal, Eyes are bloodshot, and
States he is not concerned about being executed. Nevertheless, Knapp concluded: No serious mental illness
indicated. Severe personality problems. Axis II 301.22 schizotypal pers. disorder plus 301.7 antisocial
personality disorder. Knapp evaluated Calambro again on June 13, 1998, and reported: A great change from
my previous visitno schizotypal personality symptoms evident, Looked normal todayrested, no bloodshot
eyes, Only talked of coming back from death in the normal Biblical meaning, and Very clear understanding
of the 2 week execution postponement & that his mother was able to get the court to order a psychological
examination.
At the end of the hearing, the district court found that Calambro understood that he was about to be executed,
why he was to be executed, and that he had the right to challenge his conviction and sentence. It also found that
Calambro did not wish to raise such a challenge. The court found it fairly evident that Calambro had
schizophrenic tendencies, and it had little doubt that that would be the case through further
research and interviewing done by Dr. Schmidt.
doubt that that would be the case through further research and interviewing done by Dr. Schmidt. The court
found that there was not a sufficient offer of proof to conclude that Calambro is suffering from such a degree of
mental illness that he cannot make an intelligent decision as to whether or not he should pursue postconviction
relief. It therefore denied petitioner's request for next friend status. A written order was entered on June 29,
1998.
DISCUSSION
Whether substantial evidence supports the district court's finding that Calambro is competent
[Headnote 1]
The Nevada Constitution provides that district courts have the power to issue writs of habeas corpus on
petition by, or on behalf of any person who is held in custody or has suffered conviction in their districts. Nev.
Const. art. 6, 6, cl. 1 (emphasis added). Therefore, we recognize the possibility of next friend standing and
follow Whitmore v. Arkansas, 495 U.S. 149, 161-62 (1990), which sets forth two requirements for such
standing. First, a next friend must provide an adequate explanationsuch as inaccessibility, mental
incompetence, or other disabilitywhy the real party in interest cannot appear on his own behalf to prosecute
the action. Id. at 163. Second, the next friend must be truly dedicated to the best interests of the real party. Id.
As part of this second requirement, some courts further require the next friend to have some significant
relationship with the real party. Id. at 163-64.
[Headnote 2]
The initial question is: what burden of proof was petitioner required to meet to establish standing? According
to Whitmore, the next friend has the burden clearly to establish the propriety of his status and thereby justify
the jurisdiction of the court. Id. at 164 (emphasis added); cf. Doggett v. Warden, 93 Nev. 591, 595, 572 P.2d
207, 209 (1977) (post-conviction habeas petitioner required to prove by clear and convincing evidence his
allegation that he had been incompetent to stand trial).
Citing Whitmore, petitioner asserts that by presenting meaningful evidence that Calambro is incompetent,
she is entitled to a full evidentiary hearing. Petitioner has apparently fashioned this standard from the United
States Supreme Court's statement in Whitmore that there was no meaningful evidence that [the real party in
interest] was suffering from a mental disease, disorder, or defect that substantially affected his capacity to make
an intelligent decision. Whitmore, 495 U.S. at 166. However, meaningful evidence falls short of defining the
showing required to earn an evidentiary hearing.
In holding that the Eighth Amendment forbids the execution of an insane person, a four-justice plurality of
the Supreme Court went on to say: It may be that some high threshold showing on behalf of the prisoner will be
found a necessary means to control the number of nonmeritorious or repetitive claims of insanity. Ford v.
Wainwright, 477 U.S. 399, 417 (1986) (emphasis added). In concurring, Justice Powell stated:
petitioner does not make his claim of insanity against a neutral background. On the contrary, in order to
have been convicted and sentenced, petitioner must have been judged competent to stand trial, or his
competency must have been sufficiently clear as not to raise a serious question for the trial court. The
State therefore may properly presume that petitioner remains sane at the time sentence is to be carried
out, and may require a substantial threshold showing of insanity merely to trigger the hearing process.
Id. at 425-26 (emphasis added) (footnote omitted). Although Wainwright did not address the
issue of next friend status, the decision certainly applies with equal if not greater force to
assertions of insanity made by a next friend.
Therefore, it is appropriate under Wainwright to require a next friend petitioner to make a high or substantial
threshold showing of incompetency to gain a full evidentiary hearing. Although meaningful evidence is certainly
necessary for such a showing, whether it is sufficient for such a showing will depend on its strength.
[Headnote 3]
In this case, however, threshold issues had been passed by the time of the expedited hearing, and petitioner
was required to make more than a threshold showing at that hearing. In our order of June 12, 1998, we noted that
the allegations set forth in the petition, standing alone, are not sufficient to meet the burden of next friend
status under Whitmore. The record of the prior proceedings below and prior proceedings in United States
District Court clearly established Calambro's competence to make decisions with regard to his legal
options at that time. Thus, due to the state of current record, the burden is on petitioner to make an offer
of proof of sufficient additional legally competent evidence to establish next friend status.
Thus, this court required petitioner to make an offer of proof at the hearing which would establish clearly that
Calambro was incompetent.
[Headnote 4]
The state does not dispute that Calambro's mother is dedicated to his best interests and has a significant
relationship with him. Therefore, the question under Whitmore is whether she clearly established in the district
court that Calambro is incompetent and cannot appear on his own behalf. The trial court resolves conflicting
evidence at a competency hearing, and this court will sustain the trial court's findings when substantial evidence
supports them. Ogden v. State, 96 Nev. 697, 615 P.2d 251 (1980).
[Headnote 5]
Supreme Court case law provides the relevant test of Calambro's competency. To determine if a condemned
habeas petitioner was competent to withdraw his petition for certiorari, the Supreme Court directed the trial
court to determine whether the petitioner has capacity to appreciate his position and make a rational choice with
respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental
disease, disorder, or defect which may substantially affect his capacity in the premises. Rees v. Peyton, 384
U.S. 312, 314 (1966). A condemned person is sane if aware of his impending execution and of the reason for
it. Demosthenes v. Baal, 495 U.S. 731, 733 (1990).
Petitioner alleges that Calambro does not understand the role of collateral review of a capital sentence, the
distinction between challenging the propriety of his capital sentence and claiming innocence, the fallibility of the
state court system, or the effect upon his sentencing proceedings of his misrepresentations to authorities after his
arrest. She also alleges that he fails to appreciate that he will die, citing for example Dr. Heras's opinion in 1995
that Calambro does not grasp the meaning of death because his comprehension of it is limited to repetition of
Bible verses.
However, the relevant consideration is not whether Calambro comprehends post-conviction legal issues in
detail or can grasp the meaning of death without resorting to Biblical verses. Rather, it is whether he is aware
of his impending execution and of the reason for it, Demosthenes, 495 U.S. at 733, and has capacity to
appreciate his position and make a rational choice with respect to continuing or abandoning further litigation,
Rees, 384 U.S. at 314.
We conclude that substantial evidence supports the district court's finding that Calambro's mental illness has
not rendered him incompetent. Petitioner's evidence includes Dr. Schmidt's opinion that Calambro is probably
schizophrenic, incapable of choosing rationally among his legal options, and unable to understand his execution
and death. However, this opinion is somewhat conclusory, based mainly on information gleaned
from Calambro's medical records and statements by relatives such as Calambro's mother.
conclusory, based mainly on information gleaned from Calambro's medical records and statements by relatives
such as Calambro's mother. Schmidt observed Calambro directly for ninety minutes, but Calambro refused to
converse with him. Petitioner also stresses Dr. Knapp's report of May 30, 1998, which stated, among other
things, that Calambro believed that Death is not real.' On the other hand, Knapp's report two weeks later
stated that Calambro [o]nly talked of coming back from death in the normal Biblical meaning.
The three-judge panel that first sentenced Calambro to death found that he could reason and tell right from
wrong. This court determined that Calambro was competent to waive his appeal in July 1995, and the district
court determined that he was competent in his second sentencing proceedings in January 1996. Dr. Heras, a
defense expert, considered Calambro competent at his second penalty hearing in July 1996. Although the district
court's canvass of Calambro at the latest hearing was not extensive, it did cover the critical issues, and Calambro
wasapart from his failure to understand the word forgoconsistent in indicating that he understood that he
would soon be executed but did not wish to pursue post-conviction relief. It appears that Calambro was raised by
an abusive, mentally ill father. Calambro also exhibits borderline mental retardation, and the evidence shows that
he probably suffers from some degree of schizophrenia. But the evidence also shows that schizophrenics are not
necessarily delusional and can be capable of understanding their situation. The prison medical records show,
among other things, that Calambro was prescribed antipsychotic medication from July to November 1997 and
has a history of hearing voices, but they do not show that he could not distinguish reality from any delusions.
The state's offer of proof included a prison chaplain's recent observations that indicate that Calambro is basically
rational.
Based on our review of the entire record, we conclude that substantial evidence supports the district court's
finding that Calambro is competent.
Whether the proceedings in district court violated petitioner's procedural rights
Petitioner argues that constitutional due process and NRS 176.425 entitled her to procedural rights which
she failed to receive.
NRS 176.425(1) provides that if there is good reason to believe that a person condemned to death has
become insane, the DOP Director may petition the district court, alleging that the person is insane, whereupon
the court shall hold a hearing to determine the person's sanity after appointing two psychiatrists or psychologists
to examine the person.
to examine the person. NRS 176.435 provides that at the hearing the examining physicians shall testify and
that the attorney general, the district attorney, and the convicted person or his attorney may introduce evidence
and cross-examine any witness. Petitioner asserts that under the facts of this case the DOP Director was required
to invoke NRS 176.425, which would have required mental health professionals to examine Calambro and
provided petitioner with the opportunity to cross-examine those professionals.
[Headnote 6]
NRS 176.425(1) provides that the Director may petition the district court to allege that the convicted
person is insane. Arguably, therefore, even if an inmate was clearly insane, the Director would have the
discretion not to petition the court. However, petitioner argues with some force that interpreting the statute to
allow the Director such unfettered discretion would render it unconstitutional. We conclude that we need not
decide this issue because in this case Calambro was not clearly insane; rather, the evidence supports a finding
that Calambro is competent enough to be executed. Thus, the Director did not violate NRS 176.425 or offend the
constitution when he did not invoke the statute's provisions, and we conclude that petitioner has not shown that
she had a right to the procedures set forth in NRS 176.435.
[Headnote 7]
Regardless of the procedures afforded her, petitioner's main complaint is that she did not receive an adequate
opportunity to be heard because this court gave her insufficient time to prepare her case. She points out that the
district court stated at the hearing that it had not read every document presented to it, and she claims that she was
allowed only one week's worth of preparation before the expedited hearing.
This claim misrepresents the actual state of affairs. Petitioner first asserted next friend status in September
1995 in a federal habeas petition. Thus, the question of Calambro's competency did not occur only recently to
petitioner. Petitioner filed her petition in this case with the district court on June 4, 1998. At that time she should
have been prepared to cite significant evidence to support her assertion of next friend status.
2
The expedited
hearing occurred eighteen days later, on June 22, 199S, after petitioner's expert was able
to meet with Calambro.
__________

2
When she filed her petition, petitioner alleged that Calambro had not communicated with her or with his
attorneys for almost two years. This circumstance helps explain why petitioner wants more time to gather
evidence, but because this lack of communication appears to be by Calambro's choice, we conclude that this
circumstance, while relevant, is not sufficient to entitle her to more time. Of course, if it appeared, for example,
that prison authorities were blocking access to an inmate or that an inmate was comatose, the inability to
communicate with the inmate would mandate a grant of more time to investigate.
occurred eighteen days later, on June 22, 1998, after petitioner's expert was able to meet with Calambro.
Moreover, this court only required petitioner to make an offer of proof at that hearing, not have every witness
ready to testify or every document in hand. We conclude that under the totality of the circumstances petitioner
received an adequate opportunity to be heard.
[Headnote 8]
Petitioner also accuses the state of ignoring its duty under Brady v. Maryland, 373 U.S. 83 (1963), to
disclose material evidence to her. She stresses that the state disclosed Calambro's medical records only after his
scheduled execution date and only days before the expedited hearing. The state notes, however, that petitioner
made no requests for discovery, and that the state provided relevant materials to petitioner after this court ruled
that she might have standing. Petitioner has not shown that Brady or its progeny apply here, nor has she cited
any authority substantiating her argument that the state violated a duty to divulge information in this case.
Whether this court should remand to the district court for further hearings
Petitioner claims that in federal district court on July 17, 1998, she was able to present material evidence
which time constraints prevented her from presenting to the state district court. Petitioner states that she will file
the transcript of the federal proceedings, when she receives it, and a motion to remand for further hearings
before the state district court. We conclude that petitioner has not presented cause for remand pursuant to SCR
250(IV)(H) and therefore decline to remand this case.
CONCLUSION
Substantial evidence supports the district court's finding that Calambro is competent; therefore, petitioner
lacks standing to file a next friend petition. Accordingly, we affirm the district court's order denying her
post-conviction petition for a writ of habeas corpus, and we deny her original petition for a writ of habeas
corpus.
This is a particularly cruel, gruesome and uncalled for homicide. My heart goes out to the victims. There is
substantial pressure on the court to hurry this execution. We receive letters from individual citizens, and
editorials have appeared in the papers urging that Calambro be executed posthaste. Victims of the crime have,
quite understandably, expressed publicly their impatience with the judicial system; and I can
certainly understand the anxiety expressed by members of this court about getting the
matter behind us.
with the judicial system; and I can certainly understand the anxiety expressed by members of this court about
getting the matter behind us. All of this, of course, calls for special caution and reserve on the part of judicial
officers that they not be influenced by the kinds of pressures that I have described. It is clear to me that
Calambro, who is, undeniably, suffering from some degree of mental illness, has the right of judicial review by
way of habeas corpus brought by his mother as next friend. This court's affirming the trial court's dismissal of
Mrs. Calambro's habeas corpus petition means that the vital question of whether Calambro has, as his mother
claims, become insane since the time that he was condemned to death (and could not, therefore, be lawfully
executed) will never be considered by a reviewing Nevada court.
My position is a rather simple one, namely this: Because the Nevada Constitution and laws do not permit the
execution of an insane person, the question of whether Calambro (who is concededly mentally ill) is insane
should be carefully examined by the court in habeas corpus proceedings. In denying habeas corpus review, this
court appears to me to be saying, This man says he wants to die; so let's take him at his word and let him die,
ignoring the obvious: It is not reasonable to take the word of a mentally ill person at face value. Refusal by the
district court and this court to address the essential question of Calambro's legal capacity to be put to death must,
under the circumstances, be perceived as a rush to judgment, an appetence to do away with, as quickly as
possible, a murderer who wants to be punished for his crime and who is supposed to be dead by now.
1
Letters have come to members of the court urging that there be no delay in this execution, and letters to the
editor and news commentary, it seems to me, have given this case more attention than many other murder cases
that have been processed by this court. It is difficult to avoid the conclusion that the court's inexplicable
willingness to order the death of a mentally ill person without adjudicating his legal capacity results from the
court's having succumbed to public clamor and media pressure. There is little else that would explain what is
happening in this case.
Calambro's mother brought these habeas corpus proceedings in her name, maintaining that her son is insane
and that, therefore, her son cannot, while insane, be lawfully executed. NRS 176.425(1) furnishes a procedure
under which the prisons director can call to the attention of the court instances in which a person condemned to
death become[s] insane and cannot, therefore, be lawfully executed.
__________

1
Jeff Ackerman, A parent is ready for justice, a killer is ready to die, Nevada Appeal, September 1, 1998.
This case has elicited considerably more public clamor and media reports and editorials than is usually seen.
Whitehead v. Nevada Comm'n on Judicial Discipline, 111 Nev. 70, 893 P.2d 866 (1995) (Shearing, J.,
dissenting).
therefore, be lawfully executed. In such cases, the director may petition the court alleging the present insanity
of such person. In the case before us we have a condemned man who is mentally retarded, psychotic and not
fluent in the English language. Virtually all of the testimony before the trial court points to the conclusion that
Calambro is mentally ill, insane. It is very hard to deny that Calambro is a man desperately in need of some
help in our judicial system and that he is plainly incapable of acting on his own behalf. The prisons director in
this instance has not seen fit to file a petition to inquire into the present insanity or sanity of Calambro; so
Calambro's mother filed a habeas corpus petition on Calambro's behalf. The district court ruled, in effect, that
Calambro is not crazy enough to permit his mother to represent him in this fashion and dismissed the habeas
corpus petition. This court now affirms the district court's ruling, thus denying a sanity hearing relating to a
person who from all indication has become insane, at least intermittently, since the time of his sentencing.
NRS 176.425.
Although the trial court (incorrectly, I think) concluded that the degree of mental illness suffered by
Calambro was not sufficient to justify his mother's proceeding on his behalf, it did not decide that Calambro was
competent in the sense that he was executable. Unfortunately, this issue will never be decided by our State
courts. It must be remembered that the only issue before the district court was whether Mrs. Calambro was or
was not able to provide an adequate explanation of why her son cannot appear on his own behalf to prosecute
the action. Whitmore v. Arkansas, 495 U.S. 149, 163 (1995) (citations omitted). The question before the
district court, and before this court, then, is not, as adjudicated by the majority opinion, that Calambro was
competent but, rather, whether Mrs. Calambro's explanation was adequate. Mrs. Calambro's explanation of why
her son was not able, not competent, to pursue the writ in his own right and on his own behalf is based upon
her son's long history of schizophrenia and psychotic thought process, aggravated by a 71 I.Q. and his
difficulty with the English language. Calambro's mental problems are complicated by the fact that, all agree, his
condition waxes and wanesthere are times when he is floridly psychotic and kept under heavy
anti-psychotic medication, when he is without an understanding of what is going on and when he refuses to
talk because he believes that, by doing this, the one to whom he is talking will be able to control his thoughts.
Again, there are times when he is in remission and looks normal. Mrs. Calambro is merely asking the courts
to determine in habeas corpus proceedings whether her son's condition, her son's insanity, incompetency,
psychosis, schizophreniahowever you want to put itis such that it would be violative of our laws
and constitution to put him to death.
put itis such that it would be violative of our laws and constitution to put him to death. I cannot understand
why she is not being permitted to do what she is obviously entitled to do under the circumstances of this case.
On the day of Calambro's hearing, the trial judge did not fail, and could not have failed, to recognize that
Calambro was suffering from a degree of mental disorder and deficiency. The trial judge took note of
Calambro's schizophrenic tendencies and saw that Calambro suffered from at least some degree of mental
illness. Calambro's mental illness, at that particular time and place, did not, apparently, strike the trial judge as
being of a sufficient degree as to keep Calambro from making an intelligent decision as to whether or not he
should pursue post-conviction relief. Put in another way, what the court was really saying was that mentally
retarded, delusional, schizophrenic, language-handicapped Calambro did not need his mother's help; that
Calambro was capable of making intelligent, life-or-death decisions and possessed sufficiently mature judgment
and understanding of the proceedings and the language of the proceedings so that he could, as he told prison
officials, look[] forward to his execution. I do not think so.
Given Calambro's history of insanity and mental retardation, I cannot even guess as to how the district court
could have arrived at the conclusion that Calambro was not in obvious need of having a next friend carry
forward habeas corpus proceedings on his behalf and to allow for a complete and orderly judicial review of the
legality and constitutionality of executing a person suffering from delusional schizophrenia and the other mental
disorders described in the proceedings conducted by the district court. It is readily apparent from the record
before the district court that Calambro was suffering from a degree of mental illness that demands that habeas
corpus proceedings be carried out by someone other than Calambro, on his behalf. I respectfully suggest that the
trial judge would have been better advised to decide the matter along the following lines:
All of the experts say that this man is schizophrenic but that he does have some normal moments.
The only issue before the court today is whether Mrs. Calambro has presented an adequate explanation
to support her bringing this petition in her son's stead. Given the psychiatric history and uncontradicted
evidence of schizophrenia and psychotic disorders, justice and fairness demands that these habeas corpus
proceedings be pursued by someone other than Calambro himself. I have said that I want to have further
research and interviewing done by Dr. Schmidt and others so that a fair and complete determination can
be made as to whether the defendant is sufficiently sane so as to justify putting him to
death.
defendant is sufficiently sane so as to justify putting him to death. Only after a full hearing on this issue
can I responsibly decide whether Calambro is sane or insane, a determination that should be made in a
manner comparable to the procedures provided for in NRS 176.425. We have before us a mentally
retarded, delusional, psychotic man who claims that he wants to die and that he is looking forward to it.
This court concludes that in the face of overwhelming evidence of Calambro's multiple mental disorders
and language disabilities, Mrs. Calambro must be allowed to proceed with the writ of habeas corpus,
brought on her son's behalf.
A majority of this court intimates that if we permit this mother to proceed on behalf of her son, we will be
inviting future nonmeritorious or repetitive claims of insanity. Such a concern cannot arise from the kinds of
facts that are present here; but the suggestion prompts me to offer a brief overview of what I see as being the
uncontradicted evidence presented to the trial court:
1. Calambro is suffering from a mental disorder, probably schizophrenia.
2. Calambro's mental disorder precludes his understanding the nature of what is
going on.
3. Calambro's mental disorder is compounded by his low intellectual functioning.
(71 I.Q.)
4. Calambro refused to talk because he had a delusion that talking would allow the
psychologist to control his thoughts.
5. Calambro displayed a psychotic thought process.
6. Calambro's father is schizophrenic, which increased Calambro's chances of being
schizophrenic tenfold.
7. Calambro has been on Haldol (fifty times more potent than Mellaril, another
anti-psychotic drug), a very powerful anti-psychotic drug, in a dose that's usually given
to what we call floridly psychotic individuals, people who are actively difficult to
manage, because of a thought disorder that's out of control.
The aspect of Calambro's mental illness that is deserving of most attention is the intermittent, episodic
nature of his mental illness. Dr. Heras, based on her evaluation of Mr. Calambro, testified that Mr. Calambro is a
schizophrenic and, significantly, that a schizophrenic patient may experience remission of symptoms for a time
and then become actively psychotic again. An interval of remission was put poignantly by prison doctor Knapp:
[He l]ooked normal today.
When the time comes (and I believe it will) when Calambro is given a habeas corpus hearing on the issues
raised by his mother, the courts must deal with the problem: "What do you do with a person
that is sane today, concededly crazy tomorrow and sane the next day?"
the courts must deal with the problem: What do you do with a person that is sane today, concededly crazy
tomorrow and sane the next day? Such a question goes beyond the scope of this dissent; but it does show the
depth of the problems that must be addressed when this matter comes to a full habeas corpus hearing.
I have called Mrs. Calambro's adequate explanation of the need to pursue a habeas corpus writ on her son's
behalf as being uncontradicted because the State's case does not offer any firm contradiction of the proposition
that Calambro is not mentally and otherwise capable of pursuing the matter on his own. Prison records offered to
the district court by the State reveal that Calambro often suffered from audio and visual hallucinations,
including voices telling him to hurt himself, that he looked forward to his execution and was not
concerned about it. It is difficult for me to understand why the courts of this state would deny judicial review of
the death sentence of the man described in this record.
2

Referring again to Justice Shearing's dissent in Whitehead, above, Justice Shearing quoted Chief Justice
Burger with approval, remarking that it is assumed that judges will ignore the public clamor or media reports
and editorials in reaching their decisions and by tradition will not respond [react] to public commentary. Id. at
231, 893 P.2d at 967. The justice's comment brings to my mind the motto of this court: Fiat justicia ruat
coelumLet justice be done, though the heavens fall. These words were delivered by Lord Mansfield, Lord
Chief Justice, in the case of Rex v. Wilkes, 4 J. Burrow 289 (K.B. February 5, 1770). To put Lord Mansfield's
words, adopted by this court as its motto, into context, let me say something about the setting in which Lord
Mansfield pronounced these words. The subject of the hearing before Lord Mansfield was a criminal action
against a very popular member of Parliament, John Wilkes. Wilkes, charged with outlawry, had very strong
popular support and members of the court had received a number of letters in support of Wilkes, some
threatening the justices' lives. Wilkes was strongly supported by the press. Mobs rioted in Wilkes' support, and
their clamor was audible in the court room while Lord Mansfield was delivering his judgment. Lord Mansfield
paused for a moment:
__________

2
I note that after much wrangling and leading (brought about largely because, in addition to being mentally
retarded and schizophrenic, Calambro can barely speak English), the district judge finally got Calambro to say
No to the question, [D]o you wish to bring a legal challenge to your conviction or your sentence?
Calambro's attorney then asked the court to ask Calambro the rather simple question of whether or not Calambro
wanted his mother to challenge his sentence. The court would not permit the question; so we do not know
whether Calambro was willing to have his mother act on his behalf or not. Even the majority admits that this was
a mistake.
But here let me pause!
It is fit to take some notice of the various terrors hung out; the numerous crowds
which have attended and now attend in and about the hall, out of all reach of hearing
what passes in Court; and the tumults which, in other places, have shamefully insulted
all order and government. Audacious addresses in print dictate to us, from those they
call the PEOPLE, the judgment to be given now, and afterwards upon conviction.
Reasons of policy are urged, from dangers to the kingdom, by commotions and general
confusion.
Give me leave to take the opportunity of this great and respectable audience, to let the
world know, all SUCH attempts are VAIN. Unless we have been able to find an error
which bear us out, to reverse the outlawry, it must be affirmed. The constitution does
not allow reasons of state to influence our judgments: God forbid it should! We must
not regard political consequences, how formidable soever they might be; if rebellion
was the certain consequence, we are bound to say, Fiat justicia ruat coelum.
I pass over the many anonymous letters I have received. Those in print are public;
and some of them have been brought judicially before the Court. Whoever the writers
are, they take the wrong way. I will do my duty, unawed. WHAT am I to fear? That
mendax infamia from the press, which daily coins false facts, and false motives? The
lies of calumny carry no terror to me. I trust that my temper of mind, and the coulour
and conduct of my life, have given me a suit of armour against these arrows. I wish
POPULARITY; but it is that popularity which follows, not that which is run after. It is
that popularity which, sooner or later, never fails to do justice to the pursuit of noble
ends, by noble means. I will not do that which my conscience tells me is wrong, upon
this occasion, to gain the huzzas of thousands, or the daily praise of all the papers
which come from the press: I will not avoid doing what I think is right, though it should
draw on me the whole artillery of libels; all that falsehood and malice can invent, or the
credulity of a deluded populace can swallow.
Rex v. Wilkes, 4 J. Burrow 289, 314-315 (K.B. 1770) (emphasis in original).
____________
114 Nev. 981, 981 (1998) Schoels v. State
WILLIAM CHRISTOPHER SCHOELS, Appellant, v. THE STATE OF NEVADA,
Respondent.
No. 28086
October 27, 1998 966 P.2d 735
Appeal from a judgment of conviction and sentence pursuant to a jury verdict of first-degree murder with the
use of a deadly weapon and possession of a firearm by an ex-felon. Eighth Judicial District Court, Clark County;
Joseph S. Pavlikowski, Judge.
Defendant was convicted and sentenced to life without parole. Defendant appealed. The supreme court,
Rose, J., held that: (1) denial of request to change plea on charge of ex-felon in possession of firearm to guilty
was not abuse of discretion; (2) proper instruction on premeditation made discrete definitions of willfulness and
deliberateness unnecessary; (3) improper instruction on voluntary manslaughter was not prejudicial; (4)
self-defense instruction was adequate; and (5) improper argument on need to execute defendant was harmless
error.
Affirmed.
Rehearing granted; reversed and remanded for new trial. 115 Nev.
-----
, 975
P.2d 1275 (1999).
Morgan D. Harris, Public Defender, Michael L. Miller and Howard Brooks, Deputy Public Defenders, Clark
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.
Denial of request to change plea on charge of ex-felon in possession of firearm to guilty, made 23 months after not guilty plea and
just before jury selection in prosecution on murder and firearm possession charges, was not abuse of discretion, though change of plea
would allegedly have allowed jury to deliberate the degree of alleged homicide without being influenced by knowledge of defendant's
ex-felon status. NRS 174.035(1).
2. Criminal Law.
Accepting a tendered plea of guilty is within sound discretion of trial court. NRS 174.035(1).
3. Criminal Law.
Defendant does not have a right to have guilty plea accepted.
4. Criminal Law.
Trial judge has authority to assure protection of public interests including assuring fairness to the prosecution.
5. Homicide.
For purposes of first-degree murder charge, premeditation may be as instantaneous as successive thoughts of the mind. NRS
200.030.
6. Homicide.
It is not necessary to offer discrete definitions of deliberateness or willfulness in first-degree murder prosecution so long as jury
instruction on premeditation is proper. NRS 200.030.
7. Homicide.
For purposes of first-degree murder charge, premeditation requires the state to 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, regardless of how short a time existed
between the formation of the design to kill and the killing itself. NRS 200.030.
8. Homicide.
Instruction on charge of voluntary manslaughter, that there must be an attempt by the person killed to commit a serious personal
injury to defendant, failed to convey unambiguously that a direct physicial assault on victim was unnecessary.
9. Homicide.
Failure of instruction on voluntary manslaughter to convey unambiguously that a direct physical assault by victim was unnecessary
was harmless error in prosecution resulting in first-degree murder conviction. Jury would have reached same result with proper
instruction, in view of evidence that defendant fatally shot victim after victim talked trash and threatened to return with a gun. NRS
200.030.
10. Homicide.
Use of self-defense to justify a homicide does not require proof that defendant was in actual danger of being killed or seriously
injured by his assailant.
11. Homicide.
Jury instruction in murder prosecution, stating that the right of self defense was the same whether danger from victim was real or
merely apparent, adequately conveyed that actual danger was not necessary to justify self-defense. NRS 200.030.
12. Criminal Law.
Prosecutor's references to jury as conscience of the community were not improper in prosecution for first-degree murder in
which jury would be considering whether to impose death penalty.
13. Criminal Law.
Prosecutor's use of collective terms such as we, us and our in its closing argument was not improper in capital case; those
collective pronouns were used to indicate citizens or human beings rather than to align prosecution with jury in determining
defendant's punishment.
14. Criminal Law.
It is improper for the state to argue in a fashion that suggests the jury should align itself with the prosecution.
15. Criminal Law.
Improper argument that it was necessary to execute defendant to keep him from killng [killing] future victims was harmless error,
where argument was made only once, remaining argument was proper, and defendant was not assessed death penalty.
16. Criminal Law.
Prosecutor could properly argue future dangerousness of defendant in capital case, where charged murder occurred when
defendant and victim argued during basketball game and defendant shot unarmed victim at point blank range,
and where jury was also informed that defendant had earlier been convicted of armed robbery.
tim argued during basketball game and defendant shot unarmed victim at point blank range, and where jury was also informed that
defendant had earlier been convicted of armed robbery.
17. Criminal Law.
Prosecutor in capital case may not argue that the jury, by its verdict, will be choosing whether to execute the defendant or some
innocent victim in the future; this prohibition includes the argument that it is necessary to execute the defendant to protect innocent
victims from death at the defendant's hands in the future.
18. Criminal Law.
Prosecutor may argue that capital defendant, if not executed, will pose a threat to the lives of others in the future or that he will kill
again, provided that prosecutor does not, directly or by implication, place responsibility on the jury for deaths of unknown future
victims.
19. Criminal Law.
Prosecutorial misconduct in form of suggesting that jurors will be responsible for deaths of unknown future victims if death
penalty verdict is not returned, is subject to harmless error analysis; however, supreme court will reverse the conviction or death
penalty where the decision between life or death is a close one or the prosecution's case is weak.
20. Criminal Law.
Statute requiring that district attorney or other counsel for the state open and close the argument in criminal prosecution applies to
penalty phase of capital trial. NRS 175.141(5).
21. Criminal Law.
Supreme court would not consider arguments for which defendant offered no authority.
22. Homicide.
Defendant in first-degree murder prosecution could not assert error in jury instructions on aggravating circumstances where he had
not received death sentence. NRS 200.030.
OPINION
William Christopher Schoels and Gregory Hayes were playing basketball at a sports complex in Las Vegas when they engaged in an
argument. Schoels announced that he was going to leave and began walking toward the opposite end of the basketball court. According to
witnesses, Hayes followed Schoels, talking trash, and threatening to return with a gun. Schoels then pulled a gun and shot Hayes in the
right shoulder. Hayes fell forward, grabbing Schoels around the legs, and Schoels then shot him in the back, killing him.
Schoels was arrested, and a jury convicted him of first-degree murder with the use of a deadly weapon and possession of a firearm by
an ex-felon. Schoels was sentenced to life in prison without the possibility of parole for the murder conviction, life without the possibility
of parole for use of a deadly weapon, and six years in prison for the possession of a firearm by an ex-felon.
Schoels now appeals his convictions and sentences, arguing that the district court abused its discretion and
committed reversible error both in the guilt and penalty phases of his trial.
Denial of Plea Change
[Headnote 1]
On October 19, 1993, Schoels pleaded not guilty to the charge of ex-felon in possession of a firearm.
Twenty-three months later, just before jury selection and after both parties had prepared their cases for trial,
Schoels petitioned the court to change his plea on that charge. The district court denied the request, stating that
allowance of the change at such a late point in the proceedings would be highly detrimental to the State.
Schoels argues that the district court's denial of this request contaminated the jury and denied him a fair trial.
He argues that a plea of guilty would have allowed the jury to deliberate the degree of the alleged homicide
without being influenced by knowledge of his ex-felon status.
[Headnotes 24]
[A]ccepting a tendered plea of guilty is within the sound discretion of the trial court. Sturrock v. State, 95
Nev. 938, 940, 604 P.2d 341, 343 (1979) (footnote omitted); NRS 174.035(1).
1
A defendant does not have a
right to have his guilty plea accepted. North Carolina v. Alford, 400 U.S. 25, 38 n.11 (1970); Jefferson v. State,
108 Nev. 953, 954, 840 P.2d 1234, 1235 (1992). A trial judge has authority to assure protection of public
interests including assuring fairness to the prosecution. Sparks v. State, 104 Nev. 316, 759 P.2d 180 (1988).
NRS 174.035(1) provided the district court the discretion to deny Schoels' plea. Because the trial court has
discretion to decline to accept a plea change when necessary to protect the public interest, we hold that the
district court did not abuse its discretion by denying Schoels' guilty plea.
Jury Instructions
Schoels argues that the district court improperly instructed the jury regarding the elements of first-degree
murder, the elements of voluntary manslaughter and the applicability of self-defense to the charges.
[Headnote 5]
Schoels concludes that the district court failed to instruct the jury that first-degree murder must be willful,
deliberate and premeditated."
__________

1
NRS 174.035(1) provides: A defendant may plead not guilty, guilty, guilty but mentally ill or, with the
consent of the court, nolo contendere. The court may refuse to accept a plea of guilty or guilty but mentally ill.
meditated. See NRS 200.030. Schoels contends that the district court, by defining only premeditation and by
failing to define willful and deliberate, rendered NRS 200.030 meaningless and blurred the distinction
between first- and second-degree murder. Schoels further contends that the district court misled the jury when it
defined premeditation as instantaneous as successive thoughts of the mind.
2

[Headnotes 6, 7]
It is not necessary to offer discrete definitions of deliberateness or willfulness so long as the jury instruction
on premeditation is proper. See Powell v. State, 108 Nev. 700, 709-10, 838 P.2d 921, 927 (1992), vacated on
other grounds, 511 U.S. 79 (1994); see also Doyle v. State, 112 Nev. 879, 921 P.2d 901 (1996); Witter v. State,
112 Nev. 908, 921 P.2d 886 (1996); DePasquale v. State, 106 Nev. 843, 803 P.2d 218 (1990), cert. denied, 502
U.S. 829 (1991) (using premeditated and deliberate as a single term); Briano v. State, 94 Nev. 422, 581 P.2d 5
(1978) (same). Premeditation requires the state to 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. . . . [regardless of] how
short a time existed between the formation of the design to kill and the killing itself. Briano, 94 Nev. at 425,
581 P.2d at 7 (citations omitted).
In Powell, this court examined an instruction identical to the instruction challenged by Schoels and held that
it was a proper definition of premeditation. Id., 108 Nev. at 710, 838 P.2d at 927. Accordingly, we hold that the
district court did not err by failing to define willfulness or deliberateness.
[Headnotes 8, 9]
Schoels also contends that the district court erred by failing to include his proposed language in the jury
instruction regarding voluntary manslaughter.
3
At trial, Schoels argued that the victim's threat of physical
violence to Schoels was sufficient provocation to justify a finding of voluntary
manslaughter.
__________

2
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.

3
Voluntary manslaughter is the unlawful killing of a human being without malice, express or implied,
without any admixture of deliberation. It must be voluntary, upon a sudden heat of passion caused by a
provocation apparently sufficient to make the passion irresistible. In cases of voluntary manslaughter,
there must be a serious and highly pro-
threat of physical violence to Schoels was sufficient provocation to justify a finding of voluntary manslaughter.
The defense proposed the following addition to the instruction: The serious and highly provoking injury which
causes the sudden heat of passion for purposes of voluntary manslaughter can occur without direct physical
contact. The proposed language is consistent with Nevada law. See Roberts v. State, 102 Nev. 170, 717 P.2d
1115 (1986) (a serious and highly provoking injury need not be a direct physical assault by the victim). The
State argues that the reference to attempt in the jury instruction
4
sufficiently conveys that no direct physical
assault is necessary to provoke manslaughter, and that the proposed language was therefore superfluous.
We conclude that the jury instruction failed to convey unambiguously that a direct physical assault by the
victim was unnecessary. However, it seems obvious that had the jury received a proper instruction, it would not
have reached a different conclusion at trial. Horvath v. Burt, 98 Nev. 186, 643 P.2d 1229 (1982) (reversal is
not required unless a different result would be likely absent the contested instruction). Therefore, we conclude
that Schoels' argument lacks merit.
[Headnote 10]
Schoels next contends that the district court improperly instructed the jury regarding self-defense.
5
Schoels
argues that the language actual danger is not necessary to justify self defense should have been added to the
instruction and was necessary to his defense. An instruction that a defendant may only use self-defense to justify
a homicide when he is in actual danger of being killed or seriously injured by his assailant is improper.
Culverson v. State, 106 Nev. 484, 797 P.2d 238 (1990). Schoels contends that the court's refusal to
include his proposed language resulted in an unfair trial.
__________
voking 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.
The killing must be the result of that sudden, violent impulse of passion supposed to be irresistible;
for, if there should appear to have been an interval between the assault or provocation given and the
killing, sufficient for the voice of reason and humanity to be heard, the killing should be attributed to
deliberate revenge and punished as murder.

4
[T]here must be . . . an attempt by the person killed to commit a serious personal injury to the person
killing.

5
If one is confronted with 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 oneself in
like danger, and if the person so confronted acts in self-defense upon such appearances and from such
fear and honest convictions, the right of self-defense is the same whether such danger is real or merely
apparent.
that the court's refusal to include his proposed language resulted in an unfair trial.
[Headnote 11]
The State argues that the language in the jury instruction, stating that the right of self defense upon such
appearances and from such fear and honest convictions . . . is the same whether such danger is real or merely
apparent, explained that apparent danger justifies self-defense as much as actual danger. We agree, and
conclude that Schoels' challenge of the jury instruction plainly lacks merit.
Prosecutorial Misconduct
Schoels claims that the prosecution engaged in several forms of misconduct at trial. He argues that the
prosecution made statements that referred to the jury as the conscience of the community or sought to align the
jury with the prosecution, and inappropriately forecast his future dangerousness.
[Headnote 12]
Schoels' first allegation of misconduct is that the prosecutor improperly referred to the jury as the
conscience of the community, violating the well-established prohibition against such tactics. See Haberstroh v.
State, 105 Nev. 739, 782 P.2d 1343 (1989), cert. denied, 510 U.S. 858 (1993); see also Snow v. State, 101 Nev.
439, 705 P.2d 632 (1985), cert. denied, 475 U.S. 1031 (1986). However, in first-degree murder cases where the
jury is to consider the sentence to be imposed, we have previously held that it was not reversible error for a
prosecutor to argue community standards to assist the jury in imposing the punishment. See Lisle v. State, 113
Nev. 540, 937 P.2d 473 (1997); Domingues v. State, 112 Nev. 683, 917 P.2d 1364 (1996). Upon consideration
of the numerous instances cited by Schoels, we conclude that the prosecution made no improper argument and
that Schoels' claim of error on this ground is therefore meritless.
[Headnotes 13, 14]
Schoels' second allegation of misconduct is that the prosecution improperly used collective terms such as
we, us, and our in its closing argument.
6
It is improper for the State to argue in a fashion that suggests the
jury should align itself with the prosecution. Snow, 101 Nev. at 447, 705 P.2d at 639.
The State argues that it did not use the words we, us, and our to align the jury with the prosecution.
Collective pronouns such as "we" and "our" are appropriate if they are used to indicate
citizens or human beings rather than to align the prosecution with the jury in determining
a defendant's punishment. Id. at 447, 705 P.2d at 639.
__________

6
Schoels refers to many instances of the prosecutor's use of we, us, and our, such as: We watch and
we administer, we get satisfaction in revenge . . . .; [T]he death penalty is reserved for the worst of us.;
Think about that and relate it to our case.
such as we and our are appropriate if they are used to indicate citizens or human beings rather than to align
the prosecution with the jury in determining a defendant's punishment. Id. at 447, 705 P.2d at 639. We conclude
that the prosecution's use of we, us, and our did not constitute prosecutorial misconduct.
[Headnote 15]
Schoels' third allegation of misconduct involves the prosecution's prediction of his future dangerousness as a
basis for imposition of the death penalty. The prosecution argued to the jury, over Schoels' objection, that it was
necessary to put Schoels to death in order to prevent him from killing others in the future, thereby saving
innocent victims from the murderous hands of William Schoels. The way to protect innocent victims of homicide
in the future, according to the prosecutor, was for the jurors to vote for the death penalty so that no one else has
to die at his hands.
[Headnotes 1619]
In this case, Schoels carried a pistol in his pocket while playing basketball in the gym. When a heated
argument with the victim developed, Schoels pulled out his pistol and shot the unarmed man at point blank range
in the shoulder and then in the back.
7
The jury was also informed that Schoels had been convicted
of armed robbery a few years earlier. Under these circumstances, it was proper for the
prosecution to argue the future dangerousness of Schoels.
8
However, the argument on future
dangerousness below suggested, at least by strong implication, that the jury would be
responsible for the deaths of future innocent victims if a death penalty verdict was not
returned. A prosecutor may not argue or suggest to the jury that the jury is or would be
responsible for any future victims of the defendant. We disapproved of this type of comment
in Howard v. State, 106 Nev. 713, 718-719, 800 P.2d 175, 178 (1990), and more recently in
Castillo v. State, 114 Nev. 271, 280, 956 P.2d 103, 109 (1998). A prosecutor may not argue
that the jury, by its verdict, will be choosing whether to execute the defendant or some
innocent victim in the future. This prohibition includes the argument that it is necessary to
execute the defendant to protect innocent victims from death at the defendant's hands in the
future. A prosecutor may still argue that the defendant, if not executed, will pose a threat to
the lives of others in the future or that he will kill again.
__________

7
Thus, contrary to the dissent, Schoels was not, at the time of this homicide, locked in a life-or-death
situation from his standpoint.

8
In Redmen v. State, 108 Nev. 227, 235, 828 P.2d 395, 400 (1992), overruled on other grounds by Alford v.
State, 111 Nev. 1409, 1415 n.4, 906 P.2d 714, 717 n.4 (1995), we concluded, and now re-affirm, that
prosecutors may argue future dangerousness in death penalty litigation where there is no evidence of violence
independent of the murder in question.
ers in the future or that he will kill again. What are prohibited are arguments which, directly or by implication,
place responsibility on the jury for the deaths of unknown future victims. As we have held in the past, this type
of prosecutorial misconduct is subject to harmless error analysis. However, we will reverse the conviction or
death penalty where the decision between life or death is a close one or the prosecution's case is weak. See Jones
v. State, 113 Nev. 454, 469-470, 937 P.2d 55, 65 (1997). To the extent that any of our previous cases discussing
this issue may be read as inconsistent with this analysis, they are superseded.
Following this analysis, the prosecutor's argument was improper when he stated that it was
necessary to execute Schoels to protect future victims. However, it was only stated once, the
remaining argument was proper, and Schoels was not assessed the death penalty. Given the
sufficient evidence supporting the verdict returned by the jury and the fact that the prosecutor
made but one transgression in his closing argument, we deem this error harmless.
Penalty Phase Prejudice
[Headnote 20]
Prior to trial, the district court denied Schoels' motion to argue last during the penalty phase. Schoels
contends that it is fundamentally unfair to deny a person facing the death penalty the last chance to plead for his
life. Schoels notes that NRS 200.030(4)(a) and NRS 175.554(3) place the burden on the defendant to prove
that mitigating circumstances outweigh aggravating circumstances to avoid the death penalty, and argues that
this burden should result in the defendant being allowed to argue last during the penalty phase.
9

NRS 175.141(5) sets forth the procedure to follow during a trial. We concur with the State's argument
that, because the penalty hearing is part of the trial, NRS 175.141(5) governs the penalty hearing as well.
NRS 175.141(5) states that the district attorney, or other counsel for the State, must open and conclude the
argument. (Emphasis added.) Thus, NRS 175.141(5) mandates that the State argue last during the penalty
phase where the death penalty is involved. See Witter v. State, 112 Nev. 908, 921 P.2d SS6 {1996),
cert. denied, 520 U.S. 1217, 117 S.Ct. 170S {1997).
__________

9
Schoels urges this court to follow two jurisdictions that require the defense to argue last during the penalty
phase where the death penalty is involved. A Kentucky statute provides that the prosecuting attorney shall open
and the defendant shall conclude the argument. Ky. Rev. Stat. 532.025(1)(A). The California Supreme Court
determined that [e]qual opportunity to argue is . . . consistent with the Legislature's strict neutrality in governing
the jury's choice of penalty . . . . Accordingly, hereafter the prosecution should open and the defense respond.
The prosecution may then argue in rebuttal and the defense close in surrebuttal. People v. Bandhauer, 58 Cal.
Rptr. 332, 337 (1967), cert. denied, 389 U.S. 878 (1967).
P.2d 886 (1996), cert. denied, 520 U.S. 1217, 117 S.Ct. 1708 (1997). Accordingly, we conclude that Schoels'
argument lacks merit.
[Headnote 21]
Schoels further contends that the district court erred by permitting the prosecution to allege, without probable
cause, aggravating factors and by death qualifying the jury, thereby tainting his due process right to a fair trial.
Schoels argues that evidence of aggravating factors should be presented before a neutral magistrate to determine
whether there is probable cause for death qualification of jurors. However, Schoels offers no authority in support
of his proposal. Accordingly, we decline consideration of his argument. Cunningham v. State, 94 Nev. 128, 575
P.2d 936 (1978) (this court will not consider an issue if no relevant authority is presented on appeal).
[Headnote 22]
Schoels also argues that the district court erred by accepting the prosecution's notice of intent to seek the
death penalty based on aggravating factors which should not have been considered. Further, Schoels challenges
the State's allegation of an aggravating circumstance based on a great risk of death to more than one person. See
NRS 200.033(3). We recently held in Phenix v. State, 114 Nev. 116, 954 P.2d 739, (1998) that an appellant
could not challenge jury instructions on aggravating circumstances where he had not received a death sentence
below. In applying the same reasoning to the instant case, we decline to reach the merits of Schoels' arguments
pertaining to the aggravating circumstances because he was not sentenced to death.
We have reviewed all of the other arguments and issues raised by the parties and conclude that they are
without merit. We affirm the judgment of conviction and the sentence imposed.
I agree with the majority that Schoels' judgment of conviction should be affirmed. I write separately to
address the allegations in the dissenting opinion.
There is no evidence for the dissenting justice's allegation that prosecutors have, nonetheless, adopted the
common practice of seeking the death penalty, not because they believe the case is truly a capital case but
because they believe that seeking the death penalty will give them a tactical advantage. Obviously, the
dissenting justice views the case differently than either the prosecution or, apparently, the jury in this case. This
court's review of cases is limited to the evidence in the record. There is no evidence that the prosecutor
applied an inappropriate standard in this case.
that the prosecutor applied an inappropriate standard in this case. The fact that the Nevada Supreme Court Task
Force for the Study of Racial and Economic Bias in the Justice System recommended use of statewide standards
for prosecutors' decisions regarding whether to seek the death penalty does not imply that inappropriate
standards were used in this case.
I agree that the race of the defendant and the victim should not play any role in determining whether the
death penalty should be sought. I also agree that some of the findings of the Task Force were disturbing, and
every effort should be made to eliminate racial bias wherever it may exist in our system of justice. However, it is
very important to both defendants and our society that each individual case be decided on the evidence in that
case. The philosophy and experience of a reviewing justice may influence a ruling, but the decision must always
be based on the evidence in the record.
Furthermore, this court must respect the doctrine of separation of powers. The judiciary may not invade the
legitimate function of the prosecutor. Charging decisions are primarily a matter of discretion for the prosecution,
which represents the executive branch of government. Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978). In
United States v. Cox, 342 F.2d 167, 171 (5th Cir.), cert. denied, 381 U.S. 935 (1965), the court stated:
It follows, as an incident of the constitutional separation of powers, that the courts are not to interfere
with the free exercise of the discretionary powers of the attorneys of the United States in their control
over criminal prosecutions.
Article 3, section 1 of the Constitution of the State of Nevada also provides for similar
separation of powers.
The applicable principles are elaborated in United States v. Miller, 722 F.2d 562, 565 (9th Cir. 1983) as
follows:
[S]eparation of powers requires that the judiciary remain independent of executive
affairs. Charging decisions are generally within the prosecutor's exclusive domain.
Prosecutorsrepresentatives of the executive branch of the governmentare not mere
servants of the judiciary. The tradition of prosecutorial independence is recognized both
by case law, and the Federal Rules of Criminal Procedure.
. . . Generally, courts should be wary of second-guessing prosecutorial choices. Courts
do not know which charges are best initiated at which time, which allocation of
prosecutorial resources is most efficient, or the relative strengths of various cases and
charges. Categorical limitations on charge bargains may force prosecutors to bring
charges they ordinarily would not, or to maintain charges they would ordinarily dismiss
as on-going investigations uncover more information.
ily dismiss as on-going investigations uncover more information.
(Citations omitted.)
Certainly it is the duty of the courts to enforce the due process limitations on arbitrary or discriminatory
prosecution. The community benefits if standards for prosecutorial discretion are adopted and followed to
protect against abuse of discretion and disparate treatment of minorities or the less powerful. However, judicial
intervention should be confined to review of the records that are brought before the courts.
I dissent because I believe that Schoels did not get a fair trial and because I disapprove of what I see as being
unfair and improper prosecutorial tactics employed by the State's attorneys in this case. I would reverse the
judgment of conviction and the sentence of life without the possibility of parole.
The main point that I raise was not raised by Schoels in his appellate briefing. I raise it on my own. As a
consequence, the State's attorneys have not had an opportunity to present counter arguments to the position that I
forward in this dissenting opinion. I am, therefore, cautious not to be critical or lay blame on prosecutors who
appear to be employing these objectionable practices. I am satisfied, nonetheless, that it is crucial to the
administration of the criminal justice system in this state that the subject at hand be brought to the immediate
attention of the bench and the bar.
This is the objectionable prosecutorial practice that I see being employed in this case and in other murder
cases on a fairly regular basis: In murder cases that do not call for the death penalty under the standards of this
court and the United States Supreme Court, prosecutors have, nonetheless, adopted the common practice of
seeking the death penalty, not because they believe the case is truly a capital case but because they believe that
seeking the death penalty will give them a tactical advantage. This practice gives prosecutors an advantage in the
plea bargaining process and, if the accused goes to trial, results in an increased likelihood that the jury will
return, by way of compromise, the next most severe verdict, life without the possibility of parole. A prosecutor
who would knowingly overcharge in this manner is not only violating his oath by prosecuting in bad faith, such a
prosecutor is risking the undeserved death of the accused if the jury were to buy the prosecutor's affected death
penalty argument.
1
In order to make a non-capital case look like a capital case,
prosecutors often try to make a procrustean fit of "aggravating circumstances" into a fact
pattern that cannot suitably conform to any notion of that term as it is defined in our law.
__________

1
One of the considerations that moved me to raise the issues of overcharging and unrestricted prosecutorial
discretion on my own was the report to the court of its Supreme Court of Nevada Task Force Implementation
Committee
In order to make a non-capital case look like a capital case, prosecutors often try to make a procrustean fit of
aggravating circumstances into a fact pattern that cannot suitably conform to any notion of that term as it is
defined in our law. A good example of this agonizing process is found in the present case, in which the
prosecutor tried to fit a simple, close-range shooting, involving two mutual combatants, into the statutory
aggravating circumstance, knowingly created a risk of death to more than one person. Schoels was involved in
a life-or-death fight after his assailant grabb[ed] Schoels around the legs, after which Schoels fired, point
blank, into the body of his assailant. There is nothing at all in this case to suggest that in doing this he was
knowingly or otherwise risking the life of other persons. (Unless of course, we were to say that he should have
been able to know that a bullet might enter his adversary's body, exit the body and then find its way to some
bystander).
2
The jury found that this was not a death penalty case, and it should have been
readily apparent to the prosecution that this was not a death penalty case.
__________
for the Elimination of Racial, Economic, and Gender Bias in the Justice System. One of the major concerns of
the Task Force was the untrammeled power of prosecutors to decide who should live and who should die. The
Task Force resolved that measures should be taken to develop uniform procedures and criteria for determining
which murder cases should be capital cases. Implementation Plan at F3, ADKT 160 (August 4, 1998). Without
such standards being in place, prosecutors are necessarily subject to being suspected of letting racial or other
biases enter into the life-death decision making process. The Task Force saw the development of standards,
procedures and criteria for making this vital decision as a necessity in order to make sure that the [death
sentence process] is fair and consistent. Id.
Prosecutors' death penalty decisions cannot, the Task Force reasoned, be fair and consistent unless there are
some standards upon which to judge the fairness and consistency of these decisions. In the case now before us,
we have a black youth who killed another black youth in mutual combathardly, as the jury in this case
recognized, a death case, maybe not even a first-degree murder case. Any prosecutor's decision to seek the death
penalty in a case such as this one is going to be justifiably subject to inferences that race was a factor in the
decision-making process. This case shows rather vividly that the Task Force was correct in recommending to us
that procedures and criteria must be put in place to limit the presently unlimited discretion of prosecutors in
making these critical decisions.
Obviously, the recommendations of the Task Force are not binding on the court nor do they provide a basis
for reversing this or other convictions and sentences based on apparent abuses of prosecutorial discretion. I cite
the Task Force report to show the perceived need to avoid appearances of racial bias in the death sentencing
process. If the Task Force recommendations had been implemented, it would have been more difficult for me to
make a case for reversal on the basis of the misuse of prosecutorial discretion.

2
This aggravator is designed to apply in cases in which some hazardous device (perhaps a bomb or
incendiary device) is employed to carry out a murder. This aggravator could be properly applied in some
firearms cases, for example, where the murderer is firing into a crowd. The ordinary shooting, however, where A
shoots B, cannot very well be characterized as knowingly creating a risk of death to more than one person by
hazardous means. If it were otherwise, virtually every shooting murder would
that this was not a death penalty case, and it should have been readily apparent to the prosecution that this was
not a death penalty case.
Prosecutors have certain duties that go beyond those normally imposed on private counsel. An accused,
whether guilty or innocent, is entitled to a fair trial, and it is the duty of the court and prosecutor to see that he
gets it. Garner v. State, 78 Nev. 366, 373, 374 P.2d 525, 529 (1962) (citation omitted) (emphasis added). An
elaboration of the prosecutor's special duty was furnished by the United States Supreme Court in Berger v.
United States, 295 U.S. 78 (1934). This reasoning was relied upon in Garner, and warrants our consideration in
the present case:
The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty
whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose
interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.
As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that
guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor. . . . But, while he
may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from
improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to
bring about a just one.
Berger, 295 U.S. at 88 (emphasis added).
I see Schoels' conviction and sentence as being wrongful. I would reverse the conviction because Schoels
did not get a fair trial. Schoels was put in unwarranted jeopardy of death by being overcharged. He was charged
with capital murder, it appears to me, solely to give the prosecution an unfair advantage and to increase the
chances of the jury's bringing in a life without possibility of parole verdict. Now, I suppose it can be argued that
sending this teen-aged boy to prison for life, for some fifty or sixty years, doomed to die in prison and leave in
an oblong box, is in the best interests of society, but it is difficult to convince me that this is
the case.
__________
become a capital offense because, certainly, it is in almost any shooting case remotely possible that a projectile
might exit the body of the victim and injure another person. The run-of-the-mill shooting is not, however, what
this aggravator is all about. In the typical shooting, the shooter is not knowingly creating a risk of death for
others and ordinarily has nothing in mind other than shooting his victim. That is the case here. Schoels was
engaged in hand-to-hand combat with another youth who had threatened to go get a gun and shoot him. During
their wrestling match Schoels shot twice into the body of the man with whom he was fighting. Two bullets
entered the other youth's body. One of the bullets penetrated the aorta, causing death. It cannot be honestly said
that Schoels knowingly, or otherwise, created a risk of death to anyone other than the person whom he shot at
short range.
is in the best interests of society, but it is difficult to convince me that this is the case. The wrongful conviction
should be reversed. This case should be retried, and retried as a non-capital case.
There are other reasons why I dissent. I cannot agree with the majority's approval of the blood-on-your-hands
argument used by the State. As put in the majority opinion, the prosecution argued to the jury . . . that it was
necessary to put Schoels to death in order to prevent him from killing others in the future, thereby saving
innocent victims from the murderous hand of William Schoels. There are two reasons why such an argument is
impermissible. The first is that there is absolutely no evidence in this case that Schoels was going to go out and
kill innocent victims. The type of fight that ended in the death of one of the combatants here simply does not
lend support to the prosecutor's claim that the jury must end Schoels' life in order to sav[e] innocent victims
from death. The second reason is that it is unfairly prejudicial in any case for a prosecutor, the representative of
State authority, to try to convince lay jurors that the only way to spare the lives of innocent victims in the future
is to return a death verdict. See Howard v. State, 106 Nev. 713, 719, 800 P.2d 175, 178 (1990) (improper to
ask the jury to vote in favor of future victims and against a defendant); Castillo v. State, 114 Nev. 271, 280,
956 P.2d 103, 109 (1998) (whether it will be an execution sentence for the killer . . . or for a future victim of
this defendant); Sherman v. State, 114 Nev. 998, 965 P.2d 903 (1998) (Do we execute a person who has
killed . . . or do we risk the execution of some very innocent people?).
Admitting that the prosecutor's argument was improper and that the district court's permitting this argument
to be presented was error, the majority, nevertheless, says that the error was harmless. What troubles me about
the majority's view is its saying that it would reverse the conviction or death penalty where the decision
between life or death is a close one. There is no question but that Schoels shot his assailant during mutual
combat.
3
Under these circumstances, the question of life or death is not a close one; it is nonexistent. This
is not a death case; but if it were, it certainly must be said that the decision between life or death [of this black
teen-age youth] is a close one; and, accordingly, the court should reverse the death penalty. In one's vain search
for a justifiable explanation for the death sentence prosecution and the resultant life without the possibility of
parole sentence, this youth's race looms large among the possibilities.
__________

3
The majority exaggerates the dangerousness of this youth. Schoels' assailant threatened to go get a gun
and shoot him. The record tells me that Schoels drew his weapon only after his assailant tackled him and a fight
ensued between Schoels and a man who had threatened his life. I think it is extremely unfair to try to
characterize this young man as a blood-thirsty killer who likely to go out and kill innocent people.
Returning to the issue of arbitrary prosecutorial decisions as to who does and who does not have to face the
death penalty in homicide cases, Justice Douglas put the problem in proper perspective when he wrote: Under
these laws no standards govern the selection of the penalty. People live or die, dependent on the whim of one
man . . . . Furman v. Georgia, 408 U.S. 238, 253 (1972) (Douglas, J., concurring). As mentioned, the Supreme
Court of Nevada Task Force Implementation Committee for the Elimination of Racial, Economic, and Gender
Bias in the Justice System made formal findings and recommended the adoption of prosecutorial standards for
prosecutors in death cases. I believe that until such standards are adopted in Nevada, we are going to continue to
see arbitrary decision-making by prosecutors based on prosecutors' personal, moral or ideological backgrounds
and upon a variety of other factors, including the level of public outcry, race and unacceptable political
considerations. Unfettered prosecutorial discretion and unstructured plea bargaining practices naturally tend to
result in arbitrary and discriminatory sentences being sought and imposed by reason of an ever-broadening class
of death-eligible defendants conjured by zealous prosecutors, unrestrained by any objective standards for
selecting those cases in which the death penalty is going to be sought.
This court should attend to the recommendations of its own Task Force, a body which made official findings
that African Americans and other minorities are very much over-represented on death row. Minority offenders
constitute half of those who are given the death sentence in murder cases.
4
In seeking the cause of this
imbalance, the Task Force focused on the breadth of prosecutorial discretion. The Task Force was unable to
discern just what factors went into prosecutorial choices relative to the death penalty and stated that it could do
no more than speculate or generalize based on anecdotal information about what the District Attorneys in
Nevada do when having to decide whether a homicide should be treated as a capital crime. Supreme Court of
Nevada Task Force Implementation Committee for the Elimination of Racial, Economic, and Gender
Bias in the Justice System, Final Report: Findings and Recommendations, ADKT 160, at 70
{June 1S, 199S).
__________

4
I note that the Task Force does not claim that its statistics, per se, support the conclusion that the death
sentence is applied in a discriminatory manner. The Task Force's study does, however, lead one to the
conclusion that standards must be imposed on presently unrestrained prosecutorial discretion. If standards were
in place, it would be much easier to compare decision-making factors and to identify cases in which the only
factor that could have led to the decision to seek the death penalty was the defendant's race or other improper
considerations. In other words, even if prosecutors are not, in fact, making decisions based upon improper racial
considerations, the adoption of standards would, nevertheless, help to minimize the appearance of impropriety
that naturally arises when those with unfettered discretion target for the harshest penaltiesin a disproportionate
mannerblack defendants. It would also serve to temper any temptation to engage in improper racial
discrimination in the future.
of Racial, Economic, and Gender Bias in the Justice System, Final Report: Findings and Recommendations,
ADKT 160, at 70 (June 18, 1998). This being the case, the Task Force recommended legislation revising death
penalty statutes in a way that would mandate uniformity within the state of the decisions and methods for
seeking the death penalty for those eligible pursuant to NRS 200.033. Id. In my view, this court should take the
lead in setting such standards of uniformity.
One way that some uniformity could be achieved would be, according to the Task Force, to require
prosecutors to provide a detailed description of the procedures followed in reaching a decision as to whether to
prosecute a homicide as a capital case. Id. The Task Force concluded that it was necessary to determine [w]hat
factors are taken into account in addition to the statutory aggravating circumstances listed in the NRS, in
deciding to prosecute a homicide that is deemed to have one or more aggravating circumstances. Id. The Task
Force recognized that at present there is no uniformity and no standardized procedures followed in reaching a
decision as to whether to seek the death penalty and wisely recommended that steps be taken to correct this
defect in the death sentencing process.
Although the Supreme Court of the United States has not decided a case which condemns unrestricted
breadth of prosecutorial discretion, I certainly think that it is time, under our State Constitution, that both this
court and our legislature addressed this serious problem. Justices Stevens, Blackmun and Marshall agreed with
Justice Brennan's dissent, in which he recognized the problem in McClesky v. Kemp, 481 U.S. 279 (1987), and
expressed his concern over the myriad of opportunities for racial considerations that are inherent in the
exercise of such broad prosecutorial discretion, and decried the fact that [n]o guidelines govern prosecutorial
decisions to seek the death penalty. Id. at 333 (Brennan, J. dissenting). The Task Force
recognized a very serious defect in our capital sentencing jurisprudence; and I feel strongly
that this court should recognize that, under the Equal Protection Clause and the Due Process
Clause, some standards for prosecutorial discretion must be put in place throughout the State.
Lack of state-wide standards and guidance for individual prosecutors with respect to the death
decision virtually assures that the death penalty will be sought arbitrarily and, occasionally,
imposed arbitrarily. We are very much in need of a systematic and reviewable narrowing
procedure for determining death eligibility during the early critical stage of prosecution.
This conviction should be reversed and remanded for trial before a jury that is not death-qualified, a jury that
does not have to hear a morally and legally groundless argument that Schoels should be lethally injected
and a jury that is not told that it must bring in a death verdict or have blood on its hands.
should be lethally injected and a jury that is not told that it must bring in a death verdict or have blood on its
hands.
Schoels' unfair trial is in large part attributable to Nevada's faulty death-sentencing scheme, which permits
and encourages arbitrary and baseless capital prosecutions. I urge this court to adopt standards of uniformity for
prosecution of capital cases in a manner that will be fair and consistent and will not subject prosecutors to
accusations, founded or unfounded, that they are basing their life or death choices on racial or other arbitrary and
impermissible grounds.
____________
114 Nev. 998, 998 (1998) Sherman v. State
DONALD WILLIAM SHERMAN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 30328
October 27, 1998 965 P.2d 903
This is an appeal from a judgment of conviction, pursuant to a jury verdict, of one count each of burglary,
robbery, and first degree murder, and a sentence of death. Eighth Judicial District Court, Clark County; Stephen
L. Huffaker, Judge.
The supreme court held that: (1) judge's refusal to allow defendant to introduce evidence
that victim had abused his daughter, with whom defendant was romantically involved, was
not manifest error; (2) any error in admitting improper evidence, or allowing improper
argument, was harmless; (3) anti-sympathy jury instruction did not violate defendant's Eighth
Amendment right to have mitigating evidence considered; (4) use of same evidence to
establish multiple aggravators did not infringe upon defendant's due process or double
jeopardy rights; (5) error in admitting evidence of victim impact of prior murders during
penalty phase of capital murder prosecution was harmless; and (6) error resulting from
prosecutor's impermissibly inflammatory arguments during sentencing phase of capital
murder prosecution was harmless.
Affirmed.
Chief Deputy District Attorney, and David Roger, Deputy District Attorney, Clark County, for Respondent.
1. Witnesses.
Extrinsic evidence of specific instances of conduct may not be used to attack credibility of witness; however, such instances are
properly subject of cross-examination. NRS 50.085(3).
2. Criminal Law.
It is within sound discretion of trial court to exclude evidence which is otherwise admissible if its probative value is substantially
outweighed by danger of confusing issues or misleading jury. NRS 48.035(1).
3. Criminal Law.
Supreme court will not set aside district court's ruling to admit or exclude evidence unless it is manifestly wrong.
4. Homicide.
Refusal to allow defendant to introduce evidence tending to show that victim had abused victim's daughter, with whom defendant
was romantically involved, and that defendant's actions were in response to this abuse, was not manifest error, despite defendant's
claim that evidence was admissible to show lack of intent.
5. Homicide.
Any error resulting from judge's refusal to allow murder defendant to introduce evidence tending to show that victim had abused
his daughter, with whom defendant was romantically involved, and that defendant's actions were in response to this abuse, was
harmless, where jury implicitly found that defendant was manipulated by victim's daughter, but that manipulation did not significantly
reduce his culpability.
Because improper references to prior criminal acts affect presumption of innocence, admission of such references violates due
process and requires reversal unless reviewing court determines that error was harmless beyond a reasonable doubt. U.S. Const. amend.
14; NRS 48.045(2).
7. Criminal Law.
Testimony by murder victim's daughter that she had previously contacted Federal Bureau of Investigations (FBI) regarding
defendant, and prosecutor's argument, during closing argument, that daughter had previously had some problems with defendant,
improperly created reasonable inference of prior criminal activity on defendant's part. NRS 48.045(2).
8. Criminal Law.
Any error in admitting testimony by murder victim's daughter suggesting that defendant had been involved in prior criminal
activity, and in allowing prosecutor to comment on suggestion in closing argument, was harmless, where other evidence against
defendant was overwhelming.
9. Criminal Law.
Prosecutor's reference, during opening statement, to abusive, unstable relationship between murder victim's daughter and
defendant, violated order in limine to exclude evidence that defendant had physically abused victim's daughter.
10. Criminal Law.
Any error resulting from prosecutor's violation of order in limine to exclude evidence that murder defendant had physically abused
victim's daughter was harmless, where other evidence against defendant was overwhelming.
11. Criminal Law.
Prosecutor's reference in opening statement to incident in which defendant pantomimed shooting a gun at murder
victim's daughter did not violate order in limine to exclude evidence that defendant had physically abused
victim's daughter; defendant and victim's daughter were in separate cars at time of incident, which
occurred after their relationship had ended.
defendant pantomimed shooting a gun at murder victim's daughter did not violate order in limine to exclude evidence that defendant
had physically abused victim's daughter; defendant and victim's daughter were in separate cars at time of incident, which occurred after
their relationship had ended.
12. Criminal Law.
Error resulting from prosecutor's statement, during closing argument, that murder victim's daughter had looked at defendant and
called him a creep, when statement had been stricken from record, was harmless, where evidence against defendant was
overwhelming.
13. Criminal Law.
Error is harmless if without reservation, verdict would have been same in absence of error.
14. Criminal Law.
Jury instruction, during penalty phase of murder prosecution, stating that verdict may never be influenced by sympathy,
prejudice, or public opinion, did not violate defendant's Eighth Amendment right to have mitigating evidence considered, where judge
also instructed jury to consider mitigating factors. U.S. Const. amend. 8.
15. Constitutional Law; Double Jeopardy; Homicide.
Defendant's death sentence based upon aggravators of committed by a person under a sentence of imprisonment and committed
by a person who was previously convicted of another murder, both of which were based upon prior murder conviction, did not
infringe upon defendant's due process or double jeopardy rights. U.S. Const. amends. 5, 14.
16. Constitutional Law; Double Jeopardy; Homicide.
Defendant's death sentence based upon use of aggravators of both robbery and burglary, based on same conduct, did not infringe
upon defendant's due process or double jeopardy rights. U.S. Const. amends. 5, 14.
17. Criminal Law.
Trial court's determination regarding admissibility of evidence during sentencing hearing will not be disturbed on appeal absent
18. Criminal Law.
District court may not admit at sentencing evidence that is impalpable or highly suspect. NRS 175.552(3).
19. Homicide.
Testimony by police detective that capital murder defendant was very manipulative, and highly dangerous, was relevant to
show that defendant could be dangerous in the future, and was appropriately before jury during sentencing.
20. Homicide.
That testimony by homicide detective stating that capital murder defendant was very manipulative, and highly dangerous, was
based on observations from 15 years earlier, and that homicide detective would perhaps be predisposed toward heightened suspicion of
those under investigation for murder, went to weight, rather than admissibility, of testimony.
21. Criminal Law.
Just as characteristics of defendant may mitigate sentence imposed, so too are characteristics of victim relevant to factfinder's
sentencing decision.
22. Homicide.
Evidence of previous murders is relevant in sentencing phase of current capital prosecution to show only that
statutory aggravating circumstance exists making defendant death eligible.
rent capital prosecution to show only that statutory aggravating circumstance exists making defendant death eligible. NRS 200.033(2).
23. Homicide.
Evidence of impact which murder had on victim's family is relevant to show damage done by murder. NRS 176.015.
24. Homicide.
Evidence of victim impact of prior murder is not relevant to sentencing decision in current case, and is therefore inadmissible
during capital penalty phase. NRS 176.015, 200.033(2).
25. Homicide.
Error in admitting evidence of victim impact of prior murders during penalty phase of capital murder prosecution was harmless,
where other evidence established particularly brutal murder.
26. Criminal Law.
Admission of testimony, during sentencing phase of capital murder prosecution, falsely suggesting that defendant had previously
killed someone while in prison was not reversible error, where defendant declined trial judge's offer to stipulate before jury that
statement should have been that defendant killed his first person and went to prison when he was 17, and offered stipulation would
have cured any false impression caused by testimony.
27. Criminal Law.
Prosecutors may properly argue that defendant's past conduct suggests that even incarceration will not dissuade defendant from
endangering other lives.
28. Criminal Law.
While prosecutor may argue that death penalty should be imposed because defendant may pose risk in future, prosecutor may not
seek death sentence by using improperly inflammatory rhetoric.
29. Criminal Law.
Prosecutor's argument that capital defendant might flare up and kill a prison guard if he were not sentenced to death, and that
defendant should be executed to protect innocent people, was impermissibly inflammatory.
30. Criminal Law.
Error resulting from prosecutor's impermissibly inflammatory arguments during sentencing phase of capital murder prosecution
was harmless, where evidence of other aggravating factors was overwhelming.
31. Criminal Law.
Prosecutor's comments, during closing arguments of sentencing phase of capital murder prosecution, that defendant showed no
remorse after murder, did not violate defendant's Fifth Amendment right against self-incrimination, where defense counsel had argued
that death penalty should be reserved for most thoughtless, remorseless, cold-blooded killers, those people would be people who kill
without remorse, arguing that defendant was not without remorse. U.S. Const. amend. 5.
OPINION
Per Curiam:
In November 1992, appellant Donald William Sherman (Sherman) met Dianne Bauer (Dianne) in Longview, Washington.
Washington. The two became romantically involved, and near Christmas 1992, Sherman moved into Dianne's
house. Also living in this house was Dianne's daughter, Jessica Bauer (Jessica). Sherman moved in and out a
number of times between 1992 and January 1994 as the couple split up and reunited.
During this time, Sherman worked sporadically. Dianne supported Sherman with the earnings from her hair
salon, money from a trust fund set up by her grandmother, and money from her father, Dr. Lester Bauer
(Bauer) who was a resident of Las Vegas and the victim in this case. However, Dianne never told her father of
the relationship. By the time the couple finally separated permanently in late 1993 or early 1994, they had spent
the entire trust fund (about $100,000.00). Dianne had also withdrawn, without her father's permission,
approximately $10,000.00 from a joint account which she held with him.
After Sherman and Dianne broke up in January 1994, both moved to Alaska. One evening as Dianne was
driving home, she saw Sherman in a car with another woman. Sherman looked at Dianne and pantomimed
shooting a gun. Dianne flipped him off and, upset by the confrontation, pulled off the highway. (This event will
be referred to as the Alaska highway incident.)
During the first part of May 1994, Dianne became concerned for her father's safety. Although her father lived
in Las Vegas, Dianne communicated her concerns to the police in Longview, Washington, and an FBI agent
whom she knew in Washington.
On June 1, 1994, Rita Klingensmith (Klingensmith), Bauer's neighbor, noticed that Bauer had failed to
bring his newspaper inside for several days. Klingensmith attempted to call Bauer several times, but his phone
was busy. Klingensmith notified the community security force of this, but they declined to call the Las Vegas
police, so Klingensmith did so herself.
Cora Flanagan (Flanagan) of the Las Vegas Metropolitan Police Department responded to Klingensmith's
call. When she arrived at the house, she noted that all the doors were locked. Flanagan phoned a locksmith, but
while she was waiting for him to arrive, she noticed that a window was slightly ajar and the screen was on
backwards. In the presence of a community security officer and a representative of the homeowners association,
Flanagan opened the window and climbed into a bedroom. Flanagan then walked to another room and found
Bauer's body. Flanagan phoned for paramedics, who confirmed that Bauer was dead. Flanagan then called
homicide detectives.
Las Vegas police crime scene analysts Daniel Ford (Ford) and Joseph Matvay (Matvay) inspected the
Bauer residence. Ford found Bauer lying face up on a blood-soaked bed in a room with blood spattered on the
walls, ceiling, and overhead ceiling fan.
fan. Matvay examined the exterior of the house. He determined that the perpetrator had entered through the same
window that Flanagan had entered. Two other windows showed signs of an attempted forced entry. Matvay
noted that the house had been thoroughly ransacked. A black sock, which may have been used to wipe off
fingerprints, was found atop a desk. The house was dusted for fingerprints, one of which was later determined to
match those of Sherman.
Medical examiner Dr. Robert Jordan (Jordan) performed the autopsy. Jordan found five full thickness
lacerations on Bauer's scalp. These wounds were crescent shaped and surrounded by widely spread areas of
contusion. Based upon this autopsy, Jordan determined that Bauer had died from several blows to the head with
a hammer. Jordan was unable to state with certainty when Bauer was killed, but it seemed likely that the death
occurred sometime between the night of May 29 and the early morning of May 30, 1994.
On May 28, 1994, Sherman checked into the Ogden House, a hostelry adjacent to, and operated by, the El
Cortez Hotel in Las Vegas. He stayed there for three days and paid cash for his room.
On May 30, 1994, at approximately 1 p.m. Carrie Wilkins (Wilkins), an employee of Swinging Susie's
escort agency, received a call from someone who identified himself as Donald Sherman. The caller stated that he
was a doctor and he wished to procure the services of a busty blonde. Wilkins told Sherman that she would send
a woman named Paige to the Ogden House. Wilkins quoted Sherman a price of $175.00.
Paige went to Sherman's room at the Ogden House. Sherman introduced himself to her as Dr. Lester Bauer.
He paid the $175.00 escort service charge, plus an additional $500.00 charge to Paige, with Bauer's American
Express card. Paige asked Sherman for photographic identification, but he responded that he had none, offering
instead a car title and a bank card with Bauer's name on it. Despite this lack of identification, Paige accepted the
card as payment. On May 31, 1994, Sherman again procured Paige's services by using Bauer's American
Express card. Some days later, Paige heard about the murder of Bauer. She contacted the police and turned over
the relevant credit card receipts and phone logs.
On May 31, 1994, Micky Juarez (Juarez), a motel manager in Santa Barbara, California, registered
someone identifying himself as Dr. Lester Bauer at the Plaza Inn Motel. The motel guest paid for his room with
Bauer's American Express card and left the following morning.
On June 2, 1994, Officer Gary Gillingham (Gillingham) of the Santa Barbara police approached a parked
automobile with Nevada registration.
Nevada registration. Although the engine was running and the radio was on, the driver appeared to be sleeping.
Gillingham called in the license plate number and learned that the automobile had been reported stolen.
Gillingham requested additional police support. When the other officers arrived, Gillingham reached into the
driver's side window, turned off the ignition, and arrested the driver, who proved to be Sherman.
Sherman had on his person two credit cards belonging to Bauer. He also had a number of credit card receipts
which were signed with Bauer's name. In addition, the automobile was registered to Bauer. Although Sherman
appeared mildly intoxicated, he did not seem to be under the influence of any controlled substance other than
alcohol.
On June 5, 1994, Ford, the Las Vegas crime scene analyst, flew to Santa Barbara. Ford photographed the car
which Sherman had been driving and searched for latent fingerprints, none of which were found. Ford and the
Santa Barbara police had found a number of items in the car, including silverware, candlesticks, and various
other valuables.
Bauer's son, Bruce Bauer (Bruce), and Dianne were told of the murder soon after it was discovered. Bruce
travelled to Las Vegas and helped the police determine what had been taken from the house. Many of the items
which Bruce said had been taken were located in the trunk of the car in which Sherman had been found. Dianne,
who travelled to Las Vegas when she heard of the murder, also thought that a number of items were missing
from the house.
In July 1994, Sherman was in custody in Idaho for a parole violation.
1
He spoke with John McCoy
(McCoy), an Idaho parole commission hearing officer. Sherman told McCoy that if he returned to Nevada, he
would die. Sherman stated that he had killed someone for molesting Dianne's daughter. In addition, while in
custody in the Clark County Detention Center, Sherman told Joe Hulbert (Hulbert), a Las Vegas police officer,
that he had killed a doctor in Las Vegas, that he had used a hammer, and that the murder was pretty messy.
Sherman told Hulbert that he had confronted the doctor about molesting Jessica and that the confrontation had
escalated to Bauer's killing.
2
Sherman stated that he expected to be sentenced to death.
The State of Nevada charged Sherman by indictment with the murder of Bauer and the associated burglary
and robbery. On January 27, 1997, the trial began.
__________

1
The record is unclear as to how Sherman arrived in Idaho after his Santa Barbara arrest. Apparently
Sherman's Idaho parole was revoked immediately after his arrest in Santa Barbara. Additionally, it is not clear
when he was subsequently moved from Idaho to Las Vegas.

2
Except for these two statements made by Sherman, there is no evidence showing that Bauer molested
Jessica.
January 27, 1997, the trial began. On February 5, 1997, the jury returned guilty verdicts on all counts. The
penalty phase began on February 6, 1997.
During the penalty phase of the trial, Andrew Anderson (Anderson) of the Sandpoint, Idaho Police
Department testified as to Sherman's prior conviction for first degree murder. In 1981, Sherman, then seventeen
years old, had been involved in the robbery of a small grocery store. During the course of the robbery, Sherman
shot the owner to death. The prosecution agreed not to seek the death penalty and to drop the robbery and
burglary charges in exchange for Sherman's plea of guilty to the first degree murder charge. Sherman was
sentenced to life in prison. He was paroled in 1992.
Scott Zolman (Zolman), a Las Vegas corrections officer, testified during the penalty phase that on October
25, 1995, during a routine shakedown, Zolman had discovered a shank in Sherman's mattress. An administrative
board found Sherman guilty of possession of contraband.
Tony Garribay (Garribay), a Las Vegas corrections officer, testified that on October 10, 1996, a public
defender telephoned Sherman in jail. Garribay told Sherman that he was otherwise occupied and could not take
him to accept the call, but that the attorney could make an appointment. Sherman became very upset and yelled
to Garribay, I'll get you when I get out. At another time, Sherman had told Garribay that I'm going to kick
your fucking ass when I get out of here; whatever it takes, you and I, one-on-one.
Garribay further testified that while Sherman was in jail awaiting trial, he and Michael Placencia
(Placencia), an inmate, formed a plan to escape. Placencia was to ask a friend of Sherman's from jail to make
arrangements for Sherman to have an eye doctor appointment. When Sherman would go to the eye doctor, he
and Placencia would, with the help of a third party, secure firearms and kill the corrections officers and the
optometrist. Sherman had written instructions of the plan to Placencia which concluded with the statement: Oh
yeah; pop them for three. Wounding is dangerous. Do it right.
The plan was never executed because Placencia agreed to cooperate with the police investigation of the
escape plan. Placencia gave police the instructions which Sherman had given him; he also wore a wire during a
conversation with Sherman in which plans for the escape were discussed. Sherman was charged by grand jury
indictment with solicitation to commit murder. The case was still pending at the time of Sherman's murder trial.
Dante Tromba (Tromba), another Las Vegas corrections officer, testified that he overheard Sherman
telling another inmate that he was prepared to "take out the next officer that fucked with
him," and that he was going to "beat the shit out of Garribay."
that he was prepared to take out the next officer that fucked with him, and that he was going to beat the shit
out of Garribay.
Sherman presented the testimony of Dr. Stephen Pittel (Pittel), a psychologist. Pittel testified that
Sherman's upbringing tended to predispose him toward drug abuse and violent behavior. He also stated that it
was likely that Sherman was under the influence of both alcohol and methamphetamine when he was arrested in
Santa Barbara and that this may have caused his violent behavior.
On February 11, 1997, the jury returned its penalty verdict. The jury found four aggravating circumstances:
(1) that Sherman had committed this murder while under sentence of imprisonment; (2) that Sherman had been
previously convicted of another murder; (3) that Sherman had committed the murder while engaged in the
commission of a burglary; and (4) that Sherman had committed the murder while engaged in the commission of
a robbery. The jury found three mitigating factors as well: (1) that the murder was committed while Sherman was
under the influence of extreme mental or emotional disturbance; (2) that Sherman acted under duress or under
the domination of another person; and (3) any other mitigating circumstances. After weighing the aggravators
and mitigators, the jury imposed a sentence of death.
The judgment was filed on April 21, 1997. On that same day, Sherman filed his notice of appeal.
GUILT PHASE ISSUES
First, Sherman argues that the trial court erred when it excluded testimony regarding Dianne's relationship
with her father which, he argues, would have shown a lesser degree of culpability on his part. We conclude that
this argument is meritless.
[Headnotes 13]
Extrinsic evidence of specific instances of conduct may not be used to attack the credibility of a witness;
however, such instances are properly the subject of cross-examination. Rembert v. State, 104 Nev. 680, 683, 766
P.2d 890, 892 (1988); NRS 50.085(3). In addition, it is within the sound discretion of the trial court to exclude
evidence which is otherwise admissible if its probative value is substantially outweighed by the danger of
confusing the issues or misleading the jury. Kazalyn v. State, 108 Nev. 67, 71, 825 P.2d 578, 581 (1992); NRS
48.035(1). This court will not set aside the district court's ruling to admit or exclude evidence unless it is
manifestly wrong. Petrocelli v. State, 101 Nev. 46, 52, 692 P.2d 503, 508 (1985).
[Headnote 4]
In this case, defense counsel asked Dianne on cross-examination whether she had told anyone that
she resented her parents for placing her in a reform school, whether she had ever told
anyone that her father had molested her, and whether she sought to manipulate her
father for personal financial gain.
tion whether she had told anyone that she resented her parents for placing her in a reform school, whether she
had ever told anyone that her father had molested her, and whether she sought to manipulate her father for
personal financial gain. Dianne testified that she had never said or done these things. Sherman sought to
introduce the testimony of certain witnesses who would testify that Dianne had told them that her father had
molested her as a child, that she disliked and resented him, and that she was eager to obtain an inheritance from
him. In addition, Sherman sought to introduce testimony that the Alaska highway incident did not occur as
Dianne said it did. The State moved to exclude this evidence. The district court granted the State's motion on the
grounds that this evidence was relevant only as a collateral attack on Dianne's credibility as a witness.
Sherman argues that this testimonial evidence, rather than simply attacking Dianne's credibility as a witness,
tended to support his theory of the case. Sherman's argument here is somewhat confusing, but he seems to
contend that had he been able to adduce this testimony at trial, the jury could have found that he lacked the level
of intent required for first degree murder. Dianne, Sherman posits, had somehow provided the impetus for him to
make the trip to Las Vegas by playing upon his feelings about child abuse. Sherman contends that at the time he
entered Bauer's house, he intended only to talk to Bauer about Bauer's relationship with Dianne; only after he
was inside the house did he lose his temper. Sherman argues that had he been able to develop more fully this
theory, the jury may have found him guilty of only second degree murder.
When Sherman made this argument before the district court, it implicitly found that the evidence was not
relevant for any purpose other than impeachment or that any relevancy the testimony had toward proving
Sherman's theory was substantially outweighed by the risk of misleading the jury or confusing the issues. After a
thorough review of the record, we conclude that this determination was not manifestly wrong and that, therefore,
the district court did not abuse its discretion in excluding it.
[Headnote 5]
Furthermore, even if the evidence was wrongly excluded, this constitutes harmless error. Sherman was able
to argue this theory extensively during closing argument. While the jury found Sherman guilty of first degree
murder, they also found, as a mitigating factor, that he acted under duress or domination of another person,
presumably Dianne. Notwithstanding this mitigator, the jury sentenced him to death. Thus, the jury implicitly
found that Sherman was manipulated by Dianne, but that this manipulation did not significantly reduce his
culpability in the matter.
Therefore, we conclude that even had the evidence at issue been presented at trial, the jury would not have found
that Sherman was either innocent or guilty of a lesser included offense.
Second, Sherman argues that the district court abused its discretion by denying his motion for mistrial which
was made following conclusion of the guilt phase. Sherman argues that throughout the trial, the State introduced
and referred to evidence of prior bad acts in violation of NRS 48.045(2). The State counters that no such
evidence was introduced. We conclude that Sherman's argument lacks merit.
[Headnote 6]
NRS 48.045(2) provides that [e]vidence 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. This court has held that the test for
determining whether the State has referred to a defendant's criminal history is whether a juror could reasonably
infer from the facts presented that the defendant had engaged in prior criminal activity. Homick v. State, 108
Nev. 127, 140, 825 P.2d 600, 608 (1992). Because improper references to prior criminal acts affect the
presumption of innocence, the admission of such references violates due process and requires reversal unless the
reviewing court determines that the error was harmless beyond a reasonable doubt. Manning v. Warden, 99 Nev.
82, 86-87, 659 P.2d 847, 850 (1983) (citing Chapman v. California, 386 U.S. 18, 24 (1967)).
[Headnote 7]
Sherman argues that the State improperly elicited testimony from Dianne which implied that Sherman had a
history of federal criminal activity. On cross-examination, Dianne stated that when she became concerned for her
father's safety, she called the FBI in Washington State. On redirect, the following exchange took place:
[Prosecutor]: Is the reason you called the FBI in Seattle, rather than someplace else, because you knew
someone there, you had a relationship, and you called a FBI officer?
[Dianne]: I can't remember the man's name, but I spoke to him once before in regards to you.[
3
]
In addition, the prosecutor stated in closing arguments that [Dianne] called an FBI agent . . . that she had
previously contacted about some problems she had with Sherman.
4
In Manning, a police detective
testified at trial that the victim had said that the perpetrator was "a young man named
Sid or Benny."
__________

3
It is not clear from the record to whom Dianne is here referring. However, it seems most likely that she was
referring to Sherman.

4
The defense objected to this statement on the grounds that it misstated trial testimony. The court instructed
the jury to rely on their notes regarding this point. Sherman does not challenge this ruling in this appeal.
In Manning, a police detective testified at trial that the victim had said that the perpetrator was a young man
named Sid or Benny. The officer then testified that when she mentioned Benny, I knew of Benny Manning
[the defendant] myself. This court held that this created a clear inference that the defendant had been involved
in prior criminal activity. Manning, 99 Nev. at 86, 659 P.2d at 849-50.
Similarly, we conclude that Dianne's testimony and the State's closing argument in this case created a
reasonable inference of prior criminal activity on Sherman's part. Dianne did not testify to any personal or social
relationship between herself and the FBI agent whom she called; she said only that she called him because of
problems with Sherman. Thus, we conclude the jury could reasonably infer that she spoke with him initially
because the problems which she was having with Sherman were of a criminal nature.
[Headnote 8]
However, we conclude that this error was harmless beyond a reasonable doubt. The evidence against
Sherman was overwhelming. Although he had never even met Bauer, his fingerprint was found at Bauer's house.
Sherman used Bauer's credit card to pay for escort services and hotel rooms. When Sherman was arrested in
Santa Barbara, he was in possession of Bauer's car and other personal property. Sherman told at least two
people, McCoy and Hulbert, that he had killed someone in Nevada. Therefore, we conclude that the district
court did not abuse its discretion by denying Sherman's motion for mistrial.
Third, Sherman argues that the district court erred by failing to grant a motion for mistrial based on an
alleged violation of an order in limine which prohibited the State from introducing evidence of prior bad acts of
physical abuse on Sherman's part.
[Headnote 9]
On December 6, 1996, Sherman moved in limine to exclude evidence that he had physically abused Dianne.
The district court granted this motion. In the State's opening statement, the prosecutor said of Dianne and
Sherman's relationship: It was an abusive, unstable relationship and, eventually, Dianne broke [it] off. In
addition, the prosecutor mentioned the Alaska highway incident during opening statements. Immediately
following opening statements, Sherman moved for a mistrial. The district court denied this motion, finding that
the statements made by the prosecutor were not references to the incidents of physical abuse.
We conclude that a reasonable juror would have inferred that the first statement at issue was a reference to
prior incidents of physical abuse. Although the prosecutor could well have intended the statement at issue to
indicate verbal or emotional abuse as well as physical abuse, he did not specify the type of abuse.
as physical abuse, he did not specify the type of abuse. It seems more likely than not that a juror hearing only
that the relationship was abusive would have assumed that Sherman physically abused Dianne.
[Headnote 10]
However, we conclude that this error was harmless. As discussed above, the evidence of Sherman's guilt was
overwhelming. Furthermore, any alleged physical abuse is a collateral issue; if Sherman had been charged with
the murder of Dianne, evidence of past physical abuse would have been highly prejudicial. In contrast, we
conclude that the prosecutor's single reference to an abusive relationship with Dianne did not unduly influence
the jury's verdict regarding Bauer's murder.
[Headnote 11]
Finally, the Alaska highway incident was simply not physical abuse; Sherman and Dianne were in separate
cars at the time. Therefore, we conclude that the district court did not abuse its discretion by denying Sherman's
motion for mistrial.
[Headnote 12]
Fourth, Sherman argues that the prosecution committed reversible misconduct by stating during closing
arguments that Dianne had looked at Sherman and called him a creep, when, in fact, this statement had been
stricken from the record.
[Headnote 13]
This court has held that in order for prosecutorial conduct to constitute reversible error, it must be prejudicial
and not merely harmless. Ross v. State, 106 Nev. 924, 928, 803 P.2d 1104, 1106 (1990). Error is harmless if
without reservation, the verdict would have been the same in the absence of error. Witherow v. State, 104 Nev.
721, 724, 765 P.2d 1153, 1156 (1988).
During the State's closing argument, the following exchange occurred:
State: Ladies and Gentlemen, there is a killer in this courtroom. You have been looking at him
throughout the trial. So have the witnesses. He is the person who Dianne Bauer looked at and called a
creep.
Defense: I'm going to object, Your honor. That was stricken from the record. It's improper to argue
things that were stricken.
State: It's been stricken from the record and I would ask you to disregard that; but the evidence
suggests that he is the killer and that's Donald Sherman.
Based upon a thorough review of the record, we conclude that although even an unwitting reference to
stricken testimony constitutes prosecutorial misconduct, the verdict would have been the same
in the absence of this error.
tutes prosecutorial misconduct, the verdict would have been the same in the absence of this error. As discussed
above, the evidence against Sherman was overwhelming. Therefore, we conclude that the prosecutor's comments
do not constitute reversible error.
PENALTY PHASE ISSUES
[Headnote 14]
First, Sherman argues that the district court erred by instructing the jury, during the penalty phase, that [a]
verdict may never be influenced by sympathy, prejudice, or public opinion. Sherman argues that this instruction
violated [his] Eighth Amendment rights because it undermined the jury's constitutionally mandated
consideration of mitigating evidence.
This court has recently held that [a] district court may instruct the jury not to consider sympathy during a
capital penalty hearing, as long as the court also instructs the jury to consider mitigating facts. Rippo v. State,
113 Nev. 1239, 1262, 946 P.2d 1017, 1032 (1997) (citing Riley v. State, 107 Nev. 205, 215-16, 808 P.2d 551,
557 (1991)).
In this case, the court instructed the jury to consider mitigating factors. Therefore, we conclude that the
anti-sympathy instruction was proper.
Second, Sherman argues that his death sentence was imposed in an arbitrary and capricious manner because
the jury found separate aggravating circumstances, under NRS 200.033, based on the same underlying facts. We
conclude that this contention is also meritless.
Sherman contends that the aggravating circumstances of committed by a person under a sentence of
imprisonment and committed by a person who was previously convicted of another murder should not have
been charged or found as separate and distinct aggravators because they were based upon the same essential fact:
Sherman's previous murder conviction. Similarly, Sherman argues that the aggravating circumstances of
committed by a person engaged in a robbery and committed by a person engaged in a burglary were based
upon the same set of facts: the looting of Bauer's house.
[Headnote 15]
Sherman cites case law from other jurisdictions in support of his position. However, this court has
specifically considered and rejected each of Sherman's contentions. In Geary v. State, 112 Nev. 1434, 1447-48,
930 P.2d 719, 728 (1996), reh'g granted on other grounds, 114 Nev. 100, 952 P.2d 431 (1998), the defendant
argued that his due process and double jeopardy rights were violated when he was sentenced to death
based upon the aggravators of "committed by a person under a sentence of
imprisonment" and "committed by a person who was previously convicted of another
murder," both of which were based upon a prior murder conviction.
lated when he was sentenced to death based upon the aggravators of committed by a person under a sentence of
imprisonment and committed by a person who was previously convicted of another murder, both of which
were based upon a prior murder conviction. This court rejected the argument, stating:
The first aggravating circumstance advances the state's interest in punishing more harshly those who
commit murder after having been granted the privilege of parole, and the second aggravator advances the
state's interest in punishing more harshly repeat offenders.
Id. at 1448, 930 P.2d at 728.
[Headnote 16]
This court has also held that the use of both robbery and burglary as aggravating factors does not infringe
upon a defendant's due process or double jeopardy rights. Homick v. State, 108 Nev. 127, 137-38, 825 P.2d 600,
607 (1992) (citing Wilson v. State, 99 Nev. 362, 664 P.2d 328 (1983)).
We conclude that Sherman presents no compelling reason for this court to reverse these holdings. Therefore,
we conclude that the aggravating circumstances were properly charged and found by the jury.
Third, Sherman argues that the district court erred by admitting improper evidence during the penalty
hearing. We conclude that this argument lacks merit.
[Headnotes 17, 18]
The trial court's determination regarding the admissibility of evidence during a sentencing hearing will not be
disturbed on appeal absent an abuse of discretion. Wesley v. State, 112 Nev. 503, 519, 916 P.2d 793, 804
(1996). Furthermore, during a 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, whether or not the evidence is ordinarily admissible. NRS 175.552(3); see also
Allen v. State, 99 Nev. 485, 488, 665 P.2d 238, 240 (1983). However, the district court may not admit evidence
that is impalpable or highly suspect. Young v. State, 103 Nev. 233, 237, 737 P.2d 512, 515 (1987). With these
standards in mind, we turn to Sherman's specific claims of error.
[Headnote 19]
Sherman asserts that certain testimony by Detective Anderson of the Sandpoint, Idaho Police Department
was irrelevant. Anderson testified that he had spoken with and observed Sherman during Sherman's 1981 murder
investigation and trial, and based on this he had been able to form an opinion regarding
Sherman's character.
on this he had been able to form an opinion regarding Sherman's character. Anderson further testified that
Sherman was very street smart and . . . very manipulative and that Sherman was highly dangerous. Sherman
made a timely relevance objection.
[Headnote 20]
We conclude that this testimony was relevant to show that Sherman could be dangerous in the future, which
is a consideration before the jury during sentencing. It is true that Anderson was testifying as to his
fifteen-year-old impression of Sherman, and as a homicide detective, he was perhaps predisposed toward a
heightened suspicion of those under investigation for murder. However, these factors go to the weight, rather
than the admissibility, of the evidence. Therefore, we conclude that this testimony was not impalpable or highly
suspect, and therefore, the district court did not err in admitting it.
Sherman also argues that the court erred in admitting testimony as to the effect which Sherman's prior murder
had on the community of the previous victim. Anderson testified that Sherman's previous victim had a wife and
children, that the victim had been a well known member of the community, and that the community was quite
incensed at the killing.
[Headnote 21]
Sherman correctly cites Payne v. Tennessee, 501 U.S. 808 (1991), for the proposition that victim impact
evidence is admissible concerning the crime for which the defendant is on trial. Sherman argues that because the
Payne court did not specifically allow the admission of victim impact evidence from previous crimes, the United
States Supreme Court indicated that such evidence was constitutionally impermissible. However, the Supreme
Court was not presented with that particular question in Payne; its silence is not dispositive. Rather, Payne
allows victim impact testimony from the instant crime. Just as characteristics of the defendant may mitigate the
sentence imposed, so too are characteristics of the victim relevant to the factfinder's sentencing decision. Thus,
the Supreme Court held the constitution does not bar states from allowing victim impact testimony from the
instant crime during criminal sentencing proceedings. Id. at 822, 825.
[Headnote 22]
NRS 176.015 provides that during the sentencing hearing, the court shall afford the victim or relatives of the
victim the opportunity to [r]easonably express any views concerning the crime, the person responsible, the
impact of the crime on the victim and the need for restitution. NRS 200.033(2) provides that a previous murder
by the defendant is an aggravating factor. This court has held that this aggravator advances the state's interest in
punishing more harshly repeat offenders."
ishing more harshly repeat offenders. Geary, 112 Nev. at 1448, 930 P.2d at 728.
[Headnotes 23, 24]
Thus, evidence of the impact which a murder had on the victim's family is relevant to show the damage done
by the murder; evidence of previous murders is relevant to show only that a statutory aggravating circumstance
exists making the defendant death eligible. In contrast, evidence of the impact which a previous murder had
upon the previous victim is not relevant to show either of these facts. Furthermore, while victim impact
testimony and evidence of prior murders are specifically authorized by statute, no Nevada statute exists which
provides for the admission of evidence regarding the impact of prior murders. Therefore, we conclude that the
impact of a prior murder is not relevant to the sentencing decision in a current case and is therefore inadmissible
during the penalty phase.
[Headnote 25]
In the present case, we conclude that this error was harmless. Anderson's testimony was limited to only a few
statements regarding the previous victim's standing in the community. Had these statements not been admitted,
the evidence would still have supported the jury's finding of four aggravating factors. The circumstances of the
instant murder reveal a particular brutality on Sherman's part; he broke into an elderly gentleman's house and
bludgeoned him to death with a hammer, then looted the house and used the victim's credit cards to pay for hotel
rooms and escort services. Based upon this, we conclude that beyond a reasonable doubt, the jury would have
sentenced Sherman to death even had the prior victim impact evidence not been admitted.
[Headnote 26]
Fourth, Sherman argues that the trial court should have granted a motion for mistrial based upon the
testimony of Officer Tromba, who testified that he overheard Sherman say that he was 17 when he killed his
first man in prison. Sherman did not object to this statement at the time it was made, but moved for a mistrial
soon thereafter. Sherman argued that this statement gave the false impression that he had killed someone in
prison in addition to the Idaho murder. When Sherman made this motion, the State offered to stipulate before the
jury that the statement should have been that [Sherman] killed his first person and went to prison when he was
17. However, Sherman declined this stipulation because he did not wish to highlight this fact for the jury.
The offered stipulation would have cured any false impression caused by Tromba's testimony. We conclude
that Sherman may not refuse such a stipulation for tactical reasons and then claim reversible error on
appeal.
reversible error on appeal. Therefore, we conclude that the district court did not err by denying Sherman's
motion for mistrial.
Fifth, Sherman argues that the State made certain improper arguments during the penalty phase of the trial
which require reversal. Sherman first contends that the State impermissibly told the jurors that they should vote
against Sherman and in favor of future victims. Second, Sherman argues that the State improperly commented
upon Sherman's lack of remorse.
[Headnotes 2729]
Prosecutors may properly argue that the defendant's past conduct suggests that even incarceration will not
dissuade the defendant from endangering other lives. However, this court has held that it was improper for a
prosecutor to argue that the jury should return a death penalty on behalf of future victims. See Schoels v. State,
114 Nev. 981, 966 P.2d 735 (1998). Thus, while a prosecutor may argue that the death penalty should be
imposed because the defendant may pose a risk in the future, the prosecutor may not seek a death sentence by
using improperly inflammatory rhetoric.
In the case here, the prosecutor argued:
Can we be guaranteed that for the next 30 or 40 years, a person who is sitting in prison the rest of his life
is not going to flare up and get angry at a guard, like he did at the Clark County Detention Center . . . .
So the question is simply this: Do we execute a person who has killed not once, but two times, or do we
risk the execution of some very innocent people?
We conclude that these comments go beyond what is permissible argument under Schoels. The prosecutor
here framed his future dangerousness argument in terms which posed a very stark choice for the jurors: they
could either vote to execute Sherman or vote to risk the execution of a future victim. Thus, the prosecutor
asked the jury to either align themselves with future innocent victims or with the man they had just convicted of
murder. In addition, the prosecutor's use of the word execution in this context was extremely inflammatory. In
Schoels, we condemned this kind of rhetorical excess. Thus, we conclude that the prosecutor's comments here
were improper.
[Headnote 30]
However, we conclude that this error was harmless. See Schoels, 114 Nev. at 989, 966 P.2d at 740. For the
reasons enumerated above, overwhelming evidence supported the jury's finding of four aggravating factors.
Thus, it is clear, beyond a reasonable doubt, that even had the prosecutor not made these improper closing
arguments, the jury would still have returned a sentence of death.
improper closing arguments, the jury would still have returned a sentence of death.
[Headnote 31]
Sherman also argues that the State violated his Fifth Amendment right against self-incrimination by
commenting on his lack of remorse during closing arguments. The State counters that Sherman opened the door
to these comments by arguing that the death penalty should be reserved only for those who kill without
remorse.
In Brown v. State, 113 Nev. 275, 291, 934 P.2d 235, 245-46 (1997), this court held that the district court
violated the defendant's Fifth Amendment rights by imposing a harsher sentence because the defendant refused
to admit his crime.
Here, the defense stated during closing arguments that [t]he death penalty should be reserved for the most
thoughtless, remorseless, cold-blooded killers . . . . those people would be people who kill without remorse.
Thus, the defense implied that Sherman was not one of those who kill without remorse and therefore should not
be executed. In rebuttal, the State argued:
[Defense counsel] talks about remorse.
Where's the remorse in this case? Where is the remorse, hours later, after the defendant has killed a
human being?
In his own words: it was a messy one.
What remorse did he show, but to get on the phone lines and hire an escort so he could have sex?
Where was the remorse when he talked to John McCoy and told him about the killing?
We conclude that this case is distinguishable from Brown. In Brown, the court demanded that the defendant
either own up to the charged crime or risk a longer sentence. Here, the State merely argued, based upon
Sherman's prior actions, that Sherman had not shown any sign of the remorse which the defense implied he had
felt. Therefore, we conclude that the prosecutor did not make improper comments during closing arguments.
Finally, in cases where the death penalty is imposed, in addition to those errors enumerated on appeal, NRS
177.055(2) requires this court to consider (1) whether the death sentence was imposed under the influence of
passion, prejudice, or any arbitrary factor; (2) whether the death sentence is excessive considering the crime and
the defendant; and (3) whether the evidence at trial supports the finding of aggravating circumstances. We
conclude that the death penalty was not, in this case, imposed under the influence of passion, prejudice, or any
arbitrary factor, nor was it excessive considering the brutal nature of the crime and the defendant.
defendant. Furthermore, we find that the evidence in the record supports the jury's finding of aggravating
circumstances.
We, therefore, find that none of Sherman's arguments has merit. Accordingly, we affirm the judgment of the
district court.
5

____________
114 Nev. 1017, 1017 (1998) Henry Prods., v. Tarmu
HENRY PRODUCTS INCORPORATED, an Arizona Corporation,
Appellant/Cross-Respondent, v. ZAMIR TARMU and JANE S. TARMU, Husband and
Wife, Respondents/Cross-Appellants.
No. 29569
November 25, 1998 967 P.2d 444
Appeal and cross-appeal from an order of the district court granting summary judgment and awarding
attorney fees to appellant/cross-respondent Henry Products Incorporated. Eighth Judicial District Court, Clark
Supplier of materials to general contractor for home improvement project sought to
foreclose on materialmen's lien on the home. The district court granted summary judgment
for supplier and awarded supplier attorney fees and costs. Homeowners appealed and supplier
cross-appealed. The supreme court, Shearing, J., held that: (1) supplier, by endorsing check
that was jointly payable to general contractor and supplier, waived the right to foreclose on
the lien; (2) remand was necessary for findings as to attorney fees; and (3) supplier failed to
meet service requirement for cost award.
Hutchison & Steffen and Joseph R. Ganley, Las Vegas, and Kevin John Witasick & Associates, Phoenix,
Arizona, for Appellant/Cross-Respondent.
Andras F. Babero, Las Vegas, for Respondents/Cross-Appellants.
1. Mechanics' Liens.
Homeowners' conclusory statements in their pleadings questioning whether materials that materialman supplied to
general contractor were actually used in the home improvement project were insufficient to overcome
materialman's prima facie showing of entitlement to foreclose materialmen's lien on the home.
__________

5
Sherman also argues that the jury instructions regarding implied malice and defining premeditation,
willfulness, and deliberation were constitutionally defective. However, this court has explicitly upheld these
instructions; we decline to revisit the issue here. See Greene v. State, 113 Nev. 157, 167-68, 931 P.2d 54, 60-61
(1997); Guy v. State, 108 Nev. 770, 777, 839 P.2d 578, 582-83 (1992).
whether materials that materialman supplied to general contractor were actually used in the home improvement project were
insufficient to overcome materialman's prima facie showing of entitlement to foreclose materialmen's lien on the home.
Under joint check rule adopted by the supreme court, when a subcontractor and the subcontractor's materialman are joint payees
and no agreement exists with the owner or general contractor as to the allocation of proceeds, the materialman, by endorsing the check,
will be deemed to have received the money due him and to have waived the right to commence a lien foreclosure action.
3. Costs.
Attorney fees are only available when authorized by rule, statute or contract.
4. Costs.
The failure of a district court to state a basis for the award of attorney fees is an arbitrary and capricious action, and thus, is an
Failure of prevailing party in materialmen's lien foreclosure action to follow statutory requirement of filing a memorandum of costs
upon the adverse party required the reversal of cost award to prevailing party. NRS 18.110(1).
OPINION
Zamir and Jane Tarmu (the Tarmus) hired Rowland Plastering for a home improvement project. Henry Products Incorporated provided
Rowland with some of the materials used in the project. Rowland subsequently filed for bankruptcy without paying Henry Products for the
materials supplied. Henry Products filed and perfected a materialmen's lien under NRS 108.221-.246 on the Tarmu home for $7,526.07 and
subsequently filed a complaint to foreclose on the Tarmu property pursuant to the lien. The district court granted summary judgment in
favor of Henry Products for the full $7,526.07, and awarded Henry Products $309.42 in costs and $1,750 in attorney fees. The Tarmus
appeal from the entire summary judgment order, and Henry Products appeals from the amount of the attorney fee award.
[Headnote 1]
The documents filed in support of the motions for summary judgment support the district court's conclusion
that Henry Products had a valid materialmen's lien on the Tarmu property. Although the Tarmus raised questions
in their pleadings as to whether the materials supplied by Henry Products were actually used on the Tarmu
property, the affidavits in support of their allegations contained merely conclusory statements and not any
admissible evidence to overcome the prima facie showing that Henry Products had made
through documents, depositions and affidavits.
admissible evidence to overcome the prima facie showing that Henry Products had made through documents,
depositions and affidavits. Evidence introduced in support of or opposition to a motion for summary judgment
must be admissible evidence. NRCP 56(e); Collins v. Union Fed. Savings & Loan, 99 Nev. 284, 302, 662 P.2d
610, 621 (1983). Thus, we affirm the order granting summary judgment for Henry Products on the issue of
whether Henry Products had a valid materialmen's lien.
However, the amount of the judgment is in question. Henry Products produced evidence that $7,526.07
worth of materials had been delivered for use at the Tarmus' property. The Tarmus were aware that Henry
Products had delivered the materials. At one point the Tarmus' construction control company issued a check for
$3,400 payable to both Rowland and Henry Products. Henry Products endorsed the check and allowed Rowland
to keep the entire amount. The Tarmus maintain that the $7,526.07 judgment should be reduced by the $3,400
payment which Henry Products voluntarily endorsed and gave to Rowland. We agree.
[Headnote 2]
It seems clear that an owner makes a check payable to both the contractor and the material supplier to ensure
that the material supplier is paid by the contractor. The owner wants to avoid a situation in which the supplier
places a lien on the property because the contractor did not pay the supplier. In Anchor Concrete Co. v. Victor
Sav. & Loan, 664 P.2d 396, 399 (Okla. 1983), the Oklahoma Supreme Court held that endorsement of a
joint-payee check by one joint-payee is deemed to be a payment to that payee and constitutes a waiver of the
right to commence a lien foreclosure action. In that case, the amount of the check would have satisfied the entire
subcontractor's claim; therefore, the subcontractor was deemed to have been paid in full and he waived his right
to recover by foreclosure on a lien against the owner. Id. In Post Bros. Construction Co. v. Yoder, 569 P.2d 133
(Cal. 1977), the California Supreme Court also held that a supplier endorsing a check is deemed to have received
payment. The California court stated:
The use of joint checks is well established by custom and practice in the construction industry.
When a subcontractor and his materialman are joint payees, and no agreement exists with the owner
or general contractor as to the allocation of proceeds, the materialman by endorsing the check will be
deemed to have received the money due him. Inclusion of the materialman as payee makes clear that the
maker of the check intends to discharge obligations owed to the materialman.
. . . .
The materialman may protect himself by simply refusing to endorse the check until
assured by escrow or other arrangement that he will recover his rightful share of the
check. Because the materialman is positioned to demand immediate payment in
exchange for his endorsement, the custom and use of joint checks is beneficial to
materialmen.
The joint check rule is likewise beneficial to owner and general contractor. They have
contracted with the subcontractornot the materialmanand are usually unaware of
the nature and size of the materialman's claim against the subcontractor. The joint
check rule provides a simple yet expeditious method for owner and general contractor
to pay debts to the person with whom they have contracted while eliminating the risk
the subcontractor will not pay the person with whom he has contracted.
Id. at 135 (citations omitted).
It appears that every state that has considered the issue has adopted the joint check rule. See Brown
Wholesale Elec. v. Beztak, 788 P.2d 73 (Ariz. 1990), and cases cited therein. For the reasons cited in Post
Brothers, this court also adopts the joint check rule. Therefore, the judgment against the Tarmus must be
reduced by the amount of the check issued by the Tarmus, which was jointly payable to Rowland and Henry
Products.
[Headnotes 3, 4]
The district court awarded Henry Products attorney fees without stating a basis for the award. Attorney fees
are only available when authorized by rule, statute or contract. Flamingo Realty, Inc. v. Midwest Development,
Inc., 110 Nev. 934, 991, 879 P.2d 69, 73 (1994). Here, attorney fees could have been awarded under either NRS
18.010(1)(a) or NRS 108.237(3). Here, without explanation, the district court awarded attorney fees of $1,750 in
the face of a documented claim for approximately $30,000. The failure of a district court to state a basis for the
award of attorney fees is an arbitrary and capricious action and, thus, is an abuse of discretion. Integrity Ins. Co.
v. Martin, 105 Nev. 16, 19, 769 P.2d 69, 70 (1989). In light of the failure to explain the reduction in the claim,
and given the fact that the Tarmus do not object to the award entered by the district court, we remand this matter
for findings justifying the reduced award or for an amended award.
[Headnote 5]
The district court also awarded Henry Products its costs. NRS 18.110(1) requires a prevailing party
requesting an award of costs to file a memorandum of such costs and to serve a copy of the memorandum upon
the adverse party within five days after entry of judgment, or any further time the district court
grants.
of judgment, or any further time the district court grants. The record contains no proof of service of a
memorandum on the Tarmus. Because Henry Products failed to follow the statutory scheme that was designed to
allow adverse parties an opportunity to timely contest a request for costs, the award of costs is also reversed.
Accordingly, this case is remanded for further proceedings consistent with this opinion.
Springer, C. J., and Rose, Young, and Maupin, JJ., concur.
____________
114 Nev. 1021, 1021 (1998) Bemis v. Estate of Bemis
KEVIN LYNN BEMIS and SCOTT ROSS BEMIS, Appellants, v. THE ESTATE OF JACK
LYNN BEMIS, RODNEY F. BLASIUS, Executor, Respondent.
No. 27997
November 25, 1998 967 P.2d 437
Appeal from an order granting respondent's motion to dismiss. Third Judicial District Court, Lyon County;
Archie E. Blake, Judge.
Decedent's two sons filed breach of contract and conversion claims against decedent's
estate, alleging decedent's failure to perform his promise in divorce settlement agreement to
establish a trust for the sons' benefit. The district court dismissed based on statute of
limitations defense. Sons appealed. The supreme court held that: (1) genuine issue of material
fact as to when the sons should have discovered the existence of the promise to establish a
trust precluded summary judgment dismissal based on statute of limitations, and (2) sons
would be entitled to a constructive trust if their discovery of their potential claims was timely.
Young, J., dissented.
Aebi & McCarthy, Carson City, for Appellants.
Peter Smith, Carson City, for Respondent.
1. Limitation of Actions.
Discovery rule applies to the limitations period for contract actions and conversion actions. NRS 11.190(1)(b), (3)(c).
For the discovery rule to toll the running of the statute of limitations, the plaintiff must use due diligence in determining the
existence of a cause of action.
3. Judgment.
Genuine issue of material fact as to whether decedent's two sons exercised due diligence in discovering that decedent had promised
in divorce settlement agreement to establish a trust for their benefit precluded summary judgment dismissal, on statute of limitations
grounds, of sons' breach of contract and conversion claims against decedent's estate. NRS 11.190(1)(b), (3)(c).
Fact that divorce settlement agreement in which husband had promised to establish a trust for his two sons was a public document
did not establish that the sons should have known of the promise before husband's death, for purposes of applying discovery rule to
limitations period for sons' breach of contract and conversion claims against husband's probate estate. NRS 11.190(1)(b), (3)(c).
5. Husband and Wife.
Children had no affirmative obligation, upon reaching the age of majority, to investigate whether they may have had claims to
pursue arising from their parents' divorce agreement.
Wife's knowledge, that husband had promised in divorce settlement agreement to establish a trust for the couple's two minor
children, would not be imputed to the children for purposes of determining when, under discovery rule, children's causes of action for
breach of contract and conversion accrued against husband's probate estate. NRS 11.190(1)(b), (3)(c).
7. Trusts.
A resulting trust did not arise from husband's failure to perform his promise, in divorce settlement agreement, to establish a trust
for his children, as the husband's actions did not indicate an intent to create a trust relation. Husband disregarded the divorce
agreement altogether, as evidenced by the fact that husband failed to set aside any sum of money for the children before husband's
death.
8. Trusts.
Implied trusts are equitable remedies.
9. Trusts.
The basic objectives of both constructive and resulting trusts are the recognition and protection of property rights that have arisen
in an innocent party, and the vital tenet is one of equity.
10. Trusts.
A resulting trust exists where the acts or expressions of the parties indicate an intent that a trust relation results from their
transaction.
11. Trusts.
A resulting trust may arise on the failure of an express trust.
12. Trusts.
Fact that complaint, filed by decedent's sons against decedent's estate and seeking a resulting trust because of decedent's failure to
perform his promise in divorce settlement agreement to establish a trust for the sons' benefit, did not specifically plead fraud or request
a constructive trust did not preclude the remedy of a constructive trust.
13. Trusts.
Decedent's estate held, in constructive trust for decedent's two sons, monies for a trust for the sons that decedent had promised to
establish in divorce settlement agreement but that decedent had failed to establish during his lifetime.
14. Judgment.
Genuine issue of material fact as to when decedent's two sons should have discovered that decedent had promised in divorce
settlement agreement to establish a trust for their benefit precluded summary judgment dismissal, on statute of limitations grounds, of
sons' constructive trust claim against decedent's estate.
OPINION
Per Curiam:
Jack and Frankie Bemis were divorced on January 3, 1972. At the time of their divorce, Jack and Frankie had two minor sons,
appellants Kevin and Scott Bemis, ages 13 and 12 respectively. The court entered a decree of divorce that incorporated a property
settlement agreement (the divorce agreement). The agreement provided:
That the First Party [Jack Bemis] is the beneficiary of a California trust which will terminate within the next year; that First
Party agrees that a trust will be established with the E.F. HUTTON COMPANY, as trustee, in the amount of TWENTY-FIVE
THOUSAND ($25,000.00) DOLLARS, with the two (2) minor children as beneficiaries, and the trust and any accumulated
interest be distributed to the beneficiaries, share and share alike, when the oldest one reaches the age of twenty-five (25). The
beneficiaries shall be entitled to payments from said trust, including payments from the corpus thereof, when in the sole discretion
of the trustees, said payments shall be necessary for the support, education, or general welfare of either one of them.
Kevin and Scott allege that to minimize the anxiety created by the divorce and to promote healthy father-son relations between Jack
and his sons, Frankie rarely discussed the divorce with her children, and never mentioned the agreement. The pleadings indicate that Jack
failed to establish a trust for Kevin and Scott, and the children never received any financial assistance from their father after the divorce.
On February 11, 1995, Jack died, leaving nothing to Frankie, Kevin or Scott. Kevin and Scott allege that upon Jack's death, Frankie
informed them of the trust fund; prior to this time they had no knowledge of the provisions of their parents' divorce decree. On May 30,
1995, and June 7, 1995, Kevin and Scott filed creditors' claims against Jack's estate (the estate) to collect the money that Jack had agreed to
hold in trust pursuant to the 1972 divorce agreement. The estate rejected these claims.
On August 22, 1995, Kevin and Scott filed suit against the estate alleging causes of action for conversion and breach of
contract, and seeking equitable relief in the form of a resulting trust consisting of the $25,000 specified in the
divorce agreement, including accrued interest.
estate alleging causes of action for conversion and breach of contract, and seeking equitable relief in the form of
a resulting trust consisting of the $25,000 specified in the divorce agreement, including accrued interest. On
September 1, 1995, the estate filed a NRCP 12(b)(5) motion to dismiss the claims as being barred by the
applicable statutes of limitations. On December 4, 1995, the court granted the estate's motion. Kevin and Scott
appeal from the district court's dismissal of their complaint.
For reasons discussed below, we conclude that the district court erred in dismissing Kevin and Scott's
complaint as being barred by the running of the statutes of limitations.
DISCUSSION
A court can dismiss a complaint for failure to state a claim upon which relief can be granted if the action is
barred by the statute of limitations. NRCP 12(b)(5); Shupe & Yost, Inc. v. Fallon Nat'l Bank, 109 Nev. 99,
100, 847 P.2d 720, 720 (1993). In reviewing a dismissal of a complaint, we must determine whether or not the
challenged pleading sets forth allegations sufficient to make out the elements of a right to relief. Edgar v.
Wagner, 101 Nev. 226, 227, 699 P.2d 110, 111 (1985). In making this determination, this court must accept
all the factual allegations in the complaint as true. Pemberton v. Farmers Ins. Exchange, 109 Nev. 789, 792,
858 P.2d 380, 381 (1993). A claim should not be dismissed . . . unless it appears to a certainty that the plaintiff
is not entitled to relief under any set of facts which could be proved in support of the claim. Hale v. Burkhardt,
104 Nev. 632, 636, 764 P.2d 866, 868 (1988).
We have previously recognized a distinction between the discovery rule and the general rule of accrual
of a cause of action for statute of limitations purposes:
The general rule concerning statutes of limitation is that a cause of action accrues
when the wrong occurs and a party sustains injuries for which relief could be sought.
An exception to the general rule has been recognized by this court and many others in
the form of the so-called discovery rule. Under the discovery rule, the statutory
period of limitations is tolled until the injured party discovers or reasonably should
have discovered facts supporting a cause of action.
The rationale behind the discovery rule is that the policies served by statutes of
limitation do not outweigh the equities reflected in the proposition that plaintiffs should
not be foreclosed from judicial remedies before they know that they have been injured
and can discover the cause of their injuries.
Petersen v. Bruen, 106 Nev. 271, 274, 792 P.2d 18, 20 (1990) (emphasis added) (citations
omitted).
[Headnote 1]
NRS 11.190(1)(b) provides a six year limitation period for contract actions, but is silent as to when such a
cause of action accrues.
1
However, we have previously applied the discovery rule to contract actions, holding
that an action for breach of contract accrues as soon as the plaintiff knows or should know of facts constituting a
breach. Soper v. Means, 111 Nev. 1290, 1294, 903 P.2d 222, 224 (1995). The three year limitations period
provided in NRS 11.190(3)(c), which governs Kevin and Scott's conversion claim, is also silent as to time of
accrual. In Hartford Accident and Indemnity Co. v. Rogers, 96 Nev. 576, 613 P.2d 1025 (1980), we implied
that a conversion cause of action accrues no later than the time at which the injured party becomes aware of the
taking. Today, we conclude that the statute of limitations for conversion is discovery based.
[Headnote 2]
In a discovery based cause of action, a plaintiff must use due diligence in determining the existence of a
cause of action. Sierra Pacific Power Co. v. Nye, 80 Nev. 88, 389 P.2d 387 (1964). Whether plaintiffs exercised
reasonable diligence in discovering their causes of action is a question of fact to be determined by the jury or
trial court after a full hearing. Millspaugh v. Millspaugh, 96 Nev. 446, 448, 611 P.2d 201, 203 (1980).
Dismissal on statute of limitations grounds is only appropriate when uncontroverted evidence irrefutably
demonstrates plaintiff discovered or should have discovered' the facts giving rise to the cause of action.
Nevada Power Co. v. Monsanto Co., 955 F.2d 1304, 1307 (9th Cir. 1992) (quoting Mosesian v. Peat, Marwick,
Mitchell & Co., 727 F.2d 873, 877 (9th Cir. 1984)).
[Headnote 3]
At this stage of the proceedings, there is no evidence to suggest that Kevin and Scott had any knowledge that
would put them on inquiry notice to investigate potential claims they may have had against their father prior to
his death. Nothing in the record developed thus far indicates that Kevin and Scott knew that a marital settlement
agreement existed, much less that they were the beneficiaries of such an agreement.
__________

1
In dealing with statutes that do not specify when a cause of action accrues, we have held that the discovery
rule would apply. See Oak Grove Inv. v. Bell & Gossett Co., 99 Nev. 616, 622-23, 668 P.2d 1075, 1079 (1983)
(holding that where the catch all statute of limitations, NRS 11.220, was silent as to time of accrual, the
discovery rule would apply). We have further noted that [t]o hold otherwise would transmute the statute from
one of limitation into one of abolition. . . . Such a result is not consonant with the legislative purpose of the
statute.' Id. at 623, 668 P.2d at 1079 (quoting Malasev v. Bd. of County Road Comm'rs, 215 N.W.2d 598, 599
(Mich. Ct. App. 1974)).
ficiaries of such an agreement. Nonetheless, the district court determined that Kevin and Scott had access to the
agreement because it was a public record, and they should have previously inquired into the terms of their
parents' divorce and their father's obligations pursuant thereto. We disagree.
[Headnotes 4-6]
In the instant situation, it cannot be said as a matter of law that Kevin and Scott should have known of their
parents' divorce agreement simply because it was public record. Cf. Allen v. Webb, 87 Nev. 261, 485 P.2d 677
(1971).
2
Whether Kevin and Scott exercised due diligence in discovering their cause of action is a question of
fact which on remand should be determined by the trier of fact. The district court imposed an affirmative
obligation on Kevin and Scott, upon reaching the age of majority, to investigate whether they may have had
claims to pursue arising from their parents' divorce agreement. We can think of no policy to be served by
imposing such an obligation on the children of divorce.
3

Accordingly, we conclude that the district court erred in dismissing Kevin and Scott's legal claims as being
barred by the statute of limitations. The trier of fact must determine when Kevin and Scott knew or should have
known of facts giving rise to their conversion and breach of contract claims.
[Headnotes 711]
Alternatively, Kevin and Scott's complaint seeks relief in equity, asking the district court to impose a
resulting trust on the $25,000 which Jack had agreed to put into an express trust for their benefit pursuant
to the divorce agreement, in addition to accrued interest.
__________

2
In Allen v. Webb, 87 Nev. 261, 270, 485 P.2d 677, 682 (1971), we recognized the well-known principle
that the public recording of real estate deeds constitutes constructive notice of the transaction. However, under
the circumstances set forth in Allen, we held that the public recording of a deed would not constitute constructive
notice of facts giving rise to a prior purchaser's negligence cause of action against his escrow agent. Id. The
escrow agent had failed to record the prior purchaser's deed, thereby allowing a subsequent bona fide purchaser
to successfully assert superior title against the prior purchaser under Nevada's recording statutes. Id.

3
With regard to Kevin and Scott's breach of contract claim, we are cognizant of the rule that a third-party
beneficiary is subject to any defense arising from the contract that is assertable against the promisee; however,
we have set forth certain exceptions. Gibbs v. Giles, 96 Nev. 243, 246, 607 P.2d 118, 120 (1980) (holding that
the statute of limitations is tolled during the third-party beneficiary's infancy).
Furthermore, on these singular facts we are not willing to impute a mother's knowledge of breach to the
children for whose benefit the alternative support decree was entered. Therefore, we conclude that Kevin and
Scott's cause of action for breach of contract did not accrue until they knew or should have known of the facts
constituting their claim. Soper v. Means, 111 Nev. 1290, 1294, 903 P.2d 222, 224 (1995).
their benefit pursuant to the divorce agreement, in addition to accrued interest. Implied trusts are equitable
remedies; the basic objectives of both constructive and resulting trusts are the recognition and protection of
property rights that have arisen in an innocent partythe vital tenet is one of equity.
4
Cummings v. Tinkle, 91
Nev. 548, 550, 539 P.2d 1213, 1214 (1975).
Despite some confusion in the courts between resulting and constructive trusts, the concepts are
distinguishable. . . . [A] constructive trust, unlike a resulting trust, does not require that the parties specifically
intended to create a trust. 76 Am.Jur.2d Trusts 163 (1992). The constructive trust is no longer limited to
[fraud and] misconduct cases; it redresses unjust enrichment, not wrongdoing. Dan B. Dobbs, Law of Remedies
4.3(2) (2d ed. 1993). See also DeLee v. Roggen, 111 Nev. 1453, 1457, 907 P.2d 168, 170 (1995) (quoting
Locken v. Locken, 98 Nev. 369, 372, 650 P.2d 803, 804-05 (1982)) (reiterating that [a] constructive trust
is a remedial device by which the holder of legal title to property is held to be a trustee of that property for the
benefit of another who in good conscience is entitled to it' ).
[Headnote 12]
In Locken, we held that a constructive trust exists where: (1) a confidential relationship exists between the
parties; (2) the retention of legal title by the holder thereof against another would be inequitable; and (3) the
existence of such a trust is essential to the effectuation of justice. 98 Nev. at 372, 650 P.2d at 170. We note that
Kevin and Scott's complaint did not specifically request the remedy of a constructive trust; however, applying
the Locken criteria, the remedy of constructive trust may be available notwithstanding a failure to plead fraud in
the complaint. See Dobbs, supra.
[Headnote 13]
In the instant case, the Locken elements have been satisfied. First, a confidential relationship existed between
Kevin and Scott and their father. See Locken, 98 Nev. 369, 372, 650 P.2d 803, 805 (1992) (a confidential
relationship exists between father and son). Second, Jack's retention of legal title of the funds that he promised to
his sons in the divorce agreement was inequitable. Finally, the existence of a constructive trust is essential to the
effectuation of justice because it would prevent Jack's estate from benefiting from Jack's
inequitable actthe wrongful retention of his sons' money.
__________

4
A resulting trust exists where the acts or expressions of the parties indicate an intent that a trust relation
results from their transaction. 76 Am.Jur.2d Trusts 163 (1992). Specifically, a resulting trust may arise on the
failure of an express trust. Washburn v. Park East, 795 F.2d 870, 872 (9th Cir. 1986). In the instant case, a
resulting trust did not arise because the record shows that Jack had no intention of creating a trust. In fact, Jack
disregarded the divorce agreement altogether, evidenced by the fact that Jack failed to set aside any sum of
money for Kevin and Scott.
effectuation of justice because it would prevent Jack's estate from benefiting from Jack's inequitable actthe
wrongful retention of his sons' money. Accordingly, we conclude that Jack held the monies designated for his
sons in a constructive trust. Upon Jack's death, the estate became the trustee of the constructive trust.
[Headnote 14]
Having concluded that the divorce agreement created a constructive trust in favor of Kevin and Scott, we
must consider whether the district court properly determined that their equitable claim was barred by the statute
of limitations. The statute of limitations begins to run from the time when the wronged party knows or should
know of the inequitable conduct of the titleholder. George T. Bogert, Trusts 642 (1987).
Taking the facts set forth in the complaint as true, Kevin and Scott first learned about the trust that their
father was obligated to create for them after their father's death on February 11, 1995. They promptly filed
creditors' claims against the estate, which were subsequently denied. The district court found, as a matter of law,
that the trust was repudiated in 1984 when Kevin reached the age of twenty-five. We conclude that pursuant to
the facts pleaded, the district court erred in making such a finding as a matter of law.
CONCLUSION
We conclude that the discovery rule governs the statutes of limitations applicable to claims of conversion and
breach of contract. Here, in the absence of uncontroverted evidence, the question of when Kevin and Scott knew
or should have known of their claims is one of fact. Accordingly, the district court erred in deciding, as a matter
of law, that Kevin's and Scott's legal claims were barred by the statute of limitations.
We further conclude that a constructive trust is an appropriate remedy on these facts. When one seeks the
imposition of a constructive trust in equity, the statute of limitations accrues when the wronged party knows or
should have known about the constructive trustee's wrongful holding. Thus, with only the pleadings before it
wherein Kevin and Scott assert that they first learned about their father's failure to create a trust for their benefit
shortly before they filed their creditors' claims in 1995, the district court erred in concluding that this equitable
relief was precluded as a matter of law.
Therefore, we reverse the district court's order and remand this case for proceedings consistent with this
opinion.
I cannot agree with the majority's conclusion that the district court erred in dismissing appellants' complaint
pursuant to the statute of limitations. In my opinion, appellants' claims are barred by the statute of limitations.
1
While appellants cannot be charged with notice during the period they were minors, the evidence demonstrates
that appellants failed to exercise due diligence in discovering their claims for more than eighteen years after
reaching majority.
2

The majority is correct in recognizing that dismissal on statute of limitations grounds is only appropriate
when uncontroverted evidence irrefutably demonstrates plaintiff discovered or should have discovered the
fraudulent conduct.' Nevada Power Co. v. Monsanto Co., 955 F.2d 1304, 1307 (9th Cir. 1992) (quoting
Mosesian v. Peat, Marwick, Mitchell & Co., 727 F.2d 873, 877 (9th Cir. 1984)). The majority also correctly
concludes that a plaintiff must use due diligence in determining the existence of a cause of action. Sierra Pacific
Power Co. v. Nye, 80 Nev. 88, 94-95, 389 P.2d 387, 390 (1964). My points of contention lie with the
majority's conclusions that there is no evidence to suggest that appellants knew or should have known about their
cause of action and that a question of fact remains regarding the due diligence of appellants.
The majority concludes that because appellants did not have inquiry notice, it cannot be said as a matter of
law that appellants knew or should have known about their claims. However, the majority fails to point out that
inquiry notice is but one of three types of notice that can be used to impute knowledge on Kevin and Scott.
Kevin and Scott could be charged with actual, constructive, or inquiry notice, depending on the circumstances.
Here, the divorce decree was a matter of public record. Thus, appellants should be charged with constructive
notice of their cause of action.
3
Hence, appellants knew or should have known of their cause of action because
of this form of constructive notice.
__________

1
Appellants' complaint contains two causes of action, one in contract and one in tort. Unfortunately, the
statutes of limitations, six years and three years respectively, bar the claims.

2
Kevin Bemis reached the age of majority in 1977, while Scott Bemis reached majority in 1978.

3
The majority cites Allen v. Webb, 87 Nev. 261, 270, 485 P.2d 677, 682 (1971), to show that public
recording of a deed would not constitute constructive notice. However, that case dealt with an escrow agent's
failure to record a deed, thereby allowing a bona fide purchaser to assert superior title. Here, there is no
allegation that the divorce decree was not found in public record. Sierra Pacific Power Co., 80 Nev. at 94-95,
389 P.2d at 390, held that plaintiffs arguing they were unaware of their claims were imputed to have knowledge
of such claims because the information necessary to discover them could be found in public records.
Moreover, it is not unlikely that appellants had actual notice. Frankie (the mother) was aware of the property
settlement agreement in which appellants were to be the beneficiaries of the trust. Frankie presumably had a
congenial relationship with her two sons. It almost strains credulity to reach the conclusion that their mother
never in twenty-three years informed them of the proposed trust.
Even if constructive or actual notice is not imputed to appellants, their claim is time barred because they
failed to exercise due diligence in discovering the claim. The issue of whether a plaintiff exercised due diligence
usually gives rise to a question of fact appropriate for the trier of fact. Such questions, however, may be decided
as a matter of law when uncontroverted evidence irrefutably demonstrates plaintiff discovered or should have
discovered the fraudulent conduct. Nevada Power Co., 955 F.2d at 1307. Here, appellants admitted that they
made no effort to discover the existence of their cause of action during the twenty-three years since their parents'
divorce. The district court's determination that this admission left no question of fact for the jury to resolve was
not error.
The application of the statute of limitations to constructive trusts is straightforward. Constructive trusts are
involuntary and are imposed upon the trustee to remedy a wrongdoing. George T. Bogert, Trusts 642 (1987).
Thus, [t]here is a cause of action from the date when the trustee's wrongful holding begins, and the Statute of
Limitations should begin to run against it from the time when the wronged party knows or should know of the
inequitable conduct of the titleholder. Id.
As pointed out earlier, there is evidence to support that appellants had constructive or actual notice of their
claim after reaching majority. The trial court properly concluded that appellants' conduct did not constitute due
diligence. Hence, appellants' claims are time barred due to the six-year statute of limitations for the contract
claim and the three-year statute of limitations for the conversion claim. Accordingly, I would affirm the summary
judgment and order the appeal dismissed.
____________
114 Nev. 1031, 1031 (1998) Emeterio v. Clint Hurt and Assocs.
DR. LOUIS C. EMETERIO and L. WILLIAM LEARY, Appellants, v. CLINT HURT AND
ASSOCIATES, INC., a Texas Corporation Licensed to do Business in West Virginia,
Respondent.
No. 28609
November 25, 1998 967 P.2d 432
Appeal from an order of the district court denying appellants' motion for declaratory relief or for a
determination that the judgments against them were in rem. Eighth Judicial District Court, Clark County; Jeffrey
D. Sobel, Judge.
Oil well operator brought suit in Nevada, seeking to enforce West Virginia judgments
against investors, awarding compensation for work done on wells. The district court
dismissed foreign judgments and appeal was taken. The supreme court reversed and
remanded. 111 Nev. 1086, 901 P.2d 703 (1994). On remand the district court entered order
enforcing judgments and appeal was taken. The supreme court held that: (1) complaint
provided sufficient basis for assertion of personal jurisdiction; (2) earlier supreme court
decision regarding adequacy of notice of suit was not law of case on issue whether assertion
of personal jurisdiction satisfied federal constitutional due process requirements; and (3)
assertion of personal jurisdiction against Nevada investors did not satisfy due process
requirements.
Reversed.
Rose, J., dissented in part.
John and Elizabeth Foley, Las Vegas, for Appellants.
William L. Carpenter, Yerington, for Respondent.
1. States.
Complaint in lawsuit brought in West Virginia adequately notified Nevada defendants that suit was against them personally, and
not an in rem proceeding against West Virginia oil well in which they were investors through limited partnership, precluding claim that
default judgment taken against them in West Virginia was unenforceable in Nevada; there was specific claim for money damages,
made directly against defendants.
2. Courts.
Nevada Supreme Court's decision, that manner in which Nevada defendants were given notice of pendency of West Virginia suit
against them was constitutional, was not law of case as to whether assertion of personal jurisdiction over them by West Virginia courts
satisfied due process standards. U.S. Const. amend 14.
In order for exercise of personal jurisdiction over nonresident defendant to satisfy due process requirements, defendant's contacts
with the forum state must be such that the defendant should reasonably anticipate bing haled into court
there.
forum state must be such that the defendant should reasonably anticipate bing haled into court there. U.S. Const. amend. 14.
4. Constitutional Law; Courts.
West Virginia court's assertion of jurisdiction over Nevada investors, in suit seeking payment for work done on oil well in West
Virginia, did not satisfy federal due process requirements. Investors each had only a 2.5 per cent interest in Nevada corporation that
held leasehold interest in wells, prior to conveying interest to all of its investors, sued investors could not reasonably anticipate being
haled into court in West Virginia as result of investment, and it would be unfair to make Nevada investors cross entire country to
defend suit under circumstances of case. U.S. Const. amend. 14.
OPINION
Per Curiam:
This is an appeal by Dr. Louis C. Emeterio and L. William Leary from an order of the district court affirming the enforceability of
foreign judgments and denying their motion for declaratory relief or for a determination that the judgments against them were in rem. The
facts of this case have previously been set forth in Clint Hurt & Associates v. Silver State Oil, 111 Nev. 1086, 901 P.2d 703 (1995).
In the summer of 1984, respondent Clint Hurt and Associates, Inc. (Hurt), a Texas corporation, entered into a contract with Natchez
Drilling Company, Inc. (Natchez), a Texas corporation. Pursuant to the contract, Hurt agreed to drill oil and gas wells on certain real
property located in Wirt County, West Virginia. The oil and gas leasehold to the property, identified as Florence #2, was held by Silver
State Oil & Gas (Silver State), a Nevada corporation. In early January 1985, Silver State assigned its right, title, and interest in and to
the property to Silver State's investors. Appellants Emeterio and Leary are Nevada residents who made capital contributions as limited
partners in Silver State, each purchasing a 2.5% interest in the corporation.
Thereafter, Hurt filed suit in Wirt County, West Virginia against Natchez, Silver State, and various Silver State investors, including
Emeterio and Leary, alleging, inter alia, that it did not receive payment for drilling the well. The West Virginia court assumed personal
jurisdiction over the non-resident defendants under West Virginia's long-arm statute, finding that they own[ed] an interest in West
Virginia property and [did] business in that state. The secretary of state of West Virginia notified the defendants of the pending action by
certified mail, return receipt requested. The West Virginia court entered default judgments against several of the defendants, including
Emeterio and Leary. Hurt filed the West Virginia judgments in a Nevada district court pursuant to NRS 17.330,
Nevada's Uniform Recognition of Judgments Act, and notified the defendants.
Virginia judgments in a Nevada district court pursuant to NRS 17.330, Nevada's Uniform Recognition of
Judgments Act, and notified the defendants. The defendants filed a motion to dismiss the foreign judgments. The
district court dismissed the judgments, concluding that West Virginia's service of process upon non-resident
defendants was inadequate to establish jurisdiction.
Hurt appealed, and this court reversed the decision of the lower court, concluding that Hurt had adequately
notified the defendants of the action pending against them and that West Virginia's notice provision did not
violate appellants' due process rights. Clint Hurt & Assocs., 111 Nev. 1086, 901 P.2d 703. The case was
remanded for proceedings consistent with the opinion. Id. at 1089, 901 P.2d at 705.
On October 4, 1995, Emeterio and Leary, along with the other defendants, filed a motion for declaratory
relief or, in the alternative, a determination that the lower court's order of August 2, 1993, sustained in rem
jurisdiction of the West Virginia court over the oil well in question and did not sustain personal jurisdiction over
the limited partners. The district court denied the motion and entered an order upholding the foreign judgments.
Emeterio and Leary appeal.
[Headnote 1]
Emeterio and Leary argue that the district court erred by enforcing personal judgments against them because
Hurt's complaint, filed in West Virginia, asserted a claim for a judgment in rem and failed to put them on notice
that a personal valid judgment could be taken against them if they did nothing. After reviewing the complaint,
we conclude that this contention is without merit.
Emeterio and Leary are named as individual defendants in the complaint's caption, and count one of the
complaint specifically seeks money damages: As a consequence of all of the above circumstances the
defendants both jointly and severally owe Clint Hurt the sum of Forty Nine Thousand Eight Hundred Fifty-Nine
Dollars and Seven Cents ($49,859.07) . . . . We conclude that the complaint is clear on its face and sufficient to
have put Emeterio and Leary on notice that Hurt was seeking personal judgments against them arising out of the
nonpayment for drilling the wells. Thus, the district court did not err by concluding that the underlying suit
involved judgments in personam.
Emeterio and Leary argue that, even if Hurt was seeking personal judgments, the West Virginia court's
exercise of in personam jurisdiction was improper.
[Headnote 2]
Hurt contends that our decision in Clint Hurt & Assocs. established that West Virginia's exercise of personal
jurisdiction was constitutional, and that this conclusion is now the law of the case.
constitutional, and that this conclusion is now the law of the case. When an appellate court states a rule of law
necessary to a decision, that rule becomes the law of the case and must be followed throughout subsequent
proceedings. Wickliffe v. Sunrise Hosp., 104 Nev. 777, 780, 766 P.2d 1322, 1324 (1988). This court has
declined to apply the law of the case doctrine, however, where issues presented in the second appeal are not the
same as those presented in the first appeal. See, e.g., Cord v. Cord, 98 Nev. 210, 644 P.2d 1026 (1982); Lanigir
v. Arden, 85 Nev. 79, 450 P.2d 148 (1969).
We held in Clint Hurt & Assocs. that it was constitutional for the West Virginia court to exercise personal
jurisdiction. Id. at 1088, 901 P.2d at 705. This holding was based solely on the conclusion that Hurt had
adequately notified the defendants of the case pending against them.
1
Thus, we addressed due process in the
context of determining whether West Virginia's method of service was proper. We did not reach the issue of
whether West Virginia's exercise of jurisdiction satisfied substantive due process concerns. Accordingly, our
holding in Clint Hurt & Assocs. is not controlling in the present appeal.
A two-step approach is taken when analyzing jurisdictional questions. We must determine, first, whether the
defendant's actions satisfy the requirements of a state's long-arm statute, and second, whether the defendant's
contacts with the forum state are such that the exercise of personal jurisdiction would not offend federal due
process. Trump v. District Court, 109 Nev. 687, 698, 857 P.2d 740, 747 (1993).
West Virginia's long-arm statute provides that the state has jurisdiction over a non-resident if the
non-resident [t]ransact[s] any business in [West Virginia] or ha[s] an interest in, us[es] or possess[es] real
property in [West Virginia.] W. Va. Code 56-3-33 (1984). Both the West Virginia court and the Nevada
district court found that Emeterio and Leary had an interest in West Virginia property by virtue of the lease
assignment in which Silver State assigned the lease to the oil and gas wells to its individual investors.
Emeterio and Leary dispute their interest in the Florence #2 property, arguing that they never accepted the
assignment. West Virginia law determines whether the West Virginia court properly found that Emeterio and
Leary had a property interest in the oil and gas wells. See Clint Hurt & Assocs., 111 Nev. at 1089, 901 P.2d
at 705; 28 U.S.C. 1738 (1966). We decline to address the validity of the assignment, however,
because we conclude that, even if Emeterio and Leary satisfied the requirements of West
Virginia's long-arm statute, they do not have sufficient minimum contacts with West
Virginia to warrant the exercise of jurisdiction.
__________

1
Our discussion in Clint Hurt & Associates v. Silver State Oil, 111 Nev. 1086, 901 P.2d 703 (1995),
regarding the applicability of the West Virginia long-arm statute, was not essential to the decision and did not
resolve the question of general and specific in personam jurisdiction.
the validity of the assignment, however, because we conclude that, even if Emeterio and Leary satisfied the
requirements of West Virginia's long-arm statute, they do not have sufficient minimum contacts with West
Virginia to warrant the exercise of jurisdiction.
[Headnote 3]
In order for a state to subject a non-resident defendant to a judgment in personam, the defendant must have
certain minimum contacts with the forum state such that the maintenance of the suit does not offend traditional
notions of fair play and substantial justice.' Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting
Milliken v. Meyer, 311 U.S. 457, 463 (1940)). The Due Process Clause of the United States Constitution
protects an individual's liberty interest in not being subject to the binding judgments of a forum with which he
has established no meaningful contacts, ties, or relations.' Burger King Corp. v. Rudzewicz, 471 U.S. 462,
470-71 (1985) (quoting Int'l Shoe, 326 U.S. at 319). The defendant's contacts with the forum state must be such
that the defendant should reasonably anticipate being haled into court there. World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 297 (1980).
In analyzing whether personal jurisdiction satisfies due process, this court has separated the inquiry into two
areas: general jurisdiction and specific jurisdiction. Trump, 109 Nev. at 699, 857 P.2d at 748. General
jurisdiction applies when a defendant is held to answer in a forum for causes of action unrelated to the
defendant's forum activities. Id. Specific jurisdiction occurs where the cause of action arises from the
defendant's contacts with the forum. Id. In the instant case, the cause of action against Emeterio and Leary arose
from their interest in the Florence #2 property. Therefore, the inquiry focuses on whether the West Virginia
court properly exercised specific personal jurisdiction.
A state may exercise specific personal jurisdiction over a non-resident defendant only if:
(1) the defendant purposefully avails himself of the privilege of serving the market in the forum or of
enjoying the protection of the laws of the forum, or where the defendant purposefully establishes contacts
with the forum state and affirmatively directs conduct toward the forum state, and (2) the cause of action
arises from the purposeful contact with the forum or conduct targeting the forum.
Id. at 699-700, 857 P.2d at 748; see Budget Rent-A-Car v. District Court, 108 Nev. 483, 487, 835 P.2d 17, 20
(1992); see also World-Wide Volkswagen, 444 U.S. at 291, 297. It is the quality of these contacts, . . . and not
the quantity, that confers personal jurisdiction over a defendant."
jurisdiction over a defendant. Brainerd v. Governors of the Univ. of Alberta, 873 F.2d 1257,
1259 (9th Cir. 1989).
[Headnote 4]
Hurt argues that Emeterio and Leary's leasehold interest in the oil and gas wells is sufficient to satisfy the
minimum contacts requirement. Jurisdictional assertions based on ownership of property within the forum must
meet the traditional minimum contacts test. See Shaffer v. Heitner, 433 U.S. 186, 213 (1977). Where the
property gives rise to and is the subject matter of the litigation, a finding of personal jurisdiction generally would
not offend due process. Id. at 207. We conclude, however, that under the circumstances of this case, the
ownership of an interest in property is insufficient to justify the exercise of personal jurisdiction.
Emeterio and Leary are Nevada residents who purchased interests in Silver State, a Nevada corporation.
They never traveled to West Virginia in connection with their investments and did not actively engage in the oil
business or otherwise conduct business in West Virginia. They were passive investors holding an interest in the
partnership corporation analogous to the purchase of stock in a corporation. Renda v. Peoples Federal Sav. and
Loan, 538 So. 2d 860, 863 (Fla. Ct. App. 1988). As limited partners, they had little control over the affairs of
Silver State and were unaware of having any interest in West Virginia property. We cannot conclude that
Emeterio and Leary purposefully availed themselves of the benefits and privileges of owning a real property
interest in West Virginia or that they affirmatively directed activities toward that state. Nor can we conclude that
Emeterio and Leary could reasonably have anticipated that their minor investment in a Nevada corporation
would render them liable to a suit in West Virginia.
2
Emeterio and Leary may not be haled into court either on
the basis of their attenuated relationship with Hurt or because of the unilateral act by the president of Silver State
in assigning the leasehold to its investors. See Brainerd, 873 F.2d at 1259.
Whether general or specific, the exercise of personal jurisdiction must also be reasonable. Trump, 109 Nev.
at 703, 857 P.2d at 750. In determining whether the exercise of personal jurisdiction is reasonable, the United
States Supreme Court has set forth five factors to be taken into consideration: (1) the burden on the defendant
of defending an action in the foreign forum, (2) the forum state's interest in adjudicating the dispute, (3) the
plaintiff's interest in obtaining convenient and effective relief, (4) "the interstate judicial system's
interest in obtaining the most efficient resolution of controversies," and
__________

2
Indeed, we note that Emeterio and Leary are likely protected from liability even in their home state of
Nevada because (1) they are not participating in the control of the business, and (2) Hurt is aware that Emeterio
and Hurt are limited, as opposed to general, partners. See NRS 88.430(1)
the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and (5) the
shared interest of the several States in furthering fundamental substantive social policies. World-Wide
Volkswagen, 444 U.S. at 292; Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 113 (1987).
We conclude that the exercise of personal jurisdiction is not reasonable. In favor of Hurt's position is West
Virginia's interest in adjudicating a case involving West Virginia residents and West Virginia property, and
Hurt's interest in obtaining convenient and effective relief. The remaining considerations, however, support
holding against jurisdiction. First, although the subject of the dispute (the oil wells) and the plaintiff are located
in West Virginia, several of the defendants are Nevada residents or entities. Thus, Nevada also has an interest in
adjudicating this dispute. Second, the burden on Emeterio and Leary to defend themselves in West Virginia is
great. Although not dispositive, Emeterio and Leary would also be required to travel across the country, they
would have to find and hire West Virginia lawyers with whom to entrust their defense. Finally, Nevada and other
states have an interest in ensuring that the exercise of personal jurisdiction conforms with notions of fairness.
West Virginia's exercise of personal jurisdiction over Emeterio and Leary simply does not further this interest.
In sum, we conclude that the facts do not establish that the appellants had the minimum contacts necessary to
subject them to the jurisdiction of the West Virginia courts, nor does the exercise of jurisdiction appear
reasonable. Accordingly, the district court's order upholding the foreign judgments against Emeterio and Leary is
reversed.
Rose, J., concurring and dissenting:
I concur in the analysis set forth in the majority opinion, except for the final conclusion that the appellants'
interest in the West Virginia property was insufficient to justify the exercise of personal jurisdiction over them.
To this conclusion I dissent.
Jurisdictional assertions based on ownership of property within the forum state must meet the traditional
minimum contacts test. Shaffer v. Heitner, 433 U.S. 186, 213 (1977). However, where the property gives rise to
and is the subject matter of the litigation, a finding of personal jurisdiction generally will not offend due process.
Id. at 207. Moreover, in considering whether a party has minimum contacts with the forum, the presence of
property in a State may bear on the existence of jurisdiction by providing contacts among the forum State, the
defendant, and the litigation. Id. Stated another way, the property itself, as a contact, may tip the balance in
favor of exercising jurisdiction and may, itself, be a sufficient contact in certain actions."
itself, be a sufficient contact in certain actions. 16 James Wm. Moore, Moore's Federal Practice 108.80[1] (3d
ed. 1998); see also Equitable Trust Co. v. O'Neill, 420 A.2d 1196, 1199 (Del. Super. Ct. 1980) (holding that
non-residents' interest in, use and possession of real property in the forum state constituted minimum contacts
so as to allow litigation arising out of mortgage default to proceed in the forum state).
The appellants were limited partners in Silver State Oil and Gas, which had acquired a leasehold interest in
West Virginia real property for the purpose of conducting oil exploration. The leasehold interest was
subsequently transferred to the various limited partners, which included the appellants. Presumably, the
appellants knew that oil drilling would be done on the property and they anticipated profits arising out of this
activity as both investors and then as holders of a possessory interest in the West Virginia land. On these facts,
the district court properly concluded that the West Virginia court had jurisdiction over the appellants. See
International Leasing, Inc. v. Anderson, 410 F.2d 303, 305 (10th Cir. 1969) (Through the instrumentality of the
partnership, the individual partners purposefully availed themselves of the privilege of conducting business
activities in [the forum state] and invoked the benefits and protections of its laws to satisfy their personal
economic desires. This is enough to invoke the long-arm statute and to subject them to personal jurisdiction.);
First Texas Savings Ass'n v. Bernsen, 921 P.2d 1293, 1297 (Okl. Ct. App. 1996) (concluding that forum state
had personal jurisdiction over non-resident limited partners where partnership's only business was the
acquisition, improvement, operation, and management of real property in the forum state).
The appellants argue that they never accepted the lease assignment from Silver State Oil and Gas. This issue
was not asserted in the district court and issues raised for the first time on appeal need not be considered by this
court. Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981). While this defense may
have been successfully asserted in both the West Virginia and Nevada litigation (but see Bernsen, 921 P.2d at
1297), the rendition of the judgment by a West Virginia court that had jurisdiction over the appellants precludes
that defense from being raised at this time.
The majority opinion also concludes that it would be unreasonable to require the Nevada limited partner
investors to defend themselves in the West Virginia litigation. Appellants' status as limited partners changed
when Silver State conveyed its leasehold interest to them, which [tipped] the balance in favor of exercising
jurisdiction. Moore, supra. Moreover, when an individual has an ownership interest in an entity that conducts
oil exploration on land acquired in another state, it is not unreasonable for the individual
owner to anticipate that he may have to defend himself in the forum where the
exploration activity is conducted.
on land acquired in another state, it is not unreasonable for the individual owner to anticipate that he may have to
defend himself in the forum where the exploration activity is conducted. This will undoubtedly mean additional
costs and litigation in a foreign state, but I do not believe that this inconvenience makes the exercise of
jurisdiction unreasonable and, therefore, unconstitutional.
For these reasons, I would affirm the judgment entered by the district court.
____________
114 Nev. 1039, 1039 (1998) Salgado v. State
JUAN SALGADO, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 29078
November 25, 1998 968 P.2d 324
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of trafficking in a controlled
substance. Second Judicial District Court, Washoe County; Brent T. Adams, Judge.
The supreme court held that district court did not abuse its discretion in admitting
evidence of defendant's prior uncharged drug transactions with state's informant.
Affirmed.
Michael R. Specchio, Public Defender, and John Reese Petty, Chief Deputy Public Defender, Washoe
Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Gary H.
Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Before admitting evidence of a defendant's collateral acts, the court must determine three things on the record and outside the
presence of the jury: whether admission of the evidence is justified, whether it is proven by clear and convincing evidence, and whether
the danger of unfair prejudice substantially outweighs its probative value.
2. Criminal Law.
District court did not abuse its discretion in admitting evidence of defendant's prior drug transactions with state's informant in
prosecution for trafficking in controlled substance, without holding formal evidentiary hearing outside presence of jury to determine
whether prior acts were proven by clear and convincing evidence. State's offer of proof when combined with evidence actually
presented to jury established clear and convincing evidence of defendant's prior drug transactions.
3. Criminal Law.
For purposes of admitting evidence of defendant's collateral acts under Petrocelli, clear and convincing proof of collateral acts can
be established by an offer of proof outside the presence of the jury combined with the quality of the
evidence actually presented to the jury.
established by an offer of proof outside the presence of the jury combined with the quality of the evidence actually presented to the
jury.
4. Criminal Law.
Admission of evidence of collateral acts lies within the sound discretion of the district court, and supreme court will respect that
court's determination unless it is manifestly wrong.
OPINION
Per Curiam:
After a jury trial, appellant Juan Salgado was convicted of one count of trafficking in a controlled substance. He claims that the district
court erroneously admitted evidence of his prior drug transactions without requiring the state to prove those acts by clear and convincing
evidence as required by Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985), and its progeny.
FACTS
The state's main witness at trial was Chad Hambel, who had been arrested for and charged with drug trafficking. In the hope of
receiving a more lenient sentence, Hambel agreed to assist the state and identified Salgado as a drug source.
According to Hambel's testimony, on May 30, 1995, Hambel called Salgado and asked to buy some methamphetamine. They agreed to
meet at the Wal-Mart in Reno. Narcotics unit officers rigged Hambel with recording equipment and gave him $800.00 in marked bills.
Hambel met Salgado at the Wal-Mart and gave him $500.00. Salgado left and returned forty-five minutes later. He and Hambel walked
inside the store and into a restroom. Salgado gave Hambel a package containing about an ounce of methamphetamine, and Hambel gave
Salgado an additional $260.00.
Police later stopped the car that Salgado was riding in. Jose Barragan was driving the car. Police arrested both men, but later released
Barragan. Police found some of the marked bills on Salgado.
Salgado's defense was that he was only a procuring agent and did not profit from the sale. He testified that he met Hambel at work and
considered him a friend; that Hambel asked him for help in getting drugs; and that he introduced Hambel to the actual sellers. Salgado
maintained that he himself never sold contraband to Hambel. More particularly, Salgado claimed that on the second encounter at the
Wal-Mart, he was accompanied by Barragan and that it was Barragan who sold the methamphetamine to Hambel in a restroom. Thereafter,
according to Salgado, Barragan gave him some money to pay off a debt.
Before trial, the parties argued the admissibility of evidence of prior drug dealings between Hambel and
Salgado. The district court ruled that details of the prior transactions would not be admissible in the state's case
in chief. The court reserved ruling on use of the evidence in the defense case or on rebuttal.
After the defense rested, the prosecutor argued outside the presence of the jury that evidence of prior drug
dealings between Salgado and Hambel was admissible in rebuttal. Over objection, the district court ruled in
favor of the state, reasoning in part as follows:
The defendant has now testified. The heart of this trial is the jury's assessment of the credibility of the
informant and of the defendant. The stories are strikingly different.
. . . .
Any decision by the jury in this case . . . depends upon the assessment of the credibility of these
witnesses and the assessment of the relationship with each other and whether this is a case of two people
who have been deeply involved in narcotics trafficking with each other [and] were simply doing another
deal . . . or [as] the defendant contends a case of a person already convicted of a serious narcotics crime
attempting to buy his freedom by making false accusations against the defendant.
The court found the evidence relevant under NRS 48.045(2). It also found that the probative
value of the evidence was not substantially outweighed by the danger of unfair prejudice.
NRS 48.035(1).
Hambel then testified that he had bought marijuana and methamphetamine from Salgado once or twice a
week for about eight months, that the transactions usually occurred at Hambel's home, that Salgado often
consumed some of the drugs, and that Salgado sometimes sold him drugs on credit.
The jury found Salgado guilty of trafficking in a controlled substance. The district court sentenced him to a
prison term of ten years and ordered him to pay a fine of $100,000.00 and restitution in the amount of $500.00.
DISCUSSION
Salgado points out that the state made only an offer of proof before the district court ruled that the evidence
of the prior drug transactions was admissible. He claims that this was reversible error under Petrocelli and its
progeny, which require clear and convincing proof of any collateral acts before admitting evidence of the acts.
[Headnote 1]
Before admitting evidence of a defendant's collateral acts, the court must determine three things on the
record and outside the presence of the jury: whether admission of the evidence is justified, whether it is proven
by clear and convincing evidence, and whether the danger of unfair prejudice substantially outweighs its
probative value. Meek v. State, 112 Nev. 1288, 1292-93, 930 P.2d 1104, 1107 (1996).
Salgado does not challenge the sufficiency of the evidence against him, nor does he contend that the evidence
of the prior drug transactions was not relevant or that its probative value was substantially outweighed by unfair
prejudice. His challenge goes solely to the failure of the prosecution to put a witness on the stand outside the
presence of the jury to establish clear and convincing proof of the prior acts.
The state cites Colon v. State, 113 Nev. 484, 938 P.2d 714 (1997), for the proposition that no Petrocelli
hearing is required when evidence is offered to rebut a procuring agent defense. This reading of Colon is too
broad, although some of the language in that opinion is susceptible to such a reading. We therefore take this
opportunity to clarify our holding in Colon.
The appellant in Colon was convicted of selling methamphetamine, despite her claim that she was only a
procuring agent. Colon contended that the prosecutor erred by introducing certain evidence without holding a
Petrocelli hearing. The evidence concerned Colon's knowledge of marijuana being grown by a third person, her
knowledge that a man in her apartment offered to obtain drugs for another person, and the fact that Colon had
bailed a suspected drug dealer out of jail. Colon, 113 Nev. at 491-92, 938 P.2d at 719. The opinion holds simply
that this evidence was clearly admissible because the State was required to disprove the procuring agency and
[to prove] that Colon had a predisposition to sell controlled substances. A Petrocelli hearing was not required.
Id. at 492, 938 P.2d at 719 (citations omitted). This holding is limited by the facts of the case. The evidence in
question did not relate to acts which necessitate a Petrocelli hearing because it did not implicate prior bad acts
on Colon's part or collateral offenses for which she could have been charged. The evidence simply concerned
facts which were relevant to prove that Colon was not a procuring agent, a burden which the state had to meet to
prove its case. It was neither irrelevant character evidence nor evidence of collateral acts requiring a Petrocelli
hearing before its admission.
[Headnote 2]
Therefore, the holding in Colon does not apply to this case, which involves illegal drug transactions which
are clearly collateral offenses necessitating a Petrocelli hearing.
eral offenses necessitating a Petrocelli hearing. Thus, the question is whether the failure to hold a formal
evidentiary hearing outside the presence of the jury constituted error. We conclude that it did not.
[Headnote 3]
In Petrocelli, the state apprised the trial judge of the quantum and quality of its evidence proving that the
defendant had committed the prior offense. Petrocelli, 101 Nev. at 52, 692 P.2d at 507 (emphasis added). We
concluded that this procedure was correct. Id. at 52, 692 P.2d at 508.
[B]efore evidence of a prior bad act can be admitted, the state must show, by plain, clear and convincing
evidence that the defendant committed the offense. The state's offer of proof fulfilled this requirement.
Petrocelli's own admission, coupled with eyewitness testimony, established by the requisite standard of
proof that Petrocelli killed Melanie Barber. Moreover, the state properly demonstrated the quality of its
evidence on the subject by actually calling the eyewitness on rebuttal.
Id. (citation omitted) (emphasis added). Thus, under Petrocelli, clear and convincing proof of collateral acts can
be established by an offer of proof outside the presence of the jury combined with the quality of the evidence
actually presented to the jury.
[Headnote 4]
The admission of evidence of collateral acts lies within the sound discretion of the district court, and this
court will respect that court's determination unless it is manifestly wrong. Id. We conclude that the state
presented clear and convincing evidence of Salgado's prior drug transactions and that the district court did not
abuse its discretion in admitting the evidence.
CONCLUSION
The district court did not abuse its discretion in admitting evidence of Salgado's prior drug transactions. We
therefore affirm the judgment of conviction.
____________
114 Nev. 1044, 1044 (1998) McKenna v. State
PATRICK CHARLES McKENNA, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 29432
November 25, 1998 968 P.2d 739
Appeal from a sentence of death. Eighth Judicial District Court, Clark County; Myron E. Leavitt, Judge.
Defendant, who had been convicted in district court of capital murder, filed petition for
writ of habeas corpus. The United States District Court for the District of Nevada
conditionally granted the petition unless defendant was resentenced. State appealed. The
United States Court of Appeals for the Ninth Circuit affirmed. On resentencing, the district
court entered judgment on jury's sentence of death. Defendant appealed. The supreme court
held that: (1) as a matter of first impression, defendant did not establish actual prejudice
element of claim he was denied due process at resentencing because six SWAT officers were
stationed in the courtroom; (2) prior bad act evidence was properly admitted at resentencing;
and (3) defendant's due process rights were not violated by improper closing argument that
invited jury to conclude that a future innocent victim would die if defendant did not receive
death sentence.
Affirmed.
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, and James
Defendant did not demonstrate actual prejudice element of claim that he was denied due process right to fair hearing at penalty
phase of capital murder trial because six SWAT officers were stationed in the courtroom. Presence of SWAT officers did not force the
jury to impose the death penalty and such level of security was necessary because of defendant's history of escape attempts and violent
crimes. U.S. Const. amend. 14.
2. Homicide.
The decision to admit particular evidence during penalty phase of capital murder case is within the sound discretion of the district
court and will not be disturbed absent an abuse of that discretion.
3. Homicide.
Evidence of defendant's character and specific instances of conduct is admissible in the penalty phase of a capital murder case, but
the evidence must be relevant and the danger of unfair prejudice must not substantially outweigh its probative value. NRS 48.035(1),
175.552(3).
4. Criminal Law.
A defendant's character and record are relevant to the jury's determination of the appropriate sentence for a capital crime.
5. Homicide.
Prior bad act evidence relating to capital murder defendant's attempted murder, kidnapping, and rape of victims other than the
murder victim was admissible in penalty phase as relevant to defendant's propensity to commit acts of violence. NRS 48.035(1),
175.552(3).
6. Criminal Law.
There was no plain error or constitutional error in prosecutor's misquoting of defendant, during prosecutor's opening statement in
penalty phase of capital murder case, as having said he would kill anybody who gets in my way if he received the death penalty.
Prosecutor later clarified that he had misquoted defendant and defense counsel pointed out to jury that defendant had been misquoted.
7. Criminal Law.
Failure to object to or request a jury instruction precludes appellate review, unless the error is patently prejudicial and requires the
court to act sua sponte to protect the defendant's right to a fair trial.
8. Criminal Law.
Defendant could not have reasonably believed that statements he made to detective were made as part of compromise
negotiations, as basis for excluding the statements at penalty phase of defendant's capital murder trial; detective had told defendant
that detective could not make any promises. NRS 48.105(1).
9. Criminal Law.
Where a defendant fails to present an argument below and the district court has not considered its merit, the supreme court will not
consider it on appeal.
10. Homicide.
Newspaper reporter's testimony, during new sentencing phase of capital murder case after habeas relief was granted, to the effect
that defendant had told the reporter, As soon as you are sentenced to death you're thinking about it and you have to decide what you're
going to do, did not lessen jury's sense of responsibility for determining appropriateness of death penalty, although defendant claimed
testimony told jury that a prior jury had sentenced him to death.
11. Criminal Law.
Denial of a motion for a mistrial is within the sound discretion of the district court, and that ruling will not be reversed absent a
clear showing of abuse of discretion.
12. Criminal Law.
Prison warden's testimony, during penalty phase of capital murder case, that defendant was associated with an Aryan prison gang
did not require mistrial. Statement was inadvertently made when prosecutor was trying to elicit that defendant was a high risk prisoner
who was associated with other high risk prisoners, and prosecutor steered warden away from the inadvertent testimony.
13. Homicide.
Testimony from prison warden that defendant was a member of a white supremacy group was admissible in penalty phase of
capital murder case, as defense counsel had opened the door to defendant's gang affiliation, and thus, prosecution could elicit the type
of gang.
14. Homicide.
Testimony, elicited during state's cross-examination of attorney from another capital case regarding the levels and
number of client's appeals in that case, did not diminish the jury's sense of responsibility in defendant's
penalty phase of capital murder trial, as the jury learned that the client was executed despite client's
numerous appeals.
another capital case regarding the levels and number of client's appeals in that case, did not diminish the jury's sense of responsibility
in defendant's penalty phase of capital murder trial, as the jury learned that the client was executed despite client's numerous appeals.
It was improper for prosecutor to make closing rebuttal argument, at penalty phase of capital murder trial, that jury's verdict was
likely to sentence someone to death, as argument invited jury to conclude that a future innocent victim would die if jury did not
sentence defendant to death, but argument did not so infect proceedings as to violate defendant's due process rights, as record
supported all six aggravating circumstances found by the jury. U.S. Const. amend. 14.
16. Double Jeopardy.
Admission of evidence of defendant's prior bad acts as support for aggravating sentencing circumstances in penalty phase of
capital murder trial did not violate the prohibition against double jeopardy. Const. art 1, 8 cl. 1; U.S. Const. amend. 5.
Defendant's due process rights were not violated by admission of evidence, at penalty phase of capital murder trial, of defendant's
prior bad acts as support for aggravating circumstances. Const. art 1, 8 cl. 5; U.S. Const. amend. 14.
18. Homicide.
Testimony regarding defendant's prior bad acts, offered to support aggravating sentencing circumstances at penalty phase of
capital murder case, was not inadmissible victim impact testimony.
19. Homicide.
Capital murder defendant was not entitled to a lingering doubt instruction at new sentencing hearing after grant of habeas relief,
although sentencing jury was not the same jury that heard the guilt phase of defendant's trial.
20. Criminal Law.
Supreme court would not consider any argument that defendant's murder conviction should be reversed; defendant's appeal was
only from the sentence of death.
21. Homicide.
Death sentence was not excessive punishment for defendant's cold-blooded and deliberate strangling of fellow inmate. NRS
177.055(2)(d).
OPINION
Per Curiam:
This is an appeal from a sentence of death imposed after the third penalty hearing held in this case. After the trial and first penalty
hearing, this court reversed appellant's conviction and remanded for a new trial. After the second trial and penalty hearing, appellant filed a
petition for a writ of habeas corpus in federal district court seeking a new penalty hearing, which was granted. On appeal after the third
penalty hearing conducted in this case, we conclude that all of appellant's contentions lack merit and affirm.
FACTS
In March 1980, appellant Patrick Charles McKenna was convicted of one count of first degree murder for the
killing of Jack Nobles on January 6, 1979, while both were incarcerated in the Clark County Detention Center.
After lockdown that day, Nobles and two other inmates were confined in a cell with appellant. Appellant and
Nobles argued, after which appellant choked Nobles to death. One inmate testified that appellant and Nobles
argued about a chess game and that appellant choked Nobles when Nobles was in bed. Another inmate testified
that appellant and Nobles argued about sex and that appellant shoved Nobles against the bunk and choked him
so that Nobles' knees buckled and he dropped to the ground.
1
After a penalty hearing, the jury returned a
verdict of death. On appeal, this court reversed appellant's conviction and remanded for a new trial because the
district court improperly allowed appellant's psychiatrist to testify to admissions appellant made during a
psychiatric examination. McKenna v. State, 98 Nev. 38, 639 P.2d 557 (1982).
In September 1982, after a second trial and penalty hearing, appellant was again convicted of one count of
first degree murder and sentenced to death. On appeal, this court affirmed the judgment and sentence. McKenna
v. State, 101 Nev. 338, 705 P.2d 614 (1985), cert. denied, 474 U.S. 1093 (1986). On April 18, 1986,
appellant filed in the district court a petition for post-conviction relief, which the court denied. On appeal, this
court vacated the district court's order and remanded for reconsideration of the petition, among other things.
McKenna v. State, Docket No. 18074 (Order of Remand, October 29, 1987). Appellant subsequently filed a
supplemental and amended petition for post-conviction relief. After reconsidering appellant's petition, the
district court again denied appellant relief. This court dismissed the appeal from the order denying the
supplemental and amended petition. McKenna v. State, Docket No. 19026 (Order Dismissing Appeal, January
18, 1990). This court subsequently denied rehearing. McKenna v. State, Docket No. 19026 (Order Denying
Rehearing, March 7, 1990). The United States Supreme Court again denied a petition for a writ of certiorari. See
McKenna v. Nevada, 498 U.S. 925 (1990).
Appellant then filed in the United States District Court for the District of Nevada a petition for a writ of
habeas corpus seeking a new penalty hearing. The federal district court upheld appellant's conviction but vacated
his sentence. On appeal, the United States Court of Appeals for the Ninth Circuit remanded for the federal
district court to consider all of appellant's claims. The federal district court clarified its ruling and
again ordered that appellant's death sentence be vacated.
__________

1
McKenna v. State, 101 Nev. 338, 341-42, 705 P.2d 614, 616-17 (1985), cert. denied, 474 U.S. 1093
(1986).
eral district court clarified its ruling and again ordered that appellant's death sentence be vacated. The Ninth
Circuit affirmed the denial of appellant's petition as to his conviction, and affirmed the court's decision to grant
the petition as to his sentence of death unless he was resentenced within a reasonable period of time. The Ninth
Circuit remanded for entry of a modified order stating that a writ of habeas corpus would issue with respect to
appellant's sentence unless he was resentenced within a reasonable period of time. McKenna v. McDaniel, 65
F.3d 1483 (9th Cir. 1995), cert. denied, 517 U.S. 1150 (1996). On remand, the federal district court ordered the
state district court to conduct a new penalty hearing.
2

The third penalty hearing, which is the subject of this appeal, was conducted by the court below on
September 9-19, 1996. The jury found six aggravating circumstancesthat appellant was previously convicted
of: (1) an infamous crime against nature; (2) rape; (3) unlawful escape; (4) robbery, two counts of second degree
kidnapping with use of a deadly weapon, and three counts of sexual assault; (5) attempted escape with use of a
deadly weapon, ex-felon in possession of a firearm, and two counts of robbery with use of a deadly weapon; and
(6) attempted escape with aggravating factors. The jury also found four mitigating circumstancesthat
appellant: (1) personally suffered physical parental abuse; (2) personally suffered emotional parental abuse; (3)
suffered, as a child and young adult, domestic violence; and (4) lost a child. The jury concluded that the
mitigating circumstances did not outweigh the aggravating circumstances and returned a verdict of death. On
September 23, 1996, the district court sentenced appellant to death. This appeal followed.
DISCUSSION
SWAT officers in the courtroom
Appellant filed in district court a motion to appear at all proceedings without shackles, shock belt, blinders,
gloves, and SWAT and transportation officers. At the hearing on appellant's motion, the district court granted the
motion in part and explained that there would be an officer at each door, one midway between the door and the
right side of the courtroom, and one in a chair between the jury and the witness stand. Defense counsel then
requested that not all of the security personnel be uniformed and that the SWAT officers wear civilian clothing.
The Director of the Clark County Detention Center {CCDC) testified that the number of
security personnel was necessary, that one more officer would be added when prisoner
witnesses testified, and that he was unwilling to interfere with the way SWAT does its
job.
__________

2
The federal court ordered a new penalty hearing based on the application of the depravity of mind
aggravating circumstance. We note that NRS 200.033 no longer includes depravity of mind as an aggravating
circumstance. See 1995 Nev. Stat., ch. 467, 1, at 1491.
Clark County Detention Center (CCDC) testified that the number of security personnel was necessary, that one
more officer would be added when prisoner witnesses testified, and that he was unwilling to interfere with the
way SWAT does its job. The court ordered that appellant's arms would be free of restraints, his legs would
remain restrained and a curtain placed around counsel tables, he would wear a stun belt under his clothing, and
the SWAT team would be limited to four officers. Prior to the penalty hearing, the tables in the courtroom were
replaced with tables that were enclosed on three sides.
At the hearing on appellant's motion there apparently were twelve officers in the courtroom. Defense counsel
renewed the motion pertaining to security issues, arguing that twelve officers was too many. The district judge
said that he reduced the number of SWAT officers from seven to four, which he was told was necessary for
security, and that there would be two bailiffs and a couple of corrections officers. Defense counsel entered a
continuing objection to the number of security officers in the courtroom.
At the close of the penalty hearing and outside the presence of the jury, defense counsel made a final record
on the number of SWAT officers. Defense counsel stated that for the duration of the hearing there had been half
a dozen SWAT officers in uniform armed with handguns, an unarmed officer sitting between the prosecution and
defense tables, and guns enclosed in cases, all of which the jury saw. In response, the prosecutor made a record
that one of the prisoner witnesses told SWAT officers that appellant had directed him to do certain things while
testifying. The prosecutor said that he decided not to put this evidence on as rebuttal evidence of another attempt
to escape, but that the officers considered the information in securing the courtroom.
Appellant contends that the placement of armed security personnel dressed in SWAT uniforms all around
[him] in the courtroom and the use of uniformed law enforcement personnel in general prejudiced him such that
he did not receive a fair penalty hearing. Appellant analogizes to cases which hold that a defendant may not be
compelled to stand trial dressed in identifiable prison clothes, see, e.g., Estelle v. Williams, 425 U.S. 501
(1976), and which hold that it is inherently prejudicial to shackle a defendant during the penalty hearing, see
Elledge v. Dugger, 823 F.2d 1439 (11th Cir. 1987).
3
In his reply brief, appellant specifies that eleven
corrections officers were present at the penalty hearing.
__________

3
The only cases appellant cites which concern due process at the penalty stage of trial are Elledge and
Duckett v. State, 104 Nev. 6, 752 P.2d 752 (1988). Neither case holds that having numerous security personnel
in the courtroom is inherently prejudicial. Elledge holds that a court must consider less restrictive alternatives
before shackling a defendant, who must have an opportunity to challenge the court's decision to shackle. Elledge,
823 F.2d at
specifies that eleven corrections officers were present at the penalty hearing.
Although this court has addressed whether security personnel stationed around the
courthouse violated a defendant's due process rights, see Elvik v. State, 114 Nev. 883, 965
P.2d 281 (1998), the issue of security personnel inside the courtroom is one of first
impression. The United States Supreme Court has held that a federal reviewing court's task in
this type of case
is not to determine whether it might have been feasible for the State to have employed less conspicuous
security measures in the courtroom. . . . All a federal court may do in such a situation is look at the scene
presented to jurors and determine whether what they saw was so inherently prejudicial as to pose an
unacceptable threat to defendant's right to a fair trial; if the challenged practice is not found inherently
prejudicial and if the defendant fails to show actual prejudice, the inquiry is over.
Holbrook v. Flynn, 475 U.S. 560, 572 (1986).
In Holbrook, twelve officers were stationed inside the courtroom during trial, including four uniformed state
troopers. Id. at 570. The six codefendants complained that the state troopers' presence suggested to the jury that
the defendants were of bad character. Id. at 563. The Court held that deployment of security personnel inside the
courtroom during trial was not inherently prejudicial because of the wide range of inferences the jurors could
reasonably draw from the officers' presence. Id. at 568-69. Even if a slight degree of prejudice existed by
deployment of the state troopers, sufficient cause for the level of security was found in the state's need to
maintain custody of the defendants during the proceedings. Id. at 571.
In the instant case, appellant contends that the jurors saw eleven officers in the courtroom. Although the
record could be clearer on this point, it appears that there were eight officers in the courtroom during the penalty
hearing, six of whom were SWAT officers.
[Headnote 1]
We conclude that appellant has not shown actual prejudice. The only suggestion of actual prejudice is that
one venireperson said that she was not necessarily afraid due to the number of uniformed officers but was a little
nervous to see the SWAT officers because she did not know what was going on.
__________
1451-52. Duckett holds that the decision to physically restrain a defendant at the penalty stage of the trial is left
to the sound discretion of the trial court, which must balance state interests against the interest in preventing
prejudice to the defendant. Duckett, 104 Nev. at 11, 752 P.2d at 755.
because she did not know what was going on. We cannot tell if this venireperson became a member of the jury.
We further conclude that the presence of eight security officers in the courtroom, including six SWAT officers,
was not inherently prejudicial. Even if the jurors were aware that deployment of SWAT officers is not common
practice, the presence of the six SWAT officers did not force the jury to impose the death penalty. See id. at
570-71. In addition, even if appellant was slightly prejudiced by the presence of the SWAT officers, sufficient
cause for this level of security could be found in the state's need to maintain custody over appellant, given the
CCDC Director's testimony and appellant's history of escape attempts and violent crimes, including a possible
plan to escape during the penalty hearing.
Admission of uncharged prior bad acts
Appellant argues that it was fundamentally unfair for the district court to allow the prosecutor to introduce
prior bad acts involving an incident where appellant threatened another inmate with shears, and to admit into
evidence crimes listed in a letter appellant wrote to Detective Samolovich. We do not address appellant's
contention because, even though appellant objected at an August 3, 1996 hearing, those two prior bad acts were
not directly at issue in that proceeding and appellant's objection was too general to preserve those issues for
appeal.
Appellant also argues that it was unfair for the jury to hear evidence of prior bad acts involving Peggy Bond,
Tangie Flood, and Harry Heverly. In 1976, appellant beat up Ed Skinner, an acquaintance of Bond's, forced
Bond to steal a stereo, kidnapped her twice, and raped her. In 1978, appellant attempted to murder Heverly after
appellant and Michael Perry forcibly entered Heverly's house outside Reno. Flood was living at Heverly's house.
Appellant pointed a shotgun at Flood's stomach and shot Heverly in the back of the head. The men then drove
away with Flood. Appellant threatened to kill Flood, then forced her out of the car, had her sit on her knees
facing away from him, put a gun to her head and told her that if she told the police the truth about what happened
he would kill her. Appellant argues that these incidents were so old that he could not effectively rebut them.
[Headnotes 24]
The decision to admit particular evidence during the penalty phase is within the sound discretion of the
district court and will not be disturbed absent an abuse of that discretion. Wesley v. State, 112 Nev. 503, 519,
916 P.2d 793, 804 (1996), cert. denied, 520 U.S. 1126, 117 S. Ct. 1268 (1997). Evidence of the defendant's
character and specific instances of conduct is admissible in the penalty phase of a capital case, but
the evidence must be relevant and the danger of unfair prejudice must not substantially
outweigh its probative value.
the penalty phase of a capital case, but the evidence must be relevant and the danger of unfair prejudice must not
substantially outweigh its probative value. Pellegrini v. State, 104 Nev. 625, 630-31, 764 P.2d 484, 488 (1988);
see NRS 48.035(1), 175.552(3). In addition, a defendant's character and record are relevant to the jury's
determination of the appropriate sentence for a capital crime. Pellegrini, 104 Nev. at 630, 764 P.2d at 488
(citing Jones v. State, 101 Nev. 573, 707 P.2d 1128 (1985)).
[Headnote 5]
The district court held hearings outside the presence of the jury as to the Bond and Flood/Heverly incidents
and concluded that there was clear and convincing evidence that both incidents occurred. We conclude that the
Bond and Flood/Heverly incidents were relevant to show appellant's propensity to commit acts of violence. See
Domingues v. State, 112 Nev. 683, 697, 917 P.2d 1364, 1374 (holding that incidents of squeezing girlfriend's
breasts with so much force that fingers touched and throwing basketball with full force into girlfriend's face were
properly admitted at penalty hearing to show defendant's propensity to commit violent acts), cert. denied, 519
U.S. 968, 117 S. Ct. 396 (1996). Further, we conclude that any unfair prejudicial effect of these prior bad acts
did not substantially outweigh their probative value. Accordingly, we conclude that the district court did not
abuse its discretion in admitting evidence of these prior bad acts.
Jury instruction on the use of character evidence
[Headnote 6]
Appellant contends that the jury was not instructed that it could not consider bad acts in determining the
existence of aggravating or mitigating circumstances, or that bad act evidence could not be part of the weighing
process.
[Headnote 7]
Appellant did not object to any of the jury instructions and only proposed a lingering doubt jury instruction.
Failure to object to or request a jury instruction precludes appellate review, unless the error is patently
prejudicial and requires the court to act sua sponte to protect the defendant's right to a fair trial. Flanagan v.
State, 112 Nev. 1409, 1423, 930 P.2d 691, 700 (1996), cert. denied, 523 U.S. 1083, 118 S. Ct. 1534 (1998). We
conclude that no patently prejudicial error occurred here, and we therefore decline to address this issue.
Prosecutorial misconduct in opening statement
On September 11, 1996, in the opening statement, the prosecutor misquoted appellant as saying,
"If I get the death penalty I'll kill anybody who gets in my way."
cutor misquoted appellant as saying, If I get the death penalty I'll kill anybody who gets in my way. At the end
of the opening statement, the prosecutor repeated the misquote and again attributed it to appellant. On
September 14, 1996, the prosecutor cleared up his misquote during direct examination of Warden Neven.
Warden Neven testified that appellant actually said something like, If they give me the death sentence, I will do
anything and everything I can and have to to get out of here. On cross-examination of Warden Neven, defense
counsel pointed out the prosecutor's misquote.
Appellant contends that the prosecutor knowingly misquoted him and inappropriately waited three days to
correct himself. Appellant did not object to any of the prosecutor's allegedly improper statements, and we
conclude that there was no plain or constitutional error such that we should consider these issues on appeal. See
Emmons v. State, 107 Nev. 53, 60-61, 807 P.2d 718, 723 (1991); Lord v. State, 107 Nev. 28, 32-33, 806
P.2d 548, 550-51 (1991) (holding that error was harmless where prosecutor overstated the evidence in opening
statement because defense counsel clarified error on cross-examination and in closing argument and jury was
instructed that argument by counsel is not evidence).
As stated above, the prosecutor clarified on direct examination of Warden Neven that he misquoted
appellant, defense counsel pointed out the prosecutor's misquote, and the jury presumably followed the
instruction that argument by counsel is not evidence. See Lisle v. State, 113 Nev. 540, 558, 937 P.2d 473,
484 (1997), clarified on other grounds, 114 Nev. 221, 954 P.2d 744, and cert. denied,
----
U.S.
----
, 119 S.
Ct. 101 (1998). In addition, Warden Neven testified that appellant could have meant what the prosecutor said in
his misquote of appellant.
In the opening statement, the prosecutor also said that Heverly would testify to what he could remember of
how appellant tried to kill him. At the time the prosecutor made this statement, the district court had not yet
determined whether that prior bad act was admissible.
Appellant argues that the prosecutor knew that a hearing would be held with respect to whether Heverly
would testify and therefore did not act in good faith in making this statement to the jury. Appellant did not object
to the prosecutor's comment, and we conclude that there was no error which warrants considering this issue on
appeal. See Emmons, 107 Nev. at 60-61, 807 P.2d at 723. Appellant cannot show any prejudice resulting
from the prosecutor's statement. Even though Heverly did not testify, Flood testified about appellant's attempt to
murder Heverly.
Jury instruction that the verdict may never be influenced by sympathy
Appellant contends that jury instruction number fifteen, which provided in part that [a] verdict may never be
influenced by sympathy, prejudice or public opinion, undermined the jury's consideration of mitigating
evidence and violated his rights under the Eighth Amendment to the United States Constitution. See U.S. Const.
amend. VIII. Appellant argues that jury instruction number four, the mitigating circumstances instruction, did
not cure the problem, but conflicted with the above instruction.
Appellant failed to object to this instruction below and thus failed to preserve this issue on appeal. See
Flanagan, 112 Nev. at 1423, 930 P.2d at 700. At any rate, no patently prejudicial error occurred because this
court has consistently rejected appellant's argument, holding that a district court may instruct the jury not to
consider sympathy during a capital penalty hearing as long as the court also instructs the jury to consider
mitigating circumstances. Wesley, 112 Nev. at 519, 916 P.2d at 804; Lay v. State, 110 Nev. 1189, 1195,
886 P.2d 448, 451-52 (1994). Here, jury instruction number four instructed the jury to consider and weigh any
mitigating circumstances. Further, jury instruction number five instructed the jury that (1) any aspect of
appellant's character or record and any of the circumstances of the offense may be considered as mitigating
circumstances, and (2) the jury could have mercy on appellant and conclude that the death penalty was
inappropriate.
Appellant's conversation with police detectives
[Headnotes 8, 9]
Appellant contends that his conversation with Detective Samolovich was part of compromise negotiations
and was therefore inadmissible pursuant to NRS 48.105(1) (evidence of conduct or statements made in
compromise negotiations is inadmissible). Appellant did not present this argument to the district court. Where a
defendant fails to present an argument below and the district court has not considered its merit, we will not
consider it on appeal. See Guy v. State, 108 Nev. 770, 780, 839 P.2d 578, 584 (1992).
We conclude that appellant's contention lacks merit at any rate. Under circumstances where Detective
Samolovich told appellant that he could not make appellant any promises and that he would give the information
to the district attorney, appellant could not have reasonably believed that he was going to negotiate a plea
bargain with Detective Samolovich or Detective Levos, who was also present. See McKenna, 101 Nev. at
344-45, 705 P.2d at 618-19 {holding that appellant's nonverbal response to Detective Levos's
question was not privileged as a plea negotiation because appellant had no reasonable
expectation that Detectives Samolovich and Levos had the authority to negotiate a plea).
(holding that appellant's nonverbal response to Detective Levos's question was not privileged as a plea
negotiation because appellant had no reasonable expectation that Detectives Samolovich and Levos had the
authority to negotiate a plea).
Appellant also contends that introduction of Detective Samolovich's testimony, insofar as Detective
Samolovich discussed the crimes appellant listed in a letter to the detective, violated D'Agostino v. State, 107
Nev. 1001, 823 P.2d 283 (1991), because of insufficient indicia of reliability. We conclude that the district
court did not err in admitting this evidence because it was more reliable than that in D'Agostino. Cf. D'Agostino,
107 Nev. at 1003, 823 P.2d at 284.
Appellant's motion for a mistrial
[Headnote 10]
Defense counsel moved for a mistrial at the conclusion of testimony on September 13, 1996. Earlier that day,
Sean Whaley, a reporter for the Las Vegas Review-Journal, testified about an article he had written based on an
interview with appellant in October 1989. Appellant told Whaley during that interview, As soon as you are
sentenced to death you're thinking about it and you have to decide what you're going to do. Whaley read this
part of the article during his testimony.
Appellant contends that Whaley's article informed the jury that a previous jury had sentenced him to death
and thereby lessened the jury's sense of responsibility for determining the appropriateness of the death sentence.
Appellant relies upon Caldwell v. Mississippi, 472 U.S. 320 (1985), but acknowledges that he has not located a
case directly on point.
[Headnote 11]
Denial of a motion for a mistrial is within the sound discretion of the district court, and that ruling will not be
reversed absent a clear showing of abuse of discretion. Lane v. State, 110 Nev. 1156, 1163, 881 P.2d 1358,
1363-64 (1994), vacated in part, 114 Nev. 299, 956 P.2d 88 (1998). We conclude that Whaley's testimony
about the article did not lessen the jury's sense of responsibility and that the district court therefore did not abuse
its discretion in denying appellant's motion for a mistrial.
Other motions for a mistrial
Appellant made two other motions for a mistrial. The first was after Warden Neven testified on direct
examination that appellant was associated with an Aryan prison gang. The second was after the prosecutor
elicited on cross-examination of Deputy Warden Pogue that appellant had been involved with a white supremacy
group.
Appellant contends that evidence of his gang membership was tenuous, that the state only pursued the subject
to prejudice appellant and inflame the jury, and that admission of this evidence violated his free exercise rights
under the First Amendment to the United States Constitution. See U.S. Const. amend. I.
[Headnote 12]
We conclude that the district court did not err in denying appellant's motions for a mistrial. See Lane, 110
Nev. at 1163, 881 P.2d at 1363-64. With respect to appellant's first motion for a mistrial, we conclude that
Warden Neven's Aryan prison gang statement was inadvertent, and the prosecutor steered the witness away
from it. The prosecutor was attempting to elicit testimony that appellant was a high risk prisoner, was associated
with other high risk prisoners who had been violent in prison, and was therefore capable of violence despite the
additional security measures taken for that class of prisoners.
[Headnote 13]
With respect to appellant's second motion for a mistrial, we conclude that defense counsel opened the door to
appellant's gang affiliation and that the prosecutor's subsequent elicitation from Deputy Warden Pogue that the
gang was a white supremacy group was proper. See Taylor v. State, 109 Nev. 849, 860, 858 P.2d 843, 850
(1993) (Shearing, J., concurring in part and dissenting in part) ( the introduction of inadmissible evidence by
one party allows an opponent, in the court's discretion, to introduce evidence on the same issue to rebut any false
impression that might have resulted from the earlier admission' ) (quoting United States v. Whitworth, 856 F.2d
1268, 1285 (9th Cir. 1988)).
Testimony concerning Richard Moran's case
[Headnote 14]
Appellant contends that his Eighth Amendment rights were violated because the jury's sense of responsibility
was diminished when the state elicited testimony on cross-examination of James Jackson, who represented
Richard Moran, about the appellate process in Moran's case. See U.S. Const. amend. VIII; Moran v. State, 103
Nev. 138, 734 P.2d 712 (1987).
Appellant failed to object to Jackson's testimony, and we discern no plain or constitutional error. See
Emmons, 107 Nev. at 61, 807 P.2d at 723. Appellant has failed to show that because of the nature of the
prosecutor's reference to the process of appellate review, the capital sentencing jury failed to apprehend the
gravity of its task in determining whether death is the appropriate punishment. Mazzan v. State, 103 Nev. 69,
72, 733 P.2d 850, S51 {19S7).
851 (1987). Here, the testimony the prosecutor elicited from Jackson about the levels and number of appeals in
Moran's case did not diminish the jury's sense of responsibility and did not violate appellant's Eighth
Amendment rights because the jury learned that Moran was executed, despite his numerous appeals. Further, the
jury was instructed that if it sentenced appellant to death it had to assume that the sentence would be carried out.
Prosecutorial misconduct in closing argument
Appellant contends that the prosecutor's closing rebuttal argument went beyond an acceptable argument
regarding appellant's future dangerousness because the prosecutor encouraged the jury to vote in favor of future
victims and against appellant. In closing rebuttal argument, the prosecutor said,
Ladies and gentlemen, I tell you that no matter what your verdict, no matter how you sign off on those
verdict forms that the judge has given you, no matter what you think about his case, your verdict is likely
to sentence someone to death. If you sentence Patrick McKenna to death, obviously it will be he who
dies.
The prosecutor also argued that the victims of appellant's prior bad acts did not deserve what
they got, [a]nd the next one won't either. Appellant failed to object below, but argues that
this error was not harmless and warrants reversal of his death sentence.
This court must, all too frequently, consider whether a prosecutor's statement constitutes a proper future
dangerousness argument or some species of improper plea to or request of the jury. The problem lies either
with the prosecutor's lack of comprehension of or respect for the law on this issue, or with a lack of clarity on the
part of this court. If the latter, we here review the framework that this court employs to evaluate these arguments.
[Headnote 15]
We recently stated in Schoels v. State, 114 Nev. 981, 966 P.2d 735 (1998), that a prosecutor may not
suggest to or lay responsibility on the jury for the defendant's future victims, or tell the jury that its verdict
constitutes a choice between the defendant and a future innocent victim. See Castillo v. State, 114 Nev. 271,
280, 956 P.2d 103, 109 (1998) (holding that it is improper to present jurors with choice of an execution
sentence for the defendant or responsibility for the death of an innocent future victim); Howard v. State, 106
Nev. 713, 719, 800 P.2d 175, 178 (1990) (holding that it is improper to ask the jury to vote in favor of future
victims and against the defendant). The prosecutor's argument in the instant case does both, and we
conclude that it was improper. See Emmons, 107 Nev. at 61, S07 P.2d at 723.
Emmons, 107 Nev. at 61, 807 P.2d at 723. Telling the jury that its verdict was likely to sentence someone to
death, and that if appellant was sentenced to death it will be he who dies, invited the jury to conclude that a
future innocent victim would die if the jury did not sentence appellant to death.
However, we conclude that the prosecutor's statements did not so infect the proceedings with unfairness as to
violate appellant's due process rights. See Castillo, 114 Nev. at 281, 956 P.2d at 109-110 (explaining that the
test for evaluating whether the prosecutor's inappropriate comment warrants a new penalty hearing is whether the
comment so infected the hearing with unfairness as to make the resulting verdict a denial of due process). The
prosecutor's statements in the instant case were not as flagrant as that in Castillo, where the prosecutor said,
[I]t's just a question of whether it will be an execution sentence for the killer of [the victim] or for a future
victim of this defendant. Id. at 279, 956 P.2d at 109. Even if the prosecutor's statements had been as improper
as that in Castillo, we are convinced that a new penalty hearing is not warranted because the record supports all
six aggravating circumstances.
4

Fairness of penalty hearing
Appellant contends that his penalty hearing was not fair because it is impossible to determine on what basis
he was sentenced to death. Appellant also contends that the prosecutor's introduction of his prior bad acts
violated the prohibition against double jeopardy and his due process rights under the state and federal
constitutions. See U.S. Const. amend. V; Nev. Const. art. 1, 8, cl. 1, 5. Finally, relying on Payne v.
Tennessee, 501 U.S. 808 (1991), appellant contends that the state should not have been permitted to present
victim impact testimony with respect to crimes that did not constitute the underlying crime supporting the death
penalty.
[Headnotes 1618]
First, the reason why the jury returned a verdict of death is not impossible to determine: the state presented
evidence of and the jury found six aggravating circumstances. We conclude that all of the aggravating
circumstances are supported by the record. Second, NRS 175.552(3) provides that in the penalty hearing
evidence may be presented on aggravating and mitigating circumstances concerning the offense,
defendant, or victim, and on any other matter which the court determines is relevant to
the sentence.
__________

4
In Castillo, we stated that although a portion of the prosecutor's argument was improper, the improper
portion did not unfairly prejudice Castillo in light of the overwhelming evidence of his guilt. Castillo, 114 Nev.
at 281, 956 P.2d at 110. Although we referred to Castillo's guilt, our determination was based on the
overwhelming evidence supporting the aggravating circumstances in that case. The opinion thus stands
corrected.
stances concerning the offense, defendant, or victim, and on any other matter which the court determines is
relevant to the sentence. Pursuant to NRS 175.552(3), evidence of appellant's prior bad acts was admissible. We
conclude that admission of this evidence did not violate the prohibition against double jeopardy or appellant's
due process rights, nor did it constitute victim impact testimony of a previous crime. This testimony was
presented by the prosecutor in support of the aggravating circumstances. Accordingly, we conclude that
appellant has failed to show that his penalty hearing was unfair.
Failure to instruct that lingering doubt is a mitigating circumstance
[Headnote 19]
Appellant contends that the district court erred in rejecting a lingering doubt instruction. Appellant concedes
that this court has concluded that a capital defendant is not entitled to a lingering doubt instruction, but argues
that the instant case is different because the penalty jury was not the same jury that heard the trial.
Evans v. State, 112 Nev. 1172, 1202, 926 P.2d 265, 284 (1996), cert. denied, 520 U.S. 1245, 117 S. Ct.
1854 (1997), held, pursuant to Franklin v. Lynaugh, 487 U.S. 164 (1988), that there is no constitutional mandate
that a capital case jury be instructed that residual or lingering doubt is a mitigating circumstance. Evans
explained the reasoning underlying Franklin: lingering doubts over a defendant's guilt are not an aspect of the
defendant's character, record, or a circumstance of the offense. Evans, 112 Nev. at 1202, 926 P.2d at 284.
Appellant correctly distinguishes Evans and Homick v. State, 108 Nev. 127, 141, 825 P.2d 600, 609 (1992),
from the instant case in that in those cases the juries which heard the guilt phase also heard the penalty phase.
However, appellant does not explain why this distinction should cause this court to rule differently in his case.
Even though the penalty phase jury was composed of entirely different jurors than the guilt phase jury, a
lingering doubt over appellant's guilt is still not an aspect of his character, record, or a circumstance of the
offense. Therefore, we conclude that the district court did not err in rejecting appellant's proposed instruction.
Cumulative error
[Headnote 20]
Appellant contends that cumulative error mandates reversal of both his conviction and his death sentence.
This court will not consider any argument that appellant's conviction should be reversed because this
appeal is only from the sentence of death.
reversed because this appeal is only from the sentence of death. At any rate, the sole error we have discerned
does not, by itself, constitute cumulative error, and therefore does not warrant overturning the jury's verdict of
death.
Review of sentence under NRS 177.055(2)
NRS 177.055(2) provides in full:
Whether or not the defendant or his counsel affirmatively waives the appeal, the
sentence must be reviewed on the record by the supreme court, which shall consider, in a
single proceeding if an appeal is taken:
(b) Whether the evidence supports the finding of an aggravating circumstance or
circumstances;
(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.
We have concluded that none of appellant's contentions on appeal warrants reversal of his sentence. The jury
found six aggravating circumstances based on six prior felony convictions involving the use or threat of
violence. We conclude that the record supports all six aggravating circumstances.
[Headnote 21]
No evidence exists that the death penalty was imposed under the influence of passion, prejudice or any
arbitrary factor, and we conclude that the penalty in this case is not excessive, considering both the crime and the
appellant. Appellant's killing of Nobles was cold-blooded and deliberate; appellant strangled Nobles to death.
Accordingly, we will not disturb the jury's verdict.
CONCLUSION
Having reviewed appellant's sentence pursuant to NRS 177.055(2), we affirm the sentence of death.
____________
114 Nev. 1061, 1061 (1998) Int'l Fidelity Ins. v. State of Nevada
INTERNATIONAL FIDELITY INSURANCE COMPANY, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 30222
November 25, 1998 967 P.2d 804
Appeal from a denial of a motion to exonerate bond. Eighth Judicial District Court, Clark County; Donald
M. Mosley, Judge.
Surety appealed from order of district court which denied its motion to exonerate bail bond. The supreme
court held that district court implicitly excused accused's non-appearance at his initial arraignment when it issued
a continuance pending counsel's location of accused, and thus, court was not obligated to make an entry in the
minutes.
Affirmed.
Constance L. Akridge, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney; and Tamara F.
Lawson, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
District court has broad discretion in addressing its internal matters.
2. Bail.
District court has implied authority to excuse absences by persons accused; also, court may implicitly excuse an absence.
3. Bail.
District court implicitly excused accused's non-appearance at his initial arraignment, for purposes of bail bond forfeiture, when it
issued a continuance pending counsel's location of accused; thus, court was not obligated to make an entry in the minutes. NRS
178.508.
4. Bail.
Accused's non-appearance at arraignment became unexcused when court issued bench warrant, which triggered statutory notice
requirements for forfeiture of bail bond. NRS 178.508.
5. Bail.
Failure of court to provide notice of accused's initial non-appearance at arraignment, which was implicitly excused when court
issued a continuance pending counsel's location of accused, did not result in prejudice to surety which required exoneration of bail
bond; there was no guarantee that, had surety been aware of initial failure to appear, it would have been able to find accused.
OPINION
Per Curiam:
Mario Marquez (Marquez) was arrested and placed in the custody of the Clark County Detention Center. On December 6, 1995, a
criminal complaint was filed in the Las Vegas Justice Court charging him with separate counts of conspiracy to
traffic and trafficking in a controlled substance.
1995, a criminal complaint was filed in the Las Vegas Justice Court charging him with separate counts of
conspiracy to traffic and trafficking in a controlled substance.
On December 7, 1995, Marquez was present and in custody for his initial justice court arraignment. A
preliminary hearing was set for December 22, 1995. On December 21, 1995, International Fidelity Insurance
(IFIC) issued bail bonds totaling $13,000.00 to secure Marquez's appearance for subsequent court
proceedings. The bail bonds were issued through Pat's Bail Bonds, IFIC's duly appointed agent in the state of
Nevada. Thus, Marquez was released from custody.
Marquez appeared as scheduled on December 22, 1995, at which time he waived his preliminary hearing.
His return date for arraignment in district court was set for January 2, 1996.
After Marquez failed to appear at his initial arraignment in district court, Marquez's counsel requested a
continuance to produce Marquez. The district court ordered the matter reset for January 16, 1996.
When Marquez again failed to appear on January 16, 1996, the district court issued a no-bail bench warrant.
On January 25, 1996, the district court filed and mailed a notice of intent to forfeit to IFIC and Pat's Bail
Bonds. This notice contained a forfeiture date of July 24, 1996, and set a show cause hearing date for August 2,
1996. IFIC received this notice on January 29, 1996.
On March 5, 1997, the district court issued its final order denying a motion by IFIC for exoneration of the
bonds claiming failure of the district court to comply with NRS 178.508. IFIC filed this timely appeal.
Having reviewed the briefs and having had the benefit of oral argument of counsel, we dismiss IFIC's appeal.
Standard of review
[Headnotes 1, 2]
The district court has broad discretion in addressing its internal matters. Discretionary matters are
uncontrolled by fixed rules of law.' Goodman v. Goodman, 68 Nev. 484, 487, 236 P.2d, 305, 307 (1951)
(quoting Bouvier's Law Dictionary 884 (3d rev. 1914)). This autonomy vests the district court with implied
authority to excuse absences by persons accused. Also, the court may implicitly excuse an absence. Only where
there is a manifest abuse of discretion may a decision of the trial court be reviewed and corrected by this court.
Id.
Discussion
1. IFIC contends that NRS 178.508 requires that the district court expressly record the excuse of
a bailee's non-appearance.
court expressly record the excuse of a bailee's non-appearance. The statute provides in pertinent part:
If the [bailee] fails to appear when his presence in court is lawfully required and not excused, the court
shall direct the fact of such failure to appear to be entered upon its minutes. If the undertaking exceeds
$50 or money deposited instead of bail bond exceeds $500, the court shall direct that the sureties and the
local agent of each surety, or the depositor if he is not the [bailee], be given notice that the [bailee] has
failed to appear, by certified mail within 15 days after the failure to appear, and shall execute an affidavit
of such mailing to be kept as an official public record of the court. The undertaking or money instead of
bail bond is forfeited upon the expiration of 180 days after the notice is mailed, except as otherwise
provided in NRS 178.509.
Because the court minutes do not contain express language excusing Marquez's absence, IFIC
argues that Marquez's first non-appearance on January 2, 1996, was unexcused. As a result,
IFIC contends that the district court did not comply with NRS 178.508 when it failed to send
the required notification of forfeiture within fifteen days of that date. See State of Nevada v.
American Bankers Ins., 106 Nev. 880, 802 P.2d 1276 (1990); Harris v. State, 104 Nev. 246,
756 P.2d 556 (1988) (holding that NRS 178.508 should be strictly construed). We disagree.
[Headnotes 3, 4]
We conclude that, although the statute requires entry of unexcused absences into the minutes, the reverse is
not true. The district court was only required to register in the minutes the ultimate unexcused non-appearance.
In this case, the district court implicitly excused Marquez's non-appearance when it issued a continuance
pending counsel's location of Marquez. Because the court implicitly excused this non-appearance, it was not
obligated to make an entry in the minutes. In this case, the ultimate unexcused non-appearance occurred on
January 16, 1996, when the court issued the bench warrant. This triggered the NRS 178.508 notice
requirements. The district court filed notice of forfeiture on January 25, 1996, well within the fifteen-day period
prescribed in the statute. Thus, the trial court fulfilled its statutory obligations. Therefore, IFIC's contentions are
without merit.
[Headnote 5]
2. IFIC contends that the failure to provide notice of Marquez's first non-appearance resulted in prejudice
that requires exoneration of the bond. The lack of notice, IFIC argues, gave Marquez a two-week head start to
abscond. However, this contention is also without merit because there was no showing of
actual prejudice from the delay and prejudice is not presumed.
tention is also without merit because there was no showing of actual prejudice from the delay and prejudice is
not presumed. There was no guarantee that, had IFIC been aware of the January 2, 1996 failure to appear, IFIC
would have been able to find Marquez.
3. IFIC contends that NRS 178.508 is analogous to California Penal Code 1305 and that we should
adopt the rulings of California courts construing its forfeiture statutes. This we decline to do because, in our
view, the statutes are dissimilar.
For these reasons, we conclude that the district court did not violate NRS 178.508 by failing to
incorporate the excused absence into the official minutes. Accordingly, we affirm the district court's decision to
deny the motion.
____________
114 Nev. 1064, 1064 (1998) Garrettson v. State
JOHN ROY GARRETTSON, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 31114
DONNA KATHLEEN GARRETTSON, Appellant, v. THE STATE OF NEVADA,
Respondent.
No. 31116
November 25, 1998 967 P.2d 428
Appeals from judgments of conviction, pursuant to guilty pleas, of one count of conspiracy to violate the
Uniform Controlled Substances Act. Ninth Judicial District Court, Douglas County; Michael P. Gibbons, Judge.
Defendants were convicted by the district court of conspiracy to violate Controlled
Substances Act, and they appealed. The supreme court held that: (1) trial court was not
required to hold evidentiary hearing on claim that officer conducting thermal imaging test to
detect presence of marijuana was unqualified; (2) warrant could be issued in part on tip,
despite staleness claim; (3) thermal imaging test was reliable, despite inability to distinguish
between heat generated by marijuana growth and heat from other sources; (4) there was
probable cause to issue warrant to search defendants' home and shed for evidence of
marijuana growth; and (5) judge issuing warrant did not abandon judicial role.
Affirmed.
Lawrence L. Lozensky, Zephyr Cove, for Appellants.
Frankie Sue Del Papa, Attorney General, Carson City; Scott W. Doyle, District Attorney, Kristine L. Brown,
Chief Criminal Deputy District Attorney, Douglas County, for Respondent.
1. Criminal Law.
Trial court could deny defendants, charged with growing marijuana, evidentiary hearing on claim that police officer conducting
thermal imaging test on property thought to be used in growing process was unqualified. Procedural rules were not followed, and
necessary showing was not made that there were intentional or recklessly material falsehoods regarding qualifications of officer in
affidavit supporting search warrant of defendants' premises.
Supreme court will not overturn finding of probable cause for search warrant unless evidence in its entirety provides no substantial
basis for finding.
Information is stale, and probable cause for issuance of search warrant based information does not exist, when it is no longer
reasonable to presume that search will turn up evidence of crime.
Warrant to search premises for indications of marijuana cultivation could be issued in part on informant's tip that marijuana was
being grown there, even though approximately three months elapsed between tip and issuance of warrant and defendants claimed
information was stale.
5. Criminal Law.
Use of thermal imaging to detect areas where marijuana is being grown produced reliable evidence of presence of marijuana, even
though method could not differentiate between heat generated from marijuana and heat produced by other sources.
There was probable cause for issuance of warrant to search shed on defendants' premises for evidence that marijuana was being
grown; there was tip to that effect, narcotics agent observed that shed was vented as it would be if marijuana were being grown, and
thermal imaging scan showed hot spots consistent with marijuana cultivation.
Warrant to search shed where authorities suspected that marijuana was being grown was not overbroad, even though it also
authorized search of house nearby. Suspected marijuana growers controlled house as well as shed.
Judge issuing search warrant did not abandon judicial role by relying on police officer's expert opinion that results of thermal
imaging scan indicated that marijuana was being grown on premises. State submitted evidence of officer's qualifications to perform
test, and there was other evidence in support of search.
OPINION
Per Curiam:
On July 29, 1997, appellants, John Roy Garrettson and Donna Kathleen Garrettson {collectively, the Garrettsons), each
pleaded guilty to one count of conspiracy to violate the Uniform Controlled Substances Act, but preserved their
right to appeal the denial of their motion to suppress evidence.
Kathleen Garrettson (collectively, the Garrettsons), each pleaded guilty to one count of conspiracy to violate the
Uniform Controlled Substances Act, but preserved their right to appeal the denial of their motion to suppress
evidence. On appeal, the Garrettsons contend that Justice of the Peace Jim EnEarl (Judge EnEarl) erred in
denying them an evidentiary hearing to determine whether the state's thermal imaging technician was a qualified
expert and in denying their motion to suppress evidence. In addition, the Garrettsons contend that the search
warrant authorizing the search of their home was fatally defective because: 1) the informant's information was
stale; 2) the search warrant was overbroad and not supported by probable cause; and 3) Judge EnEarl failed to
act neutrally and detached in issuing the warrant. For the reasons set forth below, we conclude that the
Garrettsons' contentions lack merit.
FACTS
In June 1996, Linda Davis (Davis) informed narcotics agents that marijuana was being grown by John
Garrison at his residence in Gardnerville, Nevada. Davis described Garrison's mobile home, his vehicles,
and a unique storage locker on the premises made from a U-Haul truck box.
Based on the information Davis provided, a narcotics agent drove by 2251 Edwards Road, Gardnerville,
Nevada, and verified the presence of the mobile home, the vehicles, and the U-Haul storage shed that Davis had
described. The U-Haul shed had a turbine vent and what appeared to be a water line running through it. The
agent determined that the vehicles were registered to John Roy Garrettson and that power company records
showed that power to 2251 Edwards Road was in the name of John R. Garrettson.
On July 30, 1996, narcotics agent Brian McGuckin (McGuckin), who was trained in thermal imagery by the
Drug Enforcement Administration (DEA), conducted a thermal imaging surveillance on the Garrettsons'
residence and shed. The residence measured cool except for one hot vent.
1
Additionally, the roof of the shed
and the roof fan measured hot.
On August 15, 1996, narcotics agent Rory C. Planeta (Planeta) received copies of the power consumption
records for a sixteen-month period for 2251 Edwards Road. A majority of the Garrettsons' power bills were
more than $100.00. The next day McGuckin conducted another thermal imaging test on the Garrettsons' shed.
The vents on the front of the shed tested hot but the turbine roof vent of the shed tested cool.
__________

1
In thermal imaging, testing hot may be an indication of marijuana cultivation. See State v. Siegal, 934 P.2d
176, 181 (Mont. 1997).
but the turbine roof vent of the shed tested cool. Agent Planeta concluded that a harvesting of marijuana plants
would explain the diminished generation of heat from the earlier imaging results.
On August 21, 1996, Judge EnEarl issued a search warrant for the Garrettsons' shed and home. Two days
later, on August 23, 1996, agents served the warrant and found incriminating evidence including, but not limited
to, thirty-seven growing marijuana plants, cultivation equipment, a triple beam scale, plastic baggies, marijuana
pipes, and a rolling machine. Based on this evidence, the Garrettsons were arrested and charged with
manufacturing a controlled substance and possession of a controlled substance for sale.
The Garrettsons filed a motion to quash the search warrant and to suppress evidence obtained pursuant to the
August 23, 1996 search. Judge EnEarl denied the motion to suppress, finding that based on the totality of the
circumstances there was probable cause to issue the warrant since Davis's tip that John Garrettson was growing
marijuana was corroborated by the investigating officers' observations of the vented U-Haul shed, the higher
than normal power bills, and the thermal imaging scans that measured hot.
After a preliminary hearing held on February 13, 1997, the Garrettsons were bound over for trial. They
pleaded not guilty in district court. The Garrettsons filed another motion to suppress on July 2, 1997, but failed
to request an evidentiary hearing. During oral argument on the motion to suppress, set sua sponte by the court,
the Garrettsons' counsel indicated that he intended to offer expert testimony to show that McGuckin was not a
qualified expert in thermal imaging. The court disallowed the testimony because counsel neither requested an
evidentiary hearing, nor presented enough information to justify one. However, the court gave counsel the
opportunity to submit an affidavit of the expert witness's proposed testimony, but this affidavit was never filed.
The district court then denied the Garrettsons' motion to suppress. On July 29, 1997, the Garrettsons each
pleaded guilty but preserved their right to appeal Judge EnEarl's refusal to grant an evidentiary hearing and
denial of their motion to suppress. The Garrettsons were each sentenced to probation not to exceed one year.
DISCUSSION
I. The district court properly denied the Garrettsons an evidentiary hearing
[Headnote 1]
The Garrettsons contend that the district court erred in denying them an evidentiary hearing to determine
whether or not McGuckin was a "certified" thermal imaging technician.
McGuckin was a certified thermal imaging technician. We disagree. Ninth Judicial District Court Rule
(NJDCR) 6(e) states that decisions on all motions will be rendered without oral argument unless oral argument is
requested by the court or the parties. Moreover, District Court Rule 13(1) requires that all motions include a
notice of the motion setting the matter on the court law and motion calendar. The Garrettsons neither requested
oral argument, pursuant to NJDCR 6(e), nor set the matter on the court calendar. Accordingly, the district court
did not err in denying the Garrettsons an evidentiary hearing because of their failure to comply with applicable
procedural rules.
Additionally, a defendant is not entitled to an evidentiary hearing to examine the validity of a search warrant
unless he or she can make a preliminary showing and an offer of proof that there were intentional or reckless
material falsehoods in the affidavit. Franks v. Delaware, 438 U.S. 154, 155 (1970).
In the instant case, the Garrettsons failed to make a preliminary showing substantiating their claim that in
issuing the warrant, Judge EnEarl was misled by the alleged material falsehood in the affidavit concerning
McGuckin's expert qualifications in thermal imaging. Although the Garrettsons' counsel indicated that he
intended to offer expert testimony to prove that McGuckin was not a qualified thermal imaging expert, no further
showing was ever provided to the court. Moreover, the Garrettsons never provided the court with a satisfactory
explanation of their failure to furnish an affidavit or other offer of proof. Accordingly, the district court properly
denied the Garrettsons an evidentiary hearing because they failed to make a preliminary showing of reckless or
intentional falsehoods, as mandated by Franks.
2

II. The district court properly denied the Garrettsons' motion to suppress because the search
warrant was supported by probable cause
The Garrettsons also contend that the search warrant was issued without probable cause because Davis's tip
was stale and the thermal imaging technology was unreliable. We disagree.
[Headnote 2]
This court will not overturn a magistrate's finding of probable cause for a search warrant unless the
evidence in its entirety provides no substantial basis for the magistrate's finding.
__________

2
The Garrettsons contend that the analysis set forth in Franks is inapplicable to their case because their
attack on McGuckin's qualifications was based on the sufficiency of the warrant rather than the veracity of the
affiant. However, the Garrettsons' contention contradicts their position taken in the district court, and this court
has consistently held that a party cannot adopt a theory different from that taken at the hearing below. See
McCall v. State, 97 Nev. 514, 516, 634 P.2d 1210, 1212 (1981); Force v. Peccole, 77 Nev. 143, 151, 360 P.2d
362, 366 (1961). Accordingly, we conclude that the Garrettsons' contention lacks merit.
cause for a search warrant unless the evidence in its entirety provides no substantial basis for the magistrate's
finding. Wright v. State, 112 Nev. 391, 396, 916 P.2d 146, 150 (1996), overruled on other grounds by
Levingston v. Washoe County, 114 Nev. 306, 956 P.2d 84 (1998); Keesee v. State, 110 Nev. 997, 1002, 879
P.2d 63, 67 (1994). In the instant case, there was a substantial basis for Judge EnEarl's finding of probable
cause.
[Headnotes 3, 4]
First, we conclude that the Garrettsons' contention that Davis's tip was stale because approximately three
months had lapsed between the tip and the issuance of the search warrant lacks merit. Information is stale and
probable cause does not exist when it is no longer reasonable to presume that a search will turn up evidence of a
crime. Wright, 112 Nev. at 396, 916 P.2d at 149. We have held that in the context of an ongoing illicit
operation such as the cultivation of marijuana, rather than a drug transaction, which is transitory in nature, the
passage of time is less significant in determining whether information is stale. Id. at 396, 916 P.2d at 150.
Accordingly, the approximate three-month lapse in time between Davis's tip and the issuance of the search
warrant did not render the tip stale because the Garrettsons' marijuana cultivation was ongoing and continuous in
nature.
[Headnote 5]
Second, the Garrettsons contend that the use of thermal imaging technology is inherently unreliable because
it cannot distinguish natural heat from heat emanating from a marijuana growing operation.
3
We disagree.
Increasingly, law enforcement personnel are using thermal imaging to detect marijuana growing operations. See
Siegal, 934 P.2d at 181 (providing an in depth discussion of thermal imaging). Additionally, it is generally
known that high intensity lights that generate excess heat emissions are used to grow marijuana indoors. See id.
at 180. Thermal imaging measures these excess heat emissions and records them on videotape. See id.
Therefore, when thermal imaging is performed by a qualified expert, as Judge EnEarl found in this case, thermal
imaging may be a reliable indicator of marijuana cultivation.
[Headnotes 6, 7]
Alternatively, the Garrettsons contend that the search warrant was overbroad because even if there was
probable cause to search the shed, there was no probable cause to search the Garrettsons' residence. We
disagree.
__________

3
The Garrettsons did not brief the issue of whether thermal imaging is a search under the Fourth
Amendment of the United States Constitution. Therefore, we do not, and need not, address the issue of the
constitutionality of thermal imaging surveillance.
The record shows that there was probable cause to search the shed.
4
We have held that when there is
probable cause to search a shed, a warrant may properly authorize a search of the residence as well provided the
defendant controls the entire premises. Wright v. State, 112 Nev. 391, 397, 916 P.2d 146, 150 (1996) (citing
Keesee, 110 Nev. at 1004-05, 879 P.2d at 68) (warrant may authorize search of entire street address when
police have probable cause to search only part of the premises if defendant controls the entire premises).
Clearly, the Garrettsons controlled the residence that they resided in. Accordingly, we conclude that the search
warrant was not overbroad because the Garrettsons controlled the entire premises.
[Headnote 8]
Finally, the Garrettsons contend that Judge EnEarl abandoned his judicial role by relying on McGuckin's
expert opinion of the results of the thermal imaging scan. We disagree. Judge EnEarl considered McGuckin's
expert opinion about the thermal imaging results only after the state submitted evidence of McGuckin's
qualifications, including a certificate indicating that McGuckin had been trained in thermal imaging by the DEA.
Moreover, Judge EnEarl did not rely solely on the thermal imaging evidence; rather, in finding probable cause
for the issuance of the warrant, he considered the totality of the circumstances, as mandated by Gates and
Keesee. Accordingly, Judge EnEarl acted properly and did not abandon his judicial role.
CONCLUSION
We conclude that Judge EnEarl properly denied the Garrettsons an evidentiary hearing. Moreover, the search
warrant issued to search the Garrettsons' premises was supported by probable cause and not overbroad. Finally,
we conclude Judge EnEarl did not abandon his judicial role in making this determination.
Based on the foregoing, we affirm the Garrettsons' convictions.
__________

4
When the issuance of a warrant is based upon information obtained from a confidential informant, the
proper standard for determining probable cause for the issuance of the warrant is whether under the totality of
the circumstances, there is probable cause to believe that contraband or evidence is located in a particular
place. Keesee v. State, 110 Nev. 997, 1002, 879 P.2d 63, 67 (1994) (citing Illinois v. Gates, 462 U.S. 213
(1983)). In applying the totality of the circumstances test adopted in Gates and Keesee, Judge EnEarl found that
there was probable cause to search the Garrettsons' premises because of Davis's tip that John was growing
marijuana on the premises corroborated by the narcotics agent's observations of the vented shed, the Garrettsons'
high power bills, and the thermal imaging scan of the house and the shed that measured hot.
____________
114 Nev. 1071, 1071 (1998) State v. Taylor
THE STATE OF NEVADA, Appellant, v. DERRICK AUGUSTUS TAYLOR, Respondent.
No. 31258
November 25, 1998 968 P.2d 315
Appeal from an order of the district court granting respondent's motion to suppress. Eighth Judicial District
Court, Clark County; Michael L. Douglas, Judge.
Defendant charged with possession of controlled substance, conspiracy to sell controlled
substance, and transportation of controlled substance moved to suppress evidence found
inside suitcase, as well as his pre- and post-arrest statements to police officers. The district
court granted motion. State appealed. The supreme court held that: (1) defendant had standing
to challenge search of his suitcase; (2) defendant's travelling companion had actual and
apparent authority to consent to search of suitcase; (3) defendant was not in custody for
Miranda purposes when he made pre-arrest statements; and (4) defendant's post-arrest
statements were made after he knowingly and voluntarily waived his Miranda rights.
and Gerald Gardner, Deputy District Attorneys, Clark County, for Appellant.
Patrick E. McDonald, Las Vegas, for Respondent.
1. Criminal Law.
Generally, failure to raise an issue below bars consideration on appeal.
2. Criminal Law.
The supreme court will address constitutional issues raised for the first time on appeal.
Defendant did not abandon his suitcase when he relinquished exclusive control of it to his traveling companion, nor did
defendant disclaim ownership of suitcase by denying that he knew companions; thus, he had standing under Fourth Amendment to
challenge search of suitcase. U.S. Const. amend. 4.
In order to assert a violation under the Fourth Amendment, one must have a subjective and objective expectation of privacy in the
place searched or items seized. U.S. Const. amend. 4.
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.
Whether a person has abandoned his property, thus precluding a Fourth Amendment objection, is a question of intent, which
courts infer words, acts, and other objective facts. U.S. Const. amend. 4.
Abandonment in the Fourth Amendment context is not meant in the strict property-right sense, but rests instead on whether the
person so relinquished his interest in the property that he no longer retained a reasonable expectation of privacy in it at the time of the
search. U.S. Const. amend. 4.
An individual does not abandon property, for Fourth Amendment purposes, upon mere failure to openly exercise control over it
prior to its search or where access and control over the property is shared with a third party. U.S. Const. amend. 4.
A disclaimer of ownership of property must be express before it will constitute abandonment for Fourth Amendment standing
purposes. U.S. Const. amend. 4.
Review of a trial court's determinations of authority to consent to a search requires consideration of both factual circumstances and
legal issues. U.S. Const. amend. 4.
11. Criminal Law.
The supreme court reviews de novo the district court's decisions regarding authority to consent to a search. U.S. Const. amend. 4.
A search conducted without a search warrant issued upon probable cause is considered unreasonable and unconstitutional unless
the search falls within a specific exception to the warrant requirement; one such exception is the valid consent of a third party who
possesses actual authority over or other sufficient relationship to the premises or effects sought to be inspected. U.S. Const. amend. 4.
Actual authority to consent to a search is proved (1) where defendant and a third party have mutual use of and joint access to or
control over the property at issue, or (2) where defendant assumes the risk that the third party might consent to a search of the property.
U.S. Const. amend 4.
Actual authority to consent to a search does not require an ownership interest in the property by the third party, and does not
require the actual owner's presence at the time of the search. U.S. Const. amend. 4.
Defendant's traveling companion had actual authority to consent to police search of defendant's suitcase at airport, even though
companion informed officers that suitcase belonged to defendant, who was in airport at that time. Suitcase bore claim tag with
companion's name, defendant entrusted suitcase to companion under circumstances which defendant understood created high risk that
police might ask companion to consent to such search, i.e., it contained controlled substance and appeared to belong to companion,
and defendant gave companion custody and control not for purpose of safekeeping, but to transport controlled substance and to avoid
detection himself. U.S. Const. amend. 4.
Whether an individual has apparent authority to consent to a search must be judged against an objective standard, namely,
would the facts available to the officer at that moment warrant a person of reasonable caution to believe that the consenting party had
authority over the property.
The Fourth Amendment does not invalidate warrantless searches based on a reasonable mistake of fact, as distinguished from a
mistake of law. U.S. Const. amend. 4.
In determining whether apparent authority to consent to a search exists, a court must determine whether the searching officer
believed some untrue fact that was then used to assess the extent of the consent-giver's use of and access to or control over the area
searched, whether it was objectively reasonable under the circumstances to believe that the fact was true, and whether, assuming the
truth of the reasonably believed but untrue fact, the consent-giver would have had actual authority. U.S Const. amend. 4.
An officer should not act without further inquiry where the surrounding circumstances evince some degree of doubt in the mind of
a reasonable person as to the consent-giver's authority to consent to a search. U.S. Const. amend. 4.
In the absence of sufficient facts, officers have a duty to seek further information in order to determine whether they may
reasonably infer that the consent-giver has the necessary authority to consent to an entry or search of the property. U.S. Const. amend.
4.
Defendant's traveling companion had apparent authority to consent to search of defendant's suitcase, to which drug detection
dog alerted, as officers could reasonably, albeit mistakenly, believe that companion had mutual use of suitcase; prior to search, officers
discovered that companion checked suitcase in her name and retained baggage claim check, when asked how she planned to open
locked suitcase, given that she did not have key, companion shrugged her shoulders and responded that she did not know, and officer
could thus reasonably infer that companion knew suitcase contained narcotics, had something to hide, and, therefore, was using
suitcase knowingly to transport narcotics. U.S. Const. amend. 4.
22. Criminal Law.
To determine whether a custodial interrogation has taken place, a court must consider the totality of the circumstances, including
the site of the interrogation, whether the objective indicia of an arrest are present, and the length and form of questioning. U.S. Const.
amend. 5.
23. Criminal Law.
A person is not in custody for purposes of Miranda where police officers only question him on-scene regarding the facts and
circumstances of a crime or ask other questions during the fact-finding process, or where the person questioned is merely the focus of a
criminal investigation. U.S. Const. amend. 5.
24. Criminal Law.
A person is deemed in custody for Miranda purposes where there has been a formal arrest, or where there has been a restraint on
freedom of movement of the degree associated with a formal arrest so that a reasonable person would not
feel free to leave.
of movement of the degree associated with a formal arrest so that a reasonable person would not feel free to leave. U.S. Const. amend.
5.
25. Criminal Law.
A suspect's or the police's subjective view of the circumstances does not determine whether the suspect is in custody for
Miranda purposes. U.S. Const. amend. 5.
26. Criminal Law.
Defendant was not in custody prior to his formal arrest, for Miranda purposes, and thus, his pre-arrest statements were
admissible. Officers did not physically move or restrain defendant during their brief questioning of him, did not handcuff him or draw
their guns, and neither accused him of anything nor informed him that he was not free to leave, and defendant did not ask to leave and
did not make any statements that would lead reasonable person to believe that he would be arrested immediately. U.S. Const. amend. 5.
27. Criminal Law.
A seizure under the Fourth Amendment does not necessarily render a person in custody for Miranda purposes. U.S. Const. amend.
4, 5.
28. Criminal Law.
Defendant's post-arrest statements were admissible, as officers gave defendant Miranda warnings, defendant waived his rights,
and nothing in record indicated that his waiver of his right against self-incrimination was anything but knowing and intelligent or that
his confession was compelled or induced. U.S. Const. amend. 5.
29. Criminal Law.
The supreme court examines the facts and circumstances of a case in order to determine whether a defendant has executed a valid
waiver of his Fifth Amendment right against self-incrimination after receiving Miranda warnings. U.S. Const. amend. 5.
30. Criminal Law.
An effective waiver of one's Fifth Amendment right against self-incrimination must be knowing and intelligent. U.S. Const.
amend. 5.
31. Criminal Law.
A confession must be made freely and voluntarily, without compulsion or inducement. U.S. Const. amend. 5.
OPINION
Per Curiam:
On March 26, 1996, a Las Vegas Metropolitan Police (LVMPD) narcotics detection dog alerted to the presence of narcotics in a
suitcase in the baggage transfer area at McCarran International Airport in Las Vegas. The bag was locked and bore a computerized
numbered claim tag with the name Gillis, Sarin. The final destination of the bag was Newark, New Jersey. The detective (Kelley)
working with the dog detained the bag, contacted LVMPD Detective Butterfield (Butterfield), relayed the information, and asked
Butterfield to attempt to contact Sarin Gillis in the terminal.
Butterfield then recalled observing a woman, who seemed very disoriented and confused, deplane from a
flight from Burbank, California. Butterfield and LVMPD Detectives McGowan (McGowan) and Briscoe
(Briscoe) proceeded to the departure gate for the flight to Newark and observed the same woman. They
approached, identified themselves, and inquired whether they could ask her a few questions. She agreed.
The woman indicated that she was traveling from Los Angeles somewhere to Newark and agreed to show
Butterfield her ticket. The airline ticket was issued in the name of Sarina Gillis for travel from Burbank to Las
Vegas with a connection to Newark. The baggage claim ticket stapled inside the airline envelope was issued to
Gillis, Sarin, and its number, HP-724397, matched the number on the bag on which the narcotics detection
dog had alerted.
Butterfield asked Gillis if she had a key for the lock, to which Gillis replied in the negative. Upon inquiry as
to how she was going to open the bag at her final destination, Gillis shrugged her shoulders and stated that she
did not know.
Although Gillis denied packing the checked bag, she also stated that the bag belonged to her uncle who had
done the packing, but that she had checked it and was taking it to Newark. Butterfield then informed Gillis that
the dog had alerted on the bag for the presence of narcotics. Gillis denied knowing why and consented to a
search of the bag and to LVMPD's breaking of the lock. After Briscoe advised Kelley of the consent by radio
transmission, Gillis stated that she was traveling with her uncle, Derrick Taylor.
Kelley cut the lock on the suitcase and examined the contents, finding several cellophane bundles containing
a green leafy substance that were wrapped in men's clothing. Upon notification that the suitcase apparently
contained contraband, Butterfield asked Gillis to accompany the detectives to the police substation.
At the substation, in the presence of Kelley, Gillis reiterated that she had checked the suitcase with the
airline, that it belonged to her uncle and, further, that she was unaware of its contents. Twenty-eight pounds of
marijuana were recovered from the suitcase. Gillis was then placed under arrest.
Meanwhile, the detectives learned that Gillis and appellant, Derrick Taylor (Taylor), were traveling under
the same reservation through Las Vegas to Newark, New Jersey. With this information, officers approached
Taylor and identified themselves. Taylor then consented to an interview.
Taylor confirmed that he was traveling from Burbank to Newark. With Taylor's permission, officers
examined Taylor's ticket and noted the identical itineraries. This notwithstanding, Taylor claimed to be traveling
alone, denied knowing anyone on the flight from Burbank, including "Sarina Gillis," and denied
carrying contraband.
the flight from Burbank, including Sarina Gillis, and denied carrying contraband. He then consented to a
search of his person and carry-on luggage.
After finding what they believed was a luggage key, the detectives detained Taylor and escorted him to the
substation to determine whether the key fit the suitcase. Taylor consented to the detention. Upon reaching the
substation, the officers found that Taylor's key did not fit the lock.
A comparison of the separate tickets issued to Gillis and Taylor confirmed the following: the tickets
appeared to have been written by the same person and matched the writing on the envelope in Gillis' possession;
both tickets were purchased through the same travel agent; both tickets were purchased on March 26, 1996, with
the same reservation number of JRKENH; the ticket numbers were consecutive; and the total fare for the two
tickets was $725.00, paid in cash.
Butterfield also noted the handwritten names of D. Taylor and S. Gillis on a white business envelope in
Gillis' possession. Additionally, a search of Gillis' handbag incidental to Gillis' arrest revealed a Wyndham Hotel
room receipt in the name of Derrick Taylor, showing a one-night stay, check-in on March 25, and check-out on
March 26, 1996. Taylor's pants pocket contained a piece of paper with the letterhead of the Wyndham Hotel.
Following these discoveries, Taylor was placed under arrest.
Gillis waived her rights pursuant to Miranda v. Arizona, 384 U.S. 486 (1966), after Taylor's arrest. Gillis
then stated that Taylor was not her uncle, that he was a friend whom she had known for a couple of months and
dated a couple of times, that he had paid her airfare to Los Angeles, and that she was not being paid any money
to transport marijuana back to Newark. Although Gillis again denied knowing the contents of the suitcase, she
stated that Taylor told her that he had flown to Los Angeles to give someone money and that she believed the
money was in the suitcase. Gillis denied ever seeing the contents.
En route to the Clark County Detention Center, the transporting officer advised Taylor of his Miranda rights.
Taylor indicated that he understood his rights and then waived them. Upon reaching the detention center, Taylor
admitted he knew Gillis and was very concerned for her because she had never done anything like this before.
Taylor also confessed that the marijuana and clothing found in the suitcase belonged to him, that he had
purchased both of the airline tickets, that the lock was a built-in safeguard to deter police from opening the
suitcase, and that the lock would have been cut off at their final destination.
Taylor was charged in separate counts with possession of a controlled substance, conspiracy to sell a
controlled substance, and transportation of a controlled substance.
transportation of a controlled substance. Taylor moved the district court to suppress the evidence found inside
the suitcase and the statements made by him, arguing that the search of his suitcase was illegal because Gillis had
no authority to consent to the search, and that his statements at the airport and at the detention center were the
product of an illegal search and seizure.
The court granted Taylor's motion to suppress the evidence and the statements, concluding:
It is true that [Gillis] was at the McCarran International Airport. She had her ticket, along with that ticket
were baggage claims for the various luggage. Like counsel has indicated she did identify that that
baggage belonged to her uncle. The state's correct at one point we have a common situation that the
luggage always belongs to somebody else. Based upon the information I have that the luggage was not
necessarily marked with any identifiable information that it actually belonged to another party and the
party was there in the airport and based upon the totality of the circumstances I'm going to grant your
motion to suppress as to both issues because we find that the officers in this case, their actions not
reasonable under the circumstances.
We reverse.
Taylor's standing to assert a Fourth Amendment violation
[Headnotes 1, 2]
The state failed to raise the issue of standing before the district court. Generally, failure to raise an issue
below bars consideration on appeal. See Emmons v. State, 107 Nev. 53, 61, 807 P.2d 718, 723 (1991).
However, this court will address constitutional issues raised for the first time on appeal. See McCullough v.
State, 99 Nev. 72, 74, 657 P.2d 1157, 1158 (1983).
[Headnote 3]
The state contends that Taylor has no standing to object to the police's search of his suitcase because he had
no reasonable expectation of privacy in the contents of the suitcase. Specifically, the state asserts that Taylor
effectively abandoned his suitcase when he relinquished exclusive control of it to Gillis and disclaimed
ownership of it by denying that he knew her.
[Headnotes 4, 5]
In order to assert a violation under the Fourth Amendment, one must have a subjective and objective
expectation of privacy in the place searched or items seized. See Katz v. United States, 389 U.S. 347, 361
(1967) (Harlan, J., concurring). 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."
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. United States v. Veatch, 674 F.2d 1217,
1220 (9th Cir. 1981).
[Headnotes 6, 7]
Whether a person has abandoned his property is a question of intent, which we infer from words, acts, and
other objective facts. See United States v. Jackson, 544 F.2d 407, 409 (9th Cir. 1976). Abandonment here is not
meant in the strict property-right sense, but rests instead on whether the person so relinquished his interest in the
property that he no longer retained a reasonable expectation of privacy in it at the time of the search. Id.
[Headnotes 8, 9]
We conclude Taylor did not abandon his suitcase. An individual does not abandon property upon a mere
failure to openly exercise control over it prior to its search or where access and control over the property is
shared with a third party. See United States v. Canada, 527 F.2d 1374, 1378 (9th Cir. 1975). Further, a
disclaimer of ownership of the subject property must be express for standing purposes. See United States v.
Sanders, 130 F.3d 1316, 1317 (8th Cir. 1997); Veatch, 674 F.2d at 1221. Taylor's denial that he knew Gillis
does not constitute an express disclaimer of ownership. Accordingly, Taylor has standing to challenge the
search.
Authority to consent to the search
1. Standard of review
[Headnotes 10, 11]
Review of a trial court's determinations of authority to consent to a search requires consideration of both
factual circumstances and legal issues. See United States v. Kim, 105 F.3d 1579, 1582 (9th Cir. 1997); State v.
Miller, 110 Nev. 690, 694, 877 P.2d 1044, 1047 (1994) (Issues concerning . . . consent . . . present mixed
questions of law and fact.). Thus, we review de novo the district court's decisions regarding authority to
consent. Kim, 105 F.3d at 1582.
2. Actual authority
[Headnote 12]
The Fourth Amendment prohibits unreasonable searches and seizures of individuals' effects. U.S. Const.
Amend. IV. A search conducted without a search warrant issued upon probable cause is considered unreasonable
and unconstitutional unless the search falls within a specific exception to the warrant
requirement.
falls within a specific exception to the warrant requirement. See Katz, 389 U.S. at 357. One such exception is the
valid consent of a third party who possesses actual authority over or other sufficient relationship to the premises
or effects sought to be inspected. See United States v. Matlock, 415 U.S. 164, 171 (1974).
[Headnotes 13, 14]
Actual authority is proved (1) where defendant and a third party have mutual use of and joint access to or
control over the property at issue, or (2) where defendant assumes the risk that the third party might consent to a
search of the property. See Kim, 105 F.3d at 1582 (citing Matlock, 415 U.S. at 171). Actual authority does not
require an ownership interest in the property by the third party, see Frazier v. Cupp, 394 U.S. 731, 740 (1969);
Canada, 527 F.2d at 1379, and does not require the actual owner's presence at the time of the search, see
Matlock, 415 U.S. at 170.
[Headnote 15]
In the case at bar, the district court concluded that the officers did not act reasonably under
the totality of the circumstances because Gillis informed the officers that the suitcase
belonged to Taylor, who was in the airport at that time. We conclude the district court erred
because Gillis had actual authority over the suitcase.
Taylor gave Gillis sufficient custody and control over his suitcase so as to assume the risk that Gillis might
consent to a search of it. Indeed, Taylor entrusted his suitcase to Gillis under circumstances which he understood
created a high risk that police might ask her to consent to such a search (it contained a controlled substance and
appeared to belong to Gillis). See Canada, 527 F.2d at 1379; United States v. Aguirre-Parra, 763 F. Supp. 1208,
1218 (S.D.N.Y. 1991); United States v. Gulma, 563 F.2d 386, 390 (9th Cir. 1977). Taylor gave Gillis custody
and control not for the purpose of safekeeping but to transport a controlled substance and to avoid detection
himself. Cf. United States v. Barry, 853 F.2d 1479, 1482-83 (8th Cir. 1988) (third party does not have actual
authority where defendant retains control of claim ticket and key to locked suitcase and third party receives
suitcase solely for safekeeping).
Further, Gillis checked the suitcase under her own name and retained the baggage claim ticket. To protect his
privacy interest, Taylor could have marked the suitcase, kept the baggage claim ticket, or accompanied Gillis
throughout the airport in order to decrease the risk that Gillis might consent to a search. He did none of these
things.
Thus, we conclude Gillis had actual authority because Taylor assumed the risk that Gillis might consent to a
search of his suitcase.
3. Apparent authority
Even if Gillis did not have actual authority, we conclude that Gillis had at least apparent authority to consent
to the search.
[Headnotes 16, 17]
Whether an individual has apparent authority to consent to a search must be judged against an objective
standard, namely, would the facts available to the officer at that moment warrant a person of reasonable caution
to believe that the consenting party had authority over the property. See Illinois v. Rodriguez, 497 U.S. 177, 188
(1990) (citing Terry v. Ohio, 392 U.S. 1, 21-22 (1968)). Whether the basis for [authority to consent to a search]
exists is the sort of recurring factual question to which law enforcement officials must be expected to apply their
judgment; and all the Fourth Amendment requires is that they answer it reasonably. Id. at 186. Thus, the
Fourth Amendment does not invalidate warrantless searches based on a reasonable mistake of fact, as
distinguished from a mistake of law.' United States v. Salinas-Cano, 959 F.2d 861, 865 (10th Cir. 1992)
(quoting United States v. Whitfield, 939 F.2d 1071, 1073-74 (D.C. Cir. 1991)).
[Headnotes 1820]
Specifically, whether apparent authority exists entails a three-part analysis:
First, did the searching officer believe some untrue fact that was then used to assess the extent of the
consent-giver's use of and access to or control over the area searched? Second, was it under the
circumstances objectively reasonable to believe that the fact was true? Finally, assuming the truth of the
reasonably believed but untrue fact, would the consent-giver have had actual authority?
United States v. Dearing, 9 F.3d 1428, 1429-30 (9th Cir. 1993) (citations omitted).
Additionally, an officer should not act without further inquiry where the surrounding
circumstances evince some degree of doubt in the mind of a reasonable person as to the
consent-giver's authority to consent to a search. See id. at 1430. That is, in the absence of
sufficient facts, officers have a duty to seek further information in order to determine whether
they may reasonably infer that the [consent-giver] has the necessary authority to consent to an
entry or search of the [property]. United States v. Rosario, 962 F.2d 733, 738 (7th Cir.
1992).
[Headnote 21]
We conclude the facts were sufficient to allow officers to draw an inference that Gillis had apparent authority
over the suitcase prior to the search based on a mistaken, but objectively reasonable, belief that Gillis had mutual
use of the suitcase. As such, the officers had no duty to make further inquiry.
Prior to the search, the officers discovered that Gillis checked the suitcase in her name and retained the
baggage claim check. When asked how she planned to open the locked suitcase, given that she did not have a
key, Gillis shrugged her shoulders and responded that she did not know. We conclude an officer reasonably
could infer from this dubious response that Gillis knew the bag contained narcotics, had something to hide, and,
therefore, was using the bag knowingly to transport narcotics across the country.
Thus, per Dearing, Gillis had apparent authority over the suitcase and, therefore, could consent to the search,
because the truth of the officer's mistaken beliefthat Gillis had mutual use of the suitcasecoupled with Gillis'
joint access to and control over the suitcase, as discussed supra, would provide Gillis with actual authority.
Taylor's statements to police
The district court excluded Taylor's statements as the fruit of an illegal search. The court did not rule
expressly as to whether Taylor's pre-arrest statements were made as part of a consensual and non-custodial
interrogation, or whether Taylor's post-arrest statements were made after a valid waiver of his Miranda rights.
Because we conclude the officers conducted a legal search of Taylor's suitcase, and because the parties
stipulated to the facts contained in the police reports, we choose to resolve whether Taylor's statements are
admissible per Miranda.
1. Taylor's pre-arrest statements
The state contends that Taylor's incriminating statements made prior to his arrest are admissible because he
was not in custody for purposes of Miranda. We agree.
[Headnotes 22, 23]
The Fifth Amendment privilege against self-incrimination provides that a suspect's statements made during
custodial interrogation are inadmissible at trial unless the police first provide a Miranda warning. See Miranda,
384 U.S. at 479; see also Malloy v. Hogan, 378 U.S. 1, 6 (1964) (privilege applicable to states through Due
Process Clause of Fourteenth Amendment). To determine whether a custodial interrogation has taken place, a
court must consider the totality of the circumstances, including the site of the
interrogation, whether the objective indicia of an arrest are present,1 and the length and
form of questioning.
court must consider the totality of the circumstances, including the site of the interrogation, whether the
objective indicia of an arrest are present,
1
and the length and form of questioning. See Alward v. State, 112
Nev. 141, 155, 912 P.2d 243, 252 (1996). An individual is not in custody for purposes of Miranda where police
officers only question an individual on-scene regarding the facts and circumstances of a crime or ask other
questions during the fact-finding process, see Garcia v. Singletary, 13 F.3d 1487, 1489 (11th Cir. 1994), or
where the individual questioned is merely the focus of a criminal investigation. See United States v. Jones, 21
F.3d 165, 170 (7th Cir. 1994).
[Headnotes 24, 25]
Rather, an individual is deemed in custody where there has been a formal arrest, or where there has been a
restraint on freedom of movement of the degree associated with a formal arrest so that a reasonable person
would not feel free to leave. See United States v. Bengivenga, 845 F.2d 593, 598 (5th Cir. 1998); United States
v. Moya, 74 F.3d 1117, 1119 (11th Cir. 1996). A suspect's or the police's subjective view of the circumstances
does not determine whether the suspect is in custody. See Stansbury v. California, 511 U.S. 318, 323 (1994).
[Headnotes 26, 27]
We conclude that the totality of the circumstances makes evident that Taylor was not in custody when the
statements at the airport were made.
2
The officers did not physically move or restrain Taylor during their
brief questioning of him, did not handcuff Taylor or draw their guns, and neither accused
Taylor of anything nor informed him that he was not free to leave.
__________

1
These include (1) whether the suspect was told that the questioning was voluntary or that he was free to
leave; (2) whether the suspect was not formally under arrest; (3) whether the suspect could move about freely
during questioning; (4) whether the suspect voluntarily responded to questions; (5) whether the atmosphere of
questioning was police-dominated; (6) whether the police used strong-arm tactics or deception during
questioning; and (7) whether the police arrested the suspect at the termination of questioning. See United States
v. McKinney, 88 F.3d 551, 554 (8th Cir. 1996). All seven factors need not be present in order to determine that
the suspect was or was not in custody. See id.

2
The state, relying on United States v. Mendenhall, 446 U.S. 544 (1980), and its definition of seizure
under the Fourth Amendment, argues that the officers had not placed Taylor in custody at the time of his
pre-arrest statements because he had not been seized at that point. In Mendenhall, the Court concluded that an
initially consensual encounter between a police officer and a citizen can become a seizure for Fourth
Amendment purposes if in view of all the circumstances surrounding the incident, a reasonable person would
have believed that he was not free to leave. Id. at 554. The state contends that, per Mendenhall, the definitions
of seizure and in custody are the same given their focus on whether a reasonable person would feel free to
leave. The state's reliance on Mendenhall is misplaced. A seizure under the Fourth Amendment does not
necessarily render a person in custody for Miranda purposes. See Bengivenga, 845 F.2d at 598. Indeed, a traffic
stop constitutes a seizure under the Fourth Amendment, see Delaware v. Prouse,
Taylor during their brief questioning of him, did not handcuff Taylor or draw their guns, and neither accused
Taylor of anything nor informed him that he was not free to leave. See Moya, 74 F.3d at 1119. Taylor did not
ask to leave and did not make any statements that would lead a reasonable person to believe that he would be
arrested immediately. See id. Additionally, Taylor was not under arrest at the time he made his statements, he
voluntarily responded to the officers' questions, he could move about freely during the questioning, and the
officers did not employ strong-arm tactics or deception. See United States v. McKinney, 88 F.3d 551, 554 (8th
Cir. 1996).
Thus, we conclude Taylor was not in custody prior to his formal arrest for purposes of Miranda.
Accordingly, his pre-arrest statements are admissible.
2. Taylor's post-arrest statements
[Headnote 28]
The state contends that Taylor's post-arrest statements are admissible because the officers Mirandized Taylor
and Taylor waived his rights. We agree.
[Headnote 29]
This court examines the facts and circumstances of a case in order to determine whether a defendant has
executed a valid waiver of his Fifth Amendment right against self-incrimination after receiving Miranda
warnings. Falcon v. State, 110 Nev. 530, 534, 874 P.2d 772, 775 (1994). We conclude that the facts and
circumstances of the case at bar make evident that Taylor's post-arrest statements are admissible because Taylor
executed an effective waiver of his Fifth Amendment right against self-incrimination and validly confessed to his
ownership of the marijuana.
[Headnotes 30, 31]
An effective waiver of one's Fifth Amendment right against self-incrimination must be knowing and
intelligent. Miranda, 384 U.S. at 479; Tomarchio v. State, 99 Nev. 572, 576, 665 P.2d 804, 806-07 (1983).
Further, a confession must be made freely and voluntarily, without compulsion or inducement. See Passama v.
State, 103 Nev. 212, 213, 735 P.2d 321, 322 (1987).
Here, nothing in the record indicates that Taylor's waiver of his right against self-incrimination was
anything but knowing and intelligent or that his confession was compelled or induced.
__________
440 U.S. 648, 653 (1979), but does not place a person in custody under Miranda. See Berkemer v. McCarty,
468 U.S. 420, 440 (1984). Similarly, officers may seize an individual to perform a pat-down search of the
individual's outer clothing, see Terry v. Ohio, 392 U.S. 1, 30 (1968), but such does not render a person in
custody per Miranda. See Berkemer, 468 U.S. at 439-40.
right against self-incrimination was anything but knowing and intelligent or that his confession was compelled or
induced. Therefore, Taylor's post-arrest statements are admissible.
Accordingly, we reverse the order of the district court granting respondent's motion to suppress and remand
this matter for trial.
3

____________
114 Nev. 1084, 1084 (1998) Dickerson v. State
RALPH ALLEN DICKERSON, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 31352
November 25, 1998 967 P.2d 1132
Proper person appeal from an order of the district court granting a motion to dismiss appellant's
post-conviction petition for a writ of habeas corpus. Second Judicial District Court, Washoe County; Deborah A.
Agosti, Judge.
Defendant, who had been convicted of second-degree murder, filed post-conviction
petition for writ of habeas corpus. The district court dismissed petition. Defendant appealed.
The supreme court held that: (1) one-year period for filing a post-conviction habeas corpus
petition begins to run from the issuance of the remittitur from a timely direct appeal to
supreme court from the judgment of conviction or from the entry of the judgment of
conviction if no direct appeal is taken, and (2) trial counsel's failure to inform defendant
regarding his right to appeal did not constitute good cause to excuse defendant's untimely
filing of post-conviction petition.
Affirmed.
Ralph Allen Dickerson, Carson City, in Proper Person.
Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District Attorney, Washoe
County, for Respondent.
1. Habeas Corpus.
Post-conviction petition for writ of habeas corpus alleging ineffective assistance of counsel is petition to challenge validity of
conviction or sentence, for purpose of statute imposing one-year time period in which to file such petition. U.S. Const. amend. 6; NRS
34.726(1).
2. Habeas Corpus.
Statutory one-year period for filing a post-conviction habeas corpus petition begins to run from the issuance of the
remittitur from a timely direct appeal to supreme court from the judgment of conviction or from the entry
of the judgment of conviction if no direct appeal is taken.
__________

3
Taylor also challenges the voluntariness and certainty of Gillis' consent to search the suitcase. Taylor failed
to raise these issues below. Thus, he is barred from raising them on appeal. See Emmons v. State, 107 Nev. 53,
807 P.2d 718 (1991).
petition begins to run from the issuance of the remittitur from a timely direct appeal to supreme court from the judgment of conviction
or from the entry of the judgment of conviction if no direct appeal is taken. NRS 34.726(1).
3. Habeas Corpus.
Timely direct appeal to supreme court from judgment of conviction, for purpose of statute prescribing time period in which to
file post-conviction habeas corpus petition, is one in which the notice of appeal is filed with the district court within the time period
prescribed by statute. NRS 34.726(1).
4. Criminal Law.
Filing of a timely notice of appeal is a fundamental jurisdictional requirement, without which supreme court never obtains
jurisdiction over an appeal and has no power to consider the issues raised, no matter how much merit they may have.
5. Criminal Law.
Purpose of remittitur of timely appeal is to divest supreme court of jurisdiction over the appeal and return jurisdiction to the
district court, and to formally inform the district court of supreme court's final resolution of the appeal.
6. Criminal Law.
Primary purpose of the remittitur in case of untimely appeal to supreme court is to remove or transfer to the district court the
matter from supreme court's docket and to inform the district court that supreme court never obtained jurisdiction over the appeal and
the district court was never divested of jurisdiction.
7. Habeas Corpus.
Trial counsel's failure to inform defendant regarding his right to appeal from the judgment of conviction did not constitute good
cause to excuse defendant's untimely filing of post-conviction petition for writ of habeas corpus. NRS 34.726(1).
OPINION
Per Curiam:
This is a proper person appeal from an order of the district court granting the state's motion to dismiss appellant's post-conviction
petition for a writ of habeas corpus. For the following reasons, we affirm the district court's order.
Appellant was convicted on September 27, 1995, of second degree murder and was sentenced to life in the Nevada State Prison with
the possibility of parole. On February 27, 1997, almost seventeen months after the entry of the judgment of conviction, appellant filed a
notice of appeal from the judgment. He also sought leave to file a belated appeal claiming that his counsel had failed to inform him
regarding his rights to a direct appeal. This court dismissed the appeal on March 14, 1997, noting that the notice of appeal was untimely
filed and that an untimely notice of appeal fails to vest jurisdiction in this court. Dickerson v. State, Docket No. 29954 (Order Dismissing
Appeal, March 14, 1997).
March 14, 1997). In its order, this court also noted that, to raise the claim that his counsel had failed to inform
him regarding his rights to appeal, appellant's proper remedy was to file a post-conviction petition for a writ of
habeas corpus in the district court pursuant to Lozada v. State, 110 Nev. 349, 871 P.2d 944 (1994).
1
On April
2, 1997, this court issued the remittitur.
On April 25, 1997, appellant filed a petition for a writ of habeas corpus in the district court. He claimed that
his counsel had been ineffective for failing to inform him that he had a right to appeal, for failing to inform him
regarding the procedures for appealing and for failing to file a notice of appeal on his behalf. As a second
ground for relief, appellant claimed the state and the district court had violated his rights by misleading him
regarding his appeal rights.
2

[Headnote 1]
Appellant further contended that his petition was timely filed because he had filed it well within one year of
the issuance of the remittitur from his untimely direct appeal. NRS 34.726(1) provides:
Unless there is good cause shown for delay, a petition that challenges the validity of a judgment or
sentence[
3
] must be filed within 1 year after entry of the judgment of conviction or, if an
appeal has been taken from the judgment, within 1 year after the supreme court issues
its remittitur. For the purposes of this subsection, good cause for delay exists if the
petitioner demonstrates to the satisfaction of the court:
(a) That the delay is not the fault of the petitioner; and
(b) That dismissal of the petition as untimely will unduly prejudice the petitioner.
(Emphasis added.)
The district court ordered the state to respond to the petition; the state filed an answer and a motion to
dismiss. The state argued that the appeal referred to in NRS 34.726(1) must be a timely appeal in which
jurisdiction is actually vested in the supreme court. An untimely appeal fails to vest jurisdiction in the supreme
court. See Lozada, 110 Nev. at 352, 871 P.2d at 946. Moreover, the state claimed, the purpose of
the statutory time limits is to prevent petitioners from using post-conviction remedies in
perpetuity.
__________

1
This court expressed no opinion as to whether appellant could satisfy the procedural requirements of NRS
chapter 34.

2
We decline to reach these allegations because, as this Opinion explains, appellant's petition is procedurally
barred.

3
A petition which alleges ineffective assistance of counsel pursuant to Lozada v. State, 110 Nev. 349, 871
P.2d 944 (1994), is a petition which challenges the validity of the conviction or sentence. The petitioner is
essentially claiming that, absent his counsel's ineffectiveness, the outcome of the proceedings would have been
different and would have been favorable to the petitioner.
the state claimed, the purpose of the statutory time limits is to prevent petitioners from using post-conviction
remedies in perpetuity. See id. at 358, 871 P.2d at 950. The district court agreed with the state's analysis and
granted the motion to dismiss the petition. Appellant filed a timely notice of appeal.
[Headnotes 2-4]
We now construe NRS 34.726(1) to mean that the one-year period for filing a post-conviction habeas corpus
petition begins to run from the issuance of the remittitur from a timely direct appeal to this court from the
judgment of conviction or from the entry of the judgment of conviction if no direct appeal is taken. A timely
direct appeal is one in which the notice of appeal is filed with the district court within the time period prescribed
by statute. See, e.g., NRAP 4. The filing of a timely notice of appeal is a fundamental jurisdictional requirement;
without it, this court never obtains jurisdiction over an appeal and has no power to consider the issues raised, no
matter how much merit they may have. See Lozada, 110 Nev. at 352, 871 P.2d at 946; Jordon v. Director, Dep't
of Prisons, 101 Nev. 146, 696 P.2d 998 (1985).
[Headnotes 5, 6]
The purpose of a remittitur, aside from returning the record on appeal to the district court, is twofold: it
divests this court of jurisdiction over the appeal and returns jurisdiction to the district court, and it formally
informs the district court of this court's final resolution of the appeal. Buffington v. State, 110 Nev. 124, 126,
868 P.2d 643, 644 (1994) ([j]urisdiction in an appeal is vested solely in the supreme court until the remittitur
issues to the district court); Trench v. Strong, 4 Nev. 587, 591 (1868) (the object of a remittitur is to fully
notify the lower court of the judgment of the appellate tribunal). In the case of an untimely appeal, the primary
purpose of the remittitur is to remove or transfer to the district court the matter from this court's docket and to
inform the district court that this court never obtained jurisdiction over the appeal and the district court was
never divested of jurisdiction. In the case of an untimely appeal, no appeal has been taken from the judgment
within the meaning of NRS 34.726(1) because nothing has actually happened.
Moreover, to construe the statute any other way would lead to absurd results. See Moody v. Manny's Auto
Repair, 110 Nev. 320, 325, 871 P.2d 935, 938 (1994) (a statute should always be construed so as to avoid
absurd results) (quoting Welfare Div. v. Washoe Co. Welfare Dep't, 88 Nev. 635, 637-38, 503 P.2d 457, 458-59
(1972)); Las Vegas Sun v. District Court, 104 Nev. 508, 511, 761 P.2d 849, 851 (1988) (the interpretation of
statutes should be reasonable and avoid absurd results). If the appeal referred to in NRS 34.726{1)
meant any appeal, whether this court obtained jurisdiction or not, petitioners would be
able to file successive notices of appeal year after year and thus perpetually re-start the
one-year limitation period.
referred to in NRS 34.726(1) meant any appeal, whether this court obtained jurisdiction or not, petitioners would
be able to file successive notices of appeal year after year and thus perpetually re-start the one-year limitation
period. Clearly, this is not what the legislature envisioned. Indeed, this court has already noted that the statutory
time periods are intended to prevent such results. Without such limitations on the availability of post-conviction
remedies, prisoners could petition for relief in perpetuity and thus abuse post-conviction remedies. Lozada, 110
Nev. at 358, 871 P.2d at 950.
[Headnote 7]
While we hold that the one-year time period in NRS 34.726(1) runs from the issuance of a remittitur from a
timely direct appeal to this court, we also stress, however, that this holding does not affect a petitioner's ability to
overcome the procedural time-bar by a showing of good cause for the delay. Appellant did argue, in his reply to
the state's motion to dismiss his habeas petition, that his counsel's failure to inform him regarding his right to
appeal constituted good cause for his delay. However, this court has recently confirmed that the failure of
counsel to inform his or her client of the right to appeal does not alone constitute good cause to overcome the
time-bar of NRS 34.726(1). Harris v. Warden, 114 Nev. 956, 964 P.2d 785 (1998). Accordingly, appellant did
not demonstrate good cause for filing his petition over one year after the entry of his judgment of conviction.
Having reviewed the record on appeal and for the reasons set forth above, we conclude that the district court
did not err in dismissing appellant's petition, and that briefing and oral argument are unwarranted. See Luckett v.
Warden, 91 Nev. 681, 682, 541 P.2d 910, 911 (1975), cert. denied, 423 U.S. 1077 (1976). We affirm the order
of the district court.
4

__________

4
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 deny as moot
appellant's motion for leave to proceed in proper person.
____________
114 Nev. 1089, 1089 (1998) Middleton v. State
DAVID STEPHEN MIDDLETON, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 31499
November 25, 1998 968 P.2d 296
Appeal from a judgment of conviction, pursuant to a jury verdict, of two counts of
first-degree murder, two counts of first-degree kidnapping, one count of grand larceny, one count of
fraudulent use of a credit card, and two counts of ex-felon in possession of a firearm and from two sentences of
death. Second Judicial District Court, Washoe County; Peter I. Breen, Judge.
The supreme court held that: (1) evidence was sufficient to show criminal agency as
necessary element to establish corpus delicti of murder; (2) evidence was sufficient to show
that victims were alive when abducted as required to establish kidnapping; (3) evidence was
sufficient to show that defendant personally committed fraudulent use of victim's credit card;
(4) charges arising from each victim did not have to be severed; (5) delay of almost two and a
half years between arrest and trial did not violate defendant's right to speedy trial; and (6)
evidence supported finding on existence of aggravating circumstance for torture and
depravity of mind.
Affirmed.
Michael R. Specchio, Public Defender, and John Reese Petty, Deputy Public Defender, Washoe County, for
Appellant.
Hatlestad, Chief Appellate Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
In reviewing the evidence supporting a jury's verdict, the supreme court must determine whether the jury, acting reasonably, could
have been convinced of the defendant's guilt by the competent evidence beyond a reasonable doubt.
2. Criminal Law.
Where conflicting testimony is presented, the jury determines what weight and credibility to give it.
3. Criminal Law.
On review of the sufficiency of evidence supporting a jury's verdict, the relevant inquiry for the 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. Homicide.
Evidence was sufficient to show criminal agency as necessary element to establish corpus delicti of murder; although
causes of death of both victims could not be determined and one victim was taking lithium, victim taking
lithium had basically healthy heart and did not have life-threatening amount of lithium in her system after
death, victims had both disappeared, victims' remains were found in separate remote locations, tied with
rope, and wrapped in garbage bags, one victim was bitten severely, and evidence of items found at storage
unit indicated victims had been kept captive.
ment to establish corpus delicti of murder; although causes of death of both victims could not be determined and one victim was taking
lithium, victim taking lithium had basically healthy heart and did not have life-threatening amount of lithium in her system after death,
victims had both disappeared, victims' remains were found in separate remote locations, tied with rope, and wrapped in garbage bags,
one victim was bitten severely, and evidence of items found at storage unit indicated victims had been kept captive.
5. Kidnapping.
Kidnapping requires the willful seizing, confining, or carrying away of a live person.
6. Kidnapping.
Evidence was sufficient to show that victim was alive when abducted as required to establish kidnapping of victim prior to her
death; although cause of death could not be determined, most of bruising on victim's knees and elbows occurred prior to her death and
was evidence that she was alive and struggling while trapped in refrigerator in defendant's storage unit, foam ball found in storage unit
had tooth marks and deoxyribonucleic acid (DNA) matching victim, and bite mark on victim's breast was inflicted while she was still
alive.
7. Kidnapping.
Evidence was sufficient to show that victim was alive when abducted as required to establish kidnapping of victim prior to her
death; although cause of death could not be determined, victim's hair, apparel, and blanket were found in defendant's storage unit,
defendant moved to larger storage unit on day that victim disappeared, and existence of bruises on other victim and other items found
in storage unit, including refrigerator with air holes, gag, and restraint devices, showed that defendant was using storage unit to hold
live victims.
8. Criminal Law.
Granting of an advisory instruction to acquit rests within the sound discretion of the district court. NRS 175.381(1).
9. Homicide.
Evidence was sufficient to tie defendant to victim's murder, despite lack of direct evidence that he was in victim's company at any
time. Victim's hair, apparel, and blanket were found in defendant's storage unit, victim and defendant's girlfriend were seen together on
several occasions and defendant was seen on stairs outside victim's apartment on morning that she was last seen alive.
10. False Pretenses.
Evidence was sufficient to show that defendant personally committed fraudulent use of victim's credit card, even though
defendant's girlfriend picked up stereo purchased on credit card from store. Store manager took telephone call in regard to purchase on
victim's credit card and believed that caller was male, caller told manager that he would send courier to pick up equipment, and stereo
was found in defendant's storage unit.
Joinder of trial on kidnapping and murder counts concerning two victims was proper in light of similarities between crimes which
showed that acts charged constituted parts of common scheme or plan to meet women, abduct and hold them captive, abuse and kill
them, and then dispose of their bodies. NRS 173.115(2).
12. Criminal Law.
Even if joinder of charges was permissible as based on same act or parts of common scheme or plan, the trial court should sever
the offenses if the joinder is unfairly prejudicial, i.e., required by justice. NRS 173.115(2), 174.165(1).
13. Criminal Law.
Decision to sever charges is left to the discretion of the trial court, and an appellant has the heavy burden of showing that the
court abused its discretion. NRS 174.165(1).
14. Criminal Law.
To establish that joinder of charges was prejudicial requires more than a mere showing that severance might have made acquittal
more likely. Reversal is required only if the error has a substantial and injurious effect on the jury's verdict. NRS 174.165(1).
15. Criminal Law.
Evidence of kidnapping and murder of each victim would have been cross-admissible at separate trials to prove defendant's
identity, method, intent, and absence of mistake or accident in regard to kidnapping and murder of other victim, and thus, charges
arising from each victim did not have to be severed. NRS 174.165(1).
16. Criminal Law.
If evidence of one charge would be cross-admissible in evidence at a separate trial on another charge, then both charges may be
tried together and need not be severed. NRS 174.165(1).
17. Criminal Law.
Evidence of collateral offenses is not admissible to show that a defendant has the propensity to commit crime but may be
admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident. NRS 48.045(2).
18. Criminal Law.
To admit evidence of collateral offenses, the trial court must determine that it is relevant for a permissible purpose, that it is proven
by clear and convincing evidence, and that its probative value is not substantially outweighed by the danger of unfair prejudice.
19. Criminal Law.
Claim that refusal to sever kidnapping and murder charges arising from each victim prejudiced defendant by confounding his
ability to present separate defenses was too conclusory to require severance, absent showing of what his defense to charges involving
second victim was, let alone how it was inconsistent with or harmful to his defense to the charges involving first victim. NRS
174.165(1).
20. Criminal Law.
Although delay of almost two and a half years between arrest and trial necessitated further inquiry, it did not violate defendant's
Sixth Amendment right to speedy trial under circumstances that defendant's extensive pretrial habeas litigation was responsible for
most of delay, that trial court had found potential conflict of interest warranted grant of state's motion to disqualify public defender and
state did not otherwise abuse court procedures to delay trial, that defendant waited two years before asserting his speedy trial right, and
that defendant did not demonstrate that he was prejudiced by delay. U.S. Const. amend. 6.
21. Criminal Law.
Court must conduct a balancing test to determine if a defendant's Sixth Amendment right to a speedy trial was
violated by considering the length of delay, the reason for the delay, the defendant's assertion of his right,
and prejudice to the defendant, and, unless the delay is long enough to be presumptively prejudicial,
inquiry into the other factors is not necessary.
Sixth Amendment right to a speedy trial was violated by considering the length of delay, the reason for the delay, the defendant's
assertion of his right, and prejudice to the defendant, and, unless the delay is long enough to be presumptively prejudicial, inquiry into
the other factors is not necessary. U.S. Const. amend. 6.
22. Criminal Law.
Delay of almost two and a half years between arrest and trial did not give rise to presumptive prejudice for purposes of speedy trial
claim, especially since defendant was responsible for most of delay during pretrial habeas litigation. U.S. Const. amend. 6.
23. Criminal Law.
Although affirmative proof of particularized prejudice is not essential to every speedy trial claim, presumptive prejudice cannot
alone carry a Sixth Amendment claim without regard to the other applicable criteria, and its importance increases with the length of
delay. U.S. Const. amend. 6.
24. Criminal Law.
Conclusory claims of violations of Miranda doctrine, without adequate citation to record, failed to demonstrate any error arising
from admission of evidence of defendant's statements to police. U.S. Const. amend. 5.
Statutory reasonable doubt instruction, describing reasonable doubt as the kind that governs a person in life's more weighty
affairs, did not violate due process where jury was also instructed concerning the presumption of innocence and the state's burden of
proof. U.S. Const. amend. 14; NRS 175.211(1).
26. Homicide.
Testimony from victim's brother, during penalty phase of capital murder trial, suggesting that defendant not be given any more
dignity or mercy than he showed murder victim did not violate general rule allowing victim to express opinion regarding defendant's
sentence only in a noncapital case.
27. Criminal Law.
Defense counsel's question, during penalty phase of capital murder trial, asking whether witness knew defendant had been in
trouble in another city did not justify prosecutor's misconduct in then asking witness whether she was aware defendant took a
sixteen-year-old woman to a remote area, kept her in his car, and engaged in sexual activity with her? after trial court had specifically
ruled that facts of defendant's prior conviction were not admissible as long as defense offered no explanation of prior conviction.
28. Criminal Law.
To establish reversible error at the guilt phase from introduction of improper evidence of another crime by the defendant, he must
prove that the evidence was so prejudicial as to be unsusceptible to neutralizing by an admonition to the jury.
29. Criminal Law.
Where the issue is validity of a death sentence after the introduction of improper evidence of another crime, the defendant must
demonstrate a reasonable possibility that the sentence was influenced by such testimony notwithstanding the court's admonition to the
jury.
30. Homicide.
In determining whether introduction of evidence of another crime at penalty phase of capital murder trial renders
death penalty invalid, reviewing court should consider four factors:
penalty phase of capital murder trial renders death penalty invalid, reviewing court should consider four factors: (1) whether the
statement was solicited by the prosecution; (2) whether the district court immediately admonished the jury; (3) whether the statement
was clearly and enduringly prejudicial; and (4) whether the evidence of guilt was convincing.
31. Criminal Law.
Even deliberate misconduct by the prosecutor does not necessarily make the error reversible.
32. Criminal Law.
Prosecutor's isolated improper remark during penalty phase of capital murder trial, asserting defendant previously took 16-year-old
victim to remote area and had sexual activity with her, did not render death sentence invalid, in light of trial court's timely admonition
of jury and immense evidence of aggravated nature of murders, which thus precluded reasonable probability that error influenced
defendant's sentence.
33. Homicide.
In absence of objection to cross-examination on possibility of change in prohibiting commutation of life sentences without the
possibility of parole, matter could be reviewed only for plain error, which required showing that cross-examination was patently
prejudicial.
34. Criminal Law.
Any prejudice during penalty phase of capital murder trial caused by state's improper cross examination of witnesses on possibility
that legislature could change statute prohibiting commutation of life sentences without the possibility of parole was negligible and,
thus, did not constitute plain error.
35. Criminal Law.
Capital defendant has no constitutional right to a jury instruction making residual doubt into a mitigating circumstance.
36. Criminal Law.
Proposed jury instruction must correctly state the law, and even a correct instruction need not be given if it is covered by other
instructions.
37. Homicide.
Possibility that jury found no mitigating circumstances did not demonstrate that sentence of death in capital murder trial was
imposed under influence of any arbitrary factor. NRS 177.055(2).
38. Homicide.
Each prior offense could be used as a separate aggravating circumstance in penalty phase of capital murder trial if the defendant
could have been prosecuted for each crime separately.
39. Homicide.
Evidence supported finding on existence of aggravating circumstance for torture and depravity of mind in penalty phase of capital
murder trial. Defendant held one victim bound and captive for extended period of time while he treated her sadistically, and finally
allowed her to suffocate in refrigerator while she beat her knees and elbows against the sides in her anguish.
40. Criminal Law.
Death penalty statutes sufficiently narrow class of defendants eligible for death penalty, even though jury must decide in light of
all the relevant evidence whether it considers death the appropriate penalty, in light of fact that jury's obligation to consider all relevant
evidence arises only after it has found mitigators do not outweigh aggravators and narrowing to death eligibility has thus already
occurred. NRS 175.552(3), 200.033.
OPINION
Per Curiam:
At trial, the state presented evidence that appellant David Stephen Middleton committed murder on two
separate occasions, in each case abducting a woman from her home, holding her captive in a leased storage unit,
killing her, and then dumping her body. Middleton appeals, contending among other things that there was
insufficient evidence to convict him and that trial on the counts relating to each victim should have been severed.
We conclude that Middleton's contentions lack merit and therefore affirm.
FACTS
The discovery of Katherine Powell's body and resulting investigation
At around 9:30 p.m. on the night of February 11, 1995, a woman's body was found in a trash dumpster at a
Reno apartment complex. The body was in a sleeping bag and covered by plastic garbage bags. A large yellow
plastic bag covered the sleeping bag. The body was taken to the coroner's office. From its fingerprints the body
was later identified as that of Katherine Powell.
Dr. Roger Ritzlin performed the autopsy on Powell's body. Her body was loosely bound by rope and, aside
from a black tank top and blue socks, was naked. It exhibited bruises, particularly on the elbows and knees; most
of the bruises were incurred prior to death. Powell had likely been dead for at least two days. There were blue
fibers on her body. A nontoxic amount of lithium was in her blood. (Powell had been prescribed lithium for a
bipolar disorder.) Microscopic analysis of sections of the left ventricle of her heart exhibited some fibrosis and
acute cell death; the latter occurred a few days before death. Ritzlin found no petechiae (small hemorrhages) or
any fecal staining. At trial, he testified that after death by suffocation, petechiae are usually seen and fecal
staining is often seen. Ritzlin could not determine the cause of death, but suffocation or cardiac arrhythmia were
possible causes. Bite marks were later found on Powell's body, and a semen stain was found on her right thigh.
At the time of her death, Powell was forty-five years old, divorced, and living alone in Reno. She had a Ph.D.
in psychology and taught third grade at Sun Valley Elementary School. She was last heard from or seen alive on
the evening of Friday, February 3, 1995. Powell had a ski trip with a friend planned for the next morning, but she
failed to show. Various friends attempted to contact her over the weekend, and she failed to
appear at work on Monday, February 6, although she was known to be extremely reliable.
attempted to contact her over the weekend, and she failed to appear at work on Monday, February 6, although
she was known to be extremely reliable. A school custodian went to her home and knocked, but got no response;
he noticed an attempted service tag from TCI Cable on the door, dated Saturday, February 4. Later on Monday,
two other school employees went to Powell's home, looked through a window and saw what they thought could
be a foot on the unmade bed, and called 911. Police arrived and entered the home. The bed was rumpled, but
they saw nothing that made them suspicious at that time.
After Powell's body was found on February 11, 1995, police learned the following information. Two of
Powell's neighbors, Angela Green and Charles Corning, noticed a pickup truck parked in front of Powell's home
early in the morning on Saturday, February 4. Green noticed that the pickup was loaded up with home items
and had out-of-state plates; when she was later shown a photograph of a pickup owned by Middleton, she said
that could well be the truck. Corning said that the pickup was red, and when shown the photo of Middleton's
pickup, he said that looks like the truck. A third neighbor noticed on Wednesday, February 1, that a TCI Cable
truck was parked in front of Powell's home. This neighbor later identified the occupants as Middleton and
Evonne Haley. (Haley lived with Middleton.)
Two of Powell's friends, Gerald Brown and Candace Kelly, returned from a trip on Sunday, February 5, and
went to pick up Kelly's dog, which Powell had been keeping for them. Powell was not home, but they had a key,
entered, and got the dog. The next day, Brown heard that Powell had not gone to work so he went back to her
home and noticed various items were missing, including a phone, a camera, a FAX machine, a laptop computer,
and a laser printer. In the kitchen he found a couple of condoms and a wad of duct tape.
On Sunday, February 5, a person telephoned the Good Guys store in Reno and ordered a $1,900 piece of
stereo equipment, using Powell's credit card. Gary Cable, the employee who took the call, said that the caller's
voice was husky and he could not tell if the caller was a man or woman. Mark Decker, Cable's manager,
approved the transaction. Decker received a telephone call regarding the purchase on Monday morning. He
believed the caller was male. The caller said he would send a courier to pick up the equipment. On Monday
afternoon, a woman arrived at the store with a red handtruck and picked up the equipment. Store employees later
identified the woman as Haley. One employee's description of the truck she drove led police to Middleton's
pickup, an early 1970s, red International Harvester with Colorado license plates.
Reno police detective Steven Reed determined that Middleton was the TCI Cable technician who had made a
service call at Powell's home on January 28, 1995. The detective took Powell's neighbor, Corning, to
Middleton's workplace to view Middleton's pickup. Corning believed that the pickup was likely the same one he
had seen at Powell's.
Detective David Jenkins determined that the brand of yellow plastic bag covering the sleeping bag which
held Powell's body was sold at only two hardware stores in Reno. Only one store, Commercial Hardware in
downtown Reno, had recently sold the yellow bags. They were sold on Wednesday, February 8, along with a box
of 33-gallon garbage bags.
On February 23, 1995, Detective Jenkins interviewed Middleton, who was not in custody. Middleton
admitted that he had made a service call to Powell's home on January 28, 1995, and that he owned a red, 1972
International Harvester pickup. However, he denied knowing anything about the purchase of stereo equipment at
the Good Guys store or about Powell's credit card. When asked about the purchase of plastic bags at
Commercial Hardware, Middleton initially said he did not know where the store was, but then said he had
shopped there five or six times but not recently. When asked if he had shopped there on February 8, he was
equivocalsaying that if he was on video, then he hadand he was unsure whether he had bought any garbage
bags. Although Jenkins had said nothing about Powell's death, Middleton said that it seemed like Jenkins was
trying to tie Middleton to her murder. Jenkins asked if Middleton had a storage unit, and Middleton said no. The
interview ended when Middleton said that he wanted to leave.
On March 4, 1995, an anonymous caller informed police that Middleton and Haley had a storage unit. The
next day, police searched the unit pursuant to a warrant. They found the stereo equipment purchased from the
Good Guys and a box of yellow plastic bags and a box of garbage bags, both with Commercial Hardware price
tags. One of three yellow bags was missing from the first box, as were some garbage bags from the second. Also
in the unit were Powell's house and car keys, camera, computer, printer, and other personal property. A
refrigerator was lying on its back on the floor of the unit. In it were blue fibers similar to fibers found on
Powell's body. The refrigerator was modified: its shelves were removed, the floor of its freezer compartment was
cut and folded down to make one space, and two air holes were drilled in it. Police also found a switchblade
knife, a stun gun, a foam ball with apparent teeth marks, and rope similar to that used to bind Powell's body.
Other evidence collected included: orange-handled tension clamps; hair and fiber from one of the clamps; black
canvas belts with velcro; black wire ties;
black canvas belts with velcro; black wire ties; handcuffs; condoms; partial rolls of duct tape; a large speaker
box with a space behind the speaker about 14 inches deep, 30 inches wide, and 36 inches high; hairs and fibers
from the speaker box; several blankets; and chains. Pursuant to a seizure order, police obtained a mold of
Middleton's teeth to compare to the bite marks found on Powell's body. Dr. Raymond Rawson, a professor in
dentistry, concluded that the bite mark on Powell's left breast was inflicted while she was still alive, that it was a
hard and painful bite causing bleeding below the skin, and that Middleton inflicted it.
The discovery of Thelma Davila's remains and resulting investigation
On April 9, 1995, about two months after the discovery of Powell's body, a man walking with his dog in a
secluded area near Verdi found a human skull and other skeletal remains and notified police. From August
through October 1994, another Verdi resident had smelled a foul odor in the area where the remains were later
found. In late September or early October 1994, he saw remnants of a sleeping bag in that area. Donald Means
of the Washoe County Sheriff's Office performed forensic investigation of the remains. He noted a lot of animal
activity and trash bags, bones, and bone fragments strewn several hundred yards. A matted hairpiece was
found with rope in it; the rope was the same diameter as the rope found with Powell's body. Means had also
investigated Powell's death, and finding two body dumps with trash bags and rope in such a short period of
time was unusual in Means's experience.
A dental bridge in the skull led to the identification of the remains as those of Thelma Davila. Dr. Frederick
Laubscher performed a medical examination of the remains. (An autopsy was not possible because of the
lack of tissue.) He examined the remains for evidence of the cause of death, but the skull was intact, and none of
the other bones exhibited evidence of a gunshot or knife wound, crushing injury, or traumatic injury of any sort.
Because the remains were so incomplete, Laubscher was unable to determine a cause of death. He could not rule
out suffocation or most other possible causes of death.
The police learned that Davila had disappeared in August 1994. At that time she was forty-two years old and
shared a one-bedroom apartment in Sparks with her sister, Dora Valverde. She had worked her usual evening
shift at the Hickory Pit restaurant in Circus Circus in Reno on Sunday, August 7, 1994. She failed to show for
work the next day even though she had not missed a single day in more than six years of employment at the
restaurant. She also failed to show up for a dental appointment that day.
Valverde last saw her sister around 8:00 a.m. on Monday, August 8, 1994. When Valverde left for work,
Davila was sleeping on the couch in the living room. When Valverde returned to the apartment that evening, the
door was not locked, and a plant by the couch had been knocked onto the floor. She and one of Davila's friends
later identified a blanket, a black lacy top, and a red hair tie found in Middleton's storage unit as Davila's. On
Wednesday, August 10, 1994, Valverde reported her sister missing.
Davila occasionally went with a friend to Cheers, a Latin dance club in downtown Reno. The two went to
Cheers on the night of Saturday, August 6, 1994. The friend testified that Davila had a preference for black men.
(Middleton is African-American.) Another friend testified that when he visited Davila and Valverde, they always
looked out their window at him before opening the door. The former owner of Cheers saw Middleton one night
using the pay phone at Cheers sometime in the latter part of 1994. Two employees of the Hickory Pit restaurant
remembered seeing Haley in the restaurant. One saw her there two or three times in June and July of 1994,
usually with a black man. The other saw her there just a day or two before Davila disappeared. A third employee
saw Davila and Haley together in 1994 on three occasions: at the restaurant, at a grocery store, and at a medical
complex.
A Citifare bus driver knew Davila because she was a regular passenger on his route for many years. The
driver saw Davila on the afternoon of Friday, August 5, 1994, at the Sparks bus station. Davila was quite dressed
up and told him her friends were picking her up to go out to dinner. A white or beige pickup truck pulled up. In
the truck were a woman with curly, reddish blond hair and a black man. The man stepped out, Davila jumped
into the truck and sat in the middle, and the truck drove off.
TCI Cable had been installed in the sisters' apartment in June 1993 and serviced in July 1994, but Middleton
performed neither service. Middleton did not work on Monday, August 8, 1994, the day Davila disappeared.
Around 6:45 a.m. that same day, a neighbor of Davila and Valverde saw Middleton walk partway up the stairs
leading to Davila's apartment and then come back down.
Other evidence presented at trial
Middleton first leased a storage unit in Sparks on June 30, 1994, under the name of Hal Data Research. This
unit was five feet by ten feet in size. On the afternoon of August 8, 1994the day that Davila was last seen
aliveMiddleton leased a unit which was ten feet by ten feet and moved out of the smaller unit. Tenants entered
the storage unit facility using a computer code at the front gate, and records were kept of the entries.
gate, and records were kept of the entries. On Friday, February 3, 1995the last day that Powell was seen
aliveMiddleton entered the facility at 2:13 a.m. and 8:06 p.m. For Saturday, February 4, the log showed
entries by Middleton at 12:37 a.m., 5:47 a.m., 6:49 a.m., 8:45 a.m., 11:53 a.m., and 5:38 p.m. On Sunday,
February 5, he entered the facility at 6:19 a.m., 11:09 a.m., and 3:30 p.m., and on Monday, February 6, he
entered at 9:26 a.m. and 3:15 p.m. There were no entries for Tuesday, February 7; one entry at 6:49 p.m. on
Wednesday, February 8; no entries on Thursday, February 9; and one entry on Friday, February 10, at 7:45 p.m.
The log showed one entry on Saturday, February 11, at 7:26 p.m. Powell's body was found around 9:30 p.m. that
same night. Middleton entered the facility again at 12:53 a.m. on Sunday, February 12, 1995.
On June 7, 1995, at Middleton's request Detective Jenkins again interviewed Middleton. Jenkins asked
questions regarding Davila. Middleton said he had been to Davila's apartment complex but did not know her. He
denied that Davila's blanket could be in his storage unit. He said that he had moved from one storage unit to
another on August 8, 1994. Middleton told Jenkins that Haley had never been to the storage unit and did not
know about it. Jenkins spoke with Middleton again on June 20, 1995. Middleton continued to deny knowing
Davila or having her blanket.
Forensic analysis showed that fibers found in the refrigerator in Middleton's storage unit were
indistinguishable from those found on Powell's body: both were cotton and blue-green in color. Two human head
hairs found in the refrigerator and one found on a black restraint belt could have come from Powell. Rope found
in Middleton's storage unit, the rope found around Powell's body, and the rope found with Davila's remains were
all white, nylon, woven twelve-strand, and one-quarter inch in diameter. Analysis revealed no difference
between the ropes; however, the rope was a common type. Five hairs found on a roll of duct tape and two hairs
found on two blankets in the storage unit were consistent with those obtained from Davila's hairbrush. An expert
in knot analysis testified that the ropes found with the remains of both Powell and Davila contained SS granny
knots, but the granny knot is a very common knot.
DNA analysis was also performed on various pieces of evidence. Cellular material was obtained from the
foam ball found in the storage unit. DNA analysis of that material showed that it matched Powell's DNA; the
match was rarer than one in 100 million people. The roots of various hairs found in the storage unit were tested.
The DNA from two hairs found in a clamp and one hair on a blanket matched Powell's DNA; the
match was about one in every 7S0,000 Caucasians.
hair on a blanket matched Powell's DNA; the match was about one in every 780,000 Caucasians. The DNA from
one hair found on duct tape and one hair from another blanket matched Davila's DNA; the match was one in
690,000 among Hispanics. DNA obtained from a semen stain on the right thigh of Powell was consistent with
Middleton's DNA and that of about one of every 100 African-Americans.
At trial the state offered expert testimony that based on the volume of the refrigerator and the size of the two
holes drilled in it, a person weighing 145 pounds enclosed in the refrigerator would have died from oxygen
deprivation in about three and a half hours.
Dr. Vincent Di Maio, a chief medical examiner in Texas, testified for the state to the following. Despite mild
perivascular fibrosis, Powell's heart was healthy and normal. Although a person should have an EKG when she
first begins taking lithium, studies in the 1990s showed that long-term users of lithium did not die from heart
disease at a rate greater than the general population. The circumstances of Powell's disappearance and her body
when found indicated that her death was a homicide. The lack of pathological findings indicated that she
probably died of asphyxiation. The bruises on her elbows and knees were consistent with struggles to free herself
from a confined space, such as the refrigerator. Petechiae were found in only about thirteen percent of
suffocation homicides handled by Di Maio's office. The circumstances surrounding Davila's disappearance and
skeletal remains also indicated that her death was a homicide, but the cause of death could not be determined.
The defense presented the testimony of two physicians. Dr. Robert Bucklin, a deputy medical examiner for
Clark County, stated that Powell suffered from heart disease, but he did not know if it caused her death. He did
not believe that she died from asphyxiation. Dr. Jerry Howle, a psychiatrist, testified that taking lithium could
cause cardiac arrhythmia and carried some risk of sudden death, but he did not know what effect it had on
Powell.
Outside the presence of the jury, the district court asked Middleton if he wished to testify. Middleton said
that he wanted to testify on the Davila case part of it. But I guess I can't because the cases are joined. I cannot
testify on one without looking bad on the other one. So I guess I can't testify.
The jury found Middleton guilty of two counts of first-degree murder, two counts of first-degree kidnapping,
one count of grand larceny, and one count of fraudulent use of a credit card. At a bench trial the next month, the
district court found him guilty of two counts of ex-felon in possession of a firearm.
The penalty phase
At the penalty hearing, outside the presence of the jury, the defense moved to preclude evidence that
Middleton had been charged with sexual assault and kidnapping in Florida in 1990. The Florida case resulted in
conviction of one count of aggravated battery and one count of false imprisonment. The prosecutor, Thomas
Viloria, proposed to call as a witness the victim of the Florida crimes, who was sixteen years old at the time of
the crimes. The district court ruled that the conviction was admissible, but stated, I'm not going to allow
testimony concerning sexual assault in the state's case in chief. However, I warn counsel that any explanation of
this conviction . . . is going to open up the door to Mr. Viloria's ability to explain what he perceives as the facts
in this case.
Defense counsel also voiced concern that members of Powell's family testifying as victims might call for the
death penalty. Viloria stated that he would instruct the victims not to ask for the death penalty, but argued that
they could ask for the maximum sentence. He further argued that if defense witnesses asked for a penalty less
than death, then in rebuttal the state could recall victims to ask for death. The district court asked Viloria if he
had authority for that. This prompted a lengthy tirade by Viloria in which he stated, among other things, that the
rights of the defendant outside the Constitution have wallowed [sic] the Constitution, making it meaningless. I
would submit that it is just but that, an old rag that needs to be modified. It has no meaning. The district court
eventually ruled that victims could request neither the death penalty nor the maximum penalty.
Middleton's stepmother testified for him. Toward the end of direct examination, defense counsel asked her,
And did you know he got in trouble in Miami? She answered, Yes. On cross-examination, Viloria asked,
You are aware, ma'am, that he took a sixteen-year-old woman to a remote area, kept her in his car, and engaged
in sexual activity with her? Defense counsel objected and moved for a mistrial, and the district court excused
the jury. The court asked Viloria, Why now, Mr. Viloria? . . . Why now without my advance permission?
Viloria argued that the defense had opened the door to his question, but the court rejected that argument. The
court even said, I'm questioning your motives here, and ruled, You are precluded from bringing up any
evidence concerning any criminal activity in the rest of your case. You are precluded from asking any questions,
any further questions of this witness, and you'll pack this to the Ninth Circuit on your back. When the jurors
returned, the court admonished them that Middleton's prior conviction did not relate to sexual activity and
asked if anyone would have trouble disregarding Viloria's question.
to sexual activity and asked if anyone would have trouble disregarding Viloria's question. No jurors indicated
that they would.
The defense also called Susan McCurdy, Executive Secretary of the Parole and Pardons Board. Counsel
asked if Middleton were sentenced to life imprisonment without the possibility of parole under NRS 213.085,
could that sentence ever be commuted to parole? She said, No, it cannot. Viloria then cross-examined.
Q Ma'am, that assumes that the legislature doesn't decide to change the law the next
session or the next session after that or the next session after that, doesn't it?
A That is correct.
Q They are always free to change the law as they do every other year?
A That is correct.
Q So there will be no guarantee that life without won't be subjected to legislative
change down the road?
A There is no guarantee.
The defense made no objection.
For Davila's murder, the jury found four aggravators: Middleton had two previous convictions for felonies
involving the use or threat of violence, the murder was committed in the commission of or attempt to commit
first-degree kidnapping, and Middleton was convicted of more than one murder in this proceeding. The jury
found the same four aggravating circumstances in Powell's murder and a fifth: the murder involved torture
and/or depravity of mind. For both murders, the jury found no mitigating circumstances sufficient to outweigh
the aggravators and sentenced Middleton to death.
For the two counts of first-degree kidnapping, one count of grand larceny, one count of fraudulent use of a
credit card, and two counts of ex-felon in possession of a firearm, the district court sentenced Middleton to the
following consecutive prison terms: life without possibility of parole, life without possibility of parole, ten years,
ten years, six years, and six years.
DISCUSSION
There was sufficient evidence that appellant committed the murders, kidnappings, and
fraudulent use of a credit card
[Headnotes 13]
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 by the competent evidence beyond a reasonable
doubt. 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.
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)).
Evidence of criminal agency in the deaths
[Headnote 4]
Middleton contends first that the state failed to prove that the victims' deaths resulted from criminal agency, a
necessary element to establish the corpus delicti of murder. He points to the evidence that Powell suffered from
heart disease; that she was taking lithium, which is associated with cardiac problems; and that her cause of death
could not be determined. Likewise, he stresses that Davila's cause of death was not determined. Middleton cites
Frutiger v. State, 111 Nev. 1385, 907 P.2d 158 (1995), where this court concluded that there was insufficient
evidence that an alleged victim's death was caused by the criminal agency of another. Middleton does not,
however, discuss the circumstances surrounding the disappearance of the victims and discovery of their remains
or the evidence found in his storage unit.
In deciding a sheriff's appeal in this case in 1996, we considered this same argument in regard to the
sufficiency of the evidence to bind Middleton over for trial. Sheriff v. Middleton, 112 Nev. 956, 921 P.2d 282
(1996). We held: Although medical evidence as to the cause of death is often critical in establishing that a death
occurred by criminal agency, there is no requirement that there be evidence of a specific cause of death. Id. at
962, 921 P.2d at 286. We reversed the district court's order granting Middleton's pretrial petition for a writ of
habeas corpus. The district court had limited its review
to evidence of the bare conditions of the bodies themselves, and found that the bodies alone did not
reveal death by criminal agency because they did not reveal anything, and therefore the state had not met
its burden. This conclusion is not mandated by our decision in Frutiger. The court must consider and
weigh all the evidence offered which bears on the question of death by criminal agency. In this case, the
circumstances of the disappearances of the women, the discoveries of their bodies in remote locations,
tied with rope, wrapped in garbage bags, bitten severely, clearly creates a reasonable inference of their
deaths by criminal agency.
Furthermore, unlike in Frutiger, where the weight of the available medical evidence indicated a
likelihood of death by natural causes, in this case there is no evidence to rebut the inference of death by
criminal agency. The district court erred in not considering at least the circumstances of the
disappearances of the women and the discoveries of their bodies. There is ample evidence by those
circumstances alone tending to prove that Powell and Davila died by a criminal agency.
Id. at 964, 921 P.2d at 287.
This analysis is still dispositive, even allowing for the requirement that at trial criminal agency had to be
proved beyond a reasonable doubt. Id. The evidence showed that Powell's heart was basically healthy and that
the amount of lithium in her system was not life threatening. There was no evidence that Davila suffered from ill
health. Thus, unlike Frutiger, the record does not show a likelihood of death by natural causes. Furthermore, in
deciding the sheriff's appeal, we did not discuss the evidence which indicated that Middleton took Powell and
Davila to his storage unit, where he kept them captive. This evidence further supports the jury's finding that the
deaths resulted from criminal agency.
Evidence that the victims were abducted alive
[Headnotes 5, 6]
Kidnapping requires the willful seizing, confining, or carrying away of a live person. Ducksworth v. State,
113 Nev. 780, 793, 942 P.2d 157, 166 (1997), reh'g denied, 114 Nev. 951, 966 P.2d 165 (1998). Middleton
claims that there was no evidence as to where or how the victims died and therefore that the state failed to prove
that the victims were seized alive and against their will. For example, in his brief to this court Middleton says:
The reasonable inference is that Powell died in her house (of unknown causes), her bare body was on the bed
and that later her body was taken from the house in a sleeping bag and placed in the refrigerator. The jury
obviously did not consider this inference reasonable, nor do we.
Most of the bruising on Powell's knees and elbows occurred prior to her death and is evidence that she was
alive and struggling while trapped in the refrigerator. The foam ball found in the storage unit had tooth marks
and Powell's DNA, indicating that it was used to gag her while she was still alive. The bite mark on Powell's
breast was also inflicted while she was still alive, supporting the theory that Middleton held Powell captive and
then killed her.
[Headnote 7]
As to Davila's kidnapping, no direct evidence shows that Davila was alive and held against her will. Davila's
hair, apparel, and blanket were found in Middleton's storage unit, but this evidence alone does not indicate
whether Davila was alive at that time. Nevertheless, the circumstantial evidence allows no other reasonable
conclusion: Middleton moved to the larger storage unit the day that Davila disappeared, and the items found in
the unitthe refrigerator with air holes, the gag, and restraint devicesshow that he was using it to hold live
victims; the condition of Powell's body also shows this.
1
The jury has the right to make logical inferences
which flow from the evidence. Hern v. State, 97 Nev. 529, 531, 635 P.2d 278, 279 (1981). The jury, acting
reasonably, could have been convinced beyond a reasonable doubt that Middleton kidnapped Davila.
Evidence of appellant's fraudulent use of a credit card
Middleton unsuccessfully moved the district court to instruct the jury to acquit him of both counts of
kidnapping, the count of murdering Davila, and the count of fraudulent use of a credit card. He argues that the
court abused its discretion in denying the motion.
[Headnotes 8, 9]
The granting of an advisory instruction to acquit rests within the sound discretion of the district court. NRS
175.381(1); Milton v. State, 111 Nev. 1487, 1493, 908 P.2d 684, 688 (1995). As discussed above, there was
sufficient evidence to convict Middleton of the murder and kidnapping counts, so the district court did not abuse
its discretion in denying the motion in regard to the kidnappings and Davila's murder.
2

[Headnote 10]
The state charged Middleton with fraudulent use of Powell's credit card at the Good Guys store. Because
Haley picked up the stereo equipment from Good Guys and the state failed to allege that Middleton aided
and abetted Haley,3 Middleton maintains that there was insufficient evidence to convict
him of this crime.
__________

1
As discussed below, the evidence of the kidnapping and murder of each victim was cross-admissible to
prove Middleton's identity, method, intent, and absence of mistake or accident in regard to the kidnapping and
murder of the other.

2
In addition to asserting above that there was insufficient evidence that Davila's death resulted from criminal
agency, Middleton asserts here that no evidence put him in the company of Davila at any time. The presence of
Davila's hair, apparel, and blanket in Middleton's storage unit is sufficient to tie him to Davila's murder.
Furthermore, the evidence showed that Davila and Middleton's girlfriend, Haley, were together on several
occasions and that Middleton was seen on the stairs outside Davila's apartment on the morning that she was last
seen alive.
that Middleton aided and abetted Haley,
3
Middleton maintains that there was insufficient evidence to convict
him of this crime.
We conclude that there was sufficient evidence that Middleton personally committed fraudulent use of the
credit card. Mark Decker, a manager at the Good Guys store, took a telephone call on the morning of February
6, 1995, in regard to the purchase on Powell's credit card. Decker believed that the caller was male. The caller
told Decker that he would send a courier to pick up the equipment. Combined with Middleton's connection to
Haley and the presence of the equipment in his storage unit, this was sufficient evidence for the jury to find that
Middleton made the call and directly participated in fraudulent use of the credit card.
The district court did not err in refusing to sever the counts relating to each victim from the counts relating to
the other
[Headnote 11]
Before trial, Middleton moved to sever the counts relating to Davila from the counts relating to Powell. The
district court denied the motion (but severed the two counts charging Middleton with being an ex-felon in
possession of a firearm). Middleton says that joinder of the charges was improper because the offenses were
unconnected and the joinder prejudiced him.
Middleton cites Drew v. United States, 331 F.2d 85, 88 (D.C. Cir. 1964), for the proposition that joinder
may prejudice a defendant because
the jury may cumulate the evidence of the various crimes charged and find guilt when, if considered
separately, it would not so find. A less tangible, but perhaps equally persuasive, element of prejudice may
reside in a latent feeling of hostility engendered by the charging of several crimes as distinct from only
one.
Because the jury convicted him of the murders and kidnappings despite the alleged lack of sufficient evidence,
Middleton maintains that his conviction of the four crimes shows that joinder engendered a feeling of hostility
toward him among the jurors and led them to cumulate the evidence of the various crimes and find guilt when
they otherwise might not have.
Two or more offenses may be charged in the same indictment or information in a separate count for
each offense if the offenses charged, whether felonies or misdemeanors or both, are:
__________

3
In separate proceedings arising out of the circumstances of this case, Haley was convicted of burglary,
possession of stolen property, and obtaining property by false pretenses. This court recently affirmed her
conviction. Haley v. State, Docket No. 29051 (Order Dismissing Appeal, July 28, 1998).
the offenses charged, whether felonies or misdemeanors or both, are:
1. Based on the same act or transaction; or
2. Based on two or more acts or transactions connected together or constituting parts of a common
scheme or plan.
Here, joinder was proper under NRS 173.115(2) because the acts charged constituted parts of a common
scheme or plan on Middleton's part to meet women, abduct and hold them captive, abuse and kill them, and then
dispose of their bodies. The similarities between the crimes against Davila and Powell include: both victims
were unmarried females of similar age (one was forty-two and the other forty-five); both were alone at home
when they disappeared; both homes had been serviced by Middleton's employer, TCI Cable; Middleton had met
both victims before their disappearance (the evidence that Middleton met Davila is not conclusive, but strong);
neither victim's home showed evidence of a forced entry; Middleton went to his storage unit on the day that each
victim disappeared; his storage unit yielded DNA evidence from each of the victims and property belonging to
each; and the remains of each victim were found dumped in remote or concealed locations, wrapped in plastic
garbage bags and bound with rope similar to rope found in Middleton's storage unit.
[Headnote 12]
If it appears that a defendant or the State of Nevada is prejudiced by a joinder of offenses or of
defendants in an indictment or information, or by such joinder for trial together, the court may order an
election or separate trials of counts, grant a severance of defendants or provide whatever other relief
justice requires.
Thus, even if joinder is permissible under NRS 173.115, the trial court should sever the offenses if the joinder is
unfairly prejudicial, i.e., required by justice. Cf. Amen v. State, 106 Nev. 749, 755-56, 801 P.2d 1354, 1358-59
(1990) (although joinder of charges against multiple defendants was proper under NRS 173.135, court
considered whether joinder prejudiced defendants and required severance under NRS 174.165); Drew, 331 F.2d
at 87 ([E]ven though joinder is permissible under Rule 8(a), if the defendant makes a timely motion under Rule
14[
4
] and shows prejudice, the court should either order an election by the Government or
grant separate trials.).
__________

4
These Federal Rules of Criminal Procedure are largely equivalent to NRS 173.115 and 174.165.
[Headnotes 13, 14]
The decision to sever is left to the discretion of the trial court, and an appellant has the heavy burden of
showing that the court abused its discretion. Amen, 106 Nev. at 756, 801 P.2d at 1359. To establish that joinder
was prejudicial requires more than a mere showing that severance might have made acquittal more likely.
United States v. Wilson, 715 F.2d 1164, 1171 (7th Cir. 1983). Misjoinder requires reversal only if the error has
a substantial and injurious effect on the jury's verdict. Mitchell v. State, 105 Nev. 735, 739, 782 P.2d 1340, 1343
(1989).
[Headnotes 1518]
Middleton has not shown that he was unfairly prejudiced by the joinder of charges. First, as discussed above,
we reject his contention that his conviction of the murders and kidnappings was based on insufficient evidence.
Second, we conclude that the evidence of the kidnapping and murder of each victim was cross-admissible to
prove Middleton's identity, method, intent, and absence of mistake or accident in regard to the kidnapping and
murder of the other. If . . . evidence of one charge would be cross-admissible in evidence at a separate trial on
another charge, then both charges may be tried together and need not be severed. Mitchell, 105 Nev. at 738,
782 P.2d at 1342. Evidence of collateral offenses is not admissible to show that a defendant has the propensity to
commit crime. Keeney v. State, 109 Nev. 220, 228, 850 P.2d 311, 316 (1993). However, such evidence may be
admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident. NRS 48.045(2). To admit such evidence, the trial court must
determine that it is relevant for a permissible purpose, that it is proven by clear and convincing evidence, and
that its probative value is not substantially outweighed by the danger of unfair prejudice. Tinch v. State, 113
Nev. 1170, 1176, 946 P.2d 1061, 1064-65 (1997). Applying this test, we conclude that the evidence of each
murder and kidnapping would have been admissible at a trial on the other murder and kidnapping.
[Headnote 19]
Middleton asserts another ground for prejudice. He declared at trial that he wanted to testify in regard to the
Davila case but could not without looking bad on the other one. Therefore, he now claims that joinder
confounded his ability to present separate defenses. See Drew, 331 F.2d at 88 (joinder of offenses is prejudicial
if it causes a defendant to become embarrassed or confounded in presenting separate defenses). This claim
remains completely conclusory and unpersuasive: Middleton fails to specify what his defense to the charges
involving Davila was, let alone how it was inconsistent with or harmful to his defense to the
charges involving Powell.
how it was inconsistent with or harmful to his defense to the charges involving Powell. See People v. Lane, 436
N.E.2d 456, 459-60 (N.Y. 1982) (a defendant seeking to sever counts must make a convincing showing that he
has important testimony to give concerning one count and strong need to refrain from testifying on the other; the
defendant must present enough information regarding the testimony he wishes to give on one count and his
reasons for not wishing to testify on the other to satisfy the court that the claim of prejudice is genuine and to
enable it to intelligently weigh the consideration of judicial economy against the defendant's interests).
The district court did not err in denying the motion to sever.
Appellant's right to a speedy trial was not violated
[Headnote 20]
Asserting that his right to a speedy trial had been violated, Middleton moved to dismiss all charges on April
22, 1997. His trial began less than four months later, on August 11, 1997. Middleton raises this issue again on
appeal, alleging that the state's pattern of disclosure and the timing of that disclosure caused [him] to wait 30
months before enjoying his right to trial. He also questions the state's motives in successfully moving before
trial to disqualify the public defender from representing him.
It is not clear when Middleton was first arrested on the charges in this case. He says that it was February 23,
1995. The state claims that this arrest was for being an ex-felon in possession of a firearm and that on May 17,
1995, Middleton pled guilty to conspiracy to commit the crime of ex-felon in possession of a firearm and
received a one-year jail sentence. The record contains a copy of a plea memorandum which bears out the state's
claim. The parties agree that Middleton was first formally charged in this case on June 22, 1995. Middleton's
trial began on August 11, 1997. From February 23, 1995, to August 11, 1997, is a period of slightly less than
thirty months. From June 22, 1995, to August 11, 1997, is a period of less than twenty-six months. Even
assuming that the relevant delay was the longer period, we conclude that Middleton's right to a speedy trial was
not violated.
A number of Middleton's own actions contributed to the delay of his trial. These include, for example, a
petition for a writ of habeas corpus, a motion to reconsider that petition after its denial, a motion to sever, and a
motion to dismiss or alternatively to suppress. The district court granted Middleton's pretrial habeas petition,
leading to a sheriff's appeal, which in turn resulted in reversal and remand by this court. Middleton does not
mention, let alone address, the part that these or other of his own actions played in
delaying the trial.
let alone address, the part that these or other of his own actions played in delaying the trial.
[Headnote 21]
A court must conduct a balancing test to determine if a defendant's Sixth Amendment right to a speedy trial
was violated. 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.
[Headnotes 22, 23]
First, we conclude that a delay of almost two and a half years necessitates further inquiry. Second, we
conclude that the reason for the delay in this case was much more Middleton's responsibility than the state's,
given his extensive pretrial litigation, most notably his initially successful habeas petition which led to an appeal
and reversal. The district court estimated that the petition was responsible for at least three quarters of the delay.
Although a deliberate attempt to delay a trial in order to hamper the defense weighs heavily against the state, id.
at 531, the district court found that the state had legitimate reason to move to disqualify the public defender: a
potential conflict of interest because the public defender was also representing Haley.
5
The court also
found that the state was not otherwise abusing court procedures to delay the trial. Third,
Middleton asserted his speedy trial right, but not until April 1997. Finally, Middleton has not
demonstrated that he was prejudiced by the delay. He dispenses with this factor by citing
Doggett v. United States, 505 U.S. 647, 655 (1992), for the proposition that affirmative
proof of particularized prejudice is not essential to every speedy trial claim. However, such
presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the
other Barker criteria, and its importance increases with the length of delay. Id. at 656. In
Doggett, the United States Supreme Court concluded that presumptive prejudice resulting
from a delay of eight and a half years combined with government negligence violated the
Sixth Amendment. The delay in this case of less than two and a half years does not give rise
to such presumptive prejudice, especially since Middleton was responsible for most of the
delay.
Middleton's right to a speedy trial was not violated.
__________

5
The district court acted within its sound discretion in declining Middleton's proffered waiver of his right to
conflict-free counsel. See Wheat v. United States, 486 U.S. 153, 163 (1988) (holding that the district court must
be allowed substantial latitude in refusing waivers of conflicts of interest . . . where a potential for conflict
exists).
The district court did not err in admitting evidence of statements made by appellant to police
[Headnote 24]
Middleton claims that police failed to advise him of his rights pursuant to Miranda v. Arizona, 384 U.S. 436
(1966), before subjecting him to custodial interrogations and interrogated him without his attorney's knowledge
or consent. He says that his statements to police were used to obtain search warrants which produced
incriminating evidence and that his statements and the evidence should be suppressed. Middleton fails to provide
this court with reference to supporting facts in the record. More tellingly, in his opening brief Middleton does
not inform us that the district court, after holding an extended hearing on the matter, granted in part his motion to
suppress.
The district court ruled from the bench. It found that on February 23, 1995, Middleton's interrogation was
noncustodial up to the point that he asked a police officer to return the keys to his pickup but did not get them
back. The court suppressed Middleton's statements made that day after that point. The court suppressed
Middleton's statements made on March 1, 1995, up until the district attorney informed him of his Miranda
rights. The court found that Middleton's waiver of those rights was intelligent and voluntary and allowed in his
statements until he chose not to continue talking to police on March 3, 1995.
Middleton's claims on this issue remain conclusory and unsupported by adequate citation to the record. He
has utterly failed to carry his burden of demonstrating how the district court's ruling was erroneous.
The reasonable doubt instruction was not unconstitutional
Middleton claims that the jury instruction on reasonable doubt given at the guilt and penalty phases of his
trial was unconstitutional. He concedes that the instruction was the one prescribed by NRS 175.211(1). No other
definition of reasonable doubt may be given to a jury. NRS 175.211(2).
[Headnote 25]
This court would prefer that the legislature adopt a different definition which does not describe reasonable
doubt as the kind that governs a person in life's more weighty affairs. Bollinger v. State, 111 Nev. 1110, 1115
n.2, 901 P.2d 671, 674 n.2 (1995). Because the legislature has not changed the statute, Middleton asks this court
to declare the more weighty affairs language unconstitutional. We have no cause to do so. We held that there
was no reasonable likelihood that a jury applied this language unconstitutionally where the jury was
also instructed concerning the presumption of innocence and the state's burden of proof.
Id. at 1115, 901 P.2d at 674.
unconstitutionally where the jury was also instructed concerning the presumption of innocence and the state's
burden of proof. Id. at 1115, 901 P.2d at 674. The jury in this case was so instructed. We therefore conclude that
the instruction did not violate due process. Cf. Ramirez v. Hatcher, 136 F.3d 1209, 1211, 1215 (9th Cir. 1998).
Middleton also objects to instructing jurors that if they have an abiding conviction of the truth of the
charge, there is not a reasonable doubt. He claims that this could mislead jurors to think that the state's burden of
proof was less than beyond a reasonable doubt. This court has already stated that we do not think the abiding
conviction of the truth of the charge' language dilutes the definition of reasonable doubt or that it reduces the
prosecutor's burden of proof to convict. Lord v. State, 107 Nev. 28, 40, 806 P.2d 548, 555-56 (1991). We
decline to revisit this issue.
Prosecutorial misconduct during the penalty phase did not prejudice appellant
[Headnote 26]
Middleton asserts that three instances of prosecutorial misconduct occurred during the penalty phase. First,
he contends that the prosecutor improperly elicited the following remark from Powell's brother: I can't see
giving that person any more respect or dignity or mercy than he showed Kathy. Although a victim can express
an opinion regarding the defendant's sentence only in a noncapital case, this remark is acceptable. See Witter v.
State, 112 Nev. 908, 922, 921 P.2d 886, 896 (1996).
[Headnote 27]
Second, Middleton argues that reversible misconduct occurred and the district court should have declared a
mistrial when Viloria asked Middleton's stepmother if she was aware that Middleton took a sixteen-year-old
woman to a remote area, kept her in his car, and engaged in sexual activity with her? Viloria asked this question
even though the district court had ruled, after extensive discussion, that the facts of Middleton's Florida
conviction were not admissible as long as the defense offered no explanation of the conviction. The state
concedes that it cannot defend Viloria's question, but nevertheless claims that defense counsel first asked an
explosive question which literally invited a response, just not the one the prosecutor exercised. We disagree.
Counsel simply asked, And did you know he got in trouble in Miami?, to which the stepmother answered,
Yes. Neither the question nor the answer in any way constituted an explanation of the conviction justifying
Viloria's question.
6

__________

6
The facts regarding Middleton's prior conviction might have been admissible under other circumstances, but
the district court is charged with the
[Headnotes 28, 29]
Thus, we must determine whether the district court's admonishment of the jurors cured the error injected by
Viloria's question. When a jury hears improper evidence of another crime by the defendant, this court's standard
of review depends on whether it is reviewing the guilt or penalty phase of a capital case. Allen v. State, 99 Nev.
485, 490-91, 665 P.2d 238, 241-42 (1983). To establish reversible error at the guilt phase, an appellant must
prove that the evidence was so prejudicial as to be unsusceptible to neutralizing by an admonition to the jury.
Id. at 490, 665 P.2d at 241. Where the issue is the validity of a death sentence, the appellant must demonstrate
the possibility that the sentence was influenced by such testimony notwithstanding the court's admonition to the
jury. Id. at 491, 665 P.2d at 242. We add that this must be a reasonable possibility, not an unlikely one.
[Headnotes 3032]
In making this determination, this court should consider four factors: (1) whether the remark was solicited by
the prosecution; (2) whether the district court immediately admonished the jury; (3) whether the statement was
clearly and enduringly prejudicial; and (4) whether the evidence of guilt was convincing. Geiger v. State, 112
Nev. 938, 942, 920 P.2d 993, 995-96 (1996). Here, the prosecutor himself, recklessly or deliberately, made the
remark. This worsens the error. However, even deliberate misconduct by the prosecutor does not necessarily
make the error reversible. See Emmons v. State, 107 Nev. 53, 60, 807 P.2d 718, 722-23 (1991). Factor two
mitigated the error: the district court immediately informed the jurors that Middleton's prior conviction did not
relate to sexual activity and determined that they would disregard the improper question. Next, we conclude that
the remark was somewhat prejudicial, but not enduringly so. It was only one remark in a penalty hearing that
lasted more than two days, and Viloria did not say that Middleton had sex with the victim against her will. Factor
four relates here to death-worthiness, not guilt. In this case, it also weighs against prejudice. Given that death is
an appropriate penalty for the most heinous murders, it is appropriate here where the evidence shows
that these victims suffered horrible deaths at the hands of a callous, calculating, sadistic
killer.
__________
responsibility of assessing the risk of unfair prejudice in determining the admissibility of evidence. In this case,
the court acted within its discretion in ruling that evidence of the particular facts of the conviction was not
admissible. Mr. Viloria's disregard for this ruling appears reckless if not deliberate, particularly in light of his
remarks earlier in the penalty hearing, referred to above, attacking the integrity of this nation's Constitution. His
question may constitute misconduct that is contemptuous of the trial court; even more troubling, it unnecessarily
introduced the possibility of error into these capital proceedings. Consequently, we refer Mr. Viloria's improper
questioning of this witness and his contemptuous remarks to the trial court to the Nevada State Bar for
investigation and possible disciplinary action.
ate here where the evidence shows that these victims suffered horrible deaths at the hands of a callous,
calculating, sadistic killer.
Given the district court's timely admonition and the immense evidence of the aggravated nature of the
murders, we conclude that Middleton has not demonstrated a reasonable possibility that the error influenced his
sentence.
[Headnotes 33, 34]
Third, Middleton claims that Viloria improperly cross-examined the Executive Secretary of the Parole and
Pardons Board regarding the possibility of the legislature's changing the statute which prohibits commutation of
life sentences without the possibility of parole. However, Middleton did not object below. Therefore, this court
should review the claim only if it is plain error, which requires Middleton to show that the cross-examination
was patently prejudicial. Riker v. State, 111 Nev. 1316, 1328, 905 P.2d 706, 713 (1995). It was improper for the
state to delve into the possibility that a sentence of life imprisonment without parole could be modified. This
court formerly required jurors in capital cases to be instructed that you may not speculate as to whether the
sentence you impose may be changed at a later date. Petrocelli v. State, 101 Nev. 46, 56, 692 P.2d 503, 511
(1985). More recently, we directed that all references to modification of sentences be eliminated from capital
jury instructions. Sonner v. State, 114 Nev. 321, 326-27, 955 P.2d 673, 677 (1998). However, we conclude that
any prejudice caused by the state's cross-examination was negligible.
The district court did not err in rejecting jury instructions proposed by the defense
Middleton asked the district court at the penalty phase to instruct the jury that it could consider any residual
doubt it had regarding his guilt and that it must find that [Middleton] has no significant history of prior criminal
activity and that mitigating circumstance may be enough to defeat all aggravating circumstances and result in a
sentence less than death. He claims that in rejecting the proposed instructions, the court unconstitutionally
excluded aspects of mitigation from the jury's consideration. This claim has no merit.
[Headnotes 35, 36]
First, a capital defendant has no constitutional right to a jury instruction making residual doubt a mitigating
circumstance. Homick v. State, 108 Nev. 127, 141, 825 P.2d 600, 609 (1992) (citing Franklin v. Lynaugh, 487
U.S. 164 (1988)). Second, a proposed jury instruction must correctly state the law, and even a correct instruction
need not be given if it is covered by other instructions.
instructions. Barron v. State, 105 Nev. 767, 773, 783 P.2d 444, 448 (1989). Middleton had two prior felony
convictions; thus, he had no right to have the question of fact regarding his prior criminal history decided as a
matter of law. Nor was the question excluded from the jury's consideration. One jury instruction listed possible
mitigating circumstances, including no significant history of prior criminal activity. The jury was also
instructed that any one mitigating circumstance may be sufficient, standing alone, to support a decision that
death is not the appropriate punishment in this case. It was further properly instructed that even absent a finding
of any mitigators, it was not required to return a sentence of death but could sentence Middleton to life in prison
with or without the possibility of parole.
The aggravating circumstances were valid, and the death penalties are not excessive in this case
[Headnote 37]
Middleton invokes NRS 177.055(2), which requires this court to review his death sentence and consider:
(b) Whether the evidence supports the finding of an aggravating circumstance or circumstances;
(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.
Middleton contends first that the jury's apparent rejection of any mitigating factor demonstrates that his
sentence is unreliable and the product of passion and prejudice. The verdict forms indicate that the jury found
that any mitigating circumstance or circumstances are not sufficient to outweigh the aggravating
circumstances. Therefore, it is possible that the jurors found mitigating circumstances existed. But even if they
found none, Middleton cites no evidence or authority to demonstrate how that shows the influence of any
arbitrary factor.
[Headnotes 38, 39]
Next, Middleton challenges the validity of two of the aggravating circumstances. He claims that it was
improper to enumerate his two prior Florida offenses as separate aggravators because they stemmed from a
single event. This court has held, however, that if the defendant can be prosecuted for each crime separately,
each can be used as an aggravating circumstance. Riley v. State, 107 Nev. 205, 217, 808 P.2d 551, 558 (1991).
Middleton also contends that there was no evidence to support the aggravator of torture and depravity of
mind7 found in Powell's murder.
torture and depravity of mind
7
found in Powell's murder. We disagree. There was sufficient evidence for the
jury to find that Middleton held Powell bound and captive for an extended period of time while he treated her
sadisticallythe bite on her breast is direct evidence of this while various items found in the storage unit are
indirectand that he finally allowed her to suffocate while she beat her knees and elbows against the sides of the
refrigerator in her anguish. We conclude that this evidence supports a finding of torture and depravity of mind.
Pursuant to NRS 177.055(2), we conclude that the evidence supports the finding of the aggravating
circumstances, that it does not appear that Middleton's sentences of death were imposed under the influence of
passion, prejudice, or any arbitrary factor, and that the sentences are not excessive, considering both the crime
and the defendant.
Nevada's death penalty statutes are constitutional
[Headnote 40]
Middleton argues that Nevada's death penalty statutes fail to narrow the class of defendants who are death
eligible. See, e.g., Arave v. Creech, 507 U.S. 463, 470-74 (1993) (a capital sentencing scheme must direct and
limit the sentencer's discretion to minimize the risk of arbitrary and capricious action and must genuinely narrow
the class of persons eligible for the death penalty). He criticizes Allen, 99 Nev. at 488, 665 P.2d at 240, which
cites NRS 175.552(3) and holds that the state may introduce evidence at a capital penalty hearing in addition to
the aggravating circumstances set forth in NRS 200.033. He concludes that Nevada's statutes therefore fail to
narrow the class of defendants who are death eligible. This argument is unpersuasive.
This court did not hold in Allen that evidence outside the purview of NRS 200.033 could serve to render a
defendant death eligible. Only enumerated aggravating circumstances pursuant to NRS 200.033 can do this. If a
jury does not find at least one enumerated aggravator, then a defendant is not eligible for the death
penaltyregardless of the evidence presented pursuant to NRS 175.552(3). See NRS 200.030(4)(a); NRS
175.554(3).
8
If an enumerated aggravator or aggravators are found, the jury must find that
any mitigators do not outweigh the aggravators before a defendant is death eligible.
__________

7
NRS 200.033(8) no longer includes depravity of mind. 1995 Nev. Stat., ch. 467, 1, at 1491.

8
NRS 200.030(4)(a) provides that a person convicted of first-degree murder shall be punished [b]y death,
only if one or more aggravating circumstances are found and any mitigating circumstance or circumstances
which are found do not outweigh the aggravating circumstance or circumstances. NRS 175.554(3) provides:
The jury or the panel of judges may impose a sentence of death only if it finds at least one aggravating
circumstance and further finds that there are no mitigating circumstances sufficient to outweigh the aggravating
circumstance or circumstances found.
merated aggravator or aggravators are found, the jury must find that any mitigators do not outweigh the
aggravators before a defendant is death eligible. NRS 200.030(4)(a); NRS 175.554(3). Even if the jury finds that
any mitigators do not outweigh the aggravators, a death sentence is not automatic, and the jury must decide in
light of all the relevant evidence whether it considers death the appropriate penalty. NRS 175.554(3); Geary v.
State, 114 Nev. 100, 105, 952 P.2d 431, 433 (1998). At this final stage, evidence presented pursuant to NRS
175.552(3) can influence the decision to impose death, but this comes after the narrowing to death eligibility has
occurred.
9
This evidence should be considered because each capital defendant must be treated as a unique
human being and receive an individualized sentencing determination based upon his character and the
circumstances of the crime. Homick, 108 Nev. at 136, 825 P.2d at 606.
Middleton also argues that this court defines too broadly the scope of aggravating circumstances, specifically
its definition of prior convictions and at random and without apparent motive. See NRS 200.033(2) and (9).
Neither of these arguments applies to Middleton's case and needs to be addressed here.
Appellant's remaining claims warrant no relief
Middleton asserts that this court lacks authority to reweigh the aggravating evidence on appeal and must
remand the case for resentencing. This question is moot because the aggravators found by the jury were all valid.
Middleton says that he received the maximum sentences on the counts of grand larceny, fraudulent use of a
credit card, and ex-felon in possession of a firearm because of his conviction on the murder and kidnapping
counts. Because his conviction should allegedly be reversed on the latter counts, he concludes that this court
should vacate his other sentences and remand for resentencing. This issue is also moot since we have determined
that Middleton was validly convicted of the murders and kidnappings.
CONCLUSION
Middleton's claims lack merit. We therefore affirm his judgment of conviction and sentence.
__________

9
Lisle v. State, 113 Nev. 679, 704, 941 P.2d 459, 475-76 (1997), correctly states that evidence presented
pursuant to NRS 175.552(3) can also be used to determine the sentence of a defendant who is not found death
eligible. To the extent that any language in Lisle suggests that this evidence can be used to determine death
eligibility itself, we hereby reject that suggestion.
____________
114 Nev. 1118, 1118 (1998) Brown v. State
ROBERT ERIC BROWN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 29859
November 25, 1998 967 P.2d 1126
Appeal from a judgment of conviction entered pursuant to a jury verdict on one count each
of burglary while in possession of a firearm, attempted robbery with use of a deadly weapon,
battery with use of a deadly weapon, attempted murder with use of a deadly weapon, and two
counts of possession of a firearm by an ex-felon. Eighth Judicial District Court, Clark
County; Joseph T. Bonaventure, Judge.
The supreme court held that: (1) refusal to sever ex-felon in possession counts from crimes
arising from shooting at medical clinic was not abuse of discretion; (2) joinder did not have
substantial or injurious effect on verdict; however, (3) in future cases, severance of ex-felon
in possession counts will be required in multiple-count prosecutions.
Affirmed.
Posin & Posin, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, and Christopher
Laurent, Deputy District Attorney, Clark County, for Respondent.
Joinder of offenses is proper where the activity charged is part of the same transaction or comprises a common scheme or plan.
NRS 173.115, 174.165(1).
2. Criminal Law.
Decision to sever offenses is left to the sound discretion of the trial court and will not be reversed on appeal absent an abuse of that
discretion. NRS 173.115, 174.165(1).
3. Criminal Law.
Errors resulting from misjoinder will be reversed only if the error has a substantial and injurious effect or influence in determining
the jury's verdict. NRS 173.115, 174.165(1).
4. Criminal Law.
Refusal to sever charge of being an ex-felon in possession of firearm, based on handgun discovered at defendant's closet, from
charges arising out of shooting at medical clinic was not abuse of discretion, where gun was intricately related to other crimes by
substantial evidence suggesting it was weapon used in shooting. Ammunition found in stolen car used in crimes matched weapon,
weapon contained only four, rather than maximum six rounds, consistent with two gunshots involved in crime, and defendant was
positively identified as perpetrator of crimes. NRS 173.115, 174.165(1), 202.360.
Joinder of charge of being ex-felon in possession of firearm, based on defendant's possession of weapon during
shooting at medical clinic, with other charges arising from that shooting was permissible, as conduct
underlying crimes constituted part of same transaction.
114 Nev. 1118, 1119 (1998) Brown v. State
on defendant's possession of weapon during shooting at medical clinic, with other charges arising from that shooting was permissible,
as conduct underlying crimes constituted part of same transaction. NRS 173.115, 174.165(1), 202.360.
6. Criminal Law.
Any prejudice defendant suffered as result of joinder of charge of being ex-felon in possession of firearm, based on use of firearm
in shooting at medical clinic, with other charges arising from shooting, was not undue, given overwhelming evidence of defendant's
guilt and intricate connection between weapons counts and other crimes. NRS 173.115, 174.165(1), 202.360.
7. Criminal Law.
Supreme court may address plain error and constitutional error sue sponte.
8. Criminal Law.
Unpreserved error occurring when jury was exposed to evidence of defendant's prior felonies, upon clerk of court's mistaken
reading of entire information in criminal prosecution to jury, was neither plain error nor of constitutional dimension, and thus would
not be addressed on review of convictions.
9. Criminal Law.
To ensure fairness in future cases in which the state seeks convictions on multiple counts that include count of possession of a
firearm by an ex-felon, severance of firearm possession count is required. NRS 173.115, 174.165(1), 202.360.
OPINION
Per Curiam:
On May 3, 1996, Dr. Paul Debello was shot at his Las Vegas clinic. Based on Dr. Debello's photo-identification of appellant Robert
Eric Brown as his assailant, along with eyewitness identification of the assailant's vehicle that belonged to Brown's friend and was reported
stolen on the day of the shooting, Brown was arrested for committing the crime. At the conclusion of his trial, the jury returned verdicts of
guilty on all counts.
On appeal, Brown argues that the district court abused its discretion in denying his motion to sever two counts of possession of a
firearm by an ex-felon, and that prejudicial error was committed when the clerk of the court read the Amended Information in open court at
the beginning of trial, thereby inadvertently exposing the jury to evidence of his prior convictions.
1
For the reasons set forth
below, we reject Brown's arguments and affirm his conviction and sentence.
__________

1
Brown also asserts that the evidence adduced at trial was insufficient to support his conviction of attempted
robbery and possession of a firearm by an ex-felon. Further, Brown argues that the prosecutor twice committed
misconduct during closing argument by referring to his prior convictions, and by stating that Brown could no
longer be presumed innocent in light of the evidence against him. Lastly, Brown argues that the district court
improperly admitted evidence of drug paraphernalia that police discovered in his bedroom
114 Nev. 1118, 1120 (1998) Brown v. State
set forth below, we reject Brown's arguments and affirm his conviction and sentence.
FACTS
On the evening of May 3, 1996, Dr. Debello and his new employee Lisa Carollo were working late at Dr.
Debello's Las Vegas clinic. Carollo, whose job responsibilities included collecting and counting all cash deposits
that came into the clinic, had been Dr. Debello's employee for approximately three weeks. Business throughout
the day had been heavy and there was an unusually large amount of cash on the clinic's premises (approximately
$6000.00). Although Carollo routinely left work at 4:00 p.m. because she lived ninety miles away in Mesquite,
she stayed late on the evening of May 3, 1996, for the ostensible purpose of discussing clinic business with Dr.
Debello.
At approximately 7:20 p.m., after discussing work-related matters, Dr. Debello realized that he had forgotten
to give Carollo a key to the clinic. Accordingly, the two walked to the clinic's front entryway to ensure that the
key was operational. Carollo stepped outside and Dr. Debello locked the door behind her; when Carollo opened
the door with the key, a man appeared behind her and started to push Carollo through the door. Neither Carollo
nor the man said anything.
For approximately fifteen seconds, Dr. Debello and the man engaged in a struggle in the clinic's entryway,
during which Dr. Debello was able to acquire a good look at the man's face. At one point during the struggle, the
man was able to turn Dr. Debello around at which time Dr. Debello heard two powerful gunshot blasts. The first
shot narrowly missed Dr. Debello but the attendant shock wave shattered his eardrum; the second shot hit Dr.
Debello in his side, severely wounding him. The man then ran away from the building and drove away in a
dark-blue Japanese import. While lying wounded in the clinic's doorway, Dr. Debello saw that the man was
dressed in a dark-colored or black jogging suit.
Paramedics arrived within five minutes and transported Dr. Debello to University Medical Center for
emergency treatment. Although Dr. Debello survived the attack, he was permanently paralyzed from the waist
down as a result of the shooting. At the crime scene, police found a bullet fragment in the clinic's wall and a
purple bag embossed with the words Crown Royal.
Several eyewitnesses to the shooting also heard two gunshots and described the assailant as an
African-American man in his thirties, approximately six feet tall and 200 pounds in
weight, with black hair, brown eyes, and wearing a dark-colored jogging suit with a black
cap.
__________
closet during their search of his apartment. After hearing oral arguments on the matter, and based on a careful
review of the record on appeal and the briefs filed herein, we conclude that Brown's additional arguments are
without merit.
114 Nev. 1118, 1121 (1998) Brown v. State
and described the assailant as an African-American man in his thirties, approximately six feet tall and 200
pounds in weight, with black hair, brown eyes, and wearing a dark-colored jogging suit with a black cap. Two
other eyewitnesses described the assailant in a similar fashion noting that the man fled in a dark-blue Japanese
import bearing Nevada license plate number 811 FMC.
Based on the description of the assailant's vehicle and its license plate number, LVMPD detectives
conducted a search of DMV records and learned that license plate number 811 FMC belonged to a vehicle in
Reno. After checking this vehicle and determining that the assailant in Las Vegas could not possibly have used
this vehicle, detectives considered the possibility that the eyewitnesses had transposed the license plate's lettering
or numbers.
LVMPD detectives next tried a variety of different license plate number combinations. In
running a search on Nevada license number 811 FNC, the detectives learned that a vehicle bearing this
license plate number had been reported stolen by its owner Michelle Cruppi (Cruppi) in Mesquite on the night
that Dr. Debello was shot.
LVMPD Det. Buczek then contacted the Mesquite Police Department to acquire additional information
about the theft of the vehicle. Mesquite Police Officer Kenneth Hilley informed Det. Buczek that on the morning
of May 4, 1996, he responded to Cruppi's apartment to investigate a stolen vehicle report. Cruppi informed
Officer Hilley that on May 3rd, a friend had given her a ride to work at approximately 3:00 p.m. because her
vehicle had a fuel filter problem. When she returned home from work at approximately 12:30 a.m., her vehicle
was gone.
Det. Buczek then informed Officer Hilley of the circumstances surrounding Dr. Debello's shooting. Det.
Buczek provided Officer Hilley with descriptions of Dr. Debello's assailant and the vehicle in which he fled the
scene. During their conversation, Officer Hilley informed Det. Buczek that an individual from Mesquite,
appellant Brown, appeared to fit the description of Dr. Debello's assailant.
Based on information that Cruppi's vehicle may have been involved in Dr. Debello's shooting, detectives
from the Mesquite Police Department returned to Cruppi's apartment on May 5, 1996. During a second
interview, detectives learned that Cruppi and Brown were acquaintances. Further, in contrast to her previous
written statement in which she alleged that her vehicle was stolen, Cruppi changed her story and informed the
police that Brown had borrowed her car on May 3, 1996. Additionally, Cruppi informed the detectives that
Brown had told her to contact the police and report that her vehicle was stolen.
114 Nev. 1118, 1122 (1998) Brown v. State
On May 5, 1996, after Dr. Debello's condition had stabilized, Det. Buczek went to University Medical
Center to show Dr. Debello a photo lineup. Upon seeing the photo lineup, Dr. Debello immediately identified
Brown as the assailant. Based on Dr. Debello's identification of Brown, and in light of information obtained
from Cruppi, LVMPD officers and officers from the Mesquite Police Department executed a search warrant at
Brown's Mesquite apartment on the evening of May 5, 1996. Brown's girlfriend, who shared the apartment with
him, allowed the officers access into the apartment where they found Brown in the bedroom. Inside Brown's
bedroom closet, police found a .44 magnum revolver, a dark-colored running jacket, and a bag embossed with
the words Crown Royal containing drug paraphernalia consisting of syringes, scales, needles, and a pipe. The
Crown Royal bag was identical to the Crown Royal bag that police had found at the crime scene. The .44
revolver, which had a six-shot capacity, contained only four rounds. Further, on a small table next to Brown's
bed, police found a piece of paper with the name Lisa Carollo written on it. At the conclusion of the search,
Brown was arrested.
On May 11, 1996, Cruppi's vehicle bearing Nevada license plate number 811 FNC was recovered in the
parking lot of a North Las Vegas apartment complex approximately five miles from Dr. Debello's clinic. Inside
the vehicle's glove box police found .44 magnum ammunition, which corresponded to the .44 magnum revolver
found in Brown's closet. Additionally, Brown's fingerprints were found inside the car.
In addition to charging Brown with burglary, attempted robbery, battery, and attempted murder, all with the
use of a deadly weapon, the State charged Brown with two counts of possession of a firearm by an ex-felon. On
August 23, 1996, Brown filed a proper person motion to sever the two counts of possession of a firearm by an
ex-felon, arguing that the issue concerning his ex-felon status and alleged possession of a firearm would not be
cross-admissible at trial on the remaining counts. Although the district court acknowledged some prejudice to
Brown in trying all of the counts together, it denied Brown's motion.
The State's Amended Information, which it filed on August 14, 1996, contained the clear admonition that
under no circumstances [is] the language [concerning Brown's prior convictions for aggravated robbery and
aggravated assault] to be read to a jury hearing the primary offense for which the defendant is presently
charged. In an oversight and in spite of this admonition, the clerk of the courtfollowing routine
proceduresread the Amended Information to the jury in open court at the beginning of trial.
114 Nev. 1118, 1123 (1998) Brown v. State
Although as a result of the clerk's actions the jury was inadvertently apprised of Brown's prior felony
convictions in 1986 and 1993 for aggravated robbery and aggravated assault, Brown failed to timely object to
the reading of the Amended Information.
2
Defense counsel first raised the issue of the clerk's reading of the
Amended Information with the district court two days later during trial. While the district court indicated that
Brown had failed to request that his prior felonies be deleted from the Amended Information and had failed to
object at the time the Amended Information was read, the district court offered to provide a limiting instruction
to the jury upon Brown's request.
At trial, Dr. Debello took the stand and described the events surrounding his shooting and his subsequent
photo identification of Brown during his recovery in the hospital. While testifying, Dr. Debello positively
identified Brown as the assailant who had shot and paralyzed him.
Brown then took the stand to refute the charges against him. During his direct examination, Brown discussed
the circumstances surrounding his 1986 aggravated robbery conviction in Colorado and his 1993 aggravated
assault conviction in Utah. Although Brown testified that he was good friends with Dr. Debello's employee Lisa
Carollo and that he had called her at the clinic four times on the day that Dr. Debello was shot, he denied any
involvement in Dr. Debello's shooting.
At the conclusion of trial, the jury returned a verdict of guilty on all counts. Accordingly, the district court
sentenced Brown to 72 to 180 months in prison for burglary, two consecutive terms of 48 to 120 months for
attempted robbery, two consecutive terms of 96 to 240 months for attempted murder, and 24 to 72 months on
two counts of possession of a firearm by an ex-felon.
Brown now appeals.
__________

2
In relevant part, the Amended Information provided:
Count Five, possession of [a] firearm by a [sic] ex-felon. Defendant on or about May 5, 1996, did
then and there willfully, unlawfully, and feloniously own or have in his possession or under his control a
weapon, to wit: a Ruger Redhawk .44 magnum revolver . . . the said Robert Eric Brown, being an
ex-felon, having in 1986 been convicted of aggravated robbery, a felony under the laws of the State of
Colorado, and having in 1993 been convicted of aggravated assault, a felony under the laws of the State
of Utah.
Count Six, possession of [a] firearm by [an] ex-felon. Defendant on or about May 3rd, 1996, did then
and there willfully, unlawfully, and feloniously own or have in his possession or under his control a
weapon, to wit: a pistol. This said Robert Eric Brown, being an ex-felon having in 1986, being convicted
of aggravated robbery, a felony, under the laws of the State of Colorado, and having in 1993 been
convicted of aggravated assault, a felony under the laws of the State of Utah.
114 Nev. 1118, 1124 (1998) Brown v. State
DISCUSSION
The district court did not abuse its discretion in denying appellant's motion to sever the
counts of being an ex-felon in possession of a firearm from the remaining counts
While acknowledging that there might be a problem with the rights of the defendant, the district court
denied Brown's proper person motion to sever the two counts of possession of a firearm by an ex-felon from the
remaining counts. On appeal, Brown argues that the district court abused its discretion in denying his motion to
sever Counts V and VI from the Amended Information because Count V (possession of the firearm found in his
bedroom closet) did not stem from the same transaction as Counts I through IV, and because he was unduly
prejudiced by the joinder of Count VI (possession of the firearm at the clinic). We disagree.
[Headnotes 13]
The joinder of offenses is proper where the activity charged is part of the same transaction or comprises a
common scheme or plan. Gibson v. State, 96 Nev. 48, 51, 604 P.2d 814, 816 (1980). The decision to sever
offenses is left to the sound discretion of the trial court and will not be reversed on appeal absent an abuse of that
discretion. Robins v. State, 106 Nev. 611, 619, 798 P.2d 558, 553 (1990). On appeal, errors resulting from
misjoinder will be reversed only if the error has a substantial and injurious effect or influence in determining
the jury's verdict.' Id. (quoting United States v. Lane, 474 U.S. 438, 450 (1985)). See also NRS 173.115
3
and
NRS 174.165(1).
4

[Headnote 4]
In the instant case, we conclude that the district court did not abuse its discretion in denying Brown's motion
to sever Counts V and VI. Based on our review of the record, we conclude that Count V, stemming from the
police's discovery of the firearm in Brown's bedroom closet, was intricately related to Counts I-IV because
substantial evidence suggested that this was the weapon that the assailant used to
severely wound Dr. Debello.
__________

3
Two or more offenses may be charged in the same indictment or information in a separate count for
each offense if the offenses charged, whether felonies or misdemeanors or both, are:
1. Based on the same act or transaction; or
2. Based on two or more acts or transactions connected together or constituting parts of a common
scheme or plan.

4
NRS 174.165 (1) provides:
If it appears that a defendant or the State of Nevada is prejudiced by a joinder of offenses or of
defendants in an indictment or information, or by such joinder for trial together, the court may order an
election or separate trials of counts, grant a severance of defendants or provide whatever other relief
justice requires.
114 Nev. 1118, 1125 (1998) Brown v. State
because substantial evidence suggested that this was the weapon that the assailant used to severely wound Dr.
Debello. Specifically, eyewitnesses to Dr. Debello's shooting heard two gunshots; the six-shot revolver found in
Brown's bedroom closet contained only four rounds. Further, the ammunition found in the vehicle in which the
assailant fled the crime scene matched the ammunition found in the weapon discovered in Brown's bedroom
closet. Additionally, the criminal conduct underlying Count V occurred within a relatively short time
spanwithin forty-eight hoursafter Dr. Debello's shooting. Lastly, Dr. Debello positively identified Brown as
the individual who shot him. Accordingly, the district court did not abuse its discretion in denying Brown's
motion to sever Count V.
[Headnotes 5, 6]
With respect to the joinder of Count VI (possession of the firearm during Dr. Debello's shooting at the
clinic), even Brown concedes that the joinder of this Count with Counts I-IV is technically permissible because
the conduct underlying Counts I-IV and VI constituted part of the same transaction. While Brown asserts that he
was unduly prejudiced by joinder of Count VI, based on our review of the record which manifests overwhelming
evidence of Brown's guilt, we cannot conclude that the district court's denial of Brown's motion to sever Count
VI had a substantial effect on the jury's verdict. Accordingly, because of the intricate connection between Counts
I-IV and Count VI, along with overwhelming evidence of Brown's guilt, the district court did not abuse its
discretion in denying Brown's motion to sever this Count.
In a related argument, Brown asserts that the district court erred in allowing Counts V and VI to be read to
the jury because in so doing, the jury was exposed to evidence of Brown's prior convictions for aggravated
robbery and aggravated assault. Significantly, we note that Brown failed either to request that his prior felonies
be deleted from the Amended Information, or to enter a timely objection when the clerk of the court read the
Amended Information in open court.
[Headnotes 7, 8]
It is well established that failure to object to asserted errors at trial will bar review of an issue on appeal.
McCullough v. State, 99 Nev. 72, 74, 657 P.2d 1157, 1158 (1983). Although we may address plain error and
constitutional error sua sponte, see Sterling v. State, 108 Nev. 391, 394, 834 P.2d 400, 402 (1992), we are not
persuaded that Brown's assignment of error either constitutes plain error or is of constitutional dimension.
Accordingly, we decline to consider Brown's additional assignment of error because he has failed to
properly preserve this issue for our review.
114 Nev. 1118, 1126 (1998) Brown v. State
because he has failed to properly preserve this issue for our review.
[Headnote 9]
Notwithstanding our conclusion that Brown's failure to preserve this issue precludes our review on appeal,
we now take this opportunity to clarify an important procedural issue for the benefit of the bench and bar. In a
multi-count indictment, where one of the counts is a charge of possession of a firearm by an ex-felon pursuant to
NRS 202.360, the State must generally introduce evidence of a defendant's prior felony convictions in order to
establish the elements of a violation of NRS 202.360 beyond a reasonable doubt. Concomitantly, the State's
introduction of a defendant's prior felony convictions exposes the defendant to prejudice. We recognize that
institutional values such as judicial economy, efficiency, and fairness to criminal defendants often raise
competing demands. Although the joinder of all feasible counts in one trial no doubt maximizes scarce judicial
and public resources, we cannot allow such joinder when fairness is compromised. Accordingly, 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.
CONCLUSION
We conclude that the district court did not abuse its discretion in denying Brown's motion to sever Counts V
and VI because the criminal conduct underlying these counts constituted part of the same transaction as Counts
I-IV and because we are not persuaded that joinder in this instance had a substantial or injurious effect on the
jury's verdict. However, to ensure fairness, we hold that severance of counts pursuant to NRS 202.360 is
required in those future cases where the State seeks convictions on multiple counts.
Based on the foregoing, we affirm Brown's conviction and sentence.
____________
114 Nev. 1127, 1127 (1998) Thomas v. State
MARLO THOMAS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 31019
November 25, 1998 967 P.2d 1111
Appeal from a judgment of conviction, pursuant to a jury verdict, of two counts of first degree murder with
use of a deadly weapon, one count of robbery with use of a deadly weapon, one count of first degree kidnapping
with use of a deadly weapon, one count of conspiracy to commit murder and/or robbery, and one count of
burglary while in possession of a firearm, and from two sentences of death. Eighth Judicial District Court, Clark
County; Joseph T. Bonaventure, Judge.
The supreme court held that: (1) district court did not err by overruling defendant's Batson
objection and permitting the state to use a peremptory challenge to excuse an
African-American male venire person; (2) witness was unavailable, even though district
court did not order him to testify before he invoked his Fifth Amendment privilege, and so
court did not err by admitting witness' preliminary hearing testimony; (3) prosecutor did not
commit misconduct by refusing to grant witness immunity so that he would be able to testify;
(4) defendant was not prejudiced by his absence from hearing held for limited purpose of
determining witness' intentions regarding testifying and ensuring that witness understood
consequences of his actions; (5) district court did not err by admitting autopsy photographs of
the victims; (6) district court did not err by admitting enlarged version of previously admitted
diagram of one victim's body; (7) district court did not err by denying mistrial motion after
defendant's aunt inadvertently testified that defendant had been in jail; (8) evidence was
sufficient to support convictions; (9) district court did not err by admitting certain prison
documents during penalty phase; and (10) death penalty was not excessive punishment and
withstood review.
Affirmed.
Michael A. Cherry, Special Public Defender, Lee-Elizabeth McMahon and Mark B. Bailus, Deputy Special
Public Defenders, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, and Peggy Leen,
Deputy District Attorney, Clark County for Respondent.
1. Jury.
Under Batson, state is prohibited from using peremptory challenge to excuse potential juror based on race.
2. Jury.
Steps required for Batson challenge are: first, opponent of peremptory challenge must demonstrate prima facie case of racial
discrimination; second, burden shifts to proponent of challenge to express race-neutral explanation; and third, trial court determines
whether that explanation was mere pretext and opponent successfully proved racial discrimination.
3. Jury.
Prima facie case of racial discrimination, as required under Batson, was shown by defendant, an African-American, where state
challenged only African-American person remaining on jury panel.
Legitimate reason for excluding potential juror consistent with Batson is not a reason that makes sense, but a reason that does not
deny equal protection.
5. Jury.
Unless discriminatory intent is inherent in prosecutor's explanation for his or her use of peremptory challenge to exclude potential
juror, reason offered will be deemed race-neutral, for Batson purposes.
6. Jury.
Prosecutor's proffered explanation for peremptory challenge of African-American male, that juror had cavalier, immature attitude,
did not appear to take life-or-death proceeding seriously, and expressed some hesitation when asked if he could vote for the death
penalty, was race-neutral and satisfied prosecution's burden of articulating nondiscriminatory reason for use of challenge.
7. Criminal Law.
District court's admission of witness' preliminary hearing testimony in defendant's murder trial was not basis for reversal of
convictions where prosecutor informed court that it would have to order witness to testify in order to satisfy statutory requirements for
use of preliminary hearing testimony, defendant argued that court could not order witness to testify if witness invoked his Fifth
Amendment right on the stand, and defendant specifically explained that if that happened, he would move for mistrial, so that any error
was requested by defendant. U.S. Const. amend. 5; NRS 171.198(6)(b).
8. Criminal Law.
Witness was unavailable due to invocation of his Fifth Amendment right not to testify, even though district court did not order
witness to testify before he invoked his Fifth Amendment privilege, and so court did not err by admitting witness' preliminary hearing
testimony in defendant's murder trial. U.S. Const. amend. 5; NRS 171.198(6)(b), 178.572.
9. Criminal Law.
Prosecution was not required to ask for immunity for witness and did not commit misconduct by failing to do so, even though
witness invoked his Fifth Amendment right against self-incrimination and refused to testify at defendant's murder trial, thus requiring
use of witness's preliminary hearing testimony. U.S. Const. amend. 5; NRS 171.198(6)(b), 178.572.
10. Criminal Law.
Defendant was not prejudiced by his absence from hearing held for very limited purpose of determining witness' intentions
regarding testifying and ensuring that witness understood consequences of his actions. At hearing, state did not argue in favor of its
motion to use witness's preliminary hearing testimony at defendant's murder trial and specifically requested court not to rule until
defendant was present, court did not make any ruling at that hearing, and defendant fully argued his position at subsequent hearings.
NRS 178.388(1).
11. Criminal Law.
Autopsy photographs of two murder victims were admissible where such photographs assisted medical examiner in explaining
cause and circumstances of death, and district court carefully weighed probative value against risk of unfair prejudice and determined
that photographs were admissible.
12. Criminal Law.
Enlarged version of previously admitted diagram of murder victim's body was admissible over defendant's objection that it was
cumulative and unnecessary where purpose of normal-sized diagram was to illustrate pattern and extent of victim's stab wounds, and
enlarged diagram ensured that jury would be able to see diagram while medical examiner explained the wounds. NRS 48.035(2).
13. Criminal Law.
Test for determining whether witness' statement improperly refers to defendant's prior criminal history is whether jury could
reasonably infer from the facts presented that the accused had engaged in prior criminal activity.
14. Criminal Law.
Inadvertent testimony of murder defendant's aunt, that she had asked him whether he had done something that would put [him]
back in jail, implied that defendant had engaged in prior criminal activity, and so its admission constituted error.
15. Criminal Law.
Admission of inadvertent testimony of murder defendant's aunt, that she had asked him whether he had done something that
would put [him] back in jail, constituted harmless error where, although jury could reasonably infer that defendant had been involved
in some sort of criminal activity, comment did not indicate seriousness of crime, evidence against defendant was overwhelming,
comment was unsolicited by prosecutor and inadvertently made, and defendant declined court's offer to admonish the jury.
16. Criminal Law.
Jury must determine weight and credibility to give conflicting testimony, and its verdict will not be disturbed on appeal where
sufficient evidence supports it.
17. Burglary.
Conviction for burglary while in possession of a firearm was supported by evidence that defendant entered building where he used
to work with at least one loaded firearm, that defendant asked employee who was leaving when he would return, that defendant
expressed discontent upon seeing delivery truck near building, and that defendant immediately thrust gun in manager's face and
demanded money. NRS 205.060(4).
18. Conspiracy.
Conspiracy is an agreement between two or more persons for an unlawful purpose.
19. Conspiracy.
Conspiracy is seldom susceptible of direct proof and is usually established by inference from conduct of the parties.
20. Conspiracy.
If coordinated series of acts furthering the underlying offense is sufficient to infer existence of an agreement, then sufficient
evidence exists to support conspiracy conviction.
21. Conspiracy.
Conviction for conspiracy to commit murder and/or robbery was supported by evidence that defendant handed gun to companion,
with whom he had entered building, and instructed him to collect money from manager, that companion did collect the money and
gave it to defendant in the car, and that, without objection or interference, companion observed defendant bring loaded gun into
building, point gun at manager, and demand money, even though record did not reflect any evidence of agreement between defendant
and companion to commit murder.
22. Robbery.
Conviction for robbery with use of a deadly weapon was supported by evidence that defendant brought loaded .32-caliber gun into
building, knocked on manager's office door, pointed gun directly at manager, and stated something about the safe and money, and that
defendant later told companion who had accompanied him into building that companion should have killed manager to eliminate
witnesses to the robbery, even though defendant handed gun to companion and left the room.
23. Kidnapping.
Conviction for first degree kidnapping with use of a deadly weapon was supported by evidence that, in his own videotaped
confession, defendant admitted that he entered building's bathroom and blocked door specifically to prevent victim from leaving, and
that when victim tried to leave, defendant prevented him from doing so by stabbing him several times, thus killing him, and by witness'
preliminary hearing testimony that defendant enticed victim into the bathroom. NRS 200.310(1).
24. Homicide.
Conviction for first degree murder with use of a deadly weapon, under felony-murder and avoid-arrest theories, was supported by
evidence that defendant committed burglary, robbery and kidnapping, and both victims were killed during those crimes, by
companion's testimony that in car after incident, defendant expressed his preference for not leaving witnesses when committing a
robbery, and by testimony of defendant's aunt and cousin that defendant explained that he had to get rid of two people. NRS
200.030(1)(b), (c).
25. Homicide.
Conviction for first degree murder with use of a deadly weapon, under premeditation theory, was supported by defendant's
confession that he stabbed first victim several times and second victim twice, by medical examiner's testimony that first victim was
stabbed 19 times, and by evidence that defendant searched for second victim and chased him before fatally stabbing him, and that
defendant later told his aunt that he killed one man, that other victim got away, and that defendant hoped that second victim died. NRS
200.030(1)(a).
26. Homicide.
Premeditation, as required for first degree murder conviction, need only occur for an instant. NRS 200.030(1)(a).
27. Criminal Law.
Inherently dangerous, for sentence enhancement purposes, means that instrumentality itself, if used in ordinary manner
contemplated by its design and construction, will, or is likely to, cause life-threatening injury or death. NRS 193.165(5)(a).
28. Criminal Law.
In determining whether instrumentality is deadly weapon for sentence enhancement purposes, court may use either functional
test or inherently dangerous test with respect to crimes committed on or after effective date of functional test's statutory
codification. NRS 193.165(5).
29. Criminal Law.
Meat-carving knife with five-to-seven-inch blade was an inherently dangerous weapon, for sentence enhancement purposes, due
to length of blade and sharpness required to carve meat. NRS 193.165(5)(a).
30. Criminal Law.
Hearsay is generally permitted in penalty phase of criminal trial. NRS 175.552(3).
31. Homicide.
Prison documents pertaining to defendant were properly authenticated and, thus, were properly admitted during penalty phase of
murder trial pursuant to business records hearsay exception where correctional officers testified that documents were kept in ordinary
course of business, even though neither was custodian of records for those documents and neither had personally completed the
documents. NRS 51.135.
32. Criminal Law.
In reviewing sentence of death, supreme court is not required to conduct proportionality review in comparison to other death cases.
33. Criminal Law.
Sentencer in capital case must consider all mitigating evidence presented by the defense.
34. Criminal Law.
In reviewing sentence of death, there is presumption that jury followed district court's instructions and considered evidence
presented by defendant in mitigation.
35. Homicide.
Aggravating factors supporting imposition of death penalty were supported by evidence that defendant was previously convicted
of violent crimes, attempted robbery and battery causing substantial bodily harm, that defendant committed the instant murders while
engaged in burglary and robbery, that defendant killed more than one person during this incident, and that defendant killed them to
avoid lawful arrest as evidenced by his statement to companion that he left no witnesses, his statement to cousin that he had to get rid
of two people, and his statement to aunt that witness got away and he hoped witness died. NRS 200.033(2)(b), (4), (5), (12).
OPINION
Per Curiam:
On April 15, 1996, appellant Marlo Thomas entered the Lone Star Steakhouse, his former place of employment, robbed the
manager, and killed two employees.
manager, and killed two employees. Thomas was convicted of two counts of first degree murder with use of a
deadly weapon, one count of robbery with use of a deadly weapon, one count of first degree kidnapping with use
of a deadly weapon, one count of conspiracy to commit murder and/or robbery, and one count of burglary while
in possession of a firearm, and received two death sentences for the murders. On direct appeal, Thomas raises
many contentions, none of which warrant reversal.
FACTS
In March 1996, Thomas worked at the Lone Star Steakhouse in Las Vegas as a dishwasher until he was laid
off from his job. Apparently Thomas had trouble showing up for work because he lived some distance away in
Hawthorne with his wife, Angela Love Thomas.
On Sunday, April 14, 1996, Thomas, Angela, and Angela's fifteen-year-old brother, Kenya Hall, drove from
Hawthorne to Las Vegas and arrived at the house of Thomas' aunt, Emma Nash, and cousin, Barbara Smith. At
about 7:30 a.m. on Monday, April 15, 1996, the three travelers drove to the Lone Star Steakhouse in order for
Thomas to try to get his job back. The restaurant was closed to the public that early in the day. Angela waited in
the car while Thomas, accompanied by Hall, entered the Lone Star. No discussion about robbery occurred at any
time between Thomas and Hall. According to Thomas, he possessed a loaded 9-millimeter weapon. As they
were walking toward the building from the parking lot, a delivery truck arrived nearby. Thomas expressed
dismay and returned to the car to retrieve another loaded gun before approaching the building again. At this
time, Thomas possessed both a loaded .32-caliber revolver and a loaded 9-millimeter weapon.
The two went to the back door where employees usually enter. Stephen Hemmes, a Lone Star employee, was
leaving temporarily because he did not have work-appropriate shoes. Thomas and Hemmes spoke for a few
minutes, and Thomas inquired as to who was acting as manager that morning. Hemmes replied that the manager
was Vincent Oddo, and Thomas stated that he did not like Oddo. Thomas further asked when Hemmes would
return; Hemmes answered that he would return in approximately twenty minutes, and he left. Thomas then
knocked on the back door, and another employee, Matthew Gianakis, opened the door for them to enter.
Thomas and Hall walked through the kitchen toward the manager's office. Thomas knocked on the office
door, and Oddo, who was on the phone, let them in. In Thomas' videotaped confession,1 Thomas stated
that he and Oddo discussed Thomas' job, which led to an argument, and that Thomas left
the office.
sion,
1
Thomas stated that he and Oddo discussed Thomas' job, which led to an argument, and that Thomas left
the office. Thomas further stated that he had no intent to commit robbery; however, he admitted that he returned
to the office with Hall a minute later and pulled out his .32-caliber revolver. Thomas stated that Oddo became
frightened and told Thomas and Hall to take whatever money they wanted. Despite the fact that Thomas
admitted pointing the gun directly at Oddo, Thomas claimed that Oddo initiated the robbery by giving them
money.
Both Hall and Oddo testified that upon Thomas' arrival at the manager's office, Thomas immediately
snatched the phone from Oddo's hand, hung it up, and pulled out his .32-caliber revolver. Thomas pointed it
directly at Oddo's face and demanded that Oddo open the safe and give them the money. Oddo complied, and
Thomas handed the gun to Hall and requested that Hall retrieve the money from Oddo. It is disputed whether
Thomas told Hall to shoot Oddo. Although frightened and confused, Hall took the gun from Thomas, remained
in the office with Oddo, took two or three bank bags of money from Oddo, allowed Oddo to run out of the
building, and left to return to the car.
After Thomas gave Hall the gun, but before any money exchanged hands, Thomas left the office because he
knew that two employees and former co-workers, twenty-one-year-old Gianakis and twenty-four-year-old Carl
Dixon, were circling around. According to Thomas' videotaped confession, Thomas went to the men's
restroom, which was also a hangout for the employees, to find the two men. Upon entering the bathroom,
Thomas saw Gianakis at the sink and Dixon in a stall. Thomas also observed that Gianakis had laid a
meat-carving knife with a five- to seven-inch blade on the bathroom counter. Thomas blocked the door to
prevent the two from leaving the bathroom while the robbery was taking place in the manager's office. A struggle
ensued between the three men, and Thomas picked up the knife and stabbed Dixon several times until Dixon fell
to the floor. Meanwhile, Gianakis ran from the bathroom, and Thomas ran after him, stabbing him once in the
front and once in the back.
Evidence was also presented at trial that Thomas specifically enticed or attempted to entice the two victims
into the bathroom. Hall's testimony revealed that Thomas explained that he told Dixon he needed to talk in the
bathroom. Once Dixon entered the bathroom with Thomas, Thomas began stabbing him. Thomas told Hall that
he then called to Gianakis to join him in the bathroom, but Gianakis refused to enter. Then, according to Hall,
Thomas chased Gianakis around the corner and stabbed him twice.
__________

1
Thomas validly waived his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and admission of
this videotape is not in dispute.
Thomas chased Gianakis around the corner and stabbed him twice.
After returning to the car, Thomas asked Hall if Hall had killed Oddo. Upon learning that Hall had not,
Thomas stated that Hall should have done so because you're not supposed to leave witnesses. At some point,
the money from Oddo's office was transferred from the bank bags to a dark blue pillowcase.
Oddo, who had escaped after giving Hall the money, ran across the street to call for help. Gianakis, who had
just been stabbed twice, stumbled next door to a gas station/mini-mart and collapsed, dying shortly thereafter.
Dixon's dead body remained on the bathroom floor.
The medical examiner testified at trial that Dixon suffered fifteen defensive stab wounds on his extremities
and three to five severe stab wounds on his right chest about six inches deep, penetrating his heart, lungs,
pulmonary artery, and aorta. The cause of Dixon's death was multiple stab wounds. The medical examiner
further testified that Gianakis suffered two fatal stab wounds, one to his chest and one to his back, penetrating
both his heart and left lung. The cause of Gianakis' death also was stab wounds.
Thomas, Hall, and Angela returned to Nash and Smith's house. Thomas told both Nash and Smith that if
anyone asked, they should state that they had not seen him. Smith noticed that Thomas' clothes and shoes were
bloody. The blood on the clothes and shoes was later determined to be consistent with Dixon's blood. Thomas
gave Smith the money-filled pillowcase, and she started counting the contents. Thomas told her that I did it
and that he had to take care of something and get rid of two people. He also stated to Nash that one of the two
men got away (referring to Gianakis) and Thomas hoped that he (Gianakis) died. Thomas gave $1,000.00 to
Smith to give to his mother, and he gave the .32-caliber revolver to Nash to give to her son. Thomas then
changed his attire and took his bloody clothes and shoes, the knife used in the Lone Star bathroom, and the
9-millimeter gun into the desert beyond the house's backyard. The police recovered all the items except for the
9-millimeter gun, which was never found.
Thomas, Hall, and Angela packed the pillowcase containing the rest of the money into the car trunk and
drove back to Hawthorne, where they were arrested. On April 22, 1996, Thomas and Hall were each charged
with two counts of murder with use of a deadly weapon, and one count each of robbery with use of a deadly
weapon, first degree kidnapping with use of a deadly weapon, conspiracy to commit murder and/or robbery, and
burglary while in possession of a firearm. On June 27, 1996, Hall pleaded guilty to robbery with use of a deadly
weapon and agreed to testify against Thomas at all necessary proceedings.
to testify against Thomas at all necessary proceedings. In exchange, the state dropped the remaining charges and
agreed to argue for no more prison time than a two-to-fifteen-year prison term for robbery and a consecutive like
term for the weapon enhancement. The agreements stated that if Hall violated the agreements, they would
become null and void, and the state would be entitled to prosecute Hall on all the charges.
On June 27, 1996, Hall testified at Thomas' preliminary hearing. Thomas was bound over for trial on all the
charges, and the state filed the information on July 2, 1996. The next day, the state filed its notice of intent to
seek the death penalty against Thomas.
On February 20, 1997, Hall filed a proper person motion to withdraw his guilty plea. On June 11, 1997,
Hall's attorney filed a motion to prevent Hall from being called to testify against Thomas at trial, invoking Hall's
Fifth Amendment right against self-incrimination. Because of Hall's motion and intention not to testify at
Thomas' trial, on June 12, 1997, the state filed a motion to use Hall's preliminary hearing testimony at Thomas'
trial. On June 13, 1997, without Thomas' or his attorneys' presence, the district court conducted a hearing on
Hall's and the state's motions in order to determine whether Hall intended to renege on his agreement to testify.
The court, however, specifically made no ruling because neither Thomas nor his attorneys were present.
Thomas' trial began on June 16, 1997. Outside the jury's presence and after arguments by counsel, the district
court granted both Hall's motion not to testify and the state's motion to use Hall's preliminary hearing testimony.
On the second day of trial, Thomas moved for reconsideration of the court's order. After more arguments, the
court denied Thomas' motion. Accordingly, Hall did not testify, and his preliminary hearing testimony was read
into the record.
The jury found Thomas guilty on all charges and, after the penalty phase, returned two sentences of death,
expressly finding that no mitigating factors existed and finding six aggravating circumstances for each murder:
(1) the murder was committed by a person who had been previously convicted of a felony involving the use or
threat of violence: a December 6, 1990 judgment of conviction for attempted robbery; (2) the murder was
committed by a person who had been previously convicted of a felony involving the use or threat of violence: a
July 12, 1996 judgment of conviction for battery causing substantial bodily harm; (3) the murder was committed
during the commission of a burglary; (4) the murder was committed during the commission of a robbery; (5) the
murder was committed to avoid or prevent a lawful arrest; and (6) the defendant had, in the immediate
proceeding, been convicted of more than one offense of murder. See NRS 200.033{2){b), {4), {5), {12).
200.033(2)(b), (4), (5), (12). Thomas was further sentenced to serve 72 to 180 months plus a consecutive
72-to-180-month term for robbery and the deadly weapon enhancement, two terms of life without the possibility
of parole for kidnapping and the deadly weapon enhancement, 48 to 120 months for conspiracy, and 72 to 180
months for burglary. All terms were to run consecutively. The amended judgment of conviction was filed on
September 16, 1997, and the notice of appeal was timely filed on September 9, 1997.
DISCUSSION
Guilt Phase Issues
I. The district court did not err by permitting the state to use a peremptory challenge on an
African-American male venire person
During jury selection, four African-American potential jurors were excused from the venire panel for cause
because they were not death-qualified; one African-American male, Kevin Evans, remained on the panel.
When the state used a peremptory challenge to excuse Evans, the district court questioned the state's motive and
elicited a defense objection pursuant to Batson v. Kentucky, 476 U.S. 79 (1986). The prosecutor explained that
he wanted to excuse Evans because Evans was young and inexperienced as a juror, he had a cavalier attitude and
chewed gum in the courtroom, and he hesitated when asked if he could vote for the death penalty. The
prosecutor emphasized that Evans' race played no part in his decision to use the peremptory challenge. The
district court overruled the Batson objection and permitted the state's peremptory challenge of Evans. No
African-American sat on the jury, and Thomas is African-American.
On appeal, Thomas argues that the district court abused its discretion by permitting the peremptory challenge
because, he contends, the state's reasons were a mere pretext for a racially driven motive. Thomas asserts that the
record does not reflect Evans' cavalier attitude, gum chewing, or hesitation in stating that he could vote for the
death penalty. Thomas further asserts that Evans' young age should not have been a factor as he is old enough to
be called for jury duty.
[Headnotes 1, 2]
Batson prohibits the state from using a peremptory challenge to exclude a potential juror based on race.
Batson, 476 U.S. at 84. The United States Supreme Court in Purkett v. Elem, 514 U.S. 765, 767 (1995), 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;
den shifts to the proponent of the challenge to express a race-neutral explanation; and third, the trial court
determines whether that explanation was a mere pretext and the opponent successfully proved racial
discrimination.
[Headnote 3]
Here, the state concedes that a prima facie case was shown by its challenge to the only African-American
person remaining on the jury panel and the district court's sua sponte inquiry regarding racial motive. The first
question is moot because the state offered an explanation for its challenge and the court ruled on the matter. See
Doyle v. State, 112 Nev. 879, 888, 921 P.2d 901, 907 (1996) (holding that once steps two and three occur in a
Batson analysis, the issue of whether a prima facie case exists is moot).
[Headnotes 46]
We must therefore address the second step outlined in Purkett, whether the state presented a race-neutral
explanation. Purkett held that a racially neutral reason need not be persuasive or even plausible. Purkett, 514
U.S. at 767-68. A legitimate reason for excluding a juror is not a reason that makes sense, but a reason that does
not deny equal protection. Id. at 769. Accordingly, [u]nless a discriminatory intent is inherent in the
prosecutor's explanation, the reason offered will be deemed race neutral.' Id. at 768 (quoting Hernandez v.
New York, 500 U.S. 352, 360 (1991)). In this case, the state explained that Evans had a cavalier, immature
attitude and did not appear to take this life-or-death proceeding seriously. Further, although he eventually
responded in the affirmative, the state explained that Evans expressed some hesitation when asked if he could
vote for the death penalty. These reasons do not inherently contain any racial motive, and therefore, we conclude
that step two is satisfied.
With respect to the third step in Purkett, both the United States Supreme Court and this court have held that a
trial court's factual decision as to whether the state's reasons were racially neutral is a discretionary one to be
given great deference. Hernandez, 500 U.S. at 364; Doyle, 112 Nev. at 890, 921 P.2d at 908. In the current
matter, the district court stated that the facts presented a close question, but decided that the state's explanation
was not pretextual. Based on our review of the record, we conclude that the court did not abuse its discretion
and, therefore, did not err by permitting the peremptory challenge of Evans.
II. The district court did not err by admitting Hall's preliminary hearing testimony because Hall was
unavailable
Hall originally pleaded guilty and agreed to testify against Thomas at all proceedings. However, before
Thomas' trial, Hall asserted his Fifth Amendment right against self-incrimination and refused
to testify.
asserted his Fifth Amendment right against self-incrimination and refused to testify. See U.S. Const. amend. V.
The district court determined that Hall validly asserted his Fifth Amendment right because he was seeking
withdrawal of his plea and the court would not rule on the motion to withdraw his plea until after Thomas' trial.
Therefore, the district court granted Hall's motion to not testify and the state's motion to use Hall's former
testimony.
Thomas argues on appeal that the court erred by admitting Hall's preliminary hearing testimony because the
judge did not order Hall to testify as required by NRS 171.198(6)(b), which provides:
The [preliminary hearing] testimony so taken may be used . . . [b]y the state if the
defendant was represented by counsel or affirmatively waived his right to counsel, upon
the trial of the cause, and in all proceedings therein, when the witness is sick, out of the
state, dead, or persistent in refusing to testify despite an order of the judge to do so, or
when his personal attendance cannot be had in court.
(emphasis added); see Anderson v. State, 109 Nev. 1150, 1152, 865 P.2d 331, 333 (1993)
(indicating the three requirements of using preliminary hearing testimony at trial: (1) the
defendant was represented by counsel; (2) defendant's counsel had an opportunity to
cross-examine the witness at issue; and (3) the witness is unavailable).
No dispute exists that Thomas was represented by counsel, that his attorney cross-examined Hall, or that Hall
was persistent in refusing to testify. Thomas argues that Hall was not unavailable pursuant to NRS
171.198(6)(b) because the district court specifically stated,
Well, I'm not going to order him to testify. [Hall] said he's going to invoke his [F]ifth
[A]mendment right. So he'll have toas far as I'm concerned, that's what he did. That's
what he said on theon record here, so I don't think there is any purpose in it. That's
the end of that.
(Emphasis added.) Because the court did not fulfill NRS 171.198(6)(b), Thomas argues that it
could not admit Hall's testimony. We disagree.
[Headnote 7]
First, just prior to the above-quoted statement by the district court, the prosecutor informed the court that it
would have to order Hall to testify to fulfill the requirements of NRS 171.198(6)(b). In response, Thomas argued
that the court could not order Hall to testify if Hall invoked his Fifth Amendment right on the stand. Thomas
specifically explained that if that happened, he would move for a mistrial.
pened, he would move for a mistrial. Thomas now argues that the court erred by failing to do something that he
had previously argued the court could not do. Therefore, under these facts we conclude that the court's failure to
order Hall to testify is not a basis for reversal. See Milligan v. State, 101 Nev. 627, 637, 708 P.2d 289, 295-96
(1985) (holding that an error requested by the defendant is not a basis for reversal on appeal).
[Headnote 8]
Second, we conclude that Hall was in fact unavailable due to the invocation of his Fifth Amendment right not
to testify. See Funches v. State, 113 Nev. 916, 919-23, 944 P.2d 775, 777-79 (1997); NRS 51.055(1)(a). The
district court ruled that Hall invoked his Fifth Amendment right against self-incrimination and was therefore
unavailable. Thomas argues for the first time on appeal that Hall did not have a Fifth Amendment right because
Hall had already waived that right when he pleaded guilty and testified at the preliminary hearing. This argument
is in direct opposition to what Thomas argued to the district court at the June 16, 1997 hearing. In arguing that
the district court should not order Hall to testify, Thomas essentially conceded that Hall had a Fifth Amendment
right to not testify by asserting the following scenario: if the district court later permitted Hall to withdraw his
guilty plea, then by ordering him to testify at Thomas' trial, the court would force Hall to incriminate himself.
Accordingly, we will assume that Hall's Fifth Amendment right existed, and we conclude that Hall was therefore
unavailable pursuant to Funches, NRS 51.055(1)(a), and NRS 171.198(6)(b).
2

III. The prosecutor did not commit misconduct by refusing to grant Hall immunity so that he
would be able to testify
[Headnote 9]
Thomas argues that the prosecutor committed misconduct by not granting Hall complete immunity so that
Hall would be able to testify without incriminating himself. NRS 178.572 permits the court to grant a witness
immunity on motion of the state. See also McCabe v. State, 98 Nev. 604, 606, 655 P.2d 536, 537 (1982)
(The granting of immunity is traditionally a function of the prosecution). Additionally, this court has stated
that a witness invoking his or her Fifth Amendment right against self-incrimination is not necessarily a ground
for granting immunity. Id. Accordingly, the prosecution was not required to ask for immunity for Hall and did
not commit misconduct by failing to do so.
__________

2
The state apparently decided not to void Hall's plea agreement and instead contested his motion to withdraw
his guilty plea for robbery with use of a deadly weapon. On September 4, 1997, the district court denied Hall's
motion and sentenced him to serve two consecutive terms of 60 to 150 months.
do so. Additionally, we note that Thomas has failed to allege any prejudice from admitting the preliminary
hearing testimony instead of Hall's live testimony. Thomas has not alleged, nor does the record reflect, that Hall
recanted his prior testimony or would testify any differently than he did at the preliminary hearing.
IV. The June 13, 1997 hearing conducted outside Thomas' presence does not require
reversal
On June 13, 1997, the district court conducted a hearing on Hall's motion to not testify against Thomas and
the state's motion to use Hall's preliminary hearing testimony at Thomas' trial. Neither Thomas nor his attorneys
were present at this hearing. The hearing's sole purpose was to determine Hall's intentions and explain to Hall
the consequences of his actions, and the court specifically stated that it could not make any rulings in Thomas'
and his attorneys' absence. Accordingly, the district court deferred its ruling until June 16, 1997, when counsel
for all parties were present at another hearing on the motions. At that time, Thomas' counsel made extensive
arguments against admitting Hall's preliminary hearing testimony.
Thomas asserts that NRS 178.388(1) was violated because he was not present at the June 13, 1997 hearing.
NRS 178.388(1) states in pertinent part: [T]he defendant must be present at the arraignment, at every stage of
the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence.
Thomas argues that because the motions argued at the hearing regarded his trial, he should have been present.
[Headnote 10]
The very limited purpose of the June 13, 1997 hearing was to determine Hall's intentions and ensure that he
understood the consequences of his actions. The state did not argue in favor of its motion and specifically
requested the court not to rule until Thomas was present. The district court did not make any ruling at that
hearing. Thomas fully argued his position at the June 16, 1997 hearing, and again on June 17, 1997, when he
requested reconsideration of the court's decision to admit Hall's testimony. Accordingly, we conclude that
Thomas was not prejudiced by his absence at the June 13, 1997 hearing, and reversal is therefore unwarranted.
V. The district court did not err by admitting autopsy photographs of the victims, Gianakis and Dixon
During trial, Thomas objected to several autopsy photographs portraying Gianakis and Dixon. After
arguments and a review of the photographs, the district court admitted some and excluded others. On appeal,
Thomas admits that the photographs were probative to demonstrate the victims' wounds; however,
he contends that unfair prejudice substantially outweighed that probative value because
the photographs were inflammatory, gruesome, and duplicative.
bative to demonstrate the victims' wounds; however, he contends that unfair prejudice substantially outweighed
that probative value because the photographs were inflammatory, gruesome, and duplicative.
[Headnote 11]
This court has repeatedly held that the district court's decision to admit autopsy photographs, even gruesome
ones, will be upheld absent an abuse of discretion. See, e.g., Browne v. State, 113 Nev. 305, 314, 933 P.2d 187,
192, cert. denied, 522 U.S. 877, 118 S. Ct. 198 (1997); Wesley v. State, 112 Nev. 503, 512-13, 916 P.2d 793,
800 (1996), cert. denied, 520 U.S. 1126, 117 S. Ct. 1268 (1997). In this case, the autopsy photographs assisted
the medical examiner in explaining the cause and circumstances of death. The district court carefully weighed
the probative value against the risk of unfair prejudice and determined that the photographs were admissible. We
therefore conclude that the court did not abuse its discretion.
VI. The district court did not err by admitting an enlarged version of a previously admitted diagram depicting
Dixon's body
During the medical examiner's testimony, the district court admitted without objection a diagram depicting
Dixon's body and wounds. The state then moved to admit an exact but enlarged replica of that diagram, Thomas
objected, and the district court admitted the enlarged diagram. Thomas argues on appeal that the court abused its
discretion by admitting the enlargement because it was cumulative and unnecessary pursuant to NRS 48.035(2).
[Headnote 12]
NRS 48.035(2) permits the district court to exclude evidence if its probative value is substantially
outweighed by considerations of undue delay, waste of time or needless presentation of cumulative evidence.
Here, the purpose of the normal-sized diagram was to illustrate the pattern and extent of Dixon's stab wounds;
the enlarged diagram ensured that the jury would be able to see the diagram while the medical examiner
explained the wounds. Accordingly, we conclude that the district court did not err by admitting the enlarged
diagram.
VII. The district court did not err by denying Thomas' motion for a mistrial after Nash inadvertently testified
that Thomas had been in jail
Nash, Thomas' aunt, testified that she had asked Thomas, [H]ave you done something that would put you
back in jail? In the jury's absence, Thomas moved for a mistrial based on that comment because the jury
could infer that Thomas had a criminal record.
comment because the jury could infer that Thomas had a criminal record. The prosecutor informed the district
court that he had instructed Nash not to reveal anything about Thomas' criminal record, and Nash confirmed
that. Nash stated that it was an inadvertent slip of the tongue. The district court denied Thomas' motion and
asked if defense counsel wanted the court to admonish the jury to disregard Nash's comment. Defense counsel
refused the offer.
[Headnotes 1315]
Thomas argues that the district court abused its discretion because Nash's comment prejudiced him by
implying that Thomas was convicted of a serious crime and the court did not provide an immediate
admonishment to the jury. The test for determining whether a statement refers to prior criminal history is
whether the jury could reasonably infer from the facts presented that the accused had engaged in prior criminal
activity. Rice v. State, 108 Nev. 43, 44, 824 P.2d 281, 281 (1992). In the instant matter, Nash's phrase back in
jail could reasonably imply that Thomas had previously been involved in some sort of criminal activity, but
does not indicate the seriousness of that crime. Accordingly, even if the jury inferred that Thomas had a criminal
record, it could not determine from that comment alone whether he was convicted of a serious crime. While
the comment constituted error, it was harmless because the evidence against Thomas was overwhelming, the
comment was unsolicited by the prosecutor and inadvertently made, and Thomas declined the court's offer to
admonish the jury. See id. at 44, 824 P.2d at 282; Stickney v. State, 93 Nev. 285, 286-87, 564 P.2d 604, 605
(1977). Therefore, the district court did not abuse its discretion by denying Thomas' motion for a mistrial.
VIII. Sufficient evidence exists to support Thomas' conviction on each count
[Headnote 16]
Thomas contends that insufficient evidence exists to support the jury's verdict on his conviction for each
count and the deadly weapon enhancement for murder and kidnapping. After a review of the record, we
conclude that sufficient evidence exists to establish guilt beyond a reasonable doubt as determined by a rational
trier of fact. See Wilkins v. State, 96 Nev. 367, 374, 609 P.2d 309, 313 (1980). The jury must determine the
weight and credibility to give conflicting testimony, and its verdict will not be disturbed on appeal where
sufficient evidence supports the verdict. Bolden v. State, 97 Nev. 71, 624 P.2d 20 (1981).
A. Burglary while in possession of a firearm
Thomas argues that the evidence does not support a burglary conviction because he entered the Lone Star
with the intent to get his job back, not to commit a felony. NRS 205.060(1) provides: A person who, by day or
night, enters any . . . building . . . with the intent to commit grand or petit larceny, assault or battery on any
person or any felony, is guilty of burglary. See also NRS 205.060(4) (possession of a firearm during
commission of a burglary).
[Headnote 17]
We conclude that the record demonstrates that Thomas intended to commit robbery when he entered the
Lone Star. No dispute exists that Thomas entered the building with at least one loaded firearm. Evidence that
Thomas asked Hemmes when he would return and that Thomas expressed discontent upon seeing a delivery
truck near the Lone Star indicates that Thomas entered the building with the intent to commit a robbery and did
not want extraneous people in the way. Further, Oddo's and Hall's testimony revealed that Thomas immediately
thrust the gun in Oddo's face and demanded money. We conclude that the jury could reasonably conclude that
Thomas formed the intent to rob before entering the building, and therefore, sufficient evidence was presented to
convict Thomas of burglary.
B. Conspiracy to commit murder and/or robbery
Thomas contends sufficient evidence of conspiracy does not exist because Hall testified that they had formed
no express agreement to rob or murder upon entering the Lone Star.
[Headnotes 1820]
Conspiracy is an agreement between two or more persons for an unlawful purpose. Doyle, 112 Nev. at 894,
921 P.2d at 911. Conspiracy is seldom susceptible of direct proof and is usually established by inference from
the conduct of the parties.' Gaitor v. State, 106 Nev. 785, 790 n.1, 801 P.2d 1372, 1376 n.1 (1990) (quoting
State v. Dressel, 513 P.2d 187, 188 (N.M. 1973)), overruled on other grounds, Barone v. State, 109 Nev. 1168,
866 P.2d 291 (1993). Therefore, if a coordinated series of acts furthering the underlying offense is sufficient
to infer the existence of an agreement, then sufficient evidence exists to support a conspiracy conviction. Id.
[Headnote 21]
Here, the jury could infer that an agreement was formed between Thomas and Hall to commit robbery when
Thomas handed the gun to Hall and instructed him to collect the money from Oddo.
from Oddo. Hall did collect the money and gave it to Thomas in the car. Further, without objection or
interference, Hall observed Thomas bring a loaded gun into the Lone Star, point the gun at Oddo, and demand
money. Accordingly, we conclude that Thomas' and Hall's conduct reasonably implies an agreement to commit
robbery. However, the record does not reflect any evidence of an agreement between Hall and Thomas to
commit murder. Nonetheless, the state satisfied its burden of proving the agreement to commit robbery, and the
charging document states conspiracy to commit murder and/or robbery. (Emphasis added.) Therefore, the lack
of an agreement to commit murder is inconsequential, and we affirm the conspiracy conviction.
C. Robbery with use of a deadly weapon
[Headnote 22]
Thomas argues that because Hall collected the money from Oddo and Thomas did not remain in the
manager's office for the completion of the robbery, the evidence does not support his robbery conviction. We
disagree. The record demonstrates that Thomas brought the loaded .32-caliber gun into the Lone Star, knocked
on Oddo's office door, pointed the gun directly at Oddo, and stated something about the safe and money. The
fact that Thomas handed the gun to Hall and left the room does not negate Thomas' involvement in the robbery,
especially because Thomas instructed Hall to collect the money from Oddo. Further, Thomas later told Hall in
the car that Hall should have killed Oddo to eliminate witnesses to the robbery. Accordingly, overwhelming
evidence supports the robbery conviction.
D. First degree kidnapping with use of a deadly weapon
This charge is based on Thomas restraining Dixon in the men's bathroom or enticing Dixon into the
bathroom where he was murdered. NRS 200.310(1) provides in pertinent part that a first degree kidnapping
occurs when [a] person . . . willfully seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or
carries away a person by any means whatsoever with the intent to hold or detain, or . . . holds or detains, the
person . . . for the purpose of killing the person or inflicting substantial bodily harm upon him.
[Headnote 23]
Thomas first asserts that just because Dixon's body was found in the bathroom does not necessarily mean that
Thomas enticed or decoyed Dixon into the bathroom for the purpose of killing him. Thomas fails to recognize
that in his own videotaped confession, he admitted that he entered the bathroom and blocked the door
specifically to prevent Dixon {and Gianakis) from leaving.
door specifically to prevent Dixon (and Gianakis) from leaving. Therefore, the statute is satisfied because
Thomas willfully confined Dixon in the bathroom with the intent to hold or detain him. See id. Additionally,
according to Thomas, when Dixon tried to leave, Thomas prevented him from doing so by stabbing him several
times, thus killing him. Therefore, Thomas did hold or detain Dixon for the purpose of killing him. See id.
Moreover, evidence that Thomas enticed Dixon into the bathroom was also presented through Hall's preliminary
hearing testimony. Accordingly, sufficient evidence exists to support the kidnapping conviction.
E. First degree murder with use of a deadly weapon
NRS 200.030(1) provides in part: Murder of the first degree is murder which is: (a) Perpetrated by . . . any
other kind of willful, deliberate and premeditated killing; (b) Committed in the perpetration or attempted
perpetration of . . . kidnaping, . . . robbery, [or] burglary . . .; or (c) Committed to avoid or prevent the lawful
arrest of any person by a peace officer . . . .
Although Thomas could have been convicted of first degree murder under any one of these three theories, he
argues that insufficient evidence exists only for premeditated murder under NRS 200.030(1)(a). Specifically, he
argues that the evidence fails to show his specific intent to kill.
[Headnote 24]
We conclude that sufficient evidence exists to support Thomas' conviction under the felony-murder and
avoid-arrest theories. See NRS 200.030(1)(b) and (c). As discussed above, sufficient evidence exists that
Thomas committed burglary, robbery and kidnapping, and Dixon and Gianakis were both killed during those
crimes. Also, Hall testified that in the car after the incident, Thomas expressed his preference for not leaving
witnesses when committing a robbery. Nash and Smith testified that Thomas explained that he had to get rid of
two people. Accordingly, regardless of whether sufficient evidence exists under a premeditation theory, Thomas
was properly convicted of first degree murder under either the felony-murder or avoid-arrest theories.
3

[Headnotes 25, 26]
Moreover, sufficient evidence exists that Thomas committed premeditated murder. Premeditation need only
occur for an instant. Scott v. State, 92 Nev. 552, 555, 554 P.2d 735, 737 (1976). Thomas confessed that he
stabbed Dixon several times and Gianakis twice. The medical examiner testified that Dixon was stabbed
nineteen times.
__________

3
The jury also found as an aggravating circumstance in the penalty phase that the murders were committed to
avoid or prevent Thomas' lawful arrest.
was stabbed nineteen times. See DePasquale v. State, 106 Nev. 843, 848, 803 P.2d 218, 221 (1990)
(Premeditation and deliberation can be inferred from the nature and extent of the injuries, coupled with
repeated blows). The state also presented evidence that Thomas searched for Gianakis and chased him before
fatally stabbing him. Additionally, Thomas later told his aunt, Nash, that he killed one man (Dixon), that the
other (Gianakis) got away, and that Thomas hoped that he died. Taken together, the jury could reasonably
conclude that Thomas premeditated the murders within moments of killing Dixon and Gianakis, even if he did
not previously plan to kill them. Accordingly, sufficient evidence exists to support Thomas' murder counts.
F. Use of the knife as a deadly weapon
[Headnotes 27, 28]
Thomas argues that the meat-carving knife used in the murder and kidnapping was not a deadly weapon
under the inherently dangerous test articulated in Zgombic v. State, 106 Nev. 571, 798 P.2d 548 (1990).
Inherently dangerous means that the instrumentality itself, if used in the ordinary manner contemplated by its
design and construction, will, or is likely to, cause a life-threatening injury or death. Id. at 576-77, 798 P.2d at
551; see also NRS 193.165(5)(a).
4

[Headnote 29]
Here, the knife Thomas used to kidnap Dixon and kill both Dixon and Gianakis was a meat-carving
knife with a five- to seven-inch blade. It is an inherently dangerous weapon due to the length of the blade and the
sharpness required to carve meat. See Steese v. State, 114 Nev. 479, 499, 960 P.2d 321, 334 (1998) (a butcher
knife with a five- to seven-inch blade used to carve meat is a deadly weapon as a matter of law under the
inherently dangerous test). Accordingly, the knife used was a deadly weapon and could properly be used to
enhance Thomas' conviction for murder and kidnapping.
__________

4
Zgombic overruled the functional test adopted by Clem v. State, 104 Nev. 351, 357, 760 P.2d 103, 106-07
(1988). Thomas fails to recognize, however, that the legislature subsequently codified the functional test when it
amended NRS 193.165 by adding subsection 5 in 1995. This test, pursuant to NRS 193.165(5)(b), defines a
deadly weapon as [a]ny weapon, device, instrument, material or substance which, under the circumstances in
which it is used, attempted to be used or threatened to be used, is readily capable of causing substantial bodily
harm or death. Either test may be used in crimes committed on or after October 1, 1995. 1995 Nev. Stat., ch.
455, 1-2, at 1431. The crimes committed in the present case occurred on April 15, 1996, and therefore, the
functional test also applies in this case.
Penalty Phase Issues
IX. The district court did not err by admitting certain prison documents
Correctional officers Richard Johnson and Roger Edwards each testified at the penalty hearing as to Thomas'
behavior in prison during his previous incarcerations. Each testified that he knew incident reports and
disciplinary findings forms were written and kept in the ordinary course of prison business and that he had
previously written such reports. During their testimony, the state sought admission of several exhibits which
were either incident reports or disciplinary findings forms concerning Thomas. Thomas objected to their
admission because neither witness, Johnson or Edwards, was the custodian of records nor the person who
completed the documents or had personal knowledge of the events described in them. The district court admitted
the documents over Thomas' authentication objections. Thomas argues on appeal that the court erred by
admitting these hearsay documents because the persons who actually wrote the documents should have
testified.
[Headnotes 30, 31]
Hearsay is generally permitted in a penalty phase. See NRS 175.552(3) (evidence may be presented during
the penalty phase concerning any other matter which the court deems relevant to sentence, whether or not the
evidence is ordinarily admissible). Additionally, we conclude that the documents were properly authenticated to
be admitted under the business records hearsay exception in NRS 51.135, which provides:
A memorandum, report, record or compilation of data, in any form, of acts, events, conditions,
opinions or diagnoses, made at or near the time by, or from information transmitted by, a person with
knowledge, all in the course of a regularly conducted activity, as shown by the testimony or affidavit of
the custodian or other qualified person, is not inadmissible under the hearsay rule unless the source of
information or the method or circumstances of preparation indicate lack of trustworthiness.
(Emphasis added.)
Both Edwards and Johnson testified that the documents at issue were kept in the ordinary course of business,
but admitted that they were not the custodian of records for these documents. Nevada law does not define what
an other qualified person means for the purpose of authenticating a business record.
The United States Court of Appeals for the Ninth Circuit has held that the authentication element is satisfied
by evidence sufficient to support a finding that the matter in question is what its
proponent claims.' " United States v. Workinger, 90 F.3d 1409, 1415 {9th Cir. 1996)
{quoting Fed. R. Evid. 901{a)).
sufficient to support a finding that the matter in question is what its proponent claims.' United States v.
Workinger, 90 F.3d 1409, 1415 (9th Cir. 1996) (quoting Fed. R. Evid. 901(a)). The government need only make
a prima facie showing of authenticity so that a reasonable juror could find that the document is what it purports
to be. Id.
A qualified person required to authenticate the writing has been broadly interpreted as anyone who
understands the record-keeping system involved. United States v. Ray, 930 F.2d 1368, 1370 (9th Cir. 1990). For
example, in People v. Champion, 891 P.2d 93, 111-12 (Cal. 1995), cert. denied, 516 U.S. 1049 (1996), the
California Supreme Court admitted as properly authenticated a form filled out by a police laboratory technician
when a fingerprint expert testified about the procedures for completing those forms.
In this case, although neither Johnson nor Edwards personally completed the documents in question, they
both knew that the documents were kept in the ordinary course of business and the procedures for completing
those writings. Therefore, based on persuasive federal and California authority, we conclude that the proper
foundation was laid for the documents to fall under the business records hearsay exception. Accordingly, the
district court did not abuse its discretion in admitting them. See People v. Beeler, 891 P.2d 153, 167-68 (Cal.
1995), cert. denied, 516 U.S. 1053 (1996) (concluding that the trial court has wide discretion in determining
whether sufficient foundation has been laid to qualify evidence as a business record).
X. The death penalty was not excessive punishment and withstands the review required by
NRS 177.055(2)
[Headnote 32]
Pursuant to NRS 177.055(2), this court must consider whether the evidence supports the aggravating
circumstances, whether the sentence of death was imposed under the influence of passion, prejudice, or any
arbitrary factor, and whether the sentence of death is excessive considering both the crime and the defendant.
Thomas contends that this court must also conduct a proportionality review in comparison to other death cases.
This latter contention is clearly without merit because the legislature repealed the proportionality review
requirement in 1985. 1985 Nev. Stat. ch. 527, 1, at 1597; see also Parker v. State, 109 Nev. 383, 395, 849
P.2d 1062, 1070 (1993).
[Headnotes 33, 34]
Thomas further contends that because he presented ample evidence in mitigation, the jury wrongfully
concluded that no mitigating circumstances existed.
gating circumstances existed. It is well established that the sentencer in a capital case must consider all
mitigating evidence presented by the defense. Eddings v. Oklahoma, 455 U.S. 104, 114-15 (1982). In this case,
the district court instructed the jury to consider the evidence Thomas presented in mitigation, and we presume
that the jury followed the instructions and considered the evidence. See Lisle v. State, 113 Nev. 540, 558, 937
P.2d 473, 484 (1997) (There is a presumption that jurors follow jury instructions). By finding that no
mitigating circumstances existed, the jury apparently concluded that the evidence presented in mitigation did not
mitigate Thomas' culpability for his crimes. Thomas fails to cite any authority which holds that a jury is required
to find a mitigating circumstance when a defendant presents evidence in support of that circumstance.
Accordingly, we conclude that no error occurred.
[Headnote 35]
We conclude that the aggravating factors were supported by sufficient evidence: Thomas was previously
convicted of violent crimes, attempted robbery and battery causing substantial bodily harm; Thomas committed
the instant murders while engaged in burglary and robbery; Thomas killed more than one person during this
incident; and he killed them to avoid a lawful arrest as evidenced by his statement to Hall that he left no
witnesses, his statement to Smith that he had to get rid of two people, and his statement to Nash that a witness
got away and he hoped the witness died.
The state presented substantial evidence detailing Thomas' violent past, lack of conformance with society's
laws, and criminal behavior, including his conduct while incarcerated on his previous convictions. We conclude
that the jury was not influenced by passion, prejudice, or any arbitrary factor when sentencing Thomas to death.
We further conclude that the sentence of death was not excessive considering Thomas' strong propensity toward
violence and the brutal murders of two men who happened to be at the wrong place at the wrong time.
5

__________

5
Thomas failed to preserve in the district court his remaining arguments on appeal, and because no plain or
patently prejudicial errors exist, we decline to consider these arguments. Hewitt v. State, 113 Nev. 387, 392, 936
P.2d 330, 333 (1997). Thomas' remaining issues include: (1) whether the district court erroneously permitted the
jury to be death qualified; (2) whether the district court erroneously instructed the jury during both the guilt
and penalty phases; (3) whether the district court erroneously admitted cumulative evidence of Thomas' prior
bad acts during the penalty phase; (4) whether the district court erroneously admitted victim impact statements;
and (5) whether the prosecutor committed misconduct during the penalty phase closing arguments.
During oral arguments in this case, Thomas' counsel objected to the state
CONCLUSION
We conclude that none of Thomas' contentions warrant reversal, and we affirm his conviction and death
sentences.
6

____________
114 Nev. 1150, 1150 (1998) Meegan v. State
JAMES MEEGAN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 29511
JAMES FRANCIS MEEGAN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 29739
November 25, 1998 968 P.2d 292
Consolidated appeals from a judgment of conviction, pursuant to a jury verdict, of one count of first-degree
murder and an order denying appellant's motion for new trial. Eighth Judicial District Court, Clark County; Sally
L. Loehrer, Judge.
Defendant was convicted after jury trial in the district court of first-degree murder,
resulting in sentence of life imprisonment without possibility of parole, and his motion for
new trial was denied. Defendant appealed. Consolidating the two appeals, the supreme court,
Shearing, J., held that: (1) granting of the state's pretrial motion for continuance did not violate
defendant's constitutional right to speedy trial; (2) district court did not abuse its discretion in determining that
the state had established good cause for one-month delay, beyond 60-day period, in bringing defendant to trial;
(3) given complexity of case, district court properly denied defendant's request to represent himself; (4) district
court did not abuse its discretion in admitting two photographs of victim; (5) record supported determination that
defendant's wife was not an accomplice and, thus, district court properly allowed wife's testimony and refused to
grant accomplice instruction submitted by defendant; (6) district court did not abuse its discretion in denying
defendant's motion for mistrial; (7) evidence was sufficient to support conviction; (8) district court did not err in
finding that prosecutor's statements during closing arguments did not constitute improper
comment on defendant's Fifth Amendment right not to testify; and
__________
counsel's reference to California v. Brown, 479 U.S. 538 (1987), for failure to present this authority earlier.
Because we have declined to consider the issue to which Brown pertains, we deny as moot Thomas' motion to
strike the state's reference to that case.

6
The Honorable Miriam Shearing, Justice, voluntarily recused herself from the decision of this matter.
ing that prosecutor's statements during closing arguments did not constitute improper comment on defendant's
Fifth Amendment right not to testify; and (9) district court did not improperly rely on general parole information
and statistics in determining defendant's sentence.
Affirmed.
David M. Shieck, Las Vegas, for Appellant.
Laurent, Chief Deputy District Attorney, and Vickie J. Monroe, Deputy District Attorney, Clark County, for
Respondent.
1. Criminal Law.
Granting of the state's pretrial motion for continuance did not violate defendant's constitutional right to speedy trial where less than
30 days passed from date on which trial was initially scheduled to be held and date that trial began, and basis of motion was that
critical DNA analysis was not yet complete. U.S. Const. amend. 6.
2. Criminal Law.
Determining whether to dismiss criminal case which has exceeded 60-day time period between arraignment and trial falls within
sound discretion of trial court. NRS 178.556(1).
3. Criminal Law.
Dismissal of criminal case on grounds that defendant has not been brought to trial within 60 days after arraignment is mandatory
only if the state cannot show good cause for delay. NRS 178.556(1).
4. Criminal Law.
Good cause for one-month delay, beyond 60-day period, in bringing defendant to trial was established where purpose of delay was
to obtain DNA test results that were critical to the state's case. NRS 178.556(1).
5. Criminal Law.
Murder defendant's request to represent himself was properly denied due to complexity of case where defendant's responses to
court's questioning indicated that he knew virtually nothing about either the law or procedure governing his case, case included over 30
witnesses and involved expert testimony on DNA evidence and other medical topics, and it appeared that defendant abandoned any
wish that he may have had to represent himself. U.S. Const. amend. 6.
6. Criminal Law.
It is within trial court's discretion in criminal case to admit photographs unless probative value is substantially outweighed by any
unfair prejudicial effect photographs might have on jury.
7. Criminal Law.
Two photographs of murder victim were properly admitted into evidence where trial court carefully considered probative value and
prejudicial effect of these photographs and found that they possessed significant probative value but no prejudicial effect.
8. Criminal Law.
Testimony of murder defendant's wife was properly allowed, and accomplice instruction submitted by defendant was properly
disallowed, where no evidence supported defendant's argument that his wife was an accomplice. NRS 175.291(1).
9. Criminal Law.
Testimony given in murder trial by friend of defendant's daughter was not so clearly and enduringly prejudicial as to mandate
mistrial, even though witness testified that defendant's daughter told her that she had been kicked out of the house and that daughter
also told witness that defendant had killed daughter's brother, where further examination immediately indicated that witness could have
meant the daughter's sister, who was the victim in the case, and court admonished jury that there was no evidence whatsoever that there
had been a missing brother in defendant's family.
10. Criminal Law.
It is within sound discretion of trial court to determine whether mistrial is warranted.
11. Criminal Law.
Absent clear showing of abuse of discretion, trial court's determination on defendant's motion for mistrial will not be disturbed on
appeal.
12. Homicide.
To establish corpus delicti of crime of murder, the state must establish the fact of death, and that death resulted from criminal
agency of another and not from natural causes, accident, or suicide.
13. Criminal Law.
Prosecutor's statements during closing arguments did not constitute improper comment on defendant's Fifth Amendment right not
to testify where, upon playing portions of previously admitted videotaped interview with defendant while he was in jail, prosecutor
alternatively played tape and repeated query, Let's ask [defendant] who's responsible for [victim's] death? and it appeared that
repetition of query was based on defense attorney's own query in his opening statement and on questions on tape of defendant's
custodial interview. U.S. Const. amend. 5.
14. Criminal Law.
Sentencing court did not improperly rely on general parole information and statistics in determining murder defendant's sentence;
court merely discussed current state of post-sentencing developments in Nevada, apparently presenting such information to defendant
in order to discuss his post-sentencing options with him.
OPINION
This is an appeal from a conviction of first-degree murder pursuant to a jury verdict which resulted in a sentence of life imprisonment
without the possibility of parole for Appellant James Francis Meegan and an appeal from the district court's order denying appellant's
motion for a new trial. This court consolidated the two appeals. NRAP 3(b).
Meegan's ten-month-old daughter, Francine, died. After she died, Meegan and his wife took Francine's body to the Arizona desert
where Meegan burned the body and then abandoned it.
desert where Meegan burned the body and then abandoned it. In summarizing a videotaped interview admitted
into evidence and played to jury at trial, Meegan's counsel stated during closing argument that the videotape
indicates that James Meegan is sleeping. He wakes up, and he sees Francine in some pills. In addition,
Meegan's wife, Lillian, testified that Francine got into Meegan's prescription pills, but that she did not know if
Francine swallowed any. The doctors who conducted the autopsy testified that their findings were inconsistent
with death from a drug overdose. Instead, their findings were consistent with death due to shaken-baby
syndrome.
Meegan argues that the district court erred when it granted the State's pretrial motion for a continuance,
thereby violating NRS 178.556 and Meegan's Sixth Amendment right to a speedy trial. On May 7, 1996,
Meegan invoked his right to trial within sixty days. The trial was scheduled for July 8, 1996. On June 25, 1996,
the district court granted the State's motion to continue the trial date on the basis that critical DNA analysis was
not yet complete. The district court rescheduled the trial for August 5, 1996.
The United States Supreme Court has held that simply to trigger a speedy trial analysis, an accused must
allege that the interval between accusation and trial has crossed the threshold dividing ordinary from
presumptively prejudicial' delay. Doggett v. United States, 505 U.S. 647, 651-52 (1992). The Supreme Court
has held that post-accusation delay becomes presumptively prejudicial as it approaches one year. Id.
[Headnote 1]
Here, the delay from July 8th to August 5th constituted less than thirty days. We conclude that this delay did
not cross the threshold dividing ordinary from presumptively prejudicial delay. Thus, the district court's
decision to grant the State's motion to continue did not violate Meegan's Sixth Amendment rights.
[Headnotes 24]
NRS 178.556(1) states in relevant part: If a defendant whose trial has not been postponed upon his
application is not brought to trial within 60 days after the arraignment on the indictment or information, the
district court may dismiss the indictment or information. Determining whether to dismiss a case which has
exceeded the sixty-day time period falls within the sound discretion of the trial court. Berry v. Sheriff, 93 Nev.
557, 558, 571 P.2d 109, 110 (1977). Here, the delay exceeded the sixty-day rule by one month, and the State
established that the purpose was to obtain DNA test results that were crucial to its case. NRS 178.556 provides
that the district court may dismiss a complaint if the defendant is not brought to trial within sixty
days of his arraignment.
defendant is not brought to trial within sixty days of his arraignment. A dismissal is mandatory only if the State
cannot show good cause for the delay. Anderson v. State, 86 Nev. 829, 834, 477 P.2d 595, 598 (1970). Here we
conclude that the district court did not abuse its discretion in determining that the State had established good
cause for the delay.
[Headnote 5]
On May 16, 1996, the district court allowed the State to endorse additional witnesses which resulted in a
potential conflict of interest for Meegan's counsel. At that time, Meegan asserted his right to self-representation.
The district court asked Meegan a series of questions designed to determine whether he knew anything about the
law and procedure governing his case. Upon receiving answers which indicated that he knew virtually nothing
about either, the district court denied his request. The basis for the denial was that Meegan was incapable of
representing himself in a complex case which included over thirty witnesses, and involved expert testimony on
topics such as DNA evidence and other medical topics. The district court determined that the trial would be
disrupted if Meegan were allowed to represent himself. This court has held that [a]lthough the constitutional
right of self-representation is generally protected by the courts, courts sometimes permit self-representation to be
denied where . . . the case is especially complex, requiring the assistance of counsel . . . . Lyons v. State, 106
Nev. 438, 443-44, 796 P.2d 210, 214 (1990); see also Ashcraft v. Florida, 465 So. 2d 1374 (Fla. Dist. Ct. App.
1985). Thus, we hold that based on the complexity of the case, the district court properly denied Meegan's
request to represent himself.
Furthermore, approximately one month later on June 25, 1996, Meegan appeared to reject his earlier request
to represent himself. In reference to his lawyers, he stated:
In my opinion I thought I had the choice of effective counsel. These two gentlemen have been doing a
great job. They've been with me since the case began, and I think by taking them away from me is going
to hurt my case, and I'd like for them to stay on my case with me.
Evidently, any wish Meegan may have had to represent himself was abandoned.
[Headnotes 6, 7]
Also, Meegan argues that the district court erroneously admitted two photographs of Francine. It is within the
court's discretion to admit photographs unless the probative value is substantially outweighed by any unfair
prejudicial effect the photographs might have on the jury.
might have on the jury. Browne v. State, 113 Nev. 305, 313, 933 P.2d 187, 192 (1997). The record reflects that
the district court carefully considered the probative value and prejudicial effect of these photographs and found
that they possessed significant probative value but no prejudicial effect. We conclude that the district court did
not abuse its discretion in admitting the photographs. See NRS 48.035(1).
[Headnote 8]
Meegan argues that his wife, Lillian Meegan, was an accomplice whose testimony was not sufficiently
corroborated by other evidence and, therefore, this court must reverse Meegan's conviction pursuant to NRS
175.291(1). According to NRS 175.291(2), an accomplice is one who is liable to prosecution, for the identical
offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given. In
denying Meegan's motion to exclude Lillian's testimony as an accomplice, the district court concluded that no
evidence supported Meegan's argument that Lillian was an accomplice. We conclude that the record supports the
district court's conclusion. Therefore, under NRS 175.291(1), the district court was correct in both allowing
Lillian's testimony and refusing to grant the accomplice instruction submitted by Meegan.
[Headnotes 911]
Meegan argues that the district court erred in denying his motion for a mistrial. Meegan moved for a mistrial
based on the testimony of a friend of Meegan's daughter. The friend testified that Meegan's daughter told her that
her father (Meegan) had killed her brother. Further examination immediately indicated that the friend could have
meant her sister Francine, the victim in this case. After listening to arguments the district court stated that the
jury would be admonished that despite the last witness's testimony there is no evidence whatsoever that there
has ever been any missing brother in this family. Meegan also based his motion for a mistrial on the friend's
testimony that Meegan's daughter had told her that she had been kicked out of the house. It does not appear
that either of the remarks was clearly and enduringly prejudicial so as to mandate a mistrial. Geiger v. State,
112 Nev. 938, 942, 920 P.2d 993, 996 (1996). It is within the sound discretion of the trial court to determine
whether a mistrial is warranted. Id. Absent a clear showing of abuse of discretion, the trial court's determination
will not be disturbed on appeal. Id.
[Headnote 12]
Meegan argues that the State failed to prove that the cause of death was a criminal agency, as is required to
prove the corpus delicti. To establish the corpus delicti of the crime of murder, the State must establish
the fact of death, and that death resulted from the criminal agency of another and not
from natural causes, accident, or suicide.
State must establish the fact of death, and that death resulted from the criminal agency of another and not from
natural causes, accident, or suicide. Hicks v. Sheriff, 86 Nev. 67, 70, 464 P.2d 462, 464 (1970). We conclude
that the evidence presented at trial, viewed in a light most favorable to the prosecution, is sufficient for a
reasonable jury to conclude beyond a reasonable doubt that Francine's death was caused by criminal agency.
[Headnote 13]
During closing arguments, the prosecutor played portions of a previously admitted videotaped interview with
Meegan while he was in jail. Before showing the first portion of the tape, the prosecutor stated: Let's ask Mr.
Meegan who's responsible for Francine's death? The prosecutor alternatively played the tape and repeated a
similar query five times. Meegan moved for a mistrial, which was denied, contending that the prosecutor's
statement was a comment on Meegan's Fifth Amendment right not to testify. Meegan maintains that the
prosecutor's argument was a challenge to Meegan because he did not testify and tell the jury what had happened
to Francine. It appears that the repetition of the query was based on the defense attorney's own query in his
opening statement and the questions on the tape of Meegan's custodial interview. The district court, which heard
the prosecutor's argument in the context of the viewing of the tape, found that there was no prosecutorial
misconduct. After a review of the record, we conclude that the district court did not err.
[Headnote 14]
At the sentencing hearing, the district court recited certain general parole information and statistics. Meegan
maintains that the district court improperly relied on this information in determining his sentence. The record
reveals, however, that the district court merely discussed the current state of post-sentencing developments in
Nevada. The district court did not imply that it based its sentencing decision on this information. Rather, the
court appeared to present this information to Meegan in order to discuss his post-sentencing options with him.
Therefore, we conclude that Meegan's argument lacks merit.
Finally, Meegan argues that, taken together, the numerous errors which occurred at trial denied him a fair
trial. We conclude that all of Meegan's arguments on appeal lack merit.
Accordingly, we affirm the judgment of conviction and the district court's order denying Meegan's motion for
a new trial.
I concur with the judgment of conviction but dissent to the penalty judgment.
This is another tragic baby-shaking death. After Meegan realized what he did, he tried to cover up the
homicide by claiming that the baby had died from an overdose of medication. He also tried to conceal the baby's
remains by burning and burying them in the desert. Horrifying as this killing is, it is not a torture or mutilation
murder. An angry shaking of a child is not torture and, in my opinion, the attempts to dispose of the child's body
do not constitute mutilation because the intent was to avoid detection, not to disfigure the child's body.
Giving the jury an instruction on torture and mutilation was not justified by the facts of this case and was
error. This case should not have been tried as a capital case. This case goes beyond our ruling in Phenix v. State,
114 Nev. 116, 954 P.2d 739 (1998), and it is highly probable that Meegan would not have been sentenced to
the extreme penalty of life without the possibility of parole had it not been for the State's having overcharged
him in the manner discussed in my dissent in Schoels v. State, 114 Nev. 981, 966 P.2d 735 (1998). Because
Meegan was sentenced in an unfair manner and for the reasons stated in my dissent in Schoels, I dissent.
____________
114 Nev. 1157, 1157 (1998) 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
December 3, 1998 971 P.2d 1250
Homeowners sued developer, city and subcontractors, alleging claim of warranty, tort, and
negligent inspection. Following settlement of owners' claims against developer, the district
court granted summary judgment for subcontractor and developer on city's cross-claim.
114 Nev. 1157, 1158 (1998) Calloway v. City of Reno
tlement of owners' claims against developer, the district court granted summary judgment for
subcontractor and developer on city's cross-claim. Owners and city appealed. The supreme
court, 113 Nev. 564, 939 P.2d 1020 (1997), affirmed in part, reversed in part and remanded.
On motion for rehearing, the supreme court held that rehearing would promote substantial
justice.
Motion granted.
Appeal and Error
Rehearing by supreme court was warranted where court had overlooked material matters and rehearing would promote
substantial justice. NRAP 40(c)(2).
ORDER GRANTING REHEARING AND
VACATING OPINION
This is an appeal from district court orders granting summary judgment in a construction defect case, and a cross-appeal from an order
dismissing a cross-claim. On May 22, 1997, we issued an opinion reversing in part, affirming in part, and remanding for further
proceedings. Thereafter, respondents P & H Construction Inc., Clarence Poehland and John Carl Construction Company filed a petition for
rehearing. The City of Reno subsequently joined in the petition.
Rehearing is warranted [w]hen it appears that this court has overlooked or misapprehended a material matter in the record or
otherwise, or . . . in such other circumstances as will promote substantial justice. NRAP 40(c)(2). As it appears that this court has
overlooked material matters and that rehearing will promote substantial justice, we conclude that rehearing is warranted. Accordingly, we
grant the petition and withdraw our opinion in this matter, Calloway v. City of Reno, 113 Nev. 564, 939 P.2d 1020 (1997).
On rehearing, this matter will be submitted on the record, the pleadings, and the tape recording of the oral argument conducted
by this court on October 17, 1996.
It is so ORDERED.
____________
114 Nev. 1159, 1159 (1998) State v. LaPena
THE STATE OF NEVADA, Appellant/Cross-Respondent, v. FRANK LaPENA,
No. 29429
December 7, 1998 968 P.2d 750
Appeal from an order of the district court granting a petition for post-conviction relief and ordering a new
trial, and cross-appeal from an order denying respondent's motion to dismiss all charges. Eighth Judicial District
Court, Clark County; Gene T. Porter, Judge.
Defendant, whose conviction for first-degree murder and robbery were affirmed on appeal,
filed petition for post-conviction relief and motion to dismiss indictment. The district court
granted petition and denied motion. State appealed and defendant cross-appealed. The
supreme court, Rose, J., held that: (1) counsel were not ineffective in their impeachment of
informant in murder prosecution; (2) defendant made informed, strategic choice not to testify;
(3) counsel's failure to procure informant's testimony did not constitute ineffective assistance;
and (4) counsel was not ineffective in failing to pursue alleged connection between person
who admitted he was hired by defendant to murder victim and victim's husband.
Affirmed in part and reversed in part.
[Rehearing pending]
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney; and James
Tufteland, Chief Deputy District Attorney, Clark County, for Appellant/Cross-Respondent.
David M. Schieck, Las Vegas, for Respondent/Cross-Appellant.
1. Criminal Law.
The question of whether a defendant has received ineffective assistance of counsel at trial in violation of the Sixth Amendment is a
mixed question of law and fact, and thus, is subject to independent review. U.S Const. amend. 6.
2. Criminal Law.
To establish ineffective assistance of counsel, a defendant must show that counsel's representation fell below an objective standard
of reasonableness and that counsel's deficient performance prejudiced the defense. U.S. Const. amend. 6.
3. Criminal Law.
To show that counsel's deficient performance prejudiced the defense, for the purpose of an ineffective assistance of counsel claim,
the defendant must show that but for counsel's mistakes, there is a reasonable probability that the result of the proceeding would have
been different. U.S. Const. amend. 6.
4. Criminal Law.
Judicial review of counsel's representation is highly deferential, for the purpose of an ineffective assistance of counsel claim. U.S.
Const. amend. 6.
5. Criminal Law.
A defendant must overcome the presumption on an ineffective assistance of counsel claim that a challenged action might be
considered sound strategy. U.S. Const. amend. 6.
6. Criminal Law.
Counsel were not ineffective in their impeachment of informant in murder prosecution; although informant was not impeached
using agreement with law enforcement officials to testify in exchange for ceasing to sabotage informant's efforts to get paroled, counsel
made substantial efforts to impeach informant with bad acts, prior perjury convictions and numerous inconsistencies between
informant's testimony and physical evidence. U.S. Const. amend. 6.
7. Witnesses.
Murder defendant made informed, strategic choice not to testify in second trial, where parties conceded that defendant was aware
of right to testify, that defendant voluntarily waived that right and that testimony went poorly at first trial.
8. Criminal Law.
Certain witnesses were not called to testify in second murder trial based upon strategic reasoning made after reasonable
investigation, and thus, counsels' failure to call witnesses did not establish ineffective assistance of counsel, where defendant did not
elaborate on what witnesses' testimony might have been, one witness refused to testify in first trial, and counsel stated that witnesses
were not as important as defendant thought. U.S. Const. amend. 6.
9. Criminal Law.
Murder defendant could not show that informant's presence at trial would have likely produced different result, and thus, counsel's
failure to procure informant's testimony did not constitute ineffective assistance, where all evidence with regard to informant was
properly presented in murder defendant's trials. U.S. Const. amend. 6.
10. Criminal Law.
Murder defendant failed to show prejudice by counsel's failure to obtain information in prior counsel's possession regarding
informant, and thus, defendant could not establish ineffective assistance of counsel, where defendant failed to present evidence that
substance of informant's conversation with prior counsel would have provided any additional information not previously presented to
jury. U.S. Const. amend. 6.
11. Criminal Law.
Counsel was not ineffective in failing to pursue alleged connection between person who admitted he was hired by defendant to
murder victim and victim's husband, where efforts were made to uncover connection and there was overwhelming evidence that
defendant hired person to murder victim. U.S. Const. amend. 6.
OPINION
In 1977, respondent/cross-appellant Frank LaPena was convicted of first degree murder and robbery with the use of a deadly
weapon.
weapon. This court reversed the conviction and remanded for a new trial. In 1989, LaPena was again convicted
of first degree murder and robbery, and sentenced to life imprisonment without the possibility of parole. This
court affirmed the conviction. In 1992, LaPena filed a petition for post-conviction relief (the PCR petition),
which the district court denied; this court remanded the case for an evidentiary hearing. In December 1993,
LaPena filed a motion to dismiss all of the charges against him. In 1995, the district court conducted an
evidentiary hearing and, based on the evidence adduced therein, granted LaPena's PCR petition on the ground
that LaPena had been denied effective assistance of trial counsel. The district court denied LaPena's motion to
dismiss and ordered a new trial.
The State appeals from the district court's grant of post-conviction relief vacating LaPena's conviction and
sentence. LaPena cross-appeals from the district court's denial of his motion to dismiss all charges against him.
We conclude that the district court erred in granting LaPena's PCR petition. Consequently we reverse the district
court's order and dismiss LaPena's cross-appeal.
FACTS
At approximately 5:00 a.m. on January 14, 1974, the elderly couple of Hilda and Marvin Krause were
robbed at their Las Vegas home located inside a walled country club community. During the course of the
robbery, the perpetrators beat Mr. Krause and murdered Mrs. Krause. When police arrived at the Krause home,
they found the deceased Mrs. Krause gagged with a scarf tied loosely around her neck, and a butcher knife
imbedded in her back; her throat had been slit. An autopsy revealed that Mrs. Krause had been strangled with a
cord or rope prior to having her throat slit and that she had sustained several stab wounds to her neck after her
throat had been slit.
Mr. Krause told police that he had been attacked by two Caucasian men after he opened his garage door and
as he was getting into his car to go to work. The men forced him into the house where they beat him and tied him
up, murdered Mrs. Krause, and stole a television, gold coins, and jewelry, including a diamond ring and a watch.
Mr. Krause reported that after the assailants left his home, he untied himself and went upstairs in an attempt to
aid Mrs. Krause. Physical evidence indicated that at least two perpetrators had been present at the Krause home.
The perpetrators left the scene in Mr. Krause's car but abandoned it at the gates of the country club. Mr. Krause
suffered a head injury in the attack; he died the following year from unrelated causes.
Several days after the crime had been committed, a confidential informant (later identified as Joey Costanza)
contacted Las Vegas Metropolitan Police Department {LVMPD) Detective Mike Whitney.
Vegas Metropolitan Police Department (LVMPD) Detective Mike Whitney. Costanza told Det. Whitney that
approximately six weeks before the Krause robbery/murder, Gerald Weakland had approached him about
assisting in a robbery/murder to take place in the early morning hours of a Monday or Friday before one of the
victims went to work and would involve scaling a wall of some sort. Costanza allegedly knew the exact location
of the crime scene (i.e., the Krauses' address). Costanza also mentioned two other individuals who might have
been solicited or involved in the crimeTom Boutwell and Bobby Webb.
Det. Whitney gave this information to several police officers, including Lieutenant Beecher Avants and
Detective Chuck Lee, who subsequently questioned Boutwell, Webb, and Weakland. In a February 1974
telephone conversation between Lt. Avants and Costanza, Costanza allegedly stated that he had never heard the
names of LaPena or Rosalie Maxwell, LaPena's girlfriend, associated with Weakland or the Krause crimes.
Police arrested Weakland for the Krause murder/robbery in March 1974.
During a preliminary hearing, Weakland admitted to the crimes and struck a deal with the State wherein he
agreed to testify that Maxwell and LaPena had hired him to murder Mrs. Krause. In exchange for this testimony,
Weakland was allowed to plead guilty to second degree murder, with a sentence of five years to life, and all
other charges against him (some of which were unrelated to the Krause crimes) were dropped. In his March 29,
1974 confession, Weakland told authorities that while Boutwell, his accomplice, was robbing the Krause home,
he slipped upstairs and murdered Mrs. Krause by slitting her throat with a single cut. Weakland maintained that
he had not strangled Mrs. Krause or stabbed her in the neck. Weakland maintained that LaPena, an acquaintance
to whom he owed money, had approached him at the end of December 1973, and asked him to kill Mrs. Krause.
LaPena allegedly explained to Weakland that Mr. Krause was a wealthy slot manager at Caesar's Palace who
was dating LaPena's girlfriend, Maxwell, who also worked at Caesar's. LaPena and Maxwell wanted Weakland
to kill Mrs. Krause so that Maxwell could marry Mr. Krause and inherit the Krause fortune for the benefit of
herself and her boyfriend, LaPena.
Weakland claimed that LaPena had offered to forgive his debts and pay him a large sum of money in
exchange for Mrs. Krause's murder. On January 4, 1974, Weakland went to Maxwell's apartment where she and
LaPena gave him $1000 as a down payment for the murder, told him that he would receive another $10,000 after
Maxwell married Mr. Krause, and explained the plan for robbing the Krauses and murdering Mrs. Krause.
Maxwell allegedly gave Weakland a map of the Krauses' residence during this meeting.
this meeting. Weakland stated that he asked Webb to help him commit the crime but, ultimately, Boutwell
accompanied him. Weakland told police that he had never spoken to or had any contact with Mr. Krause prior to
the January 1974 robbery/murder.
Based upon Weakland's statements to the police, on April 23, 1974, LaPena and Maxwell were arrested for
the Krause robbery/murder. Both were charged with first degree murder and robbery with the use of a deadly
weapon. The criminal complaint alleged that LaPena and Maxwell had entered into a contract with Gerald
Weakland whereby . . . Weakland was to kill [Mrs. Krause].
Weakland testified to LaPena's guilt at LaPena's preliminary hearing; however, at both Maxwell's and
LaPena's separate trials, Weakland testified that his prior testimony and statements implicating LaPena and
Maxwell in the murder were false. LaPena v. State, 98 Nev. 135, 136, 643 P.2d 244, 244 (1982). Maxwell
was acquitted at trial, but LaPena was convicted by a jury of one count of first degree murder and one count of
robbery with the use of a deadly weapon.
On direct appeal, this court reversed LaPena's conviction and remanded for a new trial on the ground that
admission of Weakland's statements incriminating LaPena constituted reversible error. This court concluded that
the State had improperly withheld the benefits of a plea bargain or promise of leniency until after a purported
accomplice [(i.e., Weakland)] had testified in a particular manner. Id. at 136-37, 643 P.2d at 244-45. Weakland
was eventually charged with two counts of perjury, to which he entered an Alford plea and received probation.
Gary Gowen, Esq., assumed LaPena's representation.
On September 29, 1982, Weakland testified against LaPena before a grand jury, reiterating his initial
statements to police and testimony at LaPena's preliminary hearing implicating LaPena and Maxwell. Weakland
told the grand jury that he had since reached a new agreement with the State wherein the prosecution team
would cease writing negative letters to the State parole board about Weakland. The grand jury returned an
indictment against LaPena.
In anticipation of retrial, LaPena filed a motion for disclosure of the identity of confidential informant
Costanza. After the district court denied his motion, LaPena filed a petition for a writ of mandamus, which this
court granted. LaPena v. District Court, Docket No. 14640 (Order Granting Petition for Writ of Mandamus,
August 31, 1983).
After this court ordered Costanza's name divulged, Det. Lee traveled to New Jersey to meet with Costanza
and to encourage Costanza to return to Nevada. Costanza refused to travel to Nevada and called Lt.
Avants after meeting with Det. Lee.
Nevada and called Lt. Avants after meeting with Det. Lee. Costanza told Lt. Avants that he had no additional
information to provide with regard to the Krause robbery/murder. Upon receipt of Costanza's name and New
Jersey address, Gowen sent Costanza a letter; Costanza subsequently telephoned Gowen and told him that he had
no additional information beyond that which he had already given to Det. Whitney shortly after the Krause
robbery/murder.
1

Gowen then tried to compel Costanza's attendance through the use of the Interstate Compact and eventually
enlisted the help of the LVMPD in filing a material witness warrant. According to Gowen, the district attorney's
office refused to help. Prosecutor Melvyn Harmon maintained that he advised Gowen as to how to compel
Costanza's attendance, but Gowen chose to take an ineffective short cut.
Costanza contacted the police as well as the district attorney on several occasions to impress upon them that
he knew nothing more than the information he had previously provided in his police report. Nonetheless, in 1984
LaPena was still seeking Costanza's attendance in Nevada and filed a motion to depose Costanza. This court
reversed the district court's denial of LaPena's motion. LaPena v. Moran, Docket No. 16196 (Order, October 22,
1985).
On January 15, 1985, Costanza was arrested in Florida. Det. Lee and an individual from the Clark County
district attorney's office were dispatched to Florida in an attempt to secure Costanza's testimony in Nevada.
2
Defense investigator Michael Wysocki flew to Florida the following day. However, Costanza was released from
custody at the conclusion of a Florida hearing to compel his attendance in Nevada because proper documents
had not been provided.
LaPena subsequently filed a motion with the district court for an evidentiary hearing to determine if the State
had complied with certain discovery requests including those seeking further information with regard to
Costanza. The district court denied the motion, but this court issued an order that an evidentiary hearing be
conducted concerning whether the State had disclosed all of its information regarding Costanza. LaPena v.
District Court, Docket No. 18963 (Order Granting Petition for Writ of Mandamus, August 26, 1988).
The district court subsequently conducted an evidentiary hearing on October 26-27, 1988. At the beginning
of this evidentiary hearing, Gowen learned that he had been relieved as LaPena's counsel.
__________

1
Gowen would later maintain that unbeknownst to LaPena or LaPena's successor counsel, Gowen received
additional information from Costanza during this 1983 phone conversation.
hearing, Gowen learned that he had been relieved as LaPena's counsel. George Carter, Esq., and Lamond Mills,
Esq., were appointed to represent LaPena through his second trial. Following the evidentiary hearing, the district
court concluded that the State had provided all of the information in its possession regarding Costanza and
denied LaPena's motion seeking further funds for the Costanza matter.
Although Gowen had been removed from LaPena's case, he continued to work on the matter and helped
Mills file a pre-trial motion to dismiss the indictment on behalf of LaPena. LaPena's second jury trial
commenced in May 1989, and he was again convicted of first degree murder and robbery with the use of a
deadly weapon. LaPena did not testify on his own behalf. The trial court sentenced LaPena to life imprisonment
without the possibility of parole for the murder of Mrs. Krause, and a concurrent thirty-year sentence for the
robbery of the Krause home with the use of a deadly weapon. This court affirmed LaPena's conviction and
sentence. LaPena v. State, Docket No. 20436 (Order Dismissing Appeal, June 27, 1991). Gowen assisted
LaPena's appellate counsel, Carmine Colucci, and argued the case before this court.
On June 3, 1992, LaPena filed the PCR petition at issue. The district court denied LaPena's PCR petition
without conducting an evidentiary hearing. On appeal, this court remanded the matter for an evidentiary hearing.
LaPena v. State, Docket No. 23839 (Order of Remand, November 24, 1993). On December 3, 1993, LaPena
filed a motion to dismiss the indictment based upon an alleged lack of evidence and a colorable claim of factual
innocence. LaPena's motion to dismiss was subsequently consolidated with the PCR petition, and LaPena
presented evidence in support of dismissal at the evidentiary hearing.
The district court conducted the evidentiary hearing October 16-20, 1995. The district court then granted
LaPena's PCR petition and vacated his conviction and sentence on the ground that LaPena had not received
effective assistance of trial counsel. The district court denied LaPena's motion to dismiss and ordered the matter
reset for a new trial. The State appeals from the grant of LaPena's PCR petition, and LaPena cross-appeals from
the denial of his motion to dismiss the indictment.
DISCUSSION
The district court erred in granting respondent's petition for post-conviction relief on the
basis of ineffective assistance of counsel
[Headnotes 15]
The question of whether a defendant has received ineffective assistance of counsel at trial in violation of the
Sixth Amendment is a mixed question of law and fact and is thus subject to independent
review."
is a mixed question of law and fact and is thus subject to independent review. State v. Love, 109 Nev. 1136,
1138, 865 P.2d 322, 323 (1993). To establish ineffective assistance of counsel, a defendant must show that
counsel's representation fell below an objective standard of reasonableness and that counsel's deficient
performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). To establish
prejudice, the defendant must show that but for counsel's mistakes, there is a reasonable probability that the
result of the proceeding would have been different. Id. at 694. Judicial review of a lawyer's representation is
highly deferential, and a defendant must overcome the presumption that a challenged action might be considered
sound strategy. Id. at 689.
Counsel were not ineffective in their impeachment of Weakland at LaPena's second trial
[Headnote 6]
Following the evidentiary hearing below, the district court found that: On September 29, 1982 Weakland
testified before the Clark County Grand Jury and again implicated LaPena, however, before he testified the State
entered into a written agreement with Weakland not to interfere with his efforts to obtain parole. The district
court further found that Mills was aware that Weakland had negotiated with the State for his testimony against
LaPena. The district court noted the importance of Weakland's testimony and found that the failure to use this
information to impeach Weakland at trial had greater impact than it would have had for a less important witness.
We do not contradict the finding that Weakland was not impeached at trial using the specific 1982 agreement
wherein law enforcement agreed to stop sabotaging Mr. Weakland's efforts to get paroled in exchange for
Weakland's testimony before the grand jury and at trial. Rather, we find that Weakland's credibility was,
nonetheless, substantially impeached at trial, such that LaPena's counsel rendered reasonably effective
assistance pursuant to Strickland.
Mills cross-examined Weakland at trial and elicited the fact that in 1974 Weakland had pleaded guilty to
second degree murder for the Krause robbery/murder and other unrelated charges were dropped by the State in
exchange for his testimony against LaPena. Weakland admitted that he had recanted his story implicating
LaPena in the first trial, been convicted of perjury, and had now switched back to his original story against
LaPena. Furthermore, at trial, counsel presented the testimony of psychologist William Mason Knapp,
Ph.D., who had extensively evaluated Weakland and found him to be a psychopathic liar.
ogist William Mason Knapp, Ph.D., who had extensively evaluated Weakland and found him to be a
psychopathic liar.
3

LaPena argues that the defense counsel should have obtained expert advice concerning inconsistencies
between Weakland's testimony regarding the murder and the autopsy report. However, the discrepancies were
obvious enough that, applying the highly deferential standard of Strickland, we cannot say counsel was deficient
in this regard. Counsel extensively cross-examined Weakland on inconsistencies between Weakland's testimony
as to what he did to Mrs. Krause and the findings of the coroner.
4

With regard to impeachment of Weakland based on events in his recent past, we conclude that counsel was
by no means deficient. During the evidentiary hearing, Weakland testified that in 1985, while in prison for the
murder of Mrs. Krause, he had hit a civilian. Following a trial, he was convicted of battery and sentenced to one
year in prison. Habitual criminal charges were filed but, according to Weakland, the judge flat refused to
consider those charges. Weakland was paroled in 1988.
Weakland also testified at the evidentiary hearing that following his 1988 release, there had been four
attempts to revoke his parole. One 1990 incident involved driving with an open container; Weakland was
incarcerated for thirty-five days and re-released on parole. Some time after 1988, Weakland entered a plea to
being an ex-felon in possession of a firearm and received a one-year sentence from the court and a one-year
violation from the parole board. Then, in 1994, Weakland was imprisoned pending trial for battery and robbery
charges arising out of a fight at Baldini's Casino; he was acquitted following a 1995 trial and immediately
released. Finally, in the summer of 1995, Weakland's parole was revoked based on alcohol consumption, and he
was placed on house arrest for six months. Weakland also stated that at the time he testified against LaPena in
1989, he was drinking and gambling.
5

At trial, counsel accused Weakland of murdering a fellow inmate and assaulting another individual. The trial
court deemed this evidence inadmissible as Weakland had not been convicted of either crime and the
crimes did not involve dishonesty.
__________

3
The fact that on cross-examination Dr. Knapp also gave an unfavorable opinion as to the credibility of two
defense witnesses does not negate the impeachment value of Dr. Knapp's testimony as to Weakland's veracity.

4
With regard to the fact that the autopsy report failed to mention the knife found in Mrs. Krause's back, Mills
stated that he did not see the need of retaining an expert to impeach the coroner on such an obvious discrepancy.

5
Weakland's wife also testified at the evidentiary hearing that Weakland had begun drinking and gambling
excessively following his 1988 parole, contemplated suicide, and written bad checks.
either crime and the crimes did not involve dishonesty. Additionally, counsel tried to introduce evidence that
prior to Mrs. Krause's murder, Weakland had worked for Costanza, who Weakland testified was a loan shark, as
the muscle or a body guard. The trial court held that this line of questioning was also inadmissible.
At the 1989 trial, when asked about his changed story once again implicating LaPena, Weakland testified
that since being released from prison in 1988, he had undergone what LaPena describes as a moral
transformation.
6
LaPena contends that this testimony opened the door for his counsel who should have
impeached Weakland with his behavior after release, including Weakland's drinking and gambling. LaPena
further asserts that although during cross-examination at the 1989 trial Mills brought out the fact that Weakland
had recently been convicted of hitting a civilian, counsel failed to ask questions that would have shown the jury
that Weakland received extremely lenient treatment in this and other matters as another benefit for his testimony
against LaPena in the 1989 trial.
We conclude that even though certain evidence was held inadmissible, defense counsel made substantial
efforts to impeach Weakland with bad acts, his prior perjury convictions, and numerous inconsistencies between
Weakland's testimony and the physical evidence. LaPena bears the burden of showing that counsel made errors
so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment
and that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable. Strickland, 466 U.S. at 687. We conclude that LaPena has failed to meet this burden. Applying an
objective standard of reasonableness, we conclude that counsel were not deficient in their impeachment of
Weakland.
LaPena's failure to testify was not the result of ineffective counsel
[Headnote 7]
The district court found that counsel failed to adequately prepare for trial and investigate possible
corroborating witnesses and that these failures resulted in LaPena's decision not to testify at his 1989 trial. The
parties concede that LaPena was aware of his right to testify at his second trial and voluntarily waived that right.
The parties also concede that LaPena's testimony went poorly at his first trial. We conclude that LaPena made an
informed, strategic choice not to testify in the second trial.
__________

6
Weakland stated: You know, I lost my values in life there a few years back. My family stuck through with
me . . . . And they have constantly stuck by me. And I owe that to them, and I want to do what's right.
At the evidentiary hearing Mills and Carter consistently testified that LaPena decided not to testify so as to
avoid the expected rigorous and thorough cross-examination. Mills explained that LaPena had been extremely
involved in all decisions made regarding his defense, and further noted: I should advise you though I have
never had a client who wanted to testify who did not testify. Mills testified that LaPena had stated that he did
not want to be cross-examined by Harmon. Also, during the same general time frame as the Krause
robbery/murder, LaPena was the defendant in another case wherein he had been accused of hiring Weakland and
Webb to enforce a contract on an individual by the name of Obenauer. LaPena's conviction in the Obenauer case
was reversed, but he was still afraid that this incident might surface if he testified in the Krause case.
[Headnote 8]
LaPena admits to these discussions with counsel, but maintains that the only reason he decided not to testify
was because counsel would not call other witnesses to corroborate his proposed testimony. LaPena does not
elaborate on what this testimony might be. The State points out that in the first trial, numerous prosecution
witnesses contradicted LaPena's testimony as to where and when he had first met Weakland, that LaPena was a
respectable businessman, that Weakland had not been to Maxwell's house to meet with Maxwell and LaPena
shortly before the Krause robbery/murder, that Weakland had not given him gloves worn by Weakland during
the murder, and that he had never met with Webb.
LaPena asserts that the witnesses who were called by counsel in his second trial failed to corroborate his
potential testimony and in no way presented a theory of defense. However, several inmates testified for the
defense as to statements made by Weakland while in jail, prior to LaPena's first trial, which indicated that
Weakland had falsely implicated LaPena in the Krause robbery/murder. Charles Cooper had testified that in
1974, fellow-inmate Weakland had told him that he had falsely implicated LaPena in the Krause robbery/murder
to avoid the death penalty. Eddie Eckert was a prison friend of Weakland and testified that Weakland hate[ed
LaPena's] guts and had told Eckert that he had to think of someone to blame for the crime or Weakland's wife
would be blamed. Eckert also claimed that he had spoken with LaPena while they were both incarcerated and
LaPena had denied being involved in the Krause robbery/murder. Another inmate, Bernard Ybarra, testified that
Weakland had stated LaPena didn't know anything about the Krause robbery/murder, and that Mr. Krause did
it.
An acquaintance of the Krauses testified that she had never seen Mr. Krause's alleged mistress, Maxwell, at
the Krause home before the murder.
before the murder. Also, an LVMPD transport officer testified that he had never had any problems with LaPena,
and a woman testified that Maxwell had been working on the night Weakland allegedly met with LaPena and
Maxwell at Maxwell's townhouse, prior to the Krause robbery/murder.
At the evidentiary hearing, LaPena testified that the following witnesses should have been called by counsel
at his 1989 trial: (1) Melinda Swerigan to testify that on the day Weakland alleged he had come to the Hacienda
Hotel to get a payoff from LaPena for the Krause crimes, Weakland was actually applying for a job; (2) Otis
McClindon and Tills Bank, who had testified at LaPena's 1974 preliminary hearing, to testify that certain monies
paid by LaPena to Weakland's ex-wife were a loan and not a payoff for Mrs. Krause's murder; (3) Camille
Dixon, Brian Clayton, Richard Grisham, and other neighbors to testify that LaPena did not have a meeting with
Webb in November 1973; (4) Geneva Blue to testify that Maxwell had contracted for the murder of Mrs. Krause
and that LaPena was completely innocent; (5) Nurse Haley to testify as to jewelry Mr. Krause was wearing
when he was brought to the emergency room on the day of the robbery/murder; and (6) Maxwell to rebut the
State's theory of LaPena's motive, to impeach Weakland, and to corroborate LaPena's proposed testimony.
According to Gowen, Maxwell's testimony would have shown that she always worked Fridays and thus could
not have given Weakland the money to kill Mrs. Krause on a Friday night. However, this evidence would not be
helpful given the fact that Weakland thought he received the money on January 2, 1974a Wednesdaywhich
is corroborated by evidence of a January 3, 1974 deposit slip for Weakland's account. Gowen also said Maxwell
could contradict the fact that she took the money she gave to Weakland out of a Bible, because she would testify
that she is agnostic. However, as the district court pointed out there is no evidence that Weakland ever made this
statement regarding the Bible.
Moreover, Maxwell refused to testify in LaPena's first trial, even after being held in contempt for trying to
assert her Fifth Amendment rights after she had been acquitted. LaPena himself testified at the evidentiary
hearing that when the State contacted Maxwell to give testimony in the 1989 trial she was reluctant. At the
evidentiary hearing the district court judge asked her if LaPena was innocent, and she stated, I don'tno.
Wellexcuse me . . . I don't believe he's guilty because I was arrested as a conspirator and I was not guilty so
how could he be? She further stated that she knew the time, location, and lawyers involved in LaPena's 1989
trial, but she did not contact anyone to inform them of the alleged exculpatory value of her testimony.
Carter testified at the evidentiary hearing that certain witnesses weren't as important perhaps as Mr. LaPena
might think they were. Mills stated that they (he, Carter, and LaPena) agreed that Maxwell should not testify
because in some areas she was quite vulnerable and could in effect bring out information that we did not want
to go before the jury. Mills further testified:
I do not know of any witness in which [LaPena] wanted to call that we did not call.
And I know with Rosalie Maxwell because I remember that particular meeting, that it
was a joint agreement that we would not call her, that she had too much baggage.
. . . .
I don't recall of having any of those kind of conflicts over a witness. . . . [M]y philosophy is when it
comes down to a situation that my client wants to call a witness I call the witness, unless I know the
witness is going to submit perjury or something of that nature, the witness is going to be called.
We conclude that similar to LaPena's decision not to testify, certain witnesses were not called based upon
strategic reasoning which was made after reasonable investigation. Therefore, these decisions are virtually
unchallengeable. Strickland, 466 U.S. at 690.
7

LaPena has not shown prejudice by virtue of counsel's failure to procure Costanza's testimony
[Headnote 9]
The district court found that LaPena's counsel could have arranged for Costanza's appearance and that the
failure to have Costanza testify at trial was prejudicial to LaPena's defense. The district court further found that
the 1983 conversation Gowen reportedly had with Costanza provided impeachment information that could have
been used against Weakland and went beyond the contents of the confidential informant reports that were
admitted at trial.
__________

7
LaPena quotes Harris v. Reed, 894 F.2d 871, 878 (7th Cir. 1990) for the proposition that: Just as a
reviewing court should not second guess the strategic decisions of counsel with the benefit of hindsight, it should
also not construct strategic defenses which counsel does not offer. We are not constructing defenses; rather, we
conclude that LaPena has failed to overcome the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.' Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350
U.S. 91, 101 (1955)). We note that Sanborn v. State, 107 Nev. 399, 812 P.2d 1279 (1991), is entirely
distinguishable from the instant case in that with the exception of Sanborn's own testimony, counsel failed to
present any defense whatsoever to the jury.
We conclude that all the information provided by Costanza was presented at both of LaPena's trials. Harmon,
the lead prosecutor in both LaPena trials, testified at the evidentiary hearing that the primary reason for the
seven-year delay between LaPena's second indictment in 1982 and his second trial in 1989 was Gowen's alleged
inability to get Costanza to Nevada. Harmon stated that he had repeatedly told Gowen to use the Uniform Act to
Compel the Attendance of Witnesses, codified in NRS Chapter 174, but Gowen failed to do so. The State
asserts that Gowen deliberately ignored available means of gaining Costanza's attendance as a strategic delay
tactic. We agree.
Harmon further testified that Det. Whitney's report detailing his initial contacts with Costanza in 1974 was
presented at both trials, and Costanza repeatedly told the police that he had no other information than that which
he had initially provided. Moreover, at the evidentiary hearing, Harmon testified that every trial judge connected
with this case had been most generous in relaxing the rules of hearsay so that every scrap of material that was
available regarding the confidential informant . . . could come before the trial jurors.
Assuming LaPena's counsel was deficient in failing to procure Costanza's testimony, [t]he defendant must
show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Strickland, 466 U.S. at 694. LaPena alleges that Costanza's testimony would
contradict Weakland's and therefore is crucial to his defense; however, all of Costanza's information was
generously admitted at trial through reports and testimony of others involved. Furthermore, Costanza wrote a
letter to Harmon and stated on several other occasions that he had told the police all that he knew years ago.
The fact that as of the 1995 evidentiary hearing LaPena had still not obtained an affidavit from Costanza
specifying what additional exculpatory evidence he could provide undermines LaPena's assertion that this
testimony was critical to the 1989 trial's outcome. We conclude that all evidence with regard to Costanza was
properly presented in LaPena's trials and, therefore, LaPena cannot show that Costanza's presence would have
likely produced a different result.
LaPena has not shown prejudice by counsel's failure to obtain information in Gowen's possession regarding
Costanza
[Headnote 10]
The district court found that Gowen's intentional failure to document his 1983 conversation with Costanza
and provide such information to successor counsel was prejudicial to LaPena's defense, and successor
counsel should have affirmatively pursued such information.
defense, and successor counsel should have affirmatively pursued such information. The district court found that
this combined failure of communication and effort was prejudicial to LaPena.
The parties agree that there was substantial communication between Gowen and successor counselCarter
and Mills. Carter testified at the evidentiary hearing that he got pretty much everything from Gowen prior to
LaPena's 1989 trial. Likewise, Gowen testified that he had turned everything overall his files, his opinion, his
strategy, everything on the caseto Mills and Carter. Furthermore, Gowen remained involved in LaPena's case
through the second direct appeal.
According to LaPena, he did not discover that Gowen had received valuable information from Costanza until
the 1995 evidentiary hearing. During the evidentiary hearing, Gowen stated that he had not given LaPena any
details about his 1983 conversation with Costanza until after LaPena's 1989 conviction. Gowen testified that
there was information he never wrote down pertaining to LaPena's case because he was paranoid about someone
breaking into his office; however, he does not specify the nature of this information. Because LaPena has failed
to present any evidence that the substance of Costanza's 1983 conversation with Gowen would provide any
additional information not previously presented to the jury, he has failed to show prejudice by any of counsel's
alleged deficiencies.
Counsel was not ineffective in failing to discover the alleged connection between Weakland and Mr. Krause
[Headnote 11]
The district court found that proper investigation would have revealed a connection between Mr. Krause and
Weakland and would have consequently impeached Weakland's claim that he did not know Mr. Krause. The
district court found that this fact was crucial to LaPena's defense as it would have provided both motive and
opportunity for Weakland to have committed the crime without LaPena.
At the 1995 evidentiary hearing, LaPena's current counsel asked Weakland if he had ever met Mr. Krause
prior to the 1974 robbery/murder; Weakland reiterated his contention from both trials that he had not. Ted
Martinez then testified that he and Weakland had worked together as waiters at a Las Vegas restaurant. LaPena
asserts that it was only through Martinez' 1995 testimony that LaPena was able to conclusively establish that
Weakland had lied throughout the course of the various proceedings and was continuing in his lies about his
involvement with Marvin Krause.
Martinez testified that the Krauses were regulars at the restaurant, but he could not say he knew of Weakland
socializing with the Krauses or even that Weakland knew the Krauses personally.
the Krauses or even that Weakland knew the Krauses personally. Moreover, Martinez did not remember more
than two instances where Weakland waited on the Krauses during his three-year employment at the restaurant.
LaPena theorizes that Mr. Krause killed Mrs. Krause after Weakland left the Krause residence on the
morning of January 14, 1974. LaPena relies on the fact that Weakland has consistently stated that he killed Mrs.
Krause by slitting her throat; although the autopsy showed multiple stab wounds in Mrs. Krause's neck and
strangulation as the cause of death, Weakland maintains that he never stabbed or strangled her. Weakland
testified that he did not check to see if Mrs. Krause was alive when he left the scene. LaPena asserts that all of
this exculpatory information combined with Martinez' testimony at the evidentiary hearing demonstrates his
factual innocence and his trial counsel's failure to properly investigate his case. We disagree.
Mills testified that efforts were made to uncover a connection between Weakland and Mr. Krause, and even
if counsel had created a stronger connection between Weakland and Mr. Krause, there was overwhelming
evidence that LaPena hired Weakland to commit the murder. Weakland never named anyone other than LaPena
as the person who hired him to kill Mrs. Krause. Also, Webb testified at the 1989 trial that Weakland had told
him that LaPena and Maxwell had hired him to kill Mrs. Krause. Weakland's accomplice, Boutwell, also
testified that LaPena had orchestrated the plan to kill Mrs. Krause. An inmate who had shared a cell with LaPena
testified at the second trial that LaPena had admitted his involvement in Mrs. Krause's murder. Det. Lee testified
that shortly after the murder, LaPena accompanied Maxwell to the police station for questioning, and when
officials interviewed LaPena he was quite upset and emotionally fell apart during the interview. One week later
LaPena, still extremely nervous, contacted Det. Lee to tell him that the person who killed Mrs. Krause was an
individual identified only as Charlie the knife from Chicago. Telephone records admitted into evidence
revealed that one or two days after the murder, Weakland and his wife called LaPena's residence from the
Windsow Hotel in Lake Havasu, where they spent a day or two.
From the evidence presented at the evidentiary hearing, we conclude that LaPena has failed to show that
counsel was deficient in pursuing the alleged Krause-Weakland connection; even if counsel was deficient,
LaPena failed to show prejudice under Strickland. Having concluded that LaPena was properly convicted at his
1989 trial, we affirm the district court's denial of LaPena's motion to dismiss the charges against him.
CONCLUSION
Having reviewed all of LaPena's assertions of ineffective counsel, we conclude that the district court
erroneously granted LaPena's PCR petition. The district court properly denied LaPena's motion to
dismiss all charges against him.
8

Young and Shearing, JJ., and Zenoff, Sr. J., concur.
I would affirm the district court's judgment.
The murder was committed in January of 1974. LaPena was convicted in 1977, almost
twenty-two years ago. As stated in the majority opinion, the murder was actually committed
by a man named Weakland, who struck a deal with the State wherein he agreed to testify that
. . . LaPena had hired him to commit the murder.
LaPena's conviction was reversed because the State improperly concealed information
about a leniency deal that it had offered Weakland, who, to say the least, is a notorious
perjurer and murderer, well known to this court and to prosecuting officials.
LaPena's 1977 conviction, in addition to being grounded on the testimony of a perjurer, is
subject to so many questions and weaknesses that it would be burdensome to recount them in
this dissenting opinion. If this were a relatively clear case, involving a murderer who had
killed someone twenty-five years ago, I might look differently at what effect such a long
delay has in judging whether it would be just and proper to go ahead now with such a
prosecution. The present case is certainly not a clear or straightforward case. A reading of the
majority opinion should convince most readers that the district court was right in dismissing
this case and not permitting it to go on for a number of additional, agonizing years.
The district court conducted hearings on LaPena's post-conviction proceedings and
hearings. The district court took evidence and made certain findings of fact that I do not think
should be violated by this court. I see no reason to intrude into the district court's discretion or
to set aside the district court's dismissing the charges against LaPena. I dissent from this
court's overruling of the district court's proper ruling in this case.
__________

8
The Honorable Charles E. Springer, Chief Justice, appointed The Honorable David Zenoff, Senior Justice,
to sit in the place of The Honorable A. William Maupin, Justice. Nev. Const. art. 6, 19; SCR 10.
____________
114 Nev. 1176, 1176 (1998) Lane v. Allstate Ins. Co.
RANDY J. LANE, Appellant, v. ALLSTATE INSURANCE CO.,THOMAS COKER, WILLIAM MONIE and
ROBERT TOUCHETTE, Respondents.
No. 25670
December 8, 1998 969 P.2d 938
Appeal from a district court order of dismissal with prejudice. Second Judicial District Court, Washoe
County; Deborah A. Agosti, Judge.
Former employee brought breach of contract and tort suit against former employer and
certain of its employees. The district court dismissed complaint with prejudice for former
employee's tape recording of his phone conversations with litigants and other employees
without their permission. Employee appealed. The supreme court, Maupin, J., held that: (1)
statute making it unlawful to intercept any wire communication prohibited taping one's own
telephone conversations without consent of other party and (2) dismissal with prejudice was
inappropriate sanction under circumstances.
Shearing and Young, JJ., and Springer, C. J., dissented in part. Rose, J., dissented.
Bowers, Thomas and Associates, Verdi, for Appellant.
Frank H. Roberts, Reno; Steptoe & Johnson and Floyd P. Beinstock, Phoenix, Arizona, for Respondents.
1. Telecommunications.
Employee's taping of a telephone conversation with former employer's officials without their knowledge or consent was intercept
within prohibitions of statute making it unlawful to intercept any wire communication, as recording was clearly the aural acquisition of
the contents of a wire communication through the use of a mechanical device or receiving equipment. NRS 179.430, 200.620.
2. Telecommunications.
Statute making it unlawful to intercept any wire communication prohibits taping one's own telephone conversations without
consent of other party.
Courts have inherent equitable powers to dismiss actions for abusive litigation practices.
Where the drastic sanction of dismissal with prejudice is imposed for litigation misconduct, supreme court will apply somewhat
heightened standard of review, beyond normal abuse of discretion review afforded sanctions.
Sanction of dismissal with prejudice was inappropriate for litigant's conduct in tape recording telephone
conversations with opponent's employees; instead, evidence would be excluded.
conduct in tape recording telephone conversations with opponent's employees; instead, evidence would be excluded. NRS 200.620.
OPINION
In August 1992, appellant Randy Lane (Lane), a former Allstate Insurance Company employee, filed a complaint against Allstate
Insurance Company and Allstate officials Thomas Coker, Robert Touchette, and William Monie (collectively Allstate). The complaint
alleged causes of action for breach of contract and/or constructive discharge, breach of the implied covenant of good faith and fair dealing,
fraud, breach of contract, and intentional infliction of emotional distress. Lane amended his complaint in April 1993, alleging essentially
the same causes of action.
1

In May 1993, Allstate filed a motion to dismiss (or in the alternative for summary judgment), a motion for
sanctions, and a motion to stay the proceedings pending entry of final judgment and termination of a stay in the
federal action. Allstate alleged that Lane illegally tape-recorded over 700 telephone conversations with two of
the individual defendants and at least 180 witnesses in violation of NRS 200.620, and that Lane's
tape-recording rendered it impermissible for him or any of the tape-recorded witnesses to testify in support of the
allegations in Lane's amended complaint.
The district court entered an order interpreting NRS 200.620 to require two-party consent to
tape-recording of any wire communication. Pursuant to NRS 179.505, the district court suppressed the tapes,
the testimony regarding the personal recollections of the taped conversations of the parties to the conversations,
and all evidence obtained from the tapes. The district court also granted Allstate's motion for sanctions
and dismissed Lane's complaint with prejudice.
__________

1
Lane initially filed a complaint in federal district court in January 1992 for age discrimination under the Age
Discrimination in Employment Act (ADEA), the Employee Retirement Income Security Act (ERISA), and
for relief under Nevada state law. In May 1992, the federal district court dismissed Lane's state law claims
without prejudice, retained Lane's ADEA claim, and denied Allstate's motion to dismiss.
In April 1993, the federal magistrate concluded that under Nevada law, Lane had unlawfully tape-recorded
numerous conversations with defendants and witnesses and recommended that the federal district court dismiss
the action in its entirety. In September 1993, the federal district court denied both Allstate's motion for sanctions,
in the form of a dismissal, and Lane's motion for voluntary dismissal. The federal district court noted that Lane
did not make the tapes for a tortious purpose, that he was a party not acting under color of law, and that he
consented to the tape recording. Therefore, his tape recording did not violate federal wiretapping laws; his
actions fell within the exception provided for by 18 U.S.C. 2511(2)(d) (1997).
Allstate's motion for sanctions and dismissed Lane's complaint with prejudice. Lane appeals from the district
court's order.
On appeal, Lane argues that NRS 200.620 does not proscribe the tape-recording of one's own telephone
conversations. He argues that the statute prohibits a third party from intercepting a communication between two
other people unless one of those persons consents and (1) a court order is obtained in advance, or (2) an
emergency situation exists and a court subsequently ratifies the interception.
DISCUSSION
This case raises the issue of the scope of NRS 200.620, which makes recording a telephone conversation a
criminal offense unless certain criteria are met. NRS 200.620 provides, in pertinent part:
1. Except as otherwise provided in NRS 179.410 to 179.515 inclusive, 209.419 and
704.195, it is unlawful for any person to intercept or attempt to intercept any wire
communication unless:
(a) The interception or attempted interception is made with the prior consent of one of
the parties to the communication; and
(b) An emergency situation exists and it is impractical to obtain a court order as
required by NRS 179.410 to 179.515, inclusive, before the interception, in which event
the interception is subject to the requirements of subsection 3.
2

. . . .
(3) Any person who has made an interception in an emergency situation as provided
in paragraph (b) of subsection 1 shall, within 72 hours of the interception, make a
written application to a justice of the supreme court or district judge for ratification of
the interception. . . .
(Footnote added.)
[Headnote 1]
Thus, single party interception must be judicially pre-approved or judicially ratified where an emergency
exists to make pre-approval impractical. NRS 179.430 defines intercept as the aural acquisition of the
contents of any wire or oral communication through the use of any electronic, mechanical or other device or of
any sending or receiving equipment. The taping of a telephone conversation is clearly the aural
acquisition of the contents of a wire communication through the use of a mechanical
device or receiving equipment.
__________

2
The exceptions in NRS 179.410 to NRS 179.515, NRS 209.419 and NRS 704.195 relate to interception
authorized by a judge or justice when requested by the attorney general or district attorneys for investigations by
law enforcement agencies, interception of offenders' communications in jails or prisons, and interception by
public utilities concerning emergency or service outage.
phone conversation is clearly the aural acquisition of the contents of a wire communication through the use of a
mechanical device or receiving equipment. In Rupley v. State, 93 Nev. 60, 560 P.2d 146 (1977), this court held
that a police officer's taping of the contents of a telephone conversation by attaching a suction cup recording
device to the receiver of an informant's telephone without court authorization illegally intercepted the
conversation. Id. at 61, 560 P.2d at 147. Furthermore, courts interpreting the federal wiretap statute, upon which
the Nevada statute is based, have consistently held that the tape-recording of telephone conversations constitutes
an intercept. See, e.g., United States v. Turk, 526 F.2d 654, 657 (5th Cir. 1976).
[Headnote 2]
The plain language of NRS 200.620 belies Lane's argument that this statute does not prohibit taping one's
own telephone conversations. The statute applies to any person, subject only to the limitations which have no
application here. (See note 2.) No exceptions are made for private parties. The legislative intent to prohibit the
taping of telephone conversations with the consent of only one party is made clear by comparing the language of
NRS 200.620 with the language of NRS 200.650. In NRS 200.650, the legislature prohibited surreptitious
intrusion upon in-person, private conversations by means of any listening device, but specifically added the
language unless authorized to do so by one of the persons engaging in the conversation. If the legislature had
wanted to create that limitation in NRS 200.620, it would have done so. It seems apparent that the legislature
believed that intrusion upon Nevadans' privacy by nonconsensual recording of telephone conversations was a
greater intrusion than the recording of conversations in person.
The legislative intent is even clearer when one compares Nevada and federal statutes. In 1973, the Nevada
legislature made substantial amendments to NRS 200.620 through NRS 200.690, in order to bring Nevada law
somewhat in conformity with federal wiretap statutes. However, the legislature did not adopt one important
provision in the federal wiretap statute, which distinguishes Nevada law from federal law. The federal code
provides an exception to the statute prohibiting interception of wire communications in 18 U.S.C. 2511(2)(d)
(1970), which states:
It shall not be unlawful under this chapter for a person not acting under color of law to intercept a
wire, oral, or electronic communication where such person is a party to the communication or where one
of the parties to the communication has given prior consent to such interception unless the
communication is intercepted for the purpose of committing any criminal or tortious act in
violation of the Constitution or laws of the United States or of any State.
any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.
(Emphasis added.) It must be presumed that the exclusion of this provision in the Nevada statute was deliberate
and was intended to provide a different result from that achieved under the federal wiretap statute.
Finally, the testimony and discussions in the 1985 legislative session resolve any last doubts about the
legislative intent. The legislature proposed A.B. 188, an amendment to NRS 179.410, NRS 179.515, and
NRS 200.620, in the 1985 session. This amendment would have allowed one-party consent for recording of
telephone conversations by law enforcement officers. At the hearings on A.B. 188, the Attorney General, the
Washoe County District Attorney, and many other law enforcement officials testified in favor of the bill. See
Hearing on A.B. 188 Before the Assembly Judiciary Comm., 63rd Leg. (Nev., March 8, 1985), reprinted in
Legislative History of A.B. 188, at 957-75; Hearing on A.B. 188 Before the Senate Judiciary Comm., 63rd Leg.
(Nev., May 1, 1985), reprinted in Legislative History of A.B. 188, at 1837-57. The legislators and those
testifying repeatedly explained and assumed in their discussions that the present law prohibits all recording of
one's own telephone conversations, unless it is with judicial approval or ratification. Id. Those who testified in
the bill's favor tried to convince the legislature that allowing one party to record his or her own telephone
conversations should be allowed as that was not the same type of invasion of privacy as a wiretap by a third
person. Id. However, legislators continued to express concern over potential abuses when judicial oversight is
lacking. Id. The legislature did not pass the bill, even though the one-party consent would have been limited to
law enforcement officers pursuing investigations. This failure to pass A.B. 188 speaks eloquently of the
legislative intent to prohibit the unauthorized interception of wire communications.
Thus, we conclude that the district court correctly held that Lane violated the provisions of NRS 200.620
when he tape-recorded telephone conversations with employees of his former employer.
Our next inquiry concerns the effect of the tape-recording on Lane's action against his former employer. The
district court dismissed Lane's complaint stating:
Plaintiff's misconduct has directly affected the discovery process and is an abuse of the litigation
process. In an attempt to gather evidence, Plaintiff willfully tape recorded conversations without
receiving the consent of any other participant. By engaging in such conduct, Plaintiff violated Nevada
law and has forever tainted these proceedings.
Nevada law and has forever tainted these proceedings. Continued discovery in the instant action is now a
laborious task. In order for the Court to determine which evidence will be suppressed, the identity of each
of the parties to the taped conversations and the subject matter of the conversations will have to be
identified. These additional requirements constitute an inefficient use of judicial resources and place a
significant burden on Defendants and their counsel. Furthermore, since much of the evidence in this case
has been tainted by Plaintiff's misconduct, the Court finds it highly unlikely that sufficient evidence exists
to sustain Plaintiff's claim. Finally, dismissal of Plaintiff's claim will act as a deterrent to other litigants
who frustrate the discovery process by attempting to gather evidence through such questionable and
dubious means.
3

[Headnotes 35]
Courts have inherent equitable powers to dismiss actions for abusive litigation practices. Young v. Johnny
Ribeiro Building, 106 Nev. 88, 92, 787 P.2d 777, 779 (1990). This court will not reverse a particular sanction
imposed absent a showing of abuse of discretion. Id. However, where the drastic sanction of dismissal with
prejudice is imposed, a somewhat heightened standard of review will apply. Id. In the present circumstances,
Lane's conduct in taping the conversations was intentional and illegal. This is certainly the basis for the district
court's decision to strike Lane's complaint. However, based upon our inability to reach agreement on a proper
interpretation of NRS 200.620, it would be unfair to conclude that, although Lane's conduct was intentional and,
as we have now determined illegal, Lane intended to violate state law. Thus, the judgment of the district court is
reversed and remanded with instructions that the claim proceed to trial, but that all of the evidence gathered via
the interceptions be excluded and no reference by Lane to any statements made during the interceptions will be
allowed.
4

Justice Shearing, with whom Justice Young agrees, concurring in part and dissenting in
part:
__________

3
The district court relied in part on NRS 179.505 in suppressing the taped conversations. This provision only
applies to criminal actions under Title 14 of the Nevada Revised Statutes, Procedure in Criminal Cases. This,
however, of itself, would not require reversal. See Rosenstein v. Steele, 103 Nev. 571, 575, 747 P.2d 230, 233
(1987).

4
Lane may not, in any fashion, use or refer to the information gathered via the taped conversations. Further,
if it appears he is relying on the tapes to elicit testimony from any witness, the defendants may apply to the
district court for protective relief.
I would affirm the judgment of the district court.
I agree that NRS 200.620 prohibits the recording of telephone conversations without the consent of both
parties to the conversation, unless authorized or ratified by the court. The prohibited conduct is punishable as a
category D felony as provided in NRS 193.130. NRS 200.690(1)(a). In addition, the violator is liable to
the person whose communication was intercepted without his consent for damages. NRS 200.690(1)(b).
The plurality opinion would excuse Lane's conduct on the basis that Lane did not intend to violate state law,
even though he intentionally engaged in the prohibited conduct. Ignorance of the law has never been an excuse
for criminal conduct. Whiterock v. State, 112 Nev. 775, 782, 918 P.2d 1309, 1314 (1996).
Courts have inherent equitable powers to dismiss actions for abusive litigation practices. Young v. Johnny
Ribeiro Building, 106 Nev. 88, 92, 787 P.2d 777, 779 (1990). Therefore, since Lane violated Nevada law
hundreds of times in his attempt to secure evidence, the district court was within its discretion in dismissing
Lane's complaint.
Springer, C. J., concurring and dissenting:
I concur in the judgment of the court reversing the trial court because it is clear that Mr. Lane could not have
intentionally violated NRS 200.620. Only three members of this court can agree as to what the statute means.
We certainly cannot hold Mr. Lane criminally responsible for violating a statute the meaning of which cannot be
agreed upon by the members of this court.
1

I cannot agree with the majority that under Nevada law it is a crime for one party to a two-party telephone
conversation to tape-record that conversation. The majority holds that one who tape-records his own telephone
conversation with a tape recorder intercepts his own conversation. Intercept is the key to criminal liability
under NRS 200.620. Unless there is an intercepting there can be no criminal conduct. Consequently, in order
to hold that Mr. Lane engaged in criminal conduct, this court was forced to say (improvidently) that
tape-recording one's own conversation constitutes an interception. It does not. An interception requires a third
person. Only a third person can intercept a communication, just as only a third person can intercept
an attempted forward pass between a passer and a receiver.
__________

1
Justice Shearing is, of course, correct that ignorance of the law is not an excuse for criminal conduct. The
willfulness of the offending party is, however, a factor that must be taken into account by a district court in
exercising its equitable powers to dismiss an action for abusive litigation practices. Young v. Johnny Ribeiro
Building, 106 Nev. 88, 93, 787 P.2d 777, 780 (1990). Although Mr. Lane intentionally tape-recorded the
conversations at issue, he did not, as the majority correctly recognizes, intentionallyor willfullybreak the
law in doing so. Accordingly, it was not proper for the court to dismiss this case.
munication, just as only a third person can intercept an attempted forward pass between a passer and a receiver.
Where there are only two persons, there cannot be an interception no matter how hard we try to stretch the law
and the facts.
2
It is clear to me that Mr. Lane did not intercept anything and that he was not engaging in
criminal conduct when he recorded his own telephone conversation.
Every statute must be interpreted in the light of reason and common understanding to reach the results
intended by the legislature. Rathbun v. United States, 355 U.S. 107, 109 (1957). There can be no doubt about
the common understanding of the word intercept; and, under this understanding, it is idle to argue that when
two people are talking to each other, one could be intercepting the conversation of the other. I think that no
one would disagree about the general meaning of intercept; and it seems odd to me that this court would give
the word an entirely different meaning when it is applied to two people engaged in wire communication, that is
to say, a telephone conversation.
The majority holds that tape-recording a telephone conversation falls within the statutory language intercept
any wire communication. When I saw this, I asked myself first, What about wireless communications? Is it a
crime to intercept' (tape-record, I guess) communications by radio? The statute restricts itself to wire
communications; so I must suppose that one can tape-record radio and other wireless, two-party
conversations. Why would the legislature call recording a telephone conversation an illegal interception and at
the same time not consider the recording of a radioed, two-person conversation as being a criminal
interception? I wonder, too, why the legislature would concern itself with tape-recorded conversations and
not manually-recorded conversations. One participant in a two-way telephone call could, I assume, dictate the
entire conversation for verbatim transcription by a notarial amanuensis. This would result in an accurate,
authenticated recording of the entire conversation. Perfectly legal under NRS 200.620? It would seem so. I
do not read in the majority opinion an explanation of why the legislature would want to make it a crime to
tape-record one's own telephone conversation and ignore the interception of other kinds of two-party,
"non-wire" communications and non-electronic or manual recordings.
__________

2
Not only is the majority opinion illogical, it is unsupported by authority. The majority inappropriately relies
on the case of Rupley v. State, 93 Nev. 60, 560 P.2d 146 (1997). In Rupley, a police officer unlawfully
acquired, that is to say intercepted, wire communications between Rupley and [a third person] an informant
by attaching a suction-cup device to the receiver of the informant's telephone. Id. at 61, 560 P.2d at 147. The
police officer was clearly acquiring, seizing, interceptinghowever one wants to put itthe conversation of two
other parties, without the knowledge of one of the parties. The case cited by the majority has absolutely nothing
to do with the issue now before the court.
party, non-wire communications and non-electronic or manual recordings.
In sum, then, the word intercept cannot reasonably be held to mean one thing generally and another thing
when people are engaged in telephone conversations. Recording the content of a conversation by one participant
in a two-person conversation, whether done electronically or manually, cannot be called an interception no
matter how hard we stretch. The NRS 200.620(1) interception language applies only where third persons
intercept . . . [the] wire communication of others. There can be no caviling about the meaning of the word
intercept. The root of the word (capere, to capture or seize) tells us what the word is all about.
3
One cannot
seize something to which he has the right to possession. As mentioned above, no one would consider it
possible for either a football passer or receiver to be a pass interceptor; obviously, it takes a third person to
capture or seize the football from its intended, two-person, passer-receiver course. Mr. Lane did not have the
capacity, as the participant in a two-way conversation, to intercept anything, any more than the receiver of a
forward pass can be said to have intercepted the pass.
One wonders, then, how the majority could ever get to the point of calling receiver Lane an interceptor. I
search for an explanation. The only possible explanation that I can see might be found in the statutory definition
of intercept contained in NRS 179.430. The statute defines intercept as the aural acquisition of the
contents of any wire or oral communication through the use of an electronic, mechanical or other device or of
any sending or receiving equipment. The legislation in question refers to aural acquisition by means of
electronic, mechanical or other device or of any sending or receiving equipment. The clear image here is that
of using an electronic or mechanical evesdropping device by a third, non-participating party, otherwise the
very act of talking on a telephone, an electronic device, would be an aural acquisition and would subject the
speaker to liability. To say that one aurally acquires a conversation is to say that one actively obtains access to
the conversation, not that one was merely passively listening to what the other party to a conversation was
saying. To say that aural acquisition means the active use of devices to intercept the communications of others
is a logical and consistent way of reading the statute. I cannot believe that the legislature intended a
meaning of the word "intercept" that was entirely inconsistent with the word's dictionary
meaning or that would produce the absurd result of making all telephone conversations
illegal.
__________

3
The dictionary definition of intercept is 1. [t]o take or seize by the way, or before arrival at the destined
place; to stop or interrupt the progress or course of . . . . 2. [t]o stop or prevent (from doing something); to
hinder. 3. [t]o interrupt communication or connection with. Webster's New International Dictionary 1293 (2d
ed. 1948).
believe that the legislature intended a meaning of the word intercept that was entirely inconsistent with the
word's dictionary meaning or that would produce the absurd result of making all telephone conversations illegal.
In sum, I find nothing in NRS 179.430 that would alter the traditional and accepted meaning of intercept or
that would make the mere recording, electronically or manually, of a two-person conversation a criminal act.
The majority is mistaken in its interpretation of the word intercept and wrong in holding that recording a
telephone conversation in which the recorder is a participant is a criminal act. It is not a violation of NRS
200.620 to tape-record a telephone conversation in which one is a participant; therefore, I dissent.
This case raises several novel issues, primary of which concerns the nature and scope of the consent
requirement needed to record telephonic conversations pursuant to NRS 200.620 and 200.650, respectively.
Additionally, questions are raised concerning which individuals or entities come within the purview of these
statutory provisions.
During its 1957 session, the Nevada legislature amended NRS Chapter 200 by enacting and incorporating
into that chapter new provisions which prohibited the interception and disclosure of wire communications. See
1957 Nev. Stat., ch. 242, at 334. Pursuant to this enactment, it became illegal for a person to intercept or
attempt to intercept any wire or radio communication unless such interception or attempted interception [was]
authorized by both the sender and receiver. 1957 Nev. Stat., ch. 242, 3, at 334 (emphasis added).
Additionally, person was defined as every natural person, firm, copartnership, association or corporation and
[included] public officials and law enforcement officers of the state and of a county or municipality or other
political subdivision of the state. 1957 Nev. Stat., ch. 242, 2(1), at 334. As evidenced by the plain language of
this statutory enactment, the Nevada legislature clearly adopted a dual party consent statutory scheme with
respect to the interception of wire or radio communications.
During the 1973 session, the Nevada legislature made substantial amendments to NRS 200.620 in order to
bring Nevada law into conformity with federal wiretap statutes that provided for single-party consent. See
Amendments to S.B. 262, Committee on Judiciary at 221 (March 8, 1973). Significantly, NRS 200.620 was
amended to make it unlawful for any person to intercept or attempt to intercept any wire communication unless
. . . [s]uch interception or attempted interception is made with the prior consent of one of the parties to the
communication . . . . 1973 Nev.
Stat., ch. 791, 23, at 1748 (emphasis added). The requirement of dual consent was eliminated. The definition
of person remained essentially unchanged. Accordingly, as a result of this 1973 amendment, federal law's
single-party consent format was adopted in both NRS 200.620 and 200.650.
However, because of concerns about possible law enforcement abuses with the single-party consent statutory
format, an additional provision was included in the amended NRS 200.620. Pursuant to this added provision,
any person who intercepted a conversation based on the consent of one party was required to make written
application to a supreme court justice or district court judge within seventy-two hours of the interception for
purposes of ratifying the interception. See 1973 Nev. Stat., ch. 791, 23, at 1748. Further, ratification could
only occur if an emergency situation existed and the interception complied with other statutory provisions which
permitted law enforcement personnel to engage in electronic interception with a court order.
In 1985, the Nevada legislature again enacted amendments that affected the scope of NRS 200.620, this
time modifying the definition of person as used in that statute. Pursuant to the 1985 amendments, the
definition of person included public officials and law enforcement officers of the state and of a county or
municipality or other political subdivision of the state. 1985 Nev. Stat., ch. 127, 21, at 512. Significantly, the
legislature removed the statutory phrase every natural person, firm, copartnership, association or corporation
which was previously contained in that definition.
Based on the 1973 amendments to NRS 200.620, I conclude that Nevada did indeed enact the single-party
consent rule. However, because of the 1985 modification to the definition of person, it is very unclear as to
whether NRS 200.620 and 200.650 were to apply to all individuals, including law enforcement, whether
both sections were to apply to law enforcement only, or as Lane argues, whether NRS 200.620 applies only to
law enforcement and NRS 200.650 applies to individuals.
While it is clear that [w]here 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) (quoting In re Walter's
Estate, 60 Nev. 172, 183-84, 104 P.2d 968, 973 (1940)), it is equally true that 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. Hotel Employees v. State, Gaming Control Bd., 103 Nev. 588, 591, 747 P.2d 878, 880
(1987). The divergence of opinions by the district court judge and members of this court about
what the relevant statutes mean is a clear indication of an ambiguous set of statutes.
court judge and members of this court about what the relevant statutes mean is a clear indication of an
ambiguous set of statutes. Because NRS 200.620 is susceptible to various interpretations, I conclude that it is
ambiguous and it is appropriate to turn to the rules of statutory construction for guidance. One primary rule of
statutory construction is that penal statutes should be strictly construed in favor of the accused, see Smith v.
District Court, 75 Nev. 526, 347 P.2d 526 (1959). Using these statutory construction rules, it leads me to the
conclusion that the statutory definition of person as contained in NRS 200.620 should be interpreted to apply
only to public officials and law enforcement personnel, and not to private citizens such as Lane.
I therefore conclude that Lane did not violate any law in recording telephone conversations to which he was a
party. Accordingly, this case should be reversed, and Lane should be permitted to pursue his claim against
Allstate in district court.
____________
114 Nev. 1187, 1187 (1998) State, Dep't Mtr. Veh. v. Garcia-Mendoza
THE STATE OF NEVADA DEPARTMENT OF MOTOR VEHICLES AND PUBLIC
SAFETY, Appellant, v. EVA GARCIA-MENDOZA, CHTD., Respondent.
No. 29377
December 8, 1998 971 P.2d 377
Appeal from an order of the district court granting respondent's petition for pre-judgment writ of attachment
and writ of garnishment. Eighth Judicial District Court, Clark County; Gene T. Porter, Judge.
After used car dealer agreed to pay administrative fine for violation of emission control rules to Department
of Motor Vehicles and Public Safety (DMV), attorney attempted to garnish dealer's cash bond on deposit with
DMV in order to collect judgment against dealer for unpaid attorney fees. When DMV claimed right to prior
common law setoff, the district court granted attorney's motion for prejudgment writ of attachment and writ of
garnishment against DMV, and DMV appealed. The supreme court, Springer, C.J., held that: (1) DMV had no
common law right to set off against bond and was required to follow statutory procedures with respect to any
enforceable claim against bond, and (2) administrative fines were not payable from bond.
Affirmed.
Maupin, J., dissented in part. Rose and Young, JJ., dissented.
Frankie Sue Del Papa, Attorney General, and Jon M. Okazaki, Deputy Attorney General, Carson City, for
Appellant.
Garcia-Mendoza & Associates and Luther M. Snavely, III, Las Vegas, for Respondent.
1. Licenses.
Until Department of Motor Vehicles and Public Safety (DMV) executes upon used car dealer's cash bond in a manner authorized
by statute or itself garnishes dealer's interest in a cash bond on its own behalf, DMV's only claim to or interest in cash bond is to see
that it is preserved and distributed in manner prescribed by Legislature and DMV'S own regulations. DMV has no common law right
of setoff against bond. NRS 482.345, 482.346.
2. Licenses.
Administrative fines imposed by Department of Motor Vehicles and Public Safety (DMV) are not payable by way of
disbursement from used car dealer's cash bond. DMV cannot properly disburse cash bond to itself because payment of
administrative fine cannot reasonably be said to compensate DMV for statutory violations, nor is the DMV injured by such
violations. NRS 482.346(2).
3. Licenses.
Bond requirement for automobile dealers is clearly intended to ensure compensation for defrauded consumers, not to ensure
payment of administrative fines owed Department of Motor Vehicles and Public Safety (DMV). NRS 482.345, 482.346.
4. Licenses.
Plain meaning of term release, as used in statute permitting Department of Motor Vehicles and Public Safety (DMV) to release
used car dealer's cash bond under certain circumstances to compensate person injured by licensee's actions, is a release of the DMV's
interest in or control of a cash bond, not dealer's interest; term thus does not authorize DMV to release amounts to itself. NRS
482.346(2)(b).
OPINION
This is an appeal from an order of the district court granting respondent's petition for a writ of attachment and writ of garnishment. The
Department of Motor Vehicles and Public Safety (DMV) levied administrative fines against Kirk Pittman, dba Credit Auto Sales, a used
automobile dealer, and attempted to satisfy the fines from the dealer's cash bond in the form of a certificate of deposit. At the same time, the
dealer's attorney, Eva Garcia-Mendoza, Chtd., attempted to garnish the dealer's cash bond to satisfy a judgment for unpaid attorney's fees.
Eventually, the district court granted Garcia-Mendoza's motion and ordered the director of the DMV to pay Garcia-Mendoza $44,354.85
from Pittman's $50,000.00 cash bond.
The DMV's interest in the bond
Prior to obtaining a license, a used car dealer must post a bond, or deposit in lieu of a bond, in the amount of $50,000.00 with the
DMV.
the DMV. See generally NRS 482.345 and NRS 482.346. Pursuant to NRS 482.345(5):
The bond must provide that any person injured by the action of the dealer, distributor, rebuilder,
manufacturer, representative or salesman in violation of any provisions of this chapter may apply to the
director [of the DMV], for good cause shown and after notice and opportunity for hearing, for
compensation from the bond. The director may determine the amount of compensation and the person to
whom it is to be paid. The surety shall then make the payment.
Similarly, pursuant to NRS 482.346(2), a deposit in lieu of a bond may be disbursed by the
director, for good cause shown and after notice and opportunity for hearing, in an amount
determined by him to compensate a person injured by an action of the licensee . . . . NRS
482.346 also sets forth specific circumstances in which a deposit in lieu of a bond may be
released or refunded.
The DMV, as garnishee, contends that it has valid claims against Pittman and his salesman Mestas, arising
out of the DMV's enforcement actions, which it was entitled to offset prior to surrendering Pittman's cash bond
to Garcia-Mendoza as garnishor. Garcia-Mendoza contends, and the district court agreed, that, although the
DMV may have had valid claims against Pittman individually, the DMV failed to follow the statutorily
mandated procedures for executing on Pittman's cash bond in satisfaction of its claims. Therefore, according to
Garcia-Mendoza and the district court, the director of the DMV, as custodian of Pittman's cash bond, never
really had any claims to offset against Garcia-Mendoza's garnishment of Pittman's interest in the cash bond. We
agree.
[Headnote 1]
The DMV relies on NRS 31.360, which provides that, even after service of a proper writ of garnishment, the
garnishee is entitled to offset any other demands against the judgment debtor's property, including its own. The
DMV also relies on Board of Trustees v. Durable Developers, 102 Nev. 401, 724 P.2d 736 (1986), wherein this
court, relying on NRS 31.360, upheld such an offset after service of a proper writ of garnishment. This court
stated:
Garnishment invests a plaintiff-garnishor with the right to satisfy his claim against a defendant with
the debts due from a third-person, the garnishee, to the defendant. As against the garnishee, the garnishor
occupies the same position as the defendant, and is subject to any defenses available to the garnishee
against the defendant.
Id. at 410, 724 P.2d at 743 (citations omitted). Based upon the foregoing authorities, the
DMV asserts its judgments against Pittman and Mestas, which it had obtained prior to service
of Garcia-Mendoza's earliest writ of attachment, as proper offsets. The DMV further contends
that whether it made a proper claim on Pittman's cash bond is not an issue in deciding
whether the DMV is entitled to Pittman's cash bond, so long as the DMV had some
outstanding claims against Pittman.
We conclude that, until the DMV executes upon a cash bond in a manner authorized by NRS 482.345 and
NRS 482.346, or itself garnishes a dealer's interest in a cash bond, the DMV's only claim to or interest in
the cash bond is to see that it is preserved and distributed in the manner prescribed by the Legislature and the
DMV's own regulations. In other words, absent a valid claim on the cash bond itself, the DMV's only defense
against garnishment of Pittman's cash bond is that the order to release the bond is inconsistent with the
procedures set forth by the regulatory statutes creating the bonding requirement.
1

The DMV's withdrawal of funds from the cash bond account
[Headnotes 2, 3]
Alternatively, the DMV contends that it properly executed on the cash bond, pursuant to the statutorily
mandated procedures, by either disbursing or releasing the cash bond to itself. This contention is without
merit. NRS 482.346(2) provides that a cash deposit in lieu of a bond:
[M]ay be disbursed by the director, for good cause shown and after notice and opportunity for hearing, in
an amount determined by him to compensate a person injured by an action of the licensee, or released
upon receipt of:
(a) A court order requiring the director to release all or a specified portion of the deposit; or
(b) A statement signed by the person or persons under whose name the deposit is made and
acknowledged before any person authorized to take acknowledgments in this state,
requesting the director to release the deposit, or a specified portion thereof, and
stating the purpose for which the release is requested.
__________

1
The Honorable Justice Rose argues, in dissent, that the DMV had priority over Garcia-Mendoza because the
DMV has a prior right to set-off and its claim was prior in time. This is not the case for two reasons. First,
although it is true that the DMV had an earlier claim against the dealer, the DMV did not have an earlier claim
against the bond. In fact, the DMV has never made a proper claim against the bond, because, as discussed
below, the DMV did not attempt to follow the statutory procedures specifically set forth for making such a
claim. Instead, in an exercise of power unsupported by authority, the DMV simply helped itself to the money.
Second, the DMV's common law right to set-off cannot take precedence over its statutory duty to pay out on the
bond in the manner established by the legislature. In this case, Garcia-Mendoza followed the statutory
procedures for executing upon the bond; the DMV did not. In short, Garcia-Mendoza perfected her claim first
and is entitled to priority to the money.
any person authorized to take acknowledgments in this state, requesting the director to
release the deposit, or a specified portion thereof, and stating the purpose for which the
release is requested.
(Emphases added.) We conclude that the DMV cannot have properly disbursed Pittman's
cash bond to itself because payment of an administrative fine cannot reasonably be said to
compensate the DMV for statutory violations, nor is the DMV injured by such violations.
The bond requirement for automobile dealers was clearly intended to ensure compensation
for defrauded consumers, not the DMV. In other words, under the plain meaning of the
statute, administrative fines are not payable by way of a disbursement from a dealer's cash
bond.
2

[Headnote 4]
Moreover, the DMV's invasion of Pittman's cash bond cannot be construed as a release, as that term is
used in the statute. The plain meaning of the term release in NRS 482.346(2)(b) is a release of the DMV's
interest in or control of a cash bond, not the dealer's interest.
3
Finally, the DMV's contention that the court in
the Mestas case ordered the director to release the last remaining $20,000.00 of Pittman's cash bond is simply
not true. That order merely directed judgment against Mestas in the amount of $27,000.00it made no
reference to Pittman's cash bond at all.
The district court's order
NRS 482.346(2)(a) provides that the director may release a dealer's cash bond upon receipt of [a] court
order requiring the director to release all or a specified portion of the deposit. As set forth above, the DMV's
various alleged claims did not render the district court's issuance of such an order improper in this case. We
have, however, considered whether, for other reasons, the district court may have exceeded its
authority in ordering a release of Pittman's cash bond.
__________

2
We also note that a dealer's bond and, presumably, a cash deposit in lieu of a bond, is only available to
satisfy a claim of fraud or a claim arising out of a violation of the provisions of Chapter 482 of NRS. See NRS
482.345(5) and NRS 482.345(6). The DMV has not been damaged by fraud. Moreover, a close reading of the
judgments against Pittman and Mestas reveals that each was fined for violations of the engine emission control
statutes in Chapter 445B of NRS and administrative regulations promulgated thereunder; the purported
violations of Chapter 482 of NRS in the district court's judgments reference licensing provisions, not proscribed
practices, and thus, are not, themselves, violations.

3
Such a release would be proper, for example, if the DMV concluded, pursuant to NRS 482.345(1), that the
amount of the dealer's bond should be reduced because he had conducted his business satisfactorily over the past
five years.
the district court may have exceeded its authority in ordering a release of Pittman's cash bond.
Although the statutory scheme places no express restriction on when a court may order a release, we believe
it to be self evident that such a release would be improper if it carried with it the danger that the underlying
purpose of the bond requirement would be thwarted. For example, if release of the bond to a mere contractual
claimant such as Garcia-Mendoza (who, like the DMV, is not in this case an intended beneficiary of the bond
requirement) is likely to result in injured persons not being compensated, then release of the bond would be
improper.
In the present case, the DMV was queried as to whether any automobile purchasers, injured by reliance upon
fraudulent smog certificates provided by Credit Auto Sales, had made claims against Pittman's cash bond. The
district court specifically found that there were no claims outstanding against the $50,000.00 cash bond.
However, at oral argument, the department conceded that it had not undertaken any substantial efforts to locate
the auto purchasers defrauded by Credit Auto Sales or to inform them that money was available to compensate
them for their deficient smog systems. We hope that the approximately $5,654.00, plus interest, remaining in the
cash bond account will not be executed upon to satisfy the DMV's administrative fines until the department has
made a good faith effort to locate these people and to inform them of their right to make a claim against
Pittman's cash bond.
In conclusion, we emphasize to the DMV that its status as a would-be creditor of an automobile dealer's
victim compensation fund cannot take precedence over its statutory fiduciary duties in regard to management of
the fund. When asserting its rights as a mere creditor, as it does in a case such as this, the department stands on
the same basis as any other creditor who would make a claim on the statutorily created fund. As such, it must, as
did the attorney claimants in this case, perfect and execute upon its claim consistent with the lawful procedures
set forth in NRS 482.346. It cannot simply help itself to the money it controls for the benefit of others.
Therefore, we affirm the judgment of the district court.
Shearing, J., concurs.
Maupin, J., concurring and dissenting:
NRS 482.345 and NRS 482.346 require, as a condition of licensure, the posting of a bond or cash
deposit to compensate persons injured by violations of NRS chapter 482. This requirement is clearly
intended to compensate defrauded consumers, not satisfy DMV fine collections. Thus, the issue to be decided
does not involve whether the parties below had priority to lodge claims against the deposit, or whether
the Nevada garnishment statutes have been followed.
against the deposit, or whether the Nevada garnishment statutes have been followed. Rather, the issue is whether
any release of the monies should have been allowed.
I conclude that the DMV had no right to satisfy its fines out of the bond and no right to preempt a
garnishment by simply paying a portion of the cash bond to itself. I also conclude that, even without a right of
setoff by the DMV, the attorney's claimed right of garnishment must likewise fail. This result is required by the
fact that disbursements from a dealer's bond or deposit may only occur upon approval by the DMV of a claim of
consumer fraud or upon final or partial release under NRS 482.345(1). Because neither party to this appeal
qualifies as a person injured under the statute, because the bond or deposit must remain in place until a full or
partial release, and because no such release has been ordered in compliance with the statute, both claims to the
proceeds are invalid.
This is not to say that the proceeds of the deposit are not subject to the lien process to be foreclosed upon
when the funds are properly released. In this connection, I disagree with the conclusion reached by Rose, J., that
agreements approved by the district court gave the DMV priority status. These agreements, whereby the dealer
admitted violations, terminated business and stipulated that the fines be paid from the deposit were not in
compliance with NRS 482.345 and NRS 482.346. Before such a stipulation could be approved, a separate
hearing should have been conducted to determine whether a release of the funds could adequately address
outstanding consumer complaints.
1

There appear to be no statutory priorities as between these parties. Thus, I would remand to have the district
court (1) determine whether a release of the funds will satisfy the intent of the statute; and (2) to determine the
proportionate shares of these parties to the deposit proceeds.
2

The right to set-off has been recognized at common law and in many of our cases. See Board of Trustees v.
Durable Developers, 102 Nev. 401, 410, 724 P.2d 736, 743 {19S6) {discussing the existence
of both a common law and statutory right to set-off); Contrail Leasing v. Executive
Service, 100 Nev. 545, 550, 6SS P.2d 765, 76S {19S4) {explaining the rationale
underlying the common law right to set-off).
__________

1
The district court found that no claims against the bond were outstanding. Such a finding would ordinarily
justify release because the department has the inherent authority upon cessation of a licensee's business to make
determinations that continuation of deposits are not required. Here, however, the extent of violations was so
profound that precautions to insure that consumer complaints could be addressed should have been taken. Thus,
I agree with Young, J., that the district court failed to make sufficient findings of fact to justify the release of the
funds to the DMV.

2
Rather than stimulate another race to execute upon the deposit, the district court should conclude that both
claims are of equal priority, unless it concludes that the DMV has not perfected its right to execute.
102 Nev. 401, 410, 724 P.2d 736, 743 (1986) (discussing the existence of both a common law and statutory
right to set-off); Contrail Leasing v. Executive Service, 100 Nev. 545, 550, 688 P.2d 765, 768 (1984)
(explaining the rationale underlying the common law right to set-off). It is also contained in our garnishment
statutes. See NRS 31.360. Therefore, I begin my analysis with the assumption that the right to set-off was
available to the Department of Motor Vehicles (DMV), whether based on a specific statute or not, as it would be
to any other citizen of this state.
The primary issue on appeal concerns the priority of conflicting claims between the DMV and the former
attorney for the used car salesman. Prior to service of the writ of garnishment upon the DMV and the bank by
the attorney, the DMV and the car salesman reached an agreement whereby the car dealer admitted to the
violations that had been asserted by the DMV, stipulated that he would terminate business, and agreed to pay a
fine of $30,000.00 from the cash bond on deposit. The stipulated agreement was approved by the district court
and the bank holding the cash bond accordingly disbursed $30,000.00 from it to the DMV pursuant to the court
approved stipulation. It was not until then that the former attorney for the used car salesman served the writ of
garnishment upon the DMV.
Given this scenario, it seems clear that the DMV had priority over the conflicting claim by
the former attorney because the DMV had the common law right to set-off and its claim was prior in time.
Justice Young's dissent emphasizes that consumers have a primary right over both claimants, and I agree.
However, the car salesman's violations consisted of securing phony air emission inspection certificates, thereby
permitting cars on the road that had not passed the requisite emission standards. In this case, it appears that the
car salesman's violations inflicted more harm upon the environment and the public at large, rather than on the
specific individuals who received the fraudulent emission certificates. No consumer claims have been filed
against the used car salesman, and the claims of the parties can now be determined.
I believe that the district court abused its discretion by releasing the funds at issue without making any
findings as to whether the amount of money remaining was sufficient to cover future claims against the fund by
persons injured by the fraudulent activity of Pittman, dba Credit Auto Sales (CAS), or his associates.
The pool of money that is the subject matter of this dispute is a cash deposit which CAS made pursuant to
NRS 482.345 and NRS 482.346. These statutes provide that in order to acquire a license to sell
automobiles, a dealer must either post a $50,000.00 bond {NRS 4S2.345) or deposit
$50,000.00, in lieu of a bond, with the Department of Motor Vehicles {"the Department")
{NRS 4S2.346).
license to sell automobiles, a dealer must either post a $50,000.00 bond (NRS 482.345) or deposit $50,000.00,
in lieu of a bond, with the Department of Motor Vehicles (the Department) (NRS 482.346). When a person is
injured by an action of the dealer which violates a provision of NRS Chapter 482, that person may, upon good
cause shown, be compensated for his injury from the bond or deposit. NRS 482.345(5) and NRS 482.346(2). As
the majority states, the intent of this legislation is clearly to protect consumers from fraud and sharp practice on
the part of auto dealers.
It is well established that when interpreting a statute, [t]he 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.'
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, 638, 503 P.2d 457, 459 (1972)).
NRS 482.346(2)(a) provides that funds from the deposit may be released upon receipt of a court order
requiring the director [of the Department] to release all or a specified portion of the deposit. This statute does
not contain language which explicitly guides the district court's discretion in issuing such an order. However, as
the majority indicates, it is absurd to suppose that the legislature intended to grant the district court the discretion
to release the funds from a deposit in such a manner as would leave consumers without the protection afforded
them by these statutes; such legislation would be self-defeating. Thus, the statutory scheme necessarily implies
that the goals of consumer protection operate as guideposts for the district court's discretion in this context.
Accordingly, I believe that the district court abuses its discretion when it orders the release of funds from a
deposit without determining that sufficient funds remain in the deposit to cover any outstanding claims by
injured consumers against the depositor dealer. Were this not the rule, every district court judge would have the
discretion to thwart the legislative goals that are furthered by NRS 482.345 and NRS 482.346.
In this case, Pittman opted to deposit a $50,000.00 certificate of deposit with the Department. It was later
discovered that CAS had sold at least twenty vehicles with fraudulently obtained smog certificates. The
Department initially fined Pittman $45,000.00. However, after some negotiation, Pittman and the Department
stipulated to a $30,000.00 fine, to be satisfied from the deposit Pittman had made pursuant to NRS 482.346.
Shortly after this settlement was reached, Pittman's former attorney, Garcia-Mendoza, filed a motion to
attach by lien Pittman's deposit in order to pay outstanding attorney's fees.
Garcia-Mendoza later filed suit against Pittman, seeking to recover attorney's fees. The Department opposed the
lien motion and sought to intervene in Garcia-Mendoza's action against Pittman. Ultimately, the district court
determined that Garcia-Mendoza's claim to the funds in the deposit was superior to that of the Department.
Accordingly, the district court ordered the Department to pay Garcia-Mendoza $44,354.85 from Pittman's
deposit.
I do not contest the majority's conclusion that Garcia-Mendoza's claim to the funds in Pittman's deposit was
superior to that of the Department. However, I believe that the district court did not make sufficient findings of
fact to justify the release of these funds in the first place. The district court merely found that there were no
outstanding claims against the fund by consumers who had purchased automobiles with fraudulent smog
certificates. There is no evidence in the record that the Department had made any effort to notify potentially
injured consumers of the availability of the funds from Pittman's deposit. Thus, there could well exist a number
of persons injured by Pittman's fraudulent activity who brought no claim against the fund because they were
unaware of its existence. Therefore, in my view, the district court's bare finding that no claims were outstanding
is insufficient to support its order releasing those funds to Garcia-Mendoza. Therefore, I conclude that the
district court abused its discretion by ordering the release of these funds.
It seems to me that the majority's ruling today will effectively eviscerate the protection which NRS
482.345 and NRS 482.346 were designed to afford the customers of unscrupulous auto dealers. Therefore, I
respectfully dissent.
____________
GREGORY N. LEONARD, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 31151
December 9, 1998 969 P.2d 288
Appeal from a judgment of conviction, pursuant to jury verdicts, of one count each of robbery and first
degree murder, and from a sentence of death. Eighth Judicial District Court, Clark County; Joseph T.
Bonaventure, Judge.
The supreme court held that: (1) prosecutor's reasons for peremptorily striking
African-American juror were race neutral; (2) mistrial was not required by prosecution
witness' separate contacts with four jurors, two of whom were replaced by alternate jurors
because of contacts;
tacts with four jurors, two of whom were replaced by alternate jurors because of contacts; (3)
evidence was sufficient to support robbery and first-degree murder convictions; (4)
impermissible rebuttal arguments by prosecutor in guilt phase were not so egregious as to
deny defendant fair trial; (5) allowing victim impact evidence and evidence of other crimes in
guilt phase was not error; (6) prosecutor's impermissible arguments in penalty phase did not
deny defendant a fair trial; (7) cumulative error did not require reversal; and (8) death
sentence was not imposed under influence of passion or prejudice and was not excessive.
Affirmed.
Michael A. Cherry, Special Public Defender, Mark B. Bailus and Peter R. LaPorta, Deputy Special Public
Defenders, Las Vegas, for Appellant.
Chief Deputy District Attorney, and Peggy Leen, Deputy District Attorney, Clark County, for Respondent.
1. Jury.
Reasons given by prosecution for peremptory challenge to African-American venire member were race neutral and thus survived
Batson challenge in capital murder case. Prosecutor struck venire member based on his young age, inattentiveness, and equivocal
responses to questions about imposition of death penalty. U.S. Const. amend. 14.
2. Jury.
Peremptory challenge based on potential juror's scruples regarding death penalty did not violate Witherspoon prohibition against
unlimited for cause exclusions of death-scrupled jurors. U.S. Const. amend. 14.
3. Jury.
Death qualification of jury that met constitutional standards did not deny appellant trial by a jury drawn from a fair cross-section
of the community. U.S. Const. amend. 6.
4. Criminal Law.
Police officers' failure to preserve beeper or record beeper message before returning beeper to its owner did not deny defendant
exculpatory evidence in violation of Brady in capital murder prosecution; police did not act in bad faith, and message, in which
defendant asked beeper owner's help or else ten more people [sic] going to die, was not shown to be exculpatory, and thus defendant
was not prejudiced by its loss. U.S. Const. amend. 14.
5. Criminal Law; Homicide.
Refusal to admit evidence of prior bad act by prosecution witness, either to prove motive to commit murder on part of witness, or
as part of complete story of crime, was not abuse of discretion. Evidence, which suggested that witnesses, who was victim's fiance,
was late in meeting victim on night of his murder because she was engaging in act of prostitution, was not shown to be relevant to
proper purpose and its probative value in suggesting that engagement was irrevocably ended, and thus that
witness had motive to kill victim, was not substantially outweighed by its unfair prejudicial effect.
probative value in suggesting that engagement was irrevocably ended, and thus that witness had motive to kill victim, was not
substantially outweighed by its unfair prejudicial effect.
6. Criminal Law.
Refusal to grant mistrial based on prosecution witness' separate contacts with four jurors was not abuse of discretion; court
substituted alternate jurors for two jurors, one of whom was told by witness that some people just get away with murder and other
that was really hard for me to relive, but determined that remaining contacts, which consisted of telling one juror to have a nice
day and mumbling something unintelligible to another juror, had not prejudiced defendant's right to fair trial.
7. Homicide.
Instruction in murder prosecution defining malice aforethought by reference to a heart fatally bent on mischief and actions done
in contradistinction to accident or mischance, was not unconsititionally archaic and ambiguous, so as to deprive defendant of fair
trial, even though phrases were not common in modern parlance.
8. Homicide.
Premeditation element of first-degree murder may be instantaneous as successive thoughts of the mind.
9. Criminal Law.
Trial court was not required to give defendant's requested instruction in murder/robbery prosecution, that crime of robbery requires
intent to take property from living person, where jury was adequately instructed on crime of robbery. NRS 200.380.
10. Criminal Law.
Defendant was not denied presumption of innocence by instruction that told jury to do equal and exact justice between
defendant and State, as instruction did not concern presumption and jury was adequately instructed as to presumption and burden of
proof.
Giving of statutory reasonable doubt instruction in capital murder prosecution was not denial of due process where instruction was
accompanied by instructions on presumption of innocence and State's burden of proof. NRS 175.211(1), (2).
12. Criminal Law.
Jury was not required to reach unanimity on means or theory of criminal liability used in arriving at its verdict in first-degree
murder prosecution in which premeditated and felony murder were both charged.
13. Robbery.
Evidence that defendant pawned items belonging to murder victim shortly after victim died was sufficient to support inference that
defendant killed victim to obtain his possessions, and thus to support robbery conviction, even if victim did not immediately remove
items from victim's apartment, but returned to take property after victim was dead. NRS 200.380.
14. Criminal Law.
Evidence on intent element of first-degree murder was sufficient to support conviction, where jury could reasonably infer
premeditation and deliberation from expert testimony that it took victim between 30 and 90 seconds to die from ligature strangulation
and that ligature had been wrapped around victim's neck several times. NRS 200.030(1)(a).
15. Homicide.
The deliberation needed for first-degree murder need only be for an instant. NRS 200.030(1)(a).
16. Criminal Law.
Trial court's disparagement of jury questionnaire, when court commented that it would not use the questionnaire again and told a
juror to forget the questionnaire, did not prejudice defendant, where jurors did not know that the defense had requested the
questionnaire.
17. Criminal Law.
Defendant was not denied fair trial when court admonished defense counsel, during voir dire, to stop wishing individual jurors a
good morning and, to save time, to greet jury en masse instead. While court may have displayed some irritation with defense counsel,
clear intent of its remarks was to save time, and it was not directing animus toward defense counsel.
18. Criminal Law.
Defendant was not prejudiced when trial court called lead defense counsel a trickster outside presence of jury in response to
counsel's motion for mistrial. Counsel had received permission to leave courtroom intermittently due to intestinal disorder, but later
moved for mistrial because both defense counsel were not present at all times.
19. Criminal Law.
Prosecutor's question to defendant, as to what it felt like when he strangled victim, although inflammatory and not true attempt to
elicit relevant information, did not materially prejudice defendant or deny him fair trial, where court sustained objection to question
and defendant did not answer.
Prosecution's statements were not so egregious as to violate due process when, in rebuttal argument, prosecutor sarcastically
commented that according to the defendants in any criminal trial in which she had represented State in the last eighteen years, police
and prosecution never got the right guy. U.S. Const. amend. 14.
Prosecutor's rebuttal argument in guilt phase of capital murder prosecution, in which she accused defense counsel of argument that
murder victim had a bad heart and was going to die anyway, although improper, was not so egregious as to render conviction or death
sentence a denial of due process. U.S. Const. amend. 14.
22. Criminal Law.
Prosecutorial arguments that went beyond the bounds of permissible rebuttal, when prosecutor told jury that defense counsel was
trying to sell [them] a bill of goods, allegedly personally vouched for untruthfulness of defendant's testimony, and warned jury that
defendant had fooled people and don't let him fool you, were not so egregious as to deny fundamental right to fair jury.
23. Criminal Law.
Refusal to grant mistrial when evidence of another crime was admitted in guilt phase of capital murder prosecution was not abuse
of discretion. Defendant was not materially prejudiced when prosecution witness testified that defendant told him that defendant did
victim too, particularly where remark was unintentional. NRS 48.045(2).
24. Criminal Law.
Trial court did not err in failing to sua sponte give curative instruction after prosecution witness gave testimony that
contained brief reference to another crime.
tion after prosecution witness gave testimony that contained brief reference to another crime.
25. Homicide.
District court may properly instruct jury in capital murder case to disregard sympathy where jury is also instructed to consider
mitigating circumstances.
26. Criminal Law.
Testimony by police officers regarding their investigations of a defendant's other crimes is admissible at a capital penalty hearing
so long as the evidence is not impalpable or highly suspect.
27. Homicide.
Allowing police officer to give hearsay testimony in penalty phase of capital murder trial regarding another murder of which
defendant had not yet been convicted was not abuse of discretion, where detective's testimony was not impalpable or highly suspect.
NRS 175.552(3).
Victim impact testimony is permitted at capital penalty proceedings under federal due process standards, unless evidence renders
proceeding fundamentally unfair. U.S. Const. amend. 14; NRS 175.552(3).
29. Homicide.
Allowing murder victim's daughter to give victim impact testimony concerning impact of crime not only on herself but also on
other family members was not error in penalty phase of capital murder prosecution. U.S. Const. amend. 14; NRS 175.552(3).
30. Criminal Law.
Clearly improper argument occurring in penalty phase of capital murder prosecution when prosecutor asked jurors to place
themselves in position of victim did not unfairly prejudice defendant where objection terminated line of argument at its inception and
thus argument did not warrant reversal; prosecutor told jury an eye for an eye is never really an eye for an eye when you are the victim
or you are survivor of the victim.
31. Homicide.
Fact that other murderers may have been worse than defendant did not render imposition of death penalty for strangulation death
of drinking buddy constitutionally excessive. U.S. Const. amend. 14.
32. Homicide.
Weighing of the aggravating and mitigating circumstances is not mathematical in penalty phase of capital murder prosecution; it is
enough that jury find one aggravating circumstance and that whatever mitigating circumstances it finds do not outweigh the
aggravating circumstance or circumstances. NRS 175.554(3).
33. Homicide.
Death sentence was not imposed due to passion, prejudice or any arbitrary factor and was not excessive for strangulation death of
drinking buddy, simply because jury found only one aggravating circumstance, robbery, and found one listed statutory mitigating
circumstance, no significant history of prior criminal activity, and at least one other unspecified mitigating circumstance. NRS
200.035(7).
34. Criminal Law.
Cumulative effect of prosecutor's improper remarks in closing arguments in guilt and penalty phases of capital murder
prosecution, coupled with other errors, did not deny defendant fair trial. Prosecutorial misconduct was not particularly
egregious, nor were there other materially prejudicial errors.
conduct was not particularly egregious, nor were there other materially prejudicial errors.
OPINION
Per Curiam:
This is an appeal from a judgment of conviction of one count each of robbery and first degree murder, and from a sentence of death.
Appellant Gregory N. Leonard raises numerous claims of error, none of which warrant reversal of his conviction or sentence.
1

FACTS
Appellant Gregory N. Leonard worked as maintenance supervisor at the Mark Twain Apartments in Las
Vegas. He lived in a small apartment next to the maintenance shop. The victim in this case, Thomas Benjamin
Williams, was a tenant in the same apartment complex. Williams and appellant, occasional drinking companions,
became involved in a dispute over a $3,548.00 poker machine jackpot. On November 25, 1994, the evening
before the night Williams was killed, a bartender separated the two during a loud argument over the winnings.
Williams and Phyllis Fineberg, a reputed prostitute, were engaged to be married. On November 25, 1994,
Fineberg borrowed Williams' car for about one-half hour, but did not return it for several hours. When she
returned, the couple argued. Fineberg left Williams' apartment and went to the apartment of her friend Lynn
Spencer in the same complex. Shortly thereafter, Williams called Spencer's apartment, told Fineberg he was
going across the street to P.T.'s Pub for a drink, and went to the pub.
Ten to fifteen minutes later, Fineberg appeared at the pub but did not sit with Williams. Fineberg won a
$200.00 poker jackpot and slipped the money into Williams' shirt pocket. About one-half hour later, Fineberg
left the pub and returned to Spencer's apartment.
Later that night, at around 12:15 a.m., Fineberg returned to the pub. She approached Williams, who was
sitting at the bar between Frank Deschene and appellant. Williams was intoxicated, and the bartenders, Kassey
Leonard and Albert Garkow, had stopped serving him alcohol.
__________

1
On October 22, 1998, this court granted the state's unopposed motion to cause the clerk of the district court
to supplement the record on appeal with a copy of a forensic psychological evaluation. The clerk of the district
court has informed this court by letter that the document in issue was never admitted as an exhibit in the
proceedings below. Nonetheless, this court has been fully informed regarding this evaluation and we conclude
that the document's formal inclusion in the record is unnecessary.
ing him alcohol. Williams and Fineberg argued. Garkow tried to separate them because their argument was
disturbing other customers. According to Garkow, Williams had pretty much broken off his relationship with
Fineberg. At one point, Fineberg told Garkow to keep Williams away from her or she was gonna kill him. At
trial, Fineberg denied saying this. Fineberg reached into Williams' shirt pocket and retrieved the money she had
placed there earlier that evening.
Fineberg returned to the bank of poker machines. Appellant approached her and asked her to return the
money she had taken from Williams' pocket. Fineberg refused, and appellant sat back down next to Williams.
Garkow asked Deschene and appellant to help Williams across the street to his apartment because he felt
Williams was too drunk to walk alone. Fineberg was not comfortable with this arrangement and followed them
to Williams' apartment. Fineberg saw Deschene walk Williams across the street. After Williams opened the door
to his apartment, Fineberg asked Deschene to leave. Deschene refused, and Fineberg called 911. Thereafter,
when appellant arrived at the apartment, Fineberg again called 911. Deschene and appellant then left the area.
Williams and Fineberg continued to argue for a few minutes. As Fineberg was leaving, she encountered a
police officer responding to her 911 calls. At Williams' request, the officer patted down Fineberg and confirmed
that she had no key to the apartment.
Fineberg spent the night at Spencer's apartment and called Williams the next morning. When Williams did
not answer, she proceeded back to his apartment. Upon arrival, she noticed that the heater was not on and that
the door was unlocked. Fineberg then entered the apartment and found Williams lying on the floor, wearing the
same clothes as the night before. Fineberg returned to Spencer's apartment, dialed 911 and reported the death.
The police found Williams' body lying face up on the floor. Initially, the officers believed that Williams had
died of natural causes and began processing the body and death scene as a natural death. After a mortuary
attendant discovered a ligature mark around Williams' neck, the police called homicide detectives and secured
the scene.
There were no initial suspects, no signs of forced entry into the apartment, and no suspicious fingerprints.
There was a contusion consistent with blunt force trauma on Williams' left scalp. The position of the contusion
was indicative of a blow to the head, not a fall. A ligature had been wrapped around his neck several times.
An autopsy revealed signs of death by asphyxiation, including a fractured bone in Williams' neck. Dr. Robert
Jordan, who performed the autopsy, concluded that the cause of death was asphyxia due to
ligature strangulation and the manner of death was homicide.
formed the autopsy, concluded that the cause of death was asphyxia due to ligature strangulation and the manner
of death was homicide. Dr. Jordan estimated that Williams was killed between 1:00 a.m. and 9:45 a.m. on
November 26, 1994.
A few days later, Williams' son, Doug Williams, arrived from Texas to retrieve his father's belongings.
Appellant and Jesus Cintron, another maintenance worker at the Mark Twain Apartments, let him into Williams'
apartment and helped him move things. Doug Williams gave appellant and Cintron some of Williams' furniture
and possessions.
After returning to Texas and inventorying his father's possessions, Doug Williams noticed that some of his
father's jewelry and guns were missing. He informed the Las Vegas Metropolitan Police Department. Later, after
being notified of the jackpot dispute between appellant and Williams, Detective Michael J. Bryant of the Las
Vegas Metropolitan Police Department ran appellant's name on the pawn shop data base. Detective Bryant
discovered that appellant had pawned two rings, a Remington shotgun and a video camera which belonged to
Williams.
On December 30, 1994, Detective Bryant interviewed appellant. When asked about the night Williams died,
appellant told the detective he had socialized with Williams at the pub. The last time appellant saw Williams was
at Williams' apartment door. Williams was with a woman and another man. When asked if he had received any
property from Williams, appellant said that Williams' son had given him some stuff. A search, pursuant to a
search warrant, of appellant's apartment on January 4, 1995, revealed several boxes of ammunition that fit
Williams' guns.
According to Cintron, appellant had keys to every apartment in the complex. At trial, appellant denied having
a key to Williams' apartment, and said he had purchased the pawned rings and shotgun from strangers on the
street.
On January 22, 1995, appellant paged Cintron and asked Cintron to come and help him or else ten more
people [sic] going to die.
2
Cintron called appellant's pager. Appellant returned the call. Cintron recognized
appellant's voice, and Cintron's caller I.D. indicated Mark Twain Apartments, where appellant used the
telephone in the maintenance shop. When Cintron refused to come and help, appellant said he would kill Cintron
and several other people. Appellant also told Cintron that he did [Williams] too.
Cintron reported this conversation to the police. Cintron brought his beeper to a police station and played
appellant's message for the police officers. After listening to the message several times the officers
returned the beeper to Cintron without recording the message.
__________

2
Apparently, appellant wanted Cintron's help in disposing of the body of another murder victim.
times the officers returned the beeper to Cintron without recording the message.
On January 23, 1995, as a result of Cintron's report, the police obtained another search warrant and again
searched appellant's apartment. They found pawn shop receipts in a wallet belonging to Jerry Leonard,
appellant's cousin. The receipts were for a diamond ring that had been pawned by Jerry Leonard on November
30, 1994.
When Detective Bryant asked appellant about the pawned items and the ammunition found in his apartment,
appellant said he had purchased the items on the street. It is known to the police that people often sold stolen
goods on the street where appellant lived.
The police arrested appellant. He was charged with one count each of first degree murder, robbery and
burglary. The jury found appellant guilty of one count each of first degree murder and robbery.
Appellant called several witnesses in the penalty phase. Lori Knight, the manager of the Mark Twain
Apartments, testified that appellant was a good employee; he put a lot of effort into his work, did extra things,
and always made sure the job was done. She also testified that she knew of appellant's friendship with
Williams and, when she informed appellant and Cintron of Williams' death, appellant became upset.
Appellant's mother testified that appellant had spoken to her often about Williams. She said appellant was
devastated that Williams was murdered because he considered Williams a fatherly figure. The state elicited
from appellant's fiance that appellant has the AIDS virus.
The state presented testimony at the penalty hearing by a detective concerning his investigation of another
murder with which appellant was charged, in which appellant apparently kept the body of the victim under his
bed for a period of time. Williams' son and daughter gave victim impact testimony at the penalty hearing.
The jury found one aggravating circumstance, that the murder was committed while the person was engaged
in the commission of or attempt to commit a robbery. See NRS 200.033(4). It found as a mitigating
circumstance that appellant had no significant history of prior criminal activity, and found one or more other,
unspecified mitigating circumstances. See NRS 200.035(1) and (7). The jury found no mitigating
circumstances sufficient to outweigh the aggravating circumstance, and returned a verdict of death. See NRS
175.554. The district court sentenced appellant to death for the murder and to serve a term of fifteen years'
imprisonment for robbery.
DISCUSSION
The Guilt Phase
[Headnote 1]
Appellant contends that the prosecutor exercised a peremptory challenge during voir dire against an
African-American for racial reasons, and that the district court erred in overruling his Batson challenge thereto.
See Batson v. Kentucky, 476 U.S. 79 (1986). Appellant is African-American and, ultimately, no
African-Americans served on his jury. The state presented the following race neutral reasons for striking the
prospective juror: he was young (22 years old), he was inattentive, and he gave equivocal responses regarding
imposition of the death penalty.
Defense counsel disputed the grounds. The district court confirmed on the record the potential juror's young
age and that he was equivocal in responding to questions regarding imposition of the death penalty. The degree
of his attentiveness cannot be determined from the record. The district court found the prosecutor's stated
reasons race neutral and overruled appellant's objection to the peremptory challenge.
The reasons given by the state were race neutral and sufficient to withstand a Batson challenge. See Purkett
v. Elem, 514 U.S. 765, 767-68 (1995) (the reason offered to withstand a Batson objection will be deemed race
neutral unless a discriminatory intent is inherent in the prosecutor's explanation); Doyle v. State, 112 Nev. 879,
887-88, 921 P.2d 901, 908 (1996) (following Purkett). Thus, the district court could properly overrule
appellant's Batson objection.
[Headnotes 2, 3]
Appellant also contends that the peremptory challenge was based on the potential juror's scruples regarding
the death penalty and violated Witherspoon v. Illinois, 391 U.S. 510 (1968). Appellant further contends that the
death qualification of the jury in general denied him the right to be tried by a jury drawn from a fair
cross-section of the community. This case does not involve the practically unlimited for cause exclusion of
death-scrupled jurors condemned in Witherspoon. Further, the death qualification of appellant's jury meets
constitutional standards and did not deny appellant trial by a jury drawn from a fair cross-section of the
community. See Buchanon v. Kentucky, 483 U.S. 402, 416 (1987); Lockhart v. McCree, 476 U.S. 162, 173
(1986); Aesoph v. State, 102 Nev. 316, 317-19, 721 P.2d 379, 380-81 (1986); McKenna v. State, 101 Nev. 30,
38, 342-44, 705 P.2d 614, 617-18 (1985).
Appellant contends that the district court improperly excused another potential juror because he had visited
the Ely State Prison and hesitated when questioned about imposing the death penalty.
and hesitated when questioned about imposing the death penalty. See Witherspoon, 391 U.S. at 521-23. The
record indicates, however, that the district court excused this potential juror for personal hardship because his
college classes in Reno were about to begin.
[Headnote 4]
Appellant also contends that the district court erred in admitting testimony concerning the message on
Cintron's beeper asking for help or else ten more people [sic] going to die because the police officers' failure
to preserve the beeper or record the message denied him exculpatory evidence in violation of Brady v.
Maryland, 373 U.S. 83 (1963).
Appellant failed to preserve this issue for appeal by objecting below. See Hewitt v. State, 113 Nev. 387, 392,
936 P.2d 330, 333 (1997). Further, the beeper message testimony was properly admitted. A conviction may be
reversed when the State loses evidence if (1) the defendant is prejudiced by the loss or, (2) the evidence was
lost' in bad faith by the government. Sparks v. State, 104 Nev. 316, 319, 759 P.2d 180, 182 (1988); see also
Sanborn v. State, 107 Nev. 399, 407-08, 812 P.2d 1279, 1285-86 (1991). Appellant has not shown that he was
prejudiced by the lost evidence, i.e., that the beeper message was exculpatory. See Rippo v. State, 113 Nev.
1239, 1257, 946 P.2d 1017, 1029 (1997) (inculpatory admission does not fall under Brady), cert. denied,
----
U.S.
----
, 119 S.Ct. 104 (1998). Moreover, there is no indication of bad faith on the part of the police.
Appellant's rights under Brady were not violated. See Brady, 373 U.S. at 87 (prosecution may not deliberately
suppress evidence favorable to an accused).
[Headnote 5]
Appellant contends that the district court abused its discretion in refusing to admit evidence of prior bad acts
by a prosecution witness. Specifically, appellant wanted to present evidence that Fineberg, Williams' fiance,
was late in meeting Williams on the night he was killed because she had engaged in an act of prostitution during
that time. Appellant contends that this testimony was admissible because it was germane to issues other than
Fineberg's character. Specifically, he contends that it was admissible under NRS 48.045(2) to show that the
engagement was irrevocably ended, and thus that Fineberg had a motive to kill Williams. See Lay v. State, 110
Nev. 1189, 1195, 886 P.2d 448, 452 (1984) [1994]. Further, appellant contends that it was admissible under the
complete story of the crime doctrine. See Shults v. State, 96 Nev. 742, 748, 616 P.2d 388, 392 (1980)
(relevant and necessary evidence may be presented to show a full and accurate account of the circumstances
surrounding the crime).
The district court conducted a Petrocelli hearing and determined to exclude this evidence. See Petrocelli v.
State, 101 Nev. 46, 52, 692 P.2d 503, 508 (1985). Appellant failed to show that this evidence was relevant for
a proper purpose or that its probative value was not substantially outweighed by its unfair prejudicial effect. See
Tinch v. State, 113 Nev. 1170, 1176, 946 P.2d 1061, 1064 (1997). Thus, appellant has not shown that the
district court improperly excluded this evidence. Rulings on admissibility of evidence are left to the sound
discretion of the district court, and will not be disturbed on appeal where, as here, there is no showing of
manifest error. Keeney v. State, 109 Nev. 220, 228, 850 P.2d 311, 316 (1993) (citing Petrocelli, 101 Nev.
at 52, 850 P.2d at 508).
[Headnote 6]
Appellant contends that contacts by Fineberg with four jurors during his trial denied him a fair trial, and that
the district court improperly denied his motion for a mistrial based on the juror contacts. Fineberg approached a
juror in the smoking area of the courthouse and told him she was the next witness. Later, she approached the
same juror and wished him a nice day. After testifying, Fineberg approached another juror and said that was
really hard for me to relive. Fineberg approached a third juror, looked him in the eye, and said some people
just get away with murder. Fineberg also attempted to initiate a conversation with a fourth juror, who did not
understand what she said. Each of these jurors reported this conduct. Appellant further asserts that additional
jurors may have heard and been affected by Fineberg's contacts with these jurors.
The district court replaced with alternates the juror to whom Fineberg had said some people just get away
with murder and the juror to whom she had said that was really hard for me to relive. The district court
determined that Fineberg's contacts with the juror to whom she had said have a nice day and the juror to whom
she had mumbled something unintelligible were not significant and had not prejudiced appellant's right to a fair
trial. The district court determined that any prejudice to appellant had been cured by replacement of the two
jurors who had experienced the most egregious contacts.
We have held that [n]ot every incidence of contact between jurors and witnesses requires the granting of a
motion for a new trial. Roever v. State, 111 Nev. 1052, 1055, 901 P.2d 145, 146 (1995) (citing Barker v. State,
95 Nev. 309, 313, 594 P.2d 719, 722 (1979)). [A] new trial must be granted unless it appears, beyond a
reasonable doubt, that no prejudice has resulted. The trial court determines whether the litigant has been
prejudiced, and its judgment will not be overturned unless abuse of discretion is manifest.
is manifest. Id. (citations omitted). The district court found that appellant was not prejudiced by Fineberg's
contacts with the two jurors who were not replaced, and appellant has not shown that it erred in doing so. Thus,
the district court did not abuse its discretion in denying appellant's motion for a mistrial. See Reese v. State, 95
Nev. 419, 424, 596 P.2d 212, 216 (1979) (when jurors and witness conversed on subject unrelated to matter
before the jury, court did not abuse its discretion by refusing to dismiss the jury and declare a mistrial).
Appellant's assertion that other jurors, in addition to the four mentioned above, may have been privy to and
affected by Fineberg's juror contacts is not substantiated in the record. Further, appellant failed to raise this
question in the district court, so it is beyond the purview of this appeal. See Hewitt, 113 Nev. at 392, 936
P.2d at 333.
[Headnote 7]
Appellant contends that he was denied a fair trial by several of the jury instructions given by the district
court. Specifically, appellant contends that the instruction defining malice aforethought is unconstitutionally
archaic and ambiguous because it refers to a heart fatally bent on mischief and actions done in
contradistinction to accident or mischance. Although these phrases are not common in today's general parlance,
we conclude that their use did not deprive appellant of a fair trial. See Guy v. State, 108 Nev. 770, 776-77, 839
P.2d 578, 582-83 (1992).
[Headnote 8]
Appellant contends that the district court improperly instructed the jury that the premeditation element of
first degree murder may be instantaneous as successive thoughts of the mind. This instruction is a correct
statement of the law. Scott v. State, 92 Nev. 552, 555, 554 P.2d 735, 737 (1976).
[Headnote 9]
Appellant contends that the district court improperly refused to instruct the jury that the crime of robbery
requires the intent to take property from a living person. The district court adequately instructed the jury on the
crime of robbery; it was not required to give such an instruction in this case.
3
See NRS 200.380; see
generally Norman v. Sheriff, 92 Nev. 695, 697-98, 558 P.2d 541, 542-43 (1976); Sheriff v. Jefferson, 98
Nev. 392, 649 P.2d 1365 (1982).
Appellant contends that the instruction on the felony murder rule failed to inform the jury that the homicide
must occur in the course of the commission of a felony, and not vice versa, for the rule to
apply.
__________

3
As we discuss below, sufficient evidence was presented from which the jury could find that appellant did in
fact intend to commit robbery when he killed the victim.
course of the commission of a felony, and not vice versa, for the rule to apply. The instruction given by the
district court correctly states the felony murder rule. See Payne v. State, 81 Nev. 503, 406 P.2d 922 (1965).
[Headnote 10]
Appellant contends that the district court denied him the presumption of innocence by instructing the jury to
do equal and exact justice between the Defendant and the State of Nevada. This instruction does not concern
the presumption of innocence or burden of proof. A separate instruction informed the jury that the defendant is
presumed innocent until the contrary is proven and that the state has the burden of proving beyond a reasonable
doubt every material element of the crime and that the defendant is the person who committed the offense.
Appellant was not denied the presumption of innocence.
[Headnote 11]
Appellant contends that the reasonable doubt instruction required a higher degree of doubt for acquittal than
mandated by constitutional standards. This contention lacks merit. The district court gave Nevada's statutory
reasonable doubt instruction as recited in NRS 175.211(1). This instruction is mandated by NRS 175.211(2),
and this court has concluded that it is not a denial of the process where, as here, the jury was also instructed on
the presumption of innocence and the state's burden of proof. Bollinger v. State, 111 Nev. 1110, 1115, 901 P.2d
671, 674 (1995); see also Lord v. State, 107 Nev. 28, 38-40, 806 P.2d 548, 554-56 (1991). Further, the United
States Court of Appeals for the Ninth Circuit has held that this instruction, while not ideal, does not violate
constitutional standards. Ramirez v. Hatcher, 136 F.3d 1209, 1211 (9th Cir.), cert. denied,
----
U.S.
----
, 119
S.Ct. 415 (1998).
[Headnote 12]
Appellant contends that the district court improperly instructed the jury that it was not required to reach
unanimity on the means or the theory of criminal liability used in arriving at its verdict. The district court
properly gave this instruction. See Evans v. State, 113 Nev. 885, 944 P.2d 253 (1997).
Appellant contends that his convictions of robbery and first degree murder are not supported by sufficient
evidence. The standard of review for sufficiency of the evidence upon appeal is whether the jury, acting
reasonably, could have been convinced of the defendant's guilt beyond a reasonable doubt. Kazalyn v. State,
108 Nev. 67, 71, 825 P.2d 578, 581 (1992). There is sufficient evidence if the evidence, viewed in the light most
favorable to the prosecution, would allow any rational trier of fact to find the essential elements of the
crime beyond a reasonable doubt.
the essential elements of the crime beyond a reasonable doubt. Davis v. State, 110 Nev. 1107, 1116, 881 P.2d
657, 663 (1994) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
Appellant contends that his conviction of robbery is not supported by sufficient evidence because the state
did not prove that he formed the intent to rob Williams prior to killing him. Specifically, appellant points to
Cintron's testimony that appellant said he and Williams got into an argument and then a fight, that appellant
strangled Williams after Williams threatened to shoot him, and that later, appellant and his cousin returned to
Williams' apartment and robbed him for his stuff.
[Headnote 13]
We have previously held that although the acts of violence and intimidation preceded the actual taking of
the property and may have been primarily intended for another purpose, it is enough, to support [the robbery
charges], that [defendants], taking advantage of the terrifying situation they created, fled with [the victim's]
property. Norman, 92 Nev. at 697, 558 P.2d at 543. Under Norman, ample evidence was presented to convict
appellant of robbery. Appellant killed Williams, left Williams' apartment, and later returned to take Williams'
property. Appellant, shortly after Williams died, pawned a shotgun and two rings that belonged to Williams.
Further, ammunition for a .22 caliber rifle, a .45 caliber handgun and a 12 gauge shotgun was found in
appellant's apartment. Missing from Williams' belongings were a .22 caliber rifle, a .45 caliber Colt
semi-automatic handgun and a Remington 12 gauge shotgun. Also, appellant and Williams had been involved in
a dispute over a gambling jackpot and had argued on the evening of Williams' death so vehemently that a
bartender separated them. Sufficient evidence was presented for the jury to reasonably infer that appellant killed
Williams to obtain his possessions. See id.; see also NRS 200.380.
[Headnote 14]
Appellant contends that the state did not present sufficient evidence to satisfy the intent element of first
degree murder. Specifically, appellant contends that Cintron's testimony regarding appellant's confession is
evidence of only voluntary manslaughter. Further, as mentioned previously, appellant contends that there was
insufficient evidence of robbery and therefore of first degree murder under the felony murder rule.
[Headnote 15]
The deliberation needed for first degree murder need only be for an instant. Scott, 92 Nev. at 555, 554 P.2d
at 737. A medical expert testified that it took Williams between thirty seconds and one and one-half minutes to
die from the ligature strangulation.
The ligature had been wrapped around Williams' neck several times. The jury could reasonably infer from the
evidence presented that the killing was willful, deliberate, and premeditated, and therefore first degree murder.
See NRS 200.030(1)(a). Further, as discussed above, sufficient evidence was presented to support appellant's
conviction of robbery and to implicate the felony murder rule.
[Headnote 16]
Appellant contends that he was denied a fair trial due to judicial misconduct. Specifically, appellant
complains that the district court's disparagement of the jury questionnaire prejudiced the defense. At one point,
the court said, I won't use these questionnaires again, and told a juror to forget the questionnaire. Appellant
contends that the district court improperly denied his motion to dismiss the jury panel based on these remarks.
The jurors did not know that the defense had requested the questionnaire; it was not tied to the defense in the
jury's knowledge. Thus, appellant was not prejudiced by the court's comments, and dismissal of the jury was not
warranted.
[Headnote 17]
Appellant further contends that he was denied a fair trial by the district court's admonishment to defense
counsel, during voir dire, to stop wishing individual jurors a good morning and, to save time, to greet the jury en
masse instead. While the court may have displayed some irritation with defense counsel, the clear intent of its
remarks was to save time; it was not directing animus toward defense counsel. This remark did not deny
appellant a fair trial.
[Headnote 18]
Appellant complains that he was denied a fair trial because the court called lead defense counsel a
trickster. This occurred after that attorney had received permission to leave the courtroom intermittently due to
an intestinal disorder, and subsequently moved for a mistrial because both defense counsel were not present at
all times. The court denied the motion, but offered to recall the witness who testified during the defense
counsel's absence. Counsel declined to recall the witness. The court's remark was made outside the presence of
the jury; appellant was not prejudiced.
Appellant contends he was denied a fair trial by prosecutorial misconduct when the prosecutor asked
appellant: What did it feel like to strangle Tom Williams to death? The court sustained defense counsel's
objection, and appellant did not answer.
Appellant contends that this question was inflammatory and prejudicial misconduct and denied him a fair
trial. The state argues that it was an appropriate follow-up question after appellant testified
about the last time he saw Williams alive.
argues that it was an appropriate follow-up question after appellant testified about the last time he saw Williams
alive. The state cites to Johnson v. United States, 318 U.S. 189, 195 (1943) (an accused who takes the stand may
not stop short in his testimony by omitting and failing to explain circumstances and events already in evidence,
in which he participated and concerning which he is fully informed).
[Headnote 19]
The prosecutor's question was improper; it was inflammatory and not a true attempt to elicit relevant
information. Nevertheless, the district court sustained appellant's objection, and appellant did not answer the
question. Appellant was not materially prejudiced nor denied a fair trial by this question.
[Headnotes 20, 21]
Appellant also complains of the prosecutor's arguments concerning facts not in evidence. Specifically, the
prosecutor sarcastically commented that according to the defendants in any criminal trial in which she had
represented the state in the last eighteen years, the police and the prosecution never got the right guy. Further,
the prosecutor accused defense counsel of arguing that the victim had a bad heart and was going to die anyway.
These were not, as the state claims, appropriate rebuttals to defense arguments. See Williams v. State, 103 Nev.
106, 110, 734 P.2d 700, 703 (1987) (prosecutor may not argue facts or inferences not supported by the
evidence). Nevertheless, this misconduct was not so egregious that it rendered appellant's conviction or sentence
a denial of due process. See Castillo v. State, 114 Nev. 271, 281, 956 P.2d 103, 109-110 (1998).
[Headnote 22]
Appellant complains that the prosecutor personally attacked his attorney, infringing on his right to counsel,
by telling the jury that defense counsel was trying to sell [them] a bill of goods. See McGuire v. State, 100
Nev. 153, 157, 677 P.2d 1060, 1063-64 (1984). Further, appellant argues that the prosecutor denied him a fair
trial by personally vouching for the untruthfulness of appellant's testimony. See United States v. Young, 470
U.S. 1, 8 (1985); Ross v. State, 106 Nev. 924, 927, 803 P.2d 1104, 1105 (1990). Appellant contends that the
prosecutor's telling the jury that appellant had fooled people and warning don't let him fool you were an
impermissible appeal to passion and prejudice. See Viereck v. United States, 318 U.S. 236, 247-48 (1943);
United States v. Garza, 608 F.2d 659, 663-64 (5th Cir. 1979).
These comments were not, as the state contends, permissible rebuttal argument. Cf. Williams v. State, 113
Nev. 1008, 1018-19, 945 P.2d 438, 444-45 (1997), cert. denied,
----
U.S.
----
, 119 S.Ct. S2 {199S).
S.Ct. 82 (1998). The ultimate question is whether the misconduct was so egregious that it denied the
fundamental right to a fair jury trial. Id. Overall, the misconduct was not so egregious that it denied appellant a
fair trial.
[Headnotes 23, 24]
Appellant contends that Cintron's testimony that appellant said he did Williams too was improperly
admitted as evidence of other crimes, and that the district court improperly denied his subsequent motion for a
mistrial. See NRS 48.045(2) (evidence of other crimes is not admissible to prove the character of a person in
order to show that he acted in conformity therewith). Further, even though appellant did not request a curative
instruction following this testimony, he contends that the district court erred by failing to sua sponte give such an
instruction, citing Sterling v. State, 108 Nev. 391, 394, 834 P.2d 400, 402 (1992). These contentions lack merit.
See Stickney v. State, 93 Nev. 285, 564 P.2d 604 (1977) (defendant's election not to have the jury admonished
vitiates any objection the defendant may have had regarding the reference). The remark was unintentional and
did not materially prejudice appellant. The district court did not abuse its discretion in denying appellant's
motion for a mistrial. See Evans v. State, 112 Nev. 1172, 1200, 926 P.2d 265, 283 (1996) (denial of motion for a
mistrial will not be disturbed absent a clear showing of abuse of discretion), cert. denied, 520 U.S. 1245, 117
S.Ct. 1854 (1997).
The Penalty Phase
[Headnote 25]
Appellant contends the district court erred in instructing the jury, in the penalty phase, that its verdict may
not be influenced by sympathy. Appellant contends that this instruction improperly precluded the jury from
considering sympathy warranted by the evidence. This contention lacks merit. The district court may properly
instruct the jury to disregard sympathy where, as here, the jury is also instructed to consider mitigating
circumstances. Wesley v. State, 112 Nev. 503, 519, 916 P.2d 793, 803-04 (1996), cert. denied, 520 U.S. 1126,
117 S.Ct. 1268 (1997).
Appellant contends that the jury could not properly find robbery an aggravating circumstance because, as he
claimed previously, his conviction of robbery is not supported by sufficient evidence. We have already
concluded that appellant's conviction of robbery is supported by sufficient evidence. Consequently, the jury
could properly find robbery an aggravating circumstance.
Appellant contends that the district court erred by admitting at the penalty phase testimony by a police
detective regarding his investigation of appellant's commission of another murder of which appellant had
not been convicted.
which appellant had not been convicted. Appellant contends that absent a conviction, the detective's testimony
was unreliable. Further, appellant contends that it was improper and hearsay to allow the detective to summarize
investigation results, including statements of witnesses, rather than present the actual witnesses.
[Headnote 26]
Testimony by police officers regarding their investigations of a defendant's other crimes is admissible at a
capital penalty hearing so long as the evidence is not impalpable or highly suspect. Homick v. State, 108 Nev.
127, 138, 825 P.2d 600, 607 (1992). Admission of such evidence is left to the sound discretion of the district
court. Id. Appellant asks this court to revisit its holding in Homick and hold such evidence inadmissible at
capital penalty hearings. This we decline to do.
[Headnote 27]
Appellant further attempts to distinguish this case from Homick on the basis that appellant had not been
convicted of a crime in the matter regarding which the detective testified in this case. Appellant has not shown,
however, that the detective's testimony was impalpable or highly suspect or otherwise inadmissible. See id.
Hearsay evidence is generally admissible at a capital penalty hearing. See NRS 175.552(3) (evidence admitted
concerning any other matter which the court deems relevant to sentence, whether or not the evidence is
ordinarily admissible). The district court did not abuse its discretion in admitting this testimony.
[Headnote 28]
Appellant contends that it was improper to allow victim impact testimony at the penalty hearing because the
statutory aggravating factors, NRS 200.033, do not provide for presentation of such evidence. Presentation of
victim impact testimony is permitted under NRS 175.552(3). See also Homick, 108 Nev. at 136-37, 825 P.2d at
607. Further, victim impact testimony is permitted at capital penalty proceedings under federal due process
standards. Payne v. Tennessee, 501 U.S. 808 (1991). Such evidence must be excluded if it renders the
proceeding fundamentally unfair. Cf. McNelton v. State, 111 Nev. 900, 906, 900 P.2d 934, 938 (1995), cert.
denied, 517 U.S. 1212 (1996). That did not occur here.
[Headnote 29]
Appellant further contends that the testimony of Jessica Gonzales, Williams' daughter, exceeded the proper
bounds of victim impact testimony because she testified regarding the impact of the crime on herself and on
other family members, including her sister and Williams' grandchildren. Appellant did not preserve this issue
by objecting to admission of this testimony.
this issue by objecting to admission of this testimony. Thus it is considered on appeal only if it is plain or
patently prejudicial error. See Hewitt, 113 Nev. at 392, 936 P.2d at 333. Admission of this testimony was not
error at all. As mentioned above, such testimony may be admitted at a penalty proceeding so long as it is not
impalpable or highly suspect. Homick, 108 Nev. at 138, 825 P.2d at 607; see also NRS 175.552(3). Gonzales's
testimony was properly admitted and considered.
[Headnote 30]
Appellant contends that the prosecutor committed prejudicial misconduct by asking the jurors to place
themselves in the position of the victim. The prosecutor told the jury an eye for an eye is never really an eye for
an eye when you are the victim or you are the survivor of the victim. This type of argument is clearly improper.
See Howard v. State, 106 Nev. 713, 718-19, 800 P.2d 175, 178 (1990); Jacobs v. State, 101 Nev. 356, 359, 705
P.2d 130, 132 (1985). Defense counsel's objection terminated this line of argument at its inception, so that
appellant was not unfairly prejudiced. This argument did not deny appellant a fair penalty hearing. See Castillo,
114 Nev. at 281, 956 P.2d at 109-10 (inappropriate comment by prosecutor warrants reversal only if it so infects
the proceeding with unfairness as to make the result a denial of due process).
[Headnote 31]
Appellant contends, without making any specific argument, that his sentence of death is inappropriate, citing
this court's statement that [t]he United States Supreme Court has observed that under contemporary standards
of decency death is viewed as an inappropriate punishment for a substantial portion of convicted first-degree
murderers.' Chambers v. State, 113 Nev. 974, 985, 944 P.2d 805, 812 (1997) (quoting Haynes v. State, 103
Nev. 309, 319-20, 739 P.2d 497, 504 (1987), and Woodson v. North Carolina, 428 U.S. 280, 296 (1976)).
Appellant notes that the ultimate penalty is reserved for the worst of the worst, and contends that he is not one
of those and does not deserve the death penalty. See id. The fact that some other murderers may be worse than
appellant is not a basis for reversing appellant's sentence. As noted below, we conclude that appellant's sentence
is not excessive.
Appellant points out that the jury found only one aggravating circumstance, robbery. Further, the jury found
one listed statutory mitigating circumstance, no significant history of prior criminal activity, and found at least
one other unspecified mitigating circumstance. See NRS 200.035(7) (any other mitigating circumstance).
Appellant contends that the evidence supports the following unspecified mitigating circumstances:
lowing unspecified mitigating circumstances: (1) prior military service; (2) no problems while incarcerated
awaiting trial; (3) ability to function in a structured environment; (4) steady employment history; (5) alcohol
abuse; and (6) intoxication at the time of the offense. Thus, appellant contends that because the jury found at
least two, and likely more, mitigating circumstances, and only a single aggravating circumstance, his sentence of
death must have been imposed under the influence of passion, prejudice, and arbitrary factors, and is excessive
considering the crime and the defendant.
[Headnotes 32, 33]
The weighing of the aggravating and mitigating circumstances is not mathematical; it is enough that the jury
find one aggravating circumstance and that whatever mitigating circumstances it finds do not outweigh the
aggravating circumstance or circumstances. NRS 175.554(3). That is what the jury did here. Appellant's
sentence was not imposed due to passion, prejudice or any arbitrary factor and is not excessive considering
appellant and his crime. See generally Greene v. State, 113 Nev. 157, 174, 931 P.2d 54, 65 (1997).
[Headnote 34]
Appellant contends that the cumulative effect of the previously discussed errors denied him a fair trial. See
Aesoph, 102 Nev. at 322-23, 721 P.2d at 383-84 (cumulative effect of prosecutor's injection of personal beliefs
during closing argument and comments on post-arrest silence mandated reversal of first degree murder
conviction); Big Pond v. State, 101 Nev. 1, 692 P.2d 1288 (1985) (because evidence was not overwhelming,
cumulative effect of errors which were not egregious standing alone warranted reversal of sexual assault
conviction).
Relevant factors to consider in evaluating a claim of cumulative error include whether the issue of
innocence or guilt is close, the quantity and character of the error, and the gravity of the crime charged.'
Homick v. State, 112 Nev. 304, 316, 913 P.2d 1280, 1289 (1996) (quoting Big Pond, 101 Nev. at 3, 692 P.2d at
1289), cert. denied, 519 U.S. 1012, 117 S.Ct. 519 (1996); see also Lay, 110 Nev. at 1199, 886 P.2d at 454. As
discussed above, appellant's claims of error largely lack merit. The prosecutorial misconduct that occurred was
not particularly egregious, nor were there other materially prejudicial errors, and sufficient evidence supports the
jury's finding of guilt and its penalty determination. Appellant stands convicted of a serious crime, but his
conviction and sentence are not in question due to cumulative or other error. See Homick, 112 Nev. at 316-17,
913 P.2d at 1289; Lay, 110 Nev. at 1199, 886 P.2d at 454.
In cases where the death penalty is imposed, this court, under NRS 177.055(2), considers,
in addition to errors enumerated on appeal: (1) whether the evidence supports the finding of the aggravating
circumstance or circumstances; (2) whether the sentence of death was imposed under the influence of passion,
prejudice or any arbitrary factor; and (3) whether the sentence of death is excessive, considering
both the crime and the defendant.
We conclude, as mentioned previously, that the evidence in the record supports the jury's finding of the
aggravating circumstance of robbery. Further, we conclude that the death penalty was not, in this case, imposed
under the influence of passion, prejudice, or any arbitrary factor, nor is it excessive considering the crime and
the defendant.
CONCLUSION
Appellant has not shown that relief is warranted on any of the claims of error raised in this appeal. Further,
we conclude that appellant received a fair trial and a fair penalty proceeding. Accordingly, we affirm appellant's
judgment of conviction and sentence of death.
____________
114 Nev. 1217, 1217 (1998) Stevens v. Warden
DWAYNE STEVENS, Appellant, v. WARDEN, NEVADA STATE PRISON, JOHN
IGNACIO, Respondent.
No. 32101
December 9, 1998 969 P.2d 945
Appeal from an order of the district court denying appellant's post-conviction petition for a writ of habeas
corpus challenging the computation of appellant's good time credits. First Judicial District Court, Carson City;
Michael E. Fondi, Judge.
Inmate who received consecutive ten-year terms on resentencing for second-degree murder
and use of a deadly weapon petitioned for writ of habeas corpus, challenging computation of
his good-time credits. The district court denied petition, and inmate appealed. The supreme
court held that: (1) application of Bowen decision, under which primary and enhancement
sentences are to be treated as separate for all purposes, would be retroactive in present case,
and (2) if retroactive application of Bowen decision resulted in a computation of good-time
credits that increased amount of time inmate was required to spend in prison, such application
would violate Due Process Clause.
Vacated and remanded.
Steven G. McGuire, State Public Defender and James P. Logan, Chief Appellate Deputy, Carson City, for
Appellant.
Frankie Sue Del Papa, Attorney General and Dorothy Nash Holmes, Deputy Attorney General, Carson City;
Noel S. Waters, District Attorney, Carson City, for Respondent.
By its terms, the Ex Post Facto Clause is a limitation on legislative powers and does not of its own force apply to judicial branch of
government. Const. art. 1, 15; U.S. Const. art. 1, 9, cl. 3.
Judicial ex post facto prohibition under Due Process Clause prevents judicially wrought retroactive increases in levels of
punishment in precisely the same way that the Ex Post Facto Clause prevents such changes by legislation. Const. art. 1, 8, cl. 5, 15;
U.S. Const. art. 1, 9, cl. 3; amend. 14.
Bowen decision, which held that primary and enhancement sentences must be treated as separate sentences for all purposes, was
unforeseeable, and therefore application of Bowen to the detriment of a prisoner who committed offenses before date of that decision
would violate judicial ex post facto principles under Due Process Clause. Const. art. 1, 8, cl. 5; U.S. Const. amend. 14.
4. Courts.
Application of Bowen decision, under which primary and enhancement sentences are to be treated as separate sentences for all
purposes, to inmate who committed primary offense in 1985 would be retroactive, where cases overruled by Bowen were still good law
at time of offense.
For purposes of judicial ex post facto principles under Due Process Clause, relevant date for determining whether application of
judicial decision affecting good-time credit calculations would be retroactive was date on which offenses were committed, rather than
date of sentencing. Const. art. 1, 8, cl. 5; U.S. Const. amend. 14.
Retroactive application of judicial decision affecting good-time credit calculations to inmate serving ten-year sentence for
second-degree murder and consecutive ten-year enhancement for use of deadly weapon would violate Due Process Clause if it resulted
in computation of good time credits that increased amount of time inmate was required to spend in prison. Const. art. 1, 8, cl. 5; U.S.
Const. amend. 14.
OPINION
Per Curiam:
FACTS
In May of 1985, appellant Dwayne Stevens was charged with first-degree murder. On April 24, 1986, Stevens was convicted, pursuant
to a jury verdict, of one count each of first-degree murder, robbery with the use of a deadly weapon, possession of a
stolen credit card and grand larceny auto.
der, robbery with the use of a deadly weapon, possession of a stolen credit card and grand larceny auto. Stevens
received a death sentence for the first-degree murder conviction, and was sentenced to prison for two,
consecutive, fifteen-year terms for robbery with the use of a deadly weapon, a consecutive six years for
possession of a stolen credit card conviction, and a consecutive ten years for grand larceny auto. This court
dismissed Stevens' direct appeal. Stevens v. State, Docket No. 17590 (Order Dismissing Appeal, October 21,
1988).
In 1994, this court considered Stevens' appeal from a district court order denying his second petition for
post-conviction relief, and reversed the judgment of conviction and remanded the case for a new trial. Stevens v.
State, Docket No. 24138 (Order of Remand, July 8, 1994). On remand, Stevens agreed to plead guilty to
second-degree murder with the use of a deadly weapon. On February 9, 1995, the district court sentenced
Stevens to prison for ten years for the primary offense of second-degree murder and a consecutive ten-year term
for the deadly-weapon enhancement.
Because Stevens had been serving a death sentence, no good time credits had been applied to his sentence;
however, after this court reversed the death sentence and the district court resentenced Stevens in 1995, prison
authorities used the 5-10-12 formula under NRS 209.443 to compute Stevens' good time credits.
1
With the
good time credits, Stevens' first ten-year term had expired on August 29, 1992. Prison authorities then began
crediting good time credits against the second ten-year term, starting the 5-10-12 computation anew. Based on
these calculations, Stevens' second ten-year term would expire in April of 1999.
On December 2, 1996, Stevens filed a proper person post-conviction petition for a writ of habeas corpus.
Stevens claimed that his good time credits had been miscalculated to his detriment. Subsequently, the Nevada
State Public Defender was appointed to represent Stevens. The public defender filed a supplement to the petition
on October 28, 1997. In the supplement, counsel explained that prison authorities had erred in computing
Stevens' good time credits by starting the 5-10-12 computation anew at the beginning of his sentence for the
weapon enhancement. Counsel argued that Stevens should have continued to receive credit at the rate of 12
days per month.
__________

1
NRS 209.443 sets forth the formula for computing good time credits where, as here, the offender was
sentenced to prison after June 30, 1969, for a crime committed before July 1, 1985. NRS 209.443 provides that
good time credits are accrued as follows: 2 months for each of the first 2 years (i.e., 5 days per month); 4 months
for each of the next 2 years (i.e., 10 days per month); and, 5 months for each of the remaining years of the term
(i.e., 12 days per month).
The state filed its response on November 17, 1997. The state contended that under the law existing both at
the time Stevens was resentenced in 1995 and at the time the first ten-year sentence expired in 1992, Stevens'
two ten-year terms were properly treated as separate and distinct sentences for purposes of computing good time
credits. Stevens responded on December 4, 1997.
On March 19, 1998, the district court denied Stevens' petition. The district court concluded that prison
authorities had properly computed the good time credits.
Stevens contends that prison authorities should have treated the sentence for the primary offense of
second-degree murder and the enhancement sentence for the use of a deadly weapon as a single sentence for
purposes of computing good time credits. Stevens therefore concludes that the district court erred by denying his
petition. For the reasons discussed below, we agree.
DISCUSSION
In Biffath v. Warden, 95 Nev. 260, 593 P.2d 51 (1979) (Biffath I), and Director, Prisons v. Biffath, 97
Nev. 18, 621 P.2d 1113 (1981) (Biffath II), this court held that a sentence for a primary offense and the
enhancement sentence for the use of a deadly weapon in the commission of the primary offense should be treated
as a single sentence for purposes of computing good time credits and parole eligibility. In Kreidel v. State, 100
Nev. 220, 678 P.2d 1157 (1984), this court reaffirmed the holding in Biffath II, and held that Biffath II should
be applied retroactively because the court's interpretation of NRS 193.165 (deadly weapon enhancement
statute) was both authoritative and foreseeable. However, in Nevada Dep't Prisons v. Bowen, 103 Nev. 477,
481, 745 P.2d 697, 699-700 (1987), this court expressly overruled Biffath I, Biffath II, and Kreidel, and held
that the primary and enhancement sentences must be treated as separate sentences for all purposes. We directed
that the opinion in Bowen be applied retroactively to the extent possible, but because the opinion was not
foreseeable, we stated that in no case shall this opinion be applied to the detriment of any prisoner sentenced
before the date hereof. Id. at 481 n.4, 745 P.2d at 700 n.4.
In this case, the Department of Prisons treated Stevens' primary and enhancement sentences as separate
sentences pursuant to this court's decision in Bowen because that was the law in effect when the district court
resentenced Stevens in 1995. Stevens contends, among other things, that the Bowen decision should not be
applied to him because to do so would violate the Ex Post Facto and Due Process Clauses of the federal
2
and
state
3
constitutions.
__________

2
U.S. Const. art. I, 9, cl.3 (Ex Post Facto Clause); U.S. Const. amend. XIV (Due Process Clause).

3
Nev. Const. art. 1, 15 (Ex Post Facto Clause); Nev. Const. art. 1, 8, cl. 5 (Due Process Clause).
[Headnotes 1, 2]
The Supreme Court has explained that:
To fall within the ex post facto prohibition, a law must be retrospectivethat is, it must apply to events
occurring before its enactmentand it must disadvantage the offender affected by it, by altering the
definition of criminal conduct or increasing the punishment for the crime.
Lynce v. Mathis, 519 U.S. 433, 441 (1997) (quoting Weaver v. Graham, 450 U.S. 24, 29 (1981)). By its terms,
the Ex Post Facto Clause is a limitation on legislative powers and does not of its own force apply to the Judicial
Branch of government. Marks v. United States, 430 U.S. 188, 191 (1977). However, the Supreme Court has
held that ex post facto principles apply to the judicial branch through the Due Process Clause, which precludes
the judicial branch from achieving precisely the same result through judicial construction as would application
of an ex post facto law. Bouie v. Columbia, 378 U.S. 347, 353-54 (1964); see also United States v. Burnom, 27
F.3d 283, 284 (7th Cir. 1994); Forman v. Wolff, 590 F.2d 283, 284 (9th Cir. 1978). This judicial ex post facto
prohibition prevents judicially wrought retroactive increases in levels of punishment in precisely the same way
that the Ex Post Facto Clause prevents such changes by legislation. See Dale v. Haeberlin, 878 F.2d 930, 934
(6th Cir. 1989); see also Devine v. New Mexico Dep't of Corrections, 866 F.2d 339, 344-45 (10th Cir. 1989)
(concluding that the underpinnings of the ex post facto clause compel applying it full force to courts when they
enhance punishment by directly delaying parole eligibility).
[Headnote 3]
The Supreme Court has explained that [i]f a judicial construction of a criminal statute is unexpected and
indefensible by reference to the law which had been expressed prior to the conduct in issue,' it must not be given
retroactive effect. Bouie, 378 U.S. at 354 (citation omitted); see also Holguin v. Raines, 695 F.2d 372, 374 (9th
Cir. 1982) (the principle of fair warning implicit in the ex post facto prohibition requires that judicial decisions
interpreting existing law must have been foreseeable). As we expressly recognized in Bowen, our decision to
overrule the Biffath line of cases was not foreseeable. Bowen, 103 Nev. at 481 n.4, 745 P.2d at 700 n.4.
[Headnotes 4, 5]
The next question is whether Bowen is being applied retroactively in this case. See Lynce, 519 U.S. at 441.
The key to this question is what [the defendant] could have anticipated at the time he committed the crime.
Dale, 878 F.2d at 935; cf.
Hamilton v. United States, 67 F.3d 761, 764-65 (9th Cir. 1995) (application of version of Sentencing Guidelines
in effect at time of resentencing would violate Ex Post Facto Clause if it adversely affected the defendant); Story
v. Collins, 920 F.2d 1247, 1251 (5th Cir. 1991) (observing that, if a state computes good time credits on the
basis of a law that became effective after the offense that resulted in the prisoner's incarceration, and if that
computation is less favorable to the prisoner than the computation he would have received under the law that
was effective on the date he committed the offense, the state violates the constitutional provision against ex post
facto laws); Goldsworthy v. Hannifin, 86 Nev. 252, 468 P.2d 350 (1970) (concluding that legislative amendment
defining minimum time for purpose of parole was an ex post facto law when applied to an offender for a crime
committed before the law was passed). Accordingly, the relevant date of inquiry is the date that Stevens
committed the offense.
4
At the time that Stevens committed the primary offense in 1985, this court's decisions
in Biffath I, Biffath II, and Kreidel were still good law. Therefore, this court's decision in Bowen is being applied
retroactively in this case.
[Headnote 6]
This is not the end of the inquiry. As set forth above, to violate ex post facto principles, the retroactive
application of a law or unforeseeable judicial decision also must disadvantage the offender affected by it. We
conclude that, assuming that computation of Stevens' good time credits pursuant to Bowen would increase the
amount of time that Stevens must spend in prison, applying Bowen to Stevens would disadvantage him.
5
Cf.
Weaver, 450 U.S. at 33 (By definition, this reduction in gain-time accumulation lengthens the period that
someone in [the defendant's] position must spend in prison.); Plyler v. Moore, 129 F.3d 728, 735 {4th Cir.
1997) {retroactive application of statute eliminating eligibility for release from
incarceration on furlough six months prior to expiration of sentence "unquestionably has
the effect of increasing the length of [the offenders'] incarceration"), cert. denied sub
nom.
__________

4
Because the relevant date of inquiry is the date that Stevens committed the offense, it is irrelevant that he
was resentenced after this court decided Bowen. The state mistakenly relies on Johnson v. Director, Dep't of
Prisons, 105 Nev. 314, 774 P.2d 1047 (1989), for the proposition that prison officials act correctly when they
compute sentences according to the law in effect at the time. Johnson is not on point for several reasons. In
Johnson, we rejected the defendant's claim that certain of his sentences should be recomputed pursuant to Bowen
because those sentences had been expired prior to our decision in Bowen and, as a result, prison officials could
not have been expected to anticipate Bowen and any question as to the method of computing those sentences
was rendered moot. Johnson, 105 Nev. at 314-16, 774 P.2d at 1048-49. Moreover, Johnson does not address
the ex post facto concerns raised in this appeal.

5
This conclusion is consistent with Bowen, where we explicitly recognized that retroactive application of that
decision could work to the detriment of certain prisoners and that to do so would be unfair. 103 Nev. at 481
n.4, 745 P.2d at 700 n.4.
735 (4th Cir. 1997) (retroactive application of statute eliminating eligibility for release from incarceration on
furlough six months prior to expiration of sentence unquestionably has the effect of increasing the length of [the
offenders'] incarceration), cert. denied sub nom. Moore v. Cummings, 118 S. Ct. 2359 (1998). Accordingly,
assuming that applying Bowen to Stevens would increase his sentence, we conclude that to do so would violate
the Due Process Clause. However, because the record before this court is insufficient for us to determine
whether applying Bowen to Stevens would increase Stevens' sentence, this case must be remanded to the district
court for further proceedings.
6

CONCLUSION
Based on the foregoing, we conclude that this case must be remanded for the district court to determine
whether computation of Stevens' good time credits based on two, separate, ten-year sentences pursuant to Bowen
is less favorable to Stevens than computation of the good time credits based on one twenty-year sentence
pursuant to Biffath I. As explained above, if the computation pursuant to Bowen is less favorable to Stevens (i.e.,
Stevens must spend more time in prison), then application of Bowen violates due process. Accordingly, we
vacate the district court's order and remand this case to the district court for further proceedings consistent with
this opinion.
7

__________

6
We note that application of Bowen likely works to the benefit of most prisoners. As we explained in Bowen:
The result of treating two consecutive sentences as one continuous sentence [pursuant to the Biffath line
of cases] benefits a minority of prisoners who have no prospect of being paroled. This is because more
good-time credits may be earned in the fifth and subsequent years of a sentence than in the first four
years. See NRS 209.443. For the vast majority of prisoners, however, the result is a significantly longer
time behind bars, because prisoners serving multiple consecutive sentences may be paroled from a prior
sentence to a subsequent sentence, thus satisfying both sentences concurrently.
103 Nev. at 480 n.2, 745 P.2d at 699 n.2. Moreover, for crimes committed on or after July 1, 1985 but before
July 17, 1997, the offender accrues 10 days of good time credits for each month that he serves. NRS 209.446.
Thus, offenders who are subject to NRS 209.446 and who committed their offense prior to our decision in
Bowen would not even enjoy the limited benefit offered by the Biffath line of cases.

7
Based on our resolution of this issue, we need not reach Stevens' other contentions.
____________
114 Nev. 1224, 1224 (1998) Widdis v. Dist. Ct.
DENNIS E. WIDDIS, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for the County of Washoe, and The Honorable JANET
J. BERRY, District Judge, Respondents, THE STATE OF NEVADA, Real Party in
Interest.
No. 31888
December 9, 1998 968 P.2d 1165
Original petition for a writ of mandamus challenging the district court's order denying
petitioner's motion for defense services and transcripts at public expense.
Petitioner's motion for payment of defense services for alleged indigent client was denied
by the district court and petitioner filed for a writ of mandamus. The supreme court held that:
(1) petitioner was not required to seek payment of retained psychologist in district court
before filing petition for writ of mandamus; (2) petition for writ of mandamus was not barred
by doctrine of laches; (3) criminal defendant who retained private counsel was entitled to
necessary defense services at public expense upon showing of indigency and need for
services; and (4) trial court was required to make specific findings concerning defendant's
indigency status and whether psychologist's evaluation was reasonably necessary.
Granted in part.
Dennis E. Widdis, Reno, for Petitioner.
Richard A. Gammick, District Attorney, and Daniel Greco and Gary Hatlestad, Deputy District Attorneys,
Washoe County for Respondents.
1. Mandamus.
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.
Writ of mandamus will not issue if the petitioner has a plain, speedy, and adequate remedy at law. NRS 34.170, 34.330.
3. Mandamus.
Supreme court retains discretion in deciding whether to entertain a writ of mandamus. NRS 34.160.
4. Mandamus.
Petitioner's motion for payment of mental health expert for alleged indigent client charged with murder, included request for
payment of fee for clinical psychologist retained, after motion was filed, to evaluate defendant and testify at sentencing
hearing, even though motion did not specifically request payment for psychologist's services, and did not
require petitioner to first seek payment for psychologist's services in district court before filing petition for
writ of mandamus.
defendant and testify at sentencing hearing, even though motion did not specifically request payment for psychologist's services, and
did not require petitioner to first seek payment for psychologist's services in district court before filing petition for writ of mandamus.
5. Mandamus.
There is no specific time limit delineating when a petition for a writ of mandamus must be filed. NRS 34.160.
6. Mandamus.
Delay of seven months in filing petition for writ of mandamus for payment of fee for clinical psychologist retained by alleged
indigent defendant charged with murder, did not implicate doctrine of laches. Delay was not inexcusable, did not result from
acquiescence, did not cause undue prejudice to the state, and request for fee was encompassed in earlier general request by petitioner
for payment of a mental health expert. NRS 34.160.
7. Costs.
Defendant, who was charged with murder and claimed he was indigent, was entitled under statute authorizing payment of defense
services for criminal defendants, to have the state provide reasonable and necessary defense services at public expense upon showing
of indigency and need, even though he retained a private counsel. NRS 7.135.
8. Costs.
Trial court was required to make specific findings to determine whether defendant charged with murder was indigent, and whether
report completed by retained clinical psychologist and filed and offered to the state one day before sentencing was reasonably
necessary, before denying petitioner's motion for public payment of psychologist's services. NRS 7.135.
OPINION
Per Curiam:
On March 12, 1997, Troy Lewis (Lewis) was charged with aiding and abetting Deano Vincent Spurlock (Spurlock) in committing the
first degree murder of Leopoldo Gonzalez-Cervantes. Lewis's father and grandmother retained Petitioner Dennis E. Widdis, Esq. (Widdis),
to represent Lewis. Because Lewis was allegedly indigent, and his family was financially unable to pay for any defense services beyond
Widdis's fee, Widdis filed a motion for defense services and transcripts at public expense. This motion was denied on July 30, 1997.
In its decision, the district court determined that NRS 7.135 provided authorization for payment of defense services only in those cases
where an attorney other than the public defender represented a criminal defendant.
1
Accordingly, the district court
determined that due to the absence of express statutory or decisional authorization, the
payment of defense services at public expense was unwarranted because Widdis had
been privately retained by Lewis' family.
__________

1
In pertinent part, NRS 7.135 provides:
The attorney appointed by a magistrate or district court to represent a defendant is entitled . . . to be
reimbursed for expenses reasonably incurred by him in representing the defendant and may employ,
subject to the prior approval of the magistrate or the district court in an ex parte application, such
investigative, expert or other services as may be necessary for an adequate defense. . . .
determined that due to the absence of express statutory or decisional authorization, the payment of defense
services at public expense was unwarranted because Widdis had been privately retained by Lewis' family.
Widdis did not seek immediate redress from the district court's order denying his motion for defense services at
public expense. On August 13, 1997, after fruitful plea negotiations, Lewis pleaded guilty to the reduced charge
of attempted armed robbery with the use of a deadly weapon and agreed to testify against Spurlock. On
September 5, 1997, Lewis was released on bail and began working as a carpenter making approximately twelve
dollars per hour.
Following Lewis' guilty plea to the reduced charge, Widdis hired clinical psychologist Dr. Martha Mahaffey
to conduct a psychological evaluation of Lewis in order to present the district court with sentencing alternatives.
Pursuant to the terms of his retainer agreement with Lewis' family, Widdis was not obligated to pay for defense
costs. Additionally, Lewis' family could not afford to pay Dr. Mahaffey's fee. Accordingly, in order to secure Dr.
Mahaffey's services, Widdis assured Dr. Mahaffey that he would seek payment of her fees at public expense. Dr.
Mahaffey completed her evaluation on October 17, 1997, and recommended that Lewis undergo a
comprehensive substance abuse program and be sentenced to probation rather than to a lengthy prison sentence.
Although Widdis received a copy of Dr. Mahaffey's report shortly thereafter, Widdis did not file a copy of this
report or provide a copy to the State until November 24, 1997, one day prior to Lewis' initial sentencing.
On December 18, 1997, based in part on Dr. Mahaffey's evaluation, the district court sentenced Lewis to the
Nevada State Prison for a 120-day evaluation with the possibility of probation thereafter. Although Dr. Mahaffey
was present and prepared to testify, Widdis did not call her but instead indicated to the court that she was
available if the court had any questions pertaining to Lewis' psychological evaluation. On February 25, 1998,
Widdis filed the instant petition for mandamus relief to compel the district court to order the payment of Dr.
Mahaffey's $2400.00 fee for professional services at public expense.
DISCUSSION
Widdis argues that irrespective of the fact that Lewis' family had retained private counsel on Lewis' behalf,
Lewis was indigent and thus the State was legally obligated to pay for reasonable defense services. Accordingly,
Widdis argues that the district court failed to perform a mandatory duty in refusing to direct the State to pay Dr.
Mahaffey's fee.
Widdis's argument is twofold: (1) generally, an indigent criminal defendant who has retained private counsel
is nonetheless entitled to necessary defense services at public expense; and
tled to necessary defense services at public expense; and (2) in the present case, this court's extraordinary relief
is warranted to compel the district court to order the payment of Dr. Mahaffey's fee with public funds. While we
agree with Widdis' first proposition, we conclude that our extraordinary relief in this specific case would be
premature at this juncture.
[Headnotes 13]
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, pursuant to 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 if the petitioner has a plain, speedy, and adequate remedy at law. See NRS 34.170; NRS 34.330.
Finally, this court retains discretion in deciding whether to entertain a writ of mandamus. See State ex rel. Dep't
Transp. v. Thompson, 99 Nev. 358, 662 P.2d 1338 (1983); Poulos v. District Court, 98 Nev. 453, 455, 652 P.2d
1177, 1178 (1982).
The State poses two challenges to the propriety of Widdis' petition for this court's mandamus relief. First, the
State argues that Widdis' June 12, 1997, motion for defense services was defective because it did not contain a
specific request for Dr. Mahaffey's professional services. Because Widdis did not hire Dr. Mahaffey until
September 1997, the State argues that Widdis thus has an adequate remedy at law: that is, Widdis can request
Dr. Mahaffey's fee from the district court and then appeal from the district court's order if need be. In the
alternative, the State argues that Widdis' petition for a writ of mandamus is barred by the doctrine of laches
because Widdis failed to file his petition until seven months after the district court's denial of his motion for
defense services at public expense. We reject both of the State's arguments.
[Headnote 4]
Widdis made various requests in his June 1997 motion including a general request for the services of a
mental health expert/consultant. Although Widdis' request does not specifically reference Dr. Mahaffey, such
lack of specificity is not fatal to Widdis' instant petition. Instead, we conclude that Widdis' general request for
mental health expert fees encompassed Dr. Mahaffey's fee and, thus, Widdis need not be forced to return to the
district court to specifically request fees for Dr. Mahaffey's services.
[Headnotes 5, 6]
Likewise, we conclude that Widdis' petition is not barred by the doctrine of laches due to his seven-month
delay in filing. Initially, we note that there is no specific time limit delineating when a petition
for a writ of mandamus must be filed.
we note that there is no specific time limit delineating when a petition for a writ of mandamus must be filed. See
Buckholt v. District Court, 94 Nev. 631, 633, 584 P.2d 672, 673 (1978). Moreover, there is no evidence in the
record to suggest that Widdis' February 25, 1998, filing date resulted from inexcusable delay or acquiescence, or
caused undue prejudice to the State. See id. at 633, 584 P.2d at 673 (explaining that the doctrine of laches will
preclude this court's consideration of a petition for writ of mandamus based on 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). Accordingly, we
conclude that Widdis' general request for the services of a mental health expert encompassed Dr. Mahaffey's fee,
and that Widdis' petition was timely filed.
[Headnotes 7, 8]
Turning to the merits of the instant petition, Widdis argues that even though he had been privately retained
by Lewis' family, Lewis was indigent and, thus, the State was legally obligated to pay for reasonable defense
services such as Dr. Mahaffey's fee. We agree that the State has a duty to provide reasonable and necessary
defense services at public expense to indigent criminal defendants who have nonetheless retained private
counsel. However, in the instant case, we conclude that our extraordinary relief would be premature due to a lack
of specific findings with respect to Lewis' indigency status and whether Dr. Mahaffey's evaluation was
reasonably necessary for Lewis' defense.
The Iowa Supreme Court faced a similar situation in English v. Missildine, 311 N.W.2d 292 (Iowa 1981). In
English, a defendant's mother retained private defense counsel for her son, but could not afford to pay for expert
witness fees or deposition expenses. Consequently, the defendant applied for these services at county expense;
however, the trial court denied the defendant's application. Id. at 293.
On appeal, the Iowa Supreme Court issued a writ of certiorari compelling the county to pay the requested
expenses. Id. at 294. The court noted that although an Iowa statute similar to NRS 7.135 authorized the public
payment of defense services for court-appointed attorneys, this statute did not apply because the defendant's
mother had retained private counsel. Id. at 293. Irrespective of the absence of any express statutory
authorization, the court concluded that the Sixth Amendment right to effective assistance of counsel provided
authority for the payment requested by the defendant. Id. at 294. According to the court, the determinative
question was the defendant's indigency.
minative question was the defendant's indigency. Once indigency was established, the court concluded that the
defendant [was] constitutionally entitled to those defense services for which he demonstrate[d] a need.' Id.
(quoting People v. Worthy, 167 Cal. Rptr. 402, 406 (1980)).
We conclude the English court's analytical framework is sound. Accordingly, we hold that a criminal
defendant who has retained private counsel is nonetheless entitled to reasonable defense services at public
expense based on the defendant's showing of indigency and need for the services. Although the use of public
funds in this manner may appear to be a misuse of such funds, we feel that a contrary rule would have a greater
negative impact on scarce public resources by creating disincentives for defendants to seek private
representation at their own expense. Such representation, at least, defrays the most costly aspect of defending a
person charged with criminal misconduct; costs that otherwise would be borne by public funds. Additionally, a
contrary rule disallowing the use of public funds would undoubtedly create disincentives to the defense bar from
taking those cases in which defense counsel would possibly have to absorb the cost of defense services. Further,
we are confident that a sufficient safeguard against the misuse of public funds is created by placing the burden
squarely on the defendant to demonstrate both indigency and reasonable need for the services in question.
2

In applying this framework to the instant case, we conclude that there has been an inadequate showing as to
Lewis' indigency status and whether Dr. Mahaffey's report was reasonably necessary to Lewis' defense. While
Widdis' motion for defense services at public expense was supported by Lewis' affidavit of indigency, Lewis'
affidavit is dated June 12, 1997, at which time Lewis was incarcerated. However, in September 1997, Lewis was
released on bail and began immediate full-time employment as a carpenter making approximately twelve dollars
per hour. Dr. Mahaffey conducted her evaluation during this period when Lewis was gainfully employed on a
full-time basis. Moreover, although Widdis had received Dr. Mahaffey's report shortly after its October 17,
1997, completion, Widdis did not file a copy of this report or proffer a copy to the State until November 24,
1997, one day prior to Lewis' initial sentencing.
Based on the foregoing, we conclude that Widdis' motion for this court's extraordinary relief was
procedurally appropriate and timely filed. However, due to a lack of specific findings with respect to Lewis'
indigency status and whether Dr. Mahaffey's report was reasonably necessary, we are unable to
determine whether the district court acted arbitrarily or capriciously in denying Widdis'
motion for defense services at public expense.
__________

2
In cases where the private funds committed to fees seem excessive, the district court has the discretion to
refuse applications for public assistance.
report was reasonably necessary, we are unable to determine whether the district court acted arbitrarily or
capriciously in denying Widdis' motion for defense services at public expense.
Accordingly, we grant Widdis' petition in part. The clerk of this court shall issue a writ of mandamus
directing the district court to vacate its order denying Widdis' motion for defense services and transcripts at
public expense, and to grant the motion if the district court makes a determination that Lewis was
indigent and that Dr. Mahaffey's evaluation was reasonably necessary for Lewis' defense.
The majority holds that the State has a duty to provide reasonable and necessary defense services at public
expense to indigent criminal defendants despite the fact that private counsel has been retained. I agree. However,
I propose that the determination of reasonable and necessary defense services should be determined prior to
counsel expending money on such services.
Under the federal scheme, statutory procedure calls for an ex parte showing of need in camera.
1
Criminal
Justice Act 18 U.S.C. 3006A(e)(1) (1970). Persuasive authority has also proposed that state courts should
grant an in camera hearing upon request. When such a hearing is granted, the procedure is to file a motion for
defense services tendering both the nature of the services sought and the reasons for seeking them in a
subsequent proceeding in camera. Ephraim Margolin and Allen Wagner, The Indigent Criminal Defendant and
Defense Services: A Search for Constitutional Standards, 24 Hastings L.J. 647, 662 (1973).
In this case, Widdis secured Dr. Mahaffey's services by assuring her that he would seek payment of her fees
at public expense. Widdis received a copy of Dr. Mahaffey's report around October 17, 1997, and did not
petition the district court for an order of payment of Dr. Mahaffey's $2400.00 fee until February 25, 1998. I
conclude that before the State is obligated to pay such fees, counsel should be required to make a showing of
need. I further conclude that such procedures for demonstration of need should be left to the legislative branch.
I fear that without procedural safeguards, the court's decision today will open the floodgates to excessive
expenses of expert witnesses. By requiring private counsel to get approval of defense services before actually
obtaining them, the courts can reasonably limit the high cost of criminal litigation.
__________

1
I do not mean to suggest that every case calls for an ex parte hearing. In this case, there would be no need
for an ex parte hearing because the expert was used at the sentencing phase rather than during the trial.
limit the high cost of criminal litigation. Furthermore, attorneys can then reallocate a portion of their fees to
cover the cost of some, or all, of the requested services should they be denied.
Hence, I would affirm the district court's order denying Widdis' motion for defense services at public
expense, because he failed to show need prior to contracting for Dr. Mahaffey's services.
Accordingly, I dissent.
____________
114 Nev. 1231, 1231 (1998) Lumbermen's Underwriting v. RCR Plumbing
LUMBERMEN'S UNDERWRITING ALLIANCE, a Reciprocal Insurance Exchange,
Appellant, v. RCR PLUMBING, INC., a California Corporation, Respondent.
No. 30602
December 9, 1998
969 P.2d 301
Appeal from an order of the district court granting a motion to dismiss in a subrogation action. Eighth
Judicial District Court, Clark County; Joseph T. Bonaventure, Judge.
Insurer that issued builder's risk policy to joint venture formed to build residential
subdivision brought subrogation action against plumbing subcontractor whose employee
allegedly caused fire that resulted in payments of more than $1,000,000 on the policy. The
district court dismissed action, and insurer appealed. The supreme court held that
subcontractor was not an insured under policy, entitling insurer to seek subrogation from
subcontractor.
James, Driggs & Walch, Las Vegas; Hawley, Troxell, Ennis & Hawley, Craig L. Meadows and Aaron R.
Gary, Boise, Idaho, for Appellant.
Alverson, Taylor, Mortensen, Nelson & Sanders and Jack C. Cherry, Las Vegas; Fetterly & Gordon and
Stephen G. Lickteig, Minneapolis, Minnesota, for Respondent.
Order granting motion to dismiss for failure to state a claim would be reviewed as order granting summary judgment, where
motion was supported by a number of documents which were outside the pleadings, including copies of the contracts and insurance
policies at issue. NRCP 12(b)(5), 56.
While supreme court will construe the pleadings and proof in the light most favorable to the nonmoving party when
reviewing grant of summary judgment, that party is not entitled to build its case on gossamer threads of
whimsy, speculation, and conjecture.
light most favorable to the nonmoving party when reviewing grant of summary judgment, that party is not entitled to build its case on
gossamer threads of whimsy, speculation, and conjecture. NRCP 56(c).
Supreme court reviews orders granting summary judgment de novo. NRCP 56(c).
4. Insurance.
Plumbing subcontractor was not an insured under builder's risk policy issued to joint venture formed to build residential
subdivision, entitling insurer to seek subrogation from subcontractor after paying insured for fire loss allegedly caused by negligence of
subcontractor's employee, where subcontract required subcontractor to hold one of the venture partners harmless and indemnify it for
all losses arising from performance of the agreement and to obtain liability and property damage insurance naming partner as
additional insured; overruling J.F. Shea Co. v. Hynds Plumbing & Heating, 96 Nev. 862, 619 P.2d 1207 (1980).
5. Insurance.
Insurer may not subrogate against a coinsured of its insured.
6. Insurance.
Insurance policy is a contract; as such, the policy is enforced according to its terms so as to effectuate the parties' intent.
7. Insurance.
While ambiguous terms in an insurance policy are generally construed in favor of the insured, this principle does not apply to the
determination of who is insured.
OPINION
Per Curiam:
Taos Estates, L.P. (Taos) is a joint venture composed of J.M. Peters Co., Inc. (Peters), The Accord Group (Accord), and Durable
Homes (Durable). These three organizations are in turn owned by Capital Pacific Holdings, Inc. (Capital), a holding company. Taos
was formed to build a residential subdivision in Las Vegas, Nevada.
In addition to being one of the joint venture partners, Durable was also the general contractor on the project. Durable subcontracted
with respondent RCR Plumbing, Inc. (RCR) for the installation of plumbing and gas piping in the homes under construction. The
contract between Durable and RCR contained the following provision:
To the full extent permitted by law, [RCR] agrees to hold harmless and indemnify [Durable] . . . against any and all claims,
damages, losses, liabilities and expenses . . . arising from or in connection with [RCR's] performance or non-performance under
this subcontract. [RCR] further agrees to obtain prior, [sic] to commencing work, and maintain, at its sole cost, during the
progress of its performance hereunder such insurance policies as may be required by [Durable]
including, without limitation . . . property damage insurance . . . naming [Durable] as Additional
Insured.
sole cost, during the progress of its performance hereunder such insurance policies as may be required by
[Durable] including, without limitation . . . property damage insurance . . . naming [Durable] as
Additional Insured.
Pursuant to this provision, RCR obtained an insurance policy from Federated Mutual
Insurance Company which named Durable as an additional insured.
Appellant Lumbermen's Underwriting Alliance (LUA) issued a policy to Peters which insured against
property damage to the Taos subdivision occurring during the course of construction (the policy). An
endorsement to the policy changed the named insured to Capital, the only named insured on the policy. The
policy covered, in relevant part:
Dwellings, apartment houses, garden apartments, condominiums and other structures appurtenant thereto,
while in course of construction and after completionbut not sold or occupied with Insured's knowledge,
together with all building materials and supplies at the construction site intended to enter into
construction of same, owned by the insured or for which the insured is legally liable.
(Emphasis added.)
On September 11, 1995, an employee of RCR is alleged to have negligently started a fire that caused over
$1.2 million of damage to the Taos subdivision. Pursuant to the policy, LUA paid $1,079,248.00 to Taos.
1
On
September 22, 1995, Durable paid RCR $34,041.81 as payment on an invoice for materials and supplies
delivered to and installed on, and labor performed on the Taos Estates project. On December 1, 1995, Durable
paid RCR $26,816.00 as payment on an invoice for the Taos fire rebuild.
On November 26, 1996, LUA, as subrogee of Taos, filed a complaint against RCR for damages resulting
from the fire. On January 8, 1997, RCR filed a motion to dismiss LUA's action for failure to state a claim
pursuant to NRCP 12(b)(5). On February 24, 1997, the district court granted RCR's motion on the grounds that
RCR was a coinsured under the policy. On March 13, 1997, LUA filed a motion for reconsideration or, in the
alternative, a motion for NRCP 54(b) certification. On May 20, 1997, the district court denied LUA's motion
for reconsideration and ordered final judgment entered against LUA pursuant to Rule 54(b). On June 13, 1997,
LUA filed a timely notice of appeal.
__________

1
The parties refer to Taos and Capital as though they were interchangeable; although Capital was the only
named insured on the policy, the pleadings here assert that payment was made to Taos. Therefore, we refer to
Taos as the named insured in this opinion.
DISCUSSION
[Headnote 1]
As a threshold matter, RCR argues that this court should review the order of the district court as an order
granting summary judgment under NRCP 56 rather than as a motion to dismiss under NRCP 12(b)(5). We agree.
If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not
excluded by the court, [a motion to dismiss under NRCP 12(b)(5)] shall be treated as one for summary judgment
and disposed of as provided in Rule 56. NRCP 12(c).
Here, RCR's motion for dismissal was supported by a number of documents which were outside the
pleadings, including copies of the contracts and insurance policies which are at issue in this case. LUA's
opposition to this motion included an affidavit executed by an employee of LUA. Therefore, we conclude that
the district court's dismissal of the case must be reviewed as an order granting summary judgment in RCR's
favor. See Thompson v. City of North Las Vegas, 108 Nev. 435, 438-39, 833 P.2d 1132, 1134 (1992).
Standard of Review
[Headnotes 2, 3]
It is well settled that summary judgment should be granted only when, based upon the pleadings and
discovery on file, no genuine issue of material fact exists for trial. NRCP 56(c). A genuine issue of material fact
exists when a reasonable jury could return a verdict for the non-moving party. Posadas v. City of Reno, 109 Nev.
448, 452, 851 P.2d 438, 441-42 (1993). While we will construe the pleadings and proof in the light most
favorable to the non-moving party, that party is not entitled to build its case on gossamer threads of whimsy,
speculation, and conjecture. Id. We review orders granting summary judgment de novo. Bulbman, Inc. v.
Nevada Bell, 108 Nev. 105, 110, 825 P.2d 588, 591 (1992).
LUA's Rights of Subrogation
[Headnote 4]
On appeal, LUA argues that the district court erred in determining that LUA was precluded from bringing an
action in subrogation against RCR. LUA argues that genuine issues of material fact remain as to whether RCR
was a coinsured of Taos under the policy and Nevada law.
[Headnotes 57]
It is well established that an insurer may not subrogate against a coinsured of its insured. J. F. Shea Co. v.
Hynds Plumbing, 96 Nev. S62, S66, 619 P.2d 1207, 1209 {19S0).
96 Nev. 862, 866, 619 P.2d 1207, 1209 (1980). In addition, [a]n insurance policy is a contract; as such, the
policy is enforced according to its terms so as to effectuate the parties' intent. Burrows v. Progressive Casualty
Ins., 107 Nev. 779, 781, 820 P.2d 748, 749 (1991). While ambiguous terms in an insurance policy are generally
construed in favor of the insured, this principle does not apply to the determination of who is insured. Aetna
Casualty & Surety v. Aztec Plumbing, 106 Nev. 474, 477, 796 P.2d 227, 229 (1990).
In Shea, the insurer for a developer brought an action in subrogation against a subcontractor for damages
resulting from a fire negligently caused by an employee of the subcontractor. The subcontract contained a clause
obligating the subcontractor to indemnify the developer for any loss resulting from the subcontractor's
performance. However, the subcontract also required the developer to obtain fire insurance covering the
property subject to the subcontract. Shea, 96 Nev. at 863-44, 619 P.2d at 1208.
The district court in Shea dismissed the action on the ground that the subcontractor was a coinsured of the
general contractor. We affirmed the judgment of the district court, reasoning that although the subcontractor was
not expressly named as an insured on the developer's policy, the loss at issue was covered, and therefore, the
subcontractor was a coinsured. In so determining, this court relied on language in the policy providing that
losses to materials, equipment and supplies and temporary structures of all kinds incidental to the construction
of buildings and structures, and similar properties belonging to others for which the insured is liable were
covered. Id. at 865, 619 P.2d at 1209 (emphasis added). We concluded that the term liable was not to be
construed as being restricted to the legal liability of the developer, but extended coverage to the owner of any
property for which the developer was generally responsible:
The insurance provided for in the Industrial policy attached to the construction project for the benefit
of all the unnamed owners of property therein. In this context, the term liable is not to be construed as
being restricted to the legal liability of Shea, but extends coverage to the owner of any property within the
project for which Shea was generally responsible. Shea, as general contractor, had responsibility for the
premises where the work was in progress and for equipment and supplies on the premises. Consequently,
Hynds' and Ruppert's material and supplies located on the damaged premises, which were not specifically
excluded, were covered under the Industrial policy. It follows that Hynds and Ruppert were to that extent
coinsured parties under the policy.
under the policy. An insurer may not subrogate against a coinsured of its insured.
Id. at 865-66, 619 P.2d at 1209 (citations omitted) (emphasis added). In apparent response to Shea, property
insurers writing builders' risk policies, in the modern context, now attempt to extend coverage only to property
owned by the insured or for which the insured is legally liable. The problem is that, while Shea defined the
term liability, it did not articulate how liability differed from legal liability. Thus, although builders' risk
insurers such as LUA have attempted to rely on a distinction between the two terms, Shea provides no guidance.
We conclude that the distinction between legal liability and general responsibility should be abandoned.
Although that distinction led us to conclude that coverage of a property loss at a construction project rendered
the owner of the property who caused the loss an additional insured, the true essence of Shea was that the
developer was required, in part, to insure the obligation of the subcontractor, thus rendering the construction
agreement and the insurance policy ambiguous. The ruling in Shea simply resolved the ambiguity by construing
the insurance agreement as a matter of law.
The subcontract between RCR and Durable is not ambiguous. It required RCR to hold harmless and
indemnify Durable for all losses, etc., arising from performance of the agreement and required RCR to obtain
liability and property damage insurance for losses naming Durable as an additional insured. Thus, RCR's
insurance with Federated Mutual covers losses which were covered by the arguably duplicate coverage obtained
by the developer in Shea. Because we now conclude that the language legal liability has no significance, and
because this eliminates an inference that RCR is an insured under LUA's policy as was the case in Shea, LUA is,
as a matter of law, entitled to bring a subrogation action. Thus, to the extent Shea is inconsistent with this
opinion, it is expressly overruled.
2

__________

2
Also, although Shea is factually quite similar to the present case, there is one key distinction. The
subcontract in Shea provided specifically that the developer was to provide fire insurance, which covered
property subject to the subcontract. Here, the contract between RCR and Durable contained no such provision.
Accordingly, we conclude that our decision in Shea would not be determinative in any case.
RCR also cites to Transamerica Insurance Co. v. Gage Plumbing and Heating Co., 433 F.2d 1051 (10th Cir.
1970), in support of its position. This case also involved a factual scenario similar to the one at issue here. In
Transamerica, the insurance policy at issue contained a provision limiting coverage to that property owned by
the Insured or . . . for which the insured is legally liable. Id. at 1053. However, we conclude that this case is
distinguishable because the facts in Transamerica indicated that both the named
For the foregoing reasons, we conclude that the trial court erred by granting RCR's motion
for dismissal. Accordingly, we reverse the order of the district court and remand the case for further
proceedings in accordance with this opinion.
3

____________
114 Nev. 1237, 1237 (1998) Buff v. State
ROBERT STEVEN BUFF and LOUIS DELMAR PACHECO, Appellants, v. THE STATE
OF NEVADA, Respondent.
No. 28083
December 9, 1998 970 P.2d 564
Consolidated appeal from judgments of conviction entered pursuant to jury verdicts of murder in the first
degree with the use of a deadly weapon. Second Judicial District Court, Washoe County; James A. Stone, Judge.
In a joint trial, co-defendants were each convicted, in the district court, of first-degree
murder with use of deadly weapon, and their sentences were enhanced for use of deadly
weapon. Co-defendants appealed. The supreme court held that: (1) trial court's error in using
jury instruction that applied functional test for determining whether Swiss army knife was
deadly weapon, for purposes of enhanced sentence statute, required reversal of deadly
weapon sentence enhancement and remand for new sentencing hearing; (2) failure to sever
joint trial into separate trials denied one defendant his right to fair trial, by precluding him
from introducing co-defendant's initial statement to police exonerating defendant; and (3)
admission of entire transcript of witness' preliminary hearing testimony violated one
defendant's Sixth Amendment confrontation right.
Affirmed in part; reversed in part and remanded.
Maupin, J., dissented in part.
__________
insured, who was the owner of the premises, and the subcontractor understood that the policy would cover the
loss at issue. Id. The subcontractor had canceled its own insurance policy in reliance on the owner's policy.
Indeed, the insurer had initially agreed to pay the subcontractor for his loss. Id. at 1054.
In the present case, RCR continued to maintain its own policy that covered the loss in question. Furthermore,
there is no evidence showing that LUA has made or agreed to make any payments to RCR under the policy.
Therefore, we conclude that Transamerica was decided on facts which are not present in this case.

3
We leave the question of whether LUA or Federated Mutual should prorate or apportion coverages for
further determination by the trial court. Cf. Shea, 96 Nev. at 866, 619 P.2d at 1209.
114 Nev. 1237, 1238 (1998) Buff v. State
Michael R. Specchio, Public Defender, and Mary Lou Wilson, Deputy Public Defender, Washoe
County, for Appellant Buff.
Robert Bruce Lindsay, Reno, for Appellant Pacheco
Hatlestad, Chief Appellate Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Reviewing court will not disturb a verdict on appeal if it is supported by sufficient evidence.
2. Criminal Law.
To determine whether an instrumentality is a deadly weapon for purposes of the enhanced sentence statute, the instrumentality
must satisfy the inherently dangerous weapon test. NRS 193.165.
3. Criminal Law.
Generally, it is the district court's duty to determine whether the instrument is an inherently dangerous weapon, for purposes of the
enhanced sentence statute. NRS 193.165.
4. Criminal Law.
Question whether Swiss army knife used in murder was deadly weapon, for purposes of enhanced sentence statute, was a close
case, and thus, trial court erred by determining as matter of law that such knife was deadly weapon, but trial court's error was cured
when trial court submitted deadly weapon sentence enhancement issue to jury. NRS 193.165.
5. Criminal Law.
Trial court's error in using jury instruction that applied functional test for determining whether Swiss army knife used in murder
was deadly weapon, for purposes of enhanced sentence statute, required reversal of deadly weapon sentence enhancement and remand
for new sentencing hearing. NRS 193.165.
6. Criminal Law.
Co-defendant's failure to object at trial to jury instruction that erroneously applied functional test for determining whether Swiss
army knife used in murder was deadly weapon, for purposes of enhanced sentence statute, did not preclude supreme court from
considering the issue sua sponte, as trial court's error was plain error. NRS 193.165.
7. Criminal Law.
Supreme court can address plain error sua sponte.
8. Criminal Law.
Trial court denied murder defendant's right to fair trial by failing to sever defendant's trial from co-defendant's murder trial
involving the same murder, as joint trial precluded defendant from introducing co-defendant's initial statement to police exonerating
defendant. U.S. Const. amend. 6; NRS 174.165(1).
9. Criminal Law.
Decision to sever a joint trial is vested in the sound discretion of the district court and will not be reversed on appeal unless the
appellant carries the heavy burden of showing that the trial judge abused his discretion. NRS 174.165(1).
114 Nev. 1237, 1239 (1998) Buff v. State
10. Criminal Law.
Murder co-defendant's initial statement to police exonerating murder defendant was admissible at joint trial, under hearsay
exception for statement against interest, and failure to admit the statement denied defendant's right to fair trial. Co-defendant's
statement was contrary to penal interest, co-defendant was unavailable because he invoked Fifth Amendment right not to testify, and
co-defendant's statement was corroborated by other witnesses' initial statements to police, which also exonerated defendant. U.S.
Const. amends. 5, 6; NRS 51.055(1)(a), 51.345(1)(b), (d).
11. Criminal Law.
Admission, at murder trial, of entire transcript of witness' preliminary hearing testimony, which contradicted witness' initial
statement to police exonerating defendant as accomplice in the murder, violated defendant's Sixth Amendment confrontation right, as
witness was available to testify and could have testified consistently with preliminary hearing testimony once his memory was
refreshed, and defendant was unable to expose potential bias caused by witness' incarceration after giving initial statement, which
could have caused witness to change his story at preliminary hearing and trial. U.S. Const. amend. 6.
12. Witnesses.
When the purpose of cross-examination is to expose bias, a trial court is not accorded the usual breadth of discretion in
determining whether to entertain the questioning.
13. Criminal Law.
State improperly commented on defendant's silence when detective gave direct testimony at murder trial that detective was unable
to interview defendant after defendant's arrest because defendant had invoked his Miranda rights, as the testimony was not inadvertent
slip, but instead was directly solicited by prosecutor. U.S. Const. amend. 5.
14. Criminal Law.
Failure of murder defendant to object at trial to state's solicitation of testimony commenting on defendant's silence did not
preclude supreme court review, as the error was plain error of constitutional dimensions. U.S. Const. amend. 5.
15. Criminal Law.
Fifth Amendment, incorporated to the states through the Due Process Clause of the Fourteenth Amendment, forbids a prosecutor
from commenting on the accused's silence. U.S. Const. amends. 5, 14.
OPINION
Per Curiam:
In 1994, John Coleman (Coleman), the forty-three-year-old victim in this case, traveled to Reno with his wife and two children to
attend his aunt's eightieth birthday party. Coleman and his family remained in the Reno area for approximately one month after the birthday
celebration.
On September 15, 1994, Coleman, who was one-quarter Native American, set out to find a Native American friend from a previous
Reno visit by the name of Chief. To find Chief, Coleman sought assistance from several transients living along the
Truckee River.
114 Nev. 1237, 1240 (1998) Buff v. State
sought assistance from several transients living along the Truckee River. The first people Coleman encountered
were transients John Lomas (Lomas), Debra Lupe (Lupe), and another unspecified acquaintance of theirs.
Coleman provided the group with money to buy alcohol and cigarettes, and the group started drinking and
walking together along the riverfront. Eventually, they came to the camp of several Native Americans.
Appellants Louis Delmar Pacheco (Pacheco) and Robert Steven Buff (Buff) resided at the camp, along
with Arnold Davis (aka Iron) and his niece, Eileen Davis (Eileen). At trial, Iron testified that the group was
basically family, as Pacheco and Buff were blood relatives of some sort. When Coleman and his group of new
acquaintances approached the camp, Pacheco, Buff, and the others were in the process of leaving. They
indicated that Coleman and his group could party at the campsite while they were away.
Several hours later the inhabitants of the camp, including appellants, returned. Lomas and Lupe testified that
they sensed some tension and hostility and decided to leave the camp, suggesting that Coleman do the same.
However, because Coleman was intoxicated and had not yet found his friend, he decided to stay at the camp.
There are conflicting accounts as to what happened next.
1
Iron testified at trial that shortly after Lomas and
Lupe left the camp, Coleman and Pacheco engaged in a verbal altercation. According to Iron, the argument
started after Coleman said he was Native American and Pacheco said that Coleman was a white man. When the
verbal fight ended, Pacheco began to hit Coleman's head against the rocks. Pacheco also held Coleman's head
back, exposing his neck, and yelling: I'll kill you. At that time, Pacheco also yelled, Do it, to Buff, who was
nearby, apparently in order to encourage Buff to kill Coleman. Buff then pulled a Swiss army knife from his
right hand pocket and indicated to Pacheco that he would do so. Buff brought the knife up with both hands and
plunged it into Coleman's throat. Coleman bled to death within fifteen to twenty minutes.
Thereafter, the camp broke up, and the group scattered. Leland Dement (Dement), a transient, found
Coleman dead and immediately contacted the police. The police issued a bulletin for two Native American men
and one female. That night the police apprehended Buff, who was with Iron and Eileen, and transported all three
to civil protective custody because of their level of intoxication. The police took samples of their clothes, shoes,
hair, and blood for future testing.
__________

1
Much of the ambiguity probably can be attributed to the fact that all participants and witnesses were,
admittedly, highly intoxicated.
114 Nev. 1237, 1241 (1998) Buff v. State
blood for future testing. Pacheco was apprehended shortly thereafter.
The police declared the campsite a crime scene, roped off the area, and began a forensic investigation. They
located a Swiss army knife, footprints in the dirt, and blood splatters.
On September 16, 1994, the coroner concluded that the cause of death was multiple stab wounds to the neck.
DNA testing concluded that Pacheco's jeans and shoes contained blood that could not exclude Coleman as the
donor. Similarly, blood was found on the Swiss army knife that could not exclude Coleman as the donor. Also,
forensic evidence confirmed that the footprints found at the scene were Pacheco's.
On July 28, 1995, Pacheco filed a motion for severance pursuant to NRS 174.165(1). The district court
denied the motion.
Approximately twenty-four witnesses testified at trial. Among them were James Whiteface (Whiteface) and
Iron. In sum, their testimony indicated that Pacheco held down and hit Coleman against the rocks and that Buff
killed Coleman by stabbing him in the throat with a Swiss army knife. Neither Pacheco nor Buff testified at trial.
The jury returned verdicts of murder in the first degree with the use of a deadly weapon as to both
defendants.
At the penalty hearing, the defense argued for life with the possibility of parole. Both Buff and Pacheco
testified. Although Buff never denied killing Coleman, he could not remember anything about the incident.
Pacheco was sentenced to life in the Nevada State Prison without the possibility of parole. That sentence was
enhanced with a consecutive term of life without the possibility of parole for the use of a deadly weapon.
Pacheco was given credit for 408 days time served.
Buff was also sentenced to life in Nevada State Prison without the possibility of parole and
given the same sentence enhancement as Pacheco. Buff was given credit for 413 days time served.
Buff and Pacheco filed this timely appeal. They maintain that five assignments of error warrant reversal of
their convictions and a new trial: that the district court erred by (1) concluding as a matter of law that a Swiss
army knife is a deadly weapon, (2) instructing the jury on the deadly weapon enhancement, (3) admitting the
preliminary hearing transcript of witness Whiteface, (4) instructing the jury on the concept of malice, and (5)
instructing the jury on premeditation.
Appellant Pacheco maintains that six separate errors warrant reversal of his conviction and a new trial: that
the district court erred in instructing the jury on reasonable doubt; that Pacheco was prejudiced by a State's
witness's comment at trial regarding Pacheco's assertion of his Miranda rights;
114 Nev. 1237, 1242 (1998) Buff v. State
Pacheco's assertion of his Miranda rights; that the district court erred in restricting his cross-examination of a
State's witness; that the district court erred in refusing to allow Pacheco to admit an out-of-court statement made
by Buff; that the district court erred in denying his motion for severance; and that the district court erred in the
admission of DNA evidence.
Having considered appellants' contentions and having had the benefit of oral argument, we conclude that (1)
the deadly weapon enhancement jury instruction violated the rule announced in Zgombic v. State, 106 Nev.
571, 576, 798 P.2d 548, 551 (1990), and accordingly, we remand the deadly weapon sentence enhancement
issue to the district court for a new sentencing hearing. We further conclude that the errors implicating the Fifth
and Sixth Amendments of the United States Constitution have occurred warranting a new trial for Pacheco.
DISCUSSION
Standard of review
[Headnote 1]
A reviewing court will not disturb a verdict on appeal if it is supported by sufficient evidence. Domingues v.
State, 112 Nev. 683, 693, 917 P.2d 1364, 1371 (1996).
The deadly weapon enhancement
Appellants contend that the deadly weapon sentence enhancement must be vacated because the district court
erroneously concluded that a Swiss army knife is a deadly weapon under NRS 193.165
2
and erroneously
instructed the jury on the deadly weapon enhancement.
__________

2
NRS 193.165(1) provides in pertinent part:
[A]ny person who uses a firearm or other deadly weapon . . . in the commission of a crime shall be
punished by imprisonment in the state prison for a term equal to and in addition to the term of
imprisonment prescribed by statute for the crime.
The 1995 legislature, in response to Zgombic, amended NRS 193.165 to read, in relevant part:
5. As used in this section, deadly weapon means:
(a) Any instrument which, if used in the ordinary manner contemplated by its design and construction,
will or is likely to cause substantial bodily harm or death;
(b) Any weapon, device, instrument, material or substance which, under the circumstances in which it
is used, attempted to be used or threatened to be used, is readily capable of causing substantial bodily
harm or death; or
(c) A dangerous or deadly weapon specifically described in NRS 202.255, 202.265, 202.290, 202.320
or 202.350.
114 Nev. 1237, 1243 (1998) Buff v. State
[Headnote 2]
To determine whether an instrumentality is a deadly weapon for purposes of the enhanced sentence statute,
the instrumentality must satisfy the inherently dangerous weapon test. See Zgombic, 106 Nev. at 576, 798 P.2d at
551 (overruling functional test set forth in Clem v. State, 104 Nev. 351, 760 P.2d 103 (1988)); see also NRS
193.165. A weapon is inherently dangerous under this analysis if, when used in the ordinary manner
contemplated by its design and construction, will, or is likely to, cause a life-threatening injury or death.
Zgombic, 106 Nev. at 576-77, 798 P.2d at 551.
[Headnote 3]
Denying the defense's pre-trial motion on the matter, the district court concluded as a matter of law that the
Swiss army knife used to kill Coleman was a deadly weapon under Zgombic. Subsequently, however, the district
court gave an instruction on the definition of a deadly weapon, thereby submitting the sentence enhancement
issue to the jury. Generally, it is the district court's duty to determine whether the instrument is an inherently
dangerous weapon. Zgombic, 106 Nev. at, 577, 798 P.2d at 551-52. However, in a few close cases where the
court cannot determine as a matter of law whether the weapon is or is not a deadly weapon, the judge will need
to submit the entire issue to the jury after instructing it on the previously stated definition of a deadly weapon.
Id. at 552.
[Headnote 4]
We conclude that the matter at bar presents the type of close case anticipated in Zgombic, and the district
court could not determine as a matter of law that the Swiss army knife used by appellants was a deadly weapon.
3
While it was improper for the district court to make its own legal conclusion with respect to the
Swiss army knife, we conclude that any initial error was cured when the district court
subsequently submitted the deadly weapon enhancement issue to the jury.
__________
The editor's note to NRS 193.165 provides: The amendatory provisions of this act do not apply to a crime
committed before October 1, 1995. The crime in this case took place on September 15, 1994. Therefore, the
unamended statute, in effect on September 15, 1994, applies, and not the statute as amended by the legislature.
Accord Milton v. State, 111 Nev. 1487, 1494, 908 P.2d 684, 689 (1995) (amendments to NRS 193.165 not
controlling as to crime committed before October 1, 1995).

3
While we need not review the district court's legal conclusion on the merits, we note that this court has
never held that as a matter of law a Swiss army knife is an inherently dangerous weapon. In fact, this court has
never held that knives are presumptively deadly weapons under the inherently dangerous test. See Collins v.
State, 111 Nev. 56, 888 P.2d 926 (1995) (holding that exacto knife is not a deadly weapon for purposes of
sentence enhancement); Bradvica v. State, 104 Nev. 475, 477, 760 P.2d 139, 140 (1988) (holding that a folding
pocket knife with a locking blade was not a dirk or dagger for purposes of NRS 202.265 and NRS 202.350,
enumerating dangerous bladed
114 Nev. 1237, 1244 (1998) Buff v. State
district court to make its own legal conclusion with respect to the Swiss army knife, we conclude that any initial
error was cured when the district court subsequently submitted the deadly weapon enhancement issue to the jury.
[Headnotes 57]
We further conclude, however, that the district court's instruction on the deadly weapon sentence
enhancement misstated the law as set forth in Zgombic.
4
Under Zgombic, the district court must instruct the
jury as follows:
[A] deadly weapon under NRS 193.165 is any instrumentality which is inherently dangerous. Inherently
dangerous means that the instrumentality itself, if used in the ordinary manner contemplated by its design
and construction, will, or is likely to, cause a life-threatening injury or death.
Zgombic, 106 Nev. at 576-77, 798 P.2d at 551.
In the case at bar, the district court instructed the jury that A deadly weapon is any object, instrument, or
weapon which is designed in such a manner as to be capable of producing, and likely to produce, death or great
bodily injury. We conclude that this instruction erroneously advised the jury that the Swiss army knife was a
deadly weapon under the functional test. Because the jury was not correctly instructed, we conclude that the
issue of appellants' deadly weapon sentence enhancement must be remanded for a new trial.
Pacheco's motion for severance
[Headnote 8]
Pacheco argues that the district court erred in denying his motion for severance and, as a result, he received
an unfair trial in violation of the Sixth Amendment. Specifically, Pacheco argues that the joint trial resulted in a
denial of Pacheco's right to introduce exculpatory evidence. We agree.
__________
weapons prohibited from being possessed, manufactured, or carried). Instead, this court has held that [i]n
determining whether a knife is a deadly weapon, the district court must consider the particular type of knife that
was used in the crime and determine whether it satisfies the inherently dangerous weapon' test. Milton, 111
Nev. at 1495, 908 P.2d at 689.

4
We note that appellants failed to raise the jury instruction issue at trial. The record in this case does not
reflect that either Buff's or Pacheco's lawyers objected to this instruction or offered an alternative. 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). However, it is well settled that this court can address plain error sua sponte. Pertgen v.
State, 110 Nev. 554, 560, 875 P.2d 361, 362 (1994).
114 Nev. 1237, 1245 (1998) Buff v. State
[Headnote 9]
NRS 174.165(1) provides that the trial judge may sever a joint trial if it appears that a defendant or the State
of Nevada is prejudiced by a joinder of offenses or of defendants in an indictment or information, or by such
joinder for trial together. The decision to sever a joint trial is vested in the sound discretion of the district court
and will not be reversed on appeal unless the appellant carries the heavy burden of showing that the trial judge
abused his discretion. Amen v. State, 106 Nev. 749, 755-56, 801 P.2d 1354, 1359 (1990). This court has held
that [s]ome form of prejudice always exists in joint trials and such occurrences are subject to harmless error
review. Ewish v. State, 110 Nev. 221, 234, 871 P.2d 306 (1994); see NRS 178.598 (any trial defect not
impacting substantial rights is disregarded); and Mitchell v. State, 105 Nev. 735, 738-39, 782 P.2d 1340,
1342-43 (1989) (harmless error standard applied to joinder of claims; court tacitly recognized that same standard
applied to joinder of defendants).
In the instant case, due to the district court's denial of Pacheco's motion for severance, Pacheco was
precluded from introducing into evidence Buff's initial statement to the police, in which he exonerated Pacheco
in the killing. Accordingly, due to Pacheco's inability to get this critical evidence before the jury, we cannot say
that the district court's denial of Pacheco's motion for severance was harmless. Therefore, we conclude that the
district court should have severed the joint trial so as to diminish the possibility of prejudice to either defendant
in proving their theory of the case.
Refusal of exculpatory evidence
[Headnote 10]
Shortly after his arrest, Buff gave a recorded statement to Detective Rucker. In that statement, he admitted
killing Coleman, but stated that his accomplice was Arnold Davis, not Pacheco:
Q: Okay, so then why don't you tell me what's goin' on?
A: Why don't you . . . why don't you go look for Mr. Arnold Davis [aka Iron] as well.
Q: Mr. Davis, why? What . . . did Mr. Davis do?
A: Because he was my accomplice.
Q: He was your accomplice? And what way was he your accomplice?
A. He's the one that caught the man, and held him down.
This powerful admission by the person who exerted the fatal force, naming someone other than Pacheco as
his accomplice, was never heard by the jury. The district court erroneously ruled that this statement was hearsay
and precluded it from being recounted at the trial.
114 Nev. 1237, 1246 (1998) Buff v. State
at the trial. Since the statement was obviously relevant and constituted the main thrust of Pacheco's defense, the
district court committed reversible error in not permitting this statement to be admitted as evidence at trial.
Hearsay is defined as a statement offered in evidence to prove the truth of the matter asserted. NRS
51.035. A hearsay statement against one's penal interest is admissible if the declarant is unavailable at trial, and
if the statement was against the declarant's penal interest when made. NRS 51.345(1)(b); see also Walker v.
State, 113 Nev. 853, 863, 944 P.2d 762, 768 (1997). A declarant is considered unavailable where, among
other reasons, the declarant is [e]xempted by ruling of the judge on the ground of privilege from testifying
concerning the subject matter of his statement. NRS 51.055(1)(a). However, a statement tending to expose
the declarant to criminal liability and offered to exculpate the accused in a criminal case is not admissible unless
corroborating circumstances clearly indicate the trustworthiness of the statement. NRS 51.345(1)(d).
Here, Buff's statement, although hearsay, was admissible pursuant to the statement against interest exception
codified at NRS 51.345(1). Buff's statement was contrary to his penal interest, and, by invoking his Fifth
Amendment right not to testify, Buff was unavailable at trial pursuant to NRS 51.055(1)(a). Further, Buff's
statement was sufficiently corroborated through Iron's and Whiteface's initial statements to the police, in which
both men indicated that Pacheco had nothing to do with Coleman's murder. Had Buff's statement been received
into evidence as it properly should have, the prejudice created by a joint trial would have been greatly reduced.
By preventing Pacheco from introducing Buff's exculpatory and otherwise admissible statement, the district
court deprived Pacheco of a fair trial by frustrating his ability to defend himself. This alone constitutes reversible
error. See State v. Mabuti, 807 P.2d 1264, 1269 (Haw. 1991) (holding that a similar statement against interest
implicating co-defendant and exculpating defendant was admissible under statute similar to NRS 51.345).
Remaining allegations of error
[Headnote 11]
Pacheco also complains that it was error to: (1) admit the preliminary hearing transcript of Whiteface's
testimony, (2) permit a comment by the police that Pacheco could not be interviewed because he asserted his
right to remain silent, and (3) prevent Pacheco from showing that both Whiteface and Iron were incarcerated as
material witnesses and, therefore, biased.
Whiteface had witnessed the killing and testified at the preliminary hearing as to what he observed.
114 Nev. 1237, 1247 (1998) Buff v. State
inary hearing as to what he observed. He testified on direct examination and was effectively cross-examined.
Part of this cross-examination concerned his initial statements to police in which he indicated that Pacheco had
nothing to do with the killing. The prosecutor then tried to rehabilitate the testimony of Whiteface on redirect
examination and repeatedly refreshed his memory with his prior testimony. Exasperated by the tediousness of
extracting this testimony, the prosecutor offered the entire preliminary hearing transcript which included the
testimony of Whiteface and the district court admitted it into evidence. This transcript also included the
testimony of Debra Roupe, John Lomas, Leland Dement, Iron Davis and Detective Ronald Dreher.
The admission of Whiteface's preliminary hearing testimony violated Pacheco's Sixth Amendment
confrontation rights because Whiteface was available at trial and could have testified consistently with his
preliminary hearing testimony once his memory was refreshed. See Power v. State, 102 Nev. 381, 384, 724
P.2d 211, 213 (1986) (holding that the district court's admission of the transcript of a witness's preliminary
hearing testimony violated the defendant's Sixth Amendment right of confrontation because the State failed to
demonstrate that the witness was actually unavailable at the time of trial). Further, the district court's admission
of the entire preliminary hearing transcript prejudiced Pacheco's defense because of the concern that the jury
would review it and place undue emphasis on that prior testimony above other testimony received at trial,
including cross-examination by the defense. Whiteface and Iron were critical witnesses to the State's case and
were held in jail as material witnesses. Both had made initial statements to police indicating that Pacheco was
not an accomplice in the killing, but both had changed their story when testifying at the preliminary hearing and
trial. It was important to Pacheco to expose the potential bias that incarceration had on the testimony of these
two witnesses.
[Headnote 12]
When the purpose of cross-examination is to expose bias, a trial court is not accorded the usual breadth of
discretion in determining whether to entertain the questioning. Crew v. State, 100 Nev. 38, 45, 675 P.2d 986,
990-91 (1984). Further, counsel must be permitted to elicit any facts which might color a witness's testimony.
Id.; see also Jones v. State, 108 Nev. 651, 659, 837 P.2d 1349, 1354 (1992); Jackson v. State, 104 Nev. 409,
412-13, 760 P.2d 131, 133-34 (1988).
The State would have suffered little prejudice in showing the incarceration status of Whiteface and Iron,
except for the inference that these witnesses had to be incarcerated to ensure their testimony. The jury should
have known that the incarceration status of Whiteface and Iron, along with their attendant bias,
might have been the reason they had changed their version of the facts.
114 Nev. 1237, 1248 (1998) Buff v. State
tus of Whiteface and Iron, along with their attendant bias, might have been the reason they had changed their
version of the facts. Since these were critical witnesses to the State, failure to allow permissible impeachment
was reversible error.
[Headnotes 13, 14]
[Headnote 15]
____________
114 Nev. 1249, 1249 (1998) Wohlers v. Bartgis
ALBERT H. WOHLERS AND CO. AND NORTH AMERICAN LIFE AND CASUALTY
COMPANY, Appellants/Cross-Respondents, v. DEBRA BARTGIS,
No. 28142
December 9, 1998 969 P.2d 949
Appeal and cross-appeal from a judgment awarding compensatory and punitive damages. Second Judicial
District Court, Washoe County; Steven R. Kosach, Judge.
Insured brought suit against major medical insurer and policy administrator for breach of
contract, fraud, bad faith and statutory unfair claims practices after insurer denied 90 percent
of hospitalization claim under ancillary charges limitation in policy. Following jury trial
before the district court, judgment was entered on special verdict finding defendants liable on
all claims and awarding both compensatory and punitive damages. Defendants appealed, and
insured cross-appealed. The supreme court held that: (1) substantial evidence supported bad
faith and fraud determinations; (2) administrator was joint venturer with insurer, subject to
liability on contract, fraud, and bad faith claims; (3) administrator was not subject to statutory
liability for unfair claims practices; (4) punitive damages awards were excessive; and (5)
insured was entitled to prejudgment interest on punitive damages award.
Affirmed in part, reversed in part and remanded; punitive damage award
modified.
Lemons, Grundy and Eisenberg, Reno, for Appellant/Cross-Respondent Wohlers.
Beckley, Singleton, Jemison & List and Daniel F. Polsenberg, Las Vegas; Mayer, Brown & Platt and
Andrew L. Frey and John J. Sullivan, Washington, D.C., for Appellant/Cross-Respondent North American Life
and Casualty Company.
Calvin R.X. Dunlap, Reno, for Respondent/Cross-Appellant.
Georgeson, Thompson & Angaran, Reno, for Amicus Curiae American Council of Life Insurance.
Bradley, Drendel & Jeanney, Reno, for Amicus Curiae Nevada Trial Lawyers.
Bowman & Robinson, Reno, for Amicus Curiae Association of Trial Lawyers of America.
1. Insurance.
Health insurer's obligation to pay hospitalization costs under major medical policy was not rendered fairly debatable, so as to
eliminate question of fact regarding insurer's liability for bad faith failure to pay, by insurer's belief that portion of its insurance policy
placing limitation on payment for ancillary charges precluded any coverage for hospital charges beyond room and board when
insured was hospitalized for more than 24 hours. Insurer's interpretation of its policy did not provide reasonable grounds to deny claim,
thereby sheltering it from bad faith liability.
2. Insurance.
Substantial evidence supported determination that major medical insurer and policy administrator acted in bad faith in denying
payment of all hospital charges for 27-hour hospitalization beyond room-and-board under limitation on payment for ancillary charges
when insured was hospitalized for more than 24 hours. Insurer and administrator made significant misrepresentation in informational
letters that policy contained comparable benefits to prior group major medical policy, pre-approved insured's hysterectomy surgery
without making mention of harsh ancillary charges limitation provision, and denied 90 percent of claim, including coverage for
medically necessary procedures and expenses such as operating and recovery room and anesthesia.
3. Trial.
Instruction that [c]lear and convincing evidence is evidence which is beyond a mere preponderance of the evidence was
sufficient to inform jury of meaning of clear and convincing evidence standard on fraud claim against health insurer.
4. Insurance.
Substantial evidence supported determination that major medical insurer and policy administrator fraudulently misrepresented
policy as being equivalent to insured's previous major medical policy and fraudulently concealed limitation on payment for ancillary
charges.
5. Damages.
Non-economic compensatory damages award of $275,000 for emotional distress for insured who was denied payment of 90
percent of hospital bill by major medical insurer was not excessive, even though insurer offered to pay disputed amount plus attorney
fees shortly after suit was commenced. As result of insurer's and policy administrator's fraudulent misrepresentations, concealment, and
bad faith course of conduct, insured was deprived of peace of mind and sense of security during postoperative period, suffered
stress-related bladder infections, weight loss and loss of sleep, as well as financial hardship.
6. Insurance.
Where a claims administrator is engaged in joint venture with insurer, administrator may be held liable for its bad faith in handling
the insured's claim.
7. Insurance.
Health insurer and policy administrator were involved in joint venture so as to expose administrator to all policy-based
contractual claims and bad faith liability. Administrator not only collected premiums and handled claims, but also developed
promotional material, issued policies, assisted insurer in development of policy limitations, and shared in insurer's profits, giving it
direct pecuniary interest in keeping claims costs down.
8. Insurance.
Policy administrator was not insurer within unfair insurance practices act, which was limited by its title to liability of insurers
and certain companies for damages. NRS 686A.310.
9. Insurance.
Policy administrator was not company, to which liability could attach under unfair insurance practices act in addition to
insurers, as it did not enter into agreements under which it agreed to finance or pay insurance premiums on behalf of insureds. NRS
686A.310, 686A.330(2), 686A.520.
10. Insurance.
General prohibition against any person engaging in unfair method of competition or unfair or deceptive act or practice in
business of insurance did not render policy administrator an insurer or company potentially liable under unfair insurance practices
statute, even though policy administrator qualified as person under general statutory definition outside act. NRS 0.039, 686A.020,
686A.310.
11. Insurance.
Fact that policy administrator could not be held liable under unfair insurance practices statutes, because it did not qualify as
insurer potentially liable under act, did not preclude its liability on contract-based, fraud and bad faith claims arising out of its role in
misrepresenting major medical policy and denying claim. NRS 686A.310.
12. New Trial.
When a jury returns a general verdict on multiple claims, and it is impossible to determine on which claims the jury predicated
liability, an error on one or more of the claims necessitates a new trial.
13. New Trial.
Where special verdict indicated that jury found insurance policy administrator liable on all claims including breach of contract,
fraud, bad faith and statutory unfair claims practices, reversal of administrator's statutory unfair claims practices liability did not alter
finding on other claims and necessitate new trial, as it was possible from verdict to determine on which claims liability was predicated.
NRS 686A.310.
14. Insurance.
Substantial evidence supported determination that major medical insurer engaged in statutory unfair claims practices. Insurer
misrepresented its policy as being comparable to insured's previous policy, unilaterally inserted arcane ancillary charges limitation
and then failed to disclose provision or explain its intended effect, acted unreasonably in denying claim through absurd interpretation
of ancillary charges provision, and failed to offer reasonable explanation for denial of claim. NRS 686A.310.
15. Damages; New Trial.
Punitive damages are legally excessive when the amount of damages awarded is clearly disproportionate to the degree of
blameworthiness and harmfulness inherent in the oppressive, fraudulent or malicious misconduct of the tortfeasor under the
circumstances of a given case. If the awarding jury or judge assesses more in punitive damages than is reasonably necessary and fairly
deserved in order to punish the offender and deter others from similar conduct, then the award must be set aside as excessive.
16. Insurance.
Punitive damages awards of $7.5 million against health insurer, which was 2.5 percent of its net worth, and $500,000.00 against
administrator, which was 21 percent of administrator's net worth, were excessive as matter of state law as
clearly disproportionate to degree of reprehensibility of their fraudulent and bad faith conduct in
misrepresenting major medical policy, concealing limitation provision, and denying claim in bad faith, which
resulted in compensatory damage award of $275,000, and would be reduced to $3.75 million and $150,000
respectively.
istrator, which was 21 percent of administrator's net worth, were excessive as matter of state law as clearly disproportionate to degree
of reprehensibility of their fraudulent and bad faith conduct in misrepresenting major medical policy, concealing limitation provision,
and denying claim in bad faith, which resulted in compensatory damage award of $275,000, and would be reduced to $3.75 million
and $150,000 respectively. Insurer offered to pay claim plus attorney fees after suit was commenced and administrator resolved some
claims in favor of other insureds at completion of internal appeals process. NRS 42.005(2)(b).
17. Interest.
Insured was entitled to award of post-judgment interest on punitive damages award against insurer and policy administrator. NRS
17.130.
District court's order denying post-judgment motion for post-judgment interest on the punitive damages was not an appealable
special order after final judgment.
Insured was not aggrieved party entitled to appeal district court's order denying her post-judgment motions for sanctions and
discovery in context of insurer's motion for new trial, where court denied motion for new trial.
OPINION
Per Curiam:
This is a case involving fraud, bad faith, and violations of the Nevada Unfair Claims Practices Act by a medical insurance company
and its policy administrator. Respondent/cross-appellant Debra Bartgis (Bartgis) is a court reporter who filed a medical insurance claim
subsequent to having surgery. Prior to the surgery, the underwriter for her major medical policy had changed. The new underwriter became
appellant/cross-respondent North American Life and Casualty, now known as Allianz Life Insurance Company of North America (Allianz).
The administrator of the policy, appellant Albert H. Wohlers & Co. (Wohlers), had notified Bartgis of the change and sent her a copy
of the new insurance certificate. However, Bartgis was unaware that a new internal cost limitation in her policy effectively limited her
in-patient hospitalization coverage to room and board in the event that her hospitalization exceeded twenty-four hours. When the new
internal cost limitation provision was triggered, all hospital charges beyond room and board were considered ancillary and were covered
at a substantially reduced rate.
After her surgery, Bartgis filed a claim with Allianz pursuant to her major medical policy. However, Wohlers informed Bartgis that her
Allianz policy would cover only ten percent of her total hospital bill of approximately $9500.00 because her hospitalization had exceeded
twenty-four hours. After Allianz's repeated refusals to pay additional amounts pursuant to her policy, Bartgis filed a civil
complaint against Allianz and Wohlers, alleging breach of contract, fraud, bad faith, and violations of the
Nevada Unfair Claims Practices Act.
refusals to pay additional amounts pursuant to her policy, Bartgis filed a civil complaint against Allianz and
Wohlers, alleging breach of contract, fraud, bad faith, and violations of the Nevada Unfair Claims Practices Act.
At the conclusion of trial, the jury returned a verdict in favor of Bartgis on all claims, awarding her
$8,757.75 in contract damages and $275,000.00 in non-economic compensatory damages for emotional distress.
One day later, the jury assessed punitive damages against Allianz and Wohlers in the amounts of $7,500,000.00
and $500,000.00, respectively. Judgment was entered on May 19, 1995.
Allianz and Wohlers now appeal, and Bartgis cross-appeals. For the reasons set forth below, we affirm the
jury's verdict in most respects. We conclude, however, that the district court erred in entering judgment against
Wohlers based on the Unfair Claims Practices Act. Additionally, we hold that the punitive damages assessed
against Allianz and Wohlers were excessive, and that the district court erred in denying Bartgis post-judgment
interest on the punitive damages awards.
FACTS
Bartgis is a court reporter who has been a member of the National Shorthand Reporters Association (NSRA)
since 1973. She worked as an employee of a Nevada court-reporting business from 1973 to 1983, and then
formed a partnership with a colleague. After forming the partnership, Bartgis obtained a medical insurance
policy through NSRA. The medical insurance policies offered by NSRA to its members were underwritten by
Mutual of New York (MONY), and were administered by Wohlers.
On September 24, 1990, MONY informed Wohlers by letter that it planned to increase the cost of premiums
by fifty-five percent effective November 15, 1990. Wohlers contacted several other major medical insurance
underwriters in an attempt to secure a medical insurance policy for NSRA before MONY's premium hike went
into effect. One of the underwriters Wohlers contacted was Allianz, with whom Wohlers had enjoyed a
long-term business relationship.
After initially refusing Wohlers's proposal, Allianz agreed to underwrite the policy at the same monthly
premium, but with additional significant internal cost limitations. The agreement between Allianz and Wohlers
provided Wohlers with substantial administrative and claims management responsibilities. For example, the
agreement provided that Wohlers would administer the policy, share in a percentage of the premiums paid, and
share in Allianz's profits that were realized from Wohlers's efforts to keep claim costs down. Thus, Wohlers had
a direct pecuniary interest in minimizing claim costs.
During their November 1990 negotiations, Wohlers and Allianz agreed to insert a new cost limitation on
ancillary charges into the NSRA policy. Significantly, this ancillary charges cost limitation provision had not
been included as a provision in NSRA's prior policy with MONY. Allianz's policy with NSRA defined the term
ancillary charges as a service or supply that is furnished by a Hospital or Extended Care Facility when a
Member or Insured Dependent is Confined.
The maximum benefit for ancillary charges under the Allianz policy applied to a patient's confinement in a
hospital and was computed as the Daily Room Rate [multiplied by] the number of days of confinement
[multiplied by] 2. Hospital confinement, for purposes of the Allianz policy, was defined as confinement as a
Registered Bed-Patient in a Hospital upon the advice of a Physician for a period of twenty-four (24) hours or
longer and such confinement is for purposes other than convalescence or rehabilitation.
In November 1990, Wohlers informed Bartgis by letter that Allianz would now serve as her medical
insurance policy underwriter because MONY had planned to raise its premiums by an unacceptable fifty-five
percent. In its letter, Wohlers stated that Allianz had agreed to continue this coverage offering comparable
benefits without an increase in premiums, effective November 15, 1990. The letter specified that premiums
were guaranteed until February 15, 1991, and assured plan participants that the new NSRA plan [had] been
carefully designed to [provide] the needed health care insurance protection at an affordable price.
Wohlers concluded its letter by encouraging all plan participants to compare the prior MONY policy benefits
and coverage with those of the new Allianz policy. The policy outlines included information about deductibles
and maximum coverage under the old MONY policy and the new Allianz policy. Under the new policy, Allianz
would pay eighty percent of Bartgis' allowable hospital expenses up to $5,000.00. After expenses reached that
amount, Allianz would pay one hundred percent. Significantly, the policy outlines did not notify plan
participants of the new ancillary charges cost limitation provision that had been inserted into the Allianz
policy, nor did the comparison outlines mention the provision or explain its intended effect. The letter was
signed by Wohlers's executive vice-president James R. Malik.
Bartgis read both the letter and policy outlines in order to determine what changes had been made to her
coverage. After comparing the details on the outlines, she concluded that the Allianz policy provided better
coverage than her previous MONY policy. Bartgis did not read anything indicating limitations on ancillary
charges.
On December 11, 1990, Allianz and Wohlers reviewed and accepted a final draft of the policy that contained
the ancillary charges limitation provision. In January 1991, Wohlers sent a second letter to all NSRA members
explaining the change of underwriters and providing policyholders with an insurance certificate. Bartgis read the
letter, which again made no mention of the new ancillary charges limitation provision. Although the new
ancillary charges limitation provision was noted in the policy certificate, there was no accompanying explanation
that this provision represented a significant deviation in benefits when compared to NSRA's previous policy with
MONY.
In 1991, Bartgis was diagnosed with pre-cancerous cells in her reproductive organs. On April 15, 1991, she
underwent a cone biopsy, and the treating physicians removed the diseased cells. Following the half-day
procedure, which was performed in a hospital, Bartgis filed a claim pursuant to her Allianz medical insurance
policy. In accordance with the policy provisions outlined in the November 1990 letter from Wohlers, Allianz
paid eighty percent of the medical bill, and Bartgis paid twenty percent.
Four weeks later, Bartgis experienced a medical emergency that required her to be taken to the emergency
room of a local hospital. Bartgis again properly filed another claim with Allianz, and Allianz paid fifty percent
of the bill, which was the coverage percentage for emergency room visits outlined in the November 1990 letter.
Bartgis' discomfort grew steadily, as did her consumption of estrogen and prescription medications in an
effort to manage her pain and avoid surgery. Finally, after being told she could no longer take the hormone pills,
Bartgis decided, per the recommendation of her physician, to undergo a total hysterectomy. She then perused the
Allianz policy in order to determine the applicable coverage rate for the procedure. Her policy listed the
procedure as an elective procedure, which meant that she would have to pay an additional $200.00 toward her
deductible. Bartgis followed the pre-certification procedures required under the policy and obtained certification
for a twenty-four hour stay. Based on her understanding of the policy, Bartgis believed that she would only incur
an additional $500.00 charge in the event that her hospitalization exceeded twenty-four hours.
The surgery was performed on December 29, 1992. As before, Bartgis assumed that Allianz would pay
eighty percent of her medical expenses up to $5,000.00, and one hundred percent thereafter. Although Bartgis
had only obtained certification for a twenty-four hour stay, she was hospitalized for approximately twenty-seven
hours, including check-in and check-out time.
On Saturday, January 23, 1993, Bartgis received an explanation of covered expenses from Wohlers.
of covered expenses from Wohlers. Several of the itemized charges were covered by Allianz at the percentages
and rates outlined in the November 1990 letter from Wohlers. However, the majority of the
bill$9,328.75was listed under a lump-sum charge of which Allianz covered only $930.00. The
corresponding explanation code on the document identified the $9,328.75 as ancillary charges. The detailed
listing of charges from the hospital also revealed that Allianz had deemed all medical expenses beyond basic
room and board as ancillary charges.
Thus, Allianz categorized the expenses for Bartgis' operating room ($2,708.98), recovery room ($390.60),
sutures and staples ($2,286.63), heart monitor ($103.80), anesthesia and anesthesia system ($401.70), and
numerous other charges, as ancillary for coverage purposes. Accordingly, Allianz agreed to cover only ten
percent of these ancillary medical expenses.
Upon receipt of the letter, Bartgis became extremely upset and frustrated. On Monday, January 25, 1993,
Bartgis contacted Wohlers for an explanation as to why Allianz would only cover ten percent of the major
medical expenses listed on her hospital bill. Delores Pricener, a Wohlers representative, explained that because
Bartgis' hospitalization had exceeded twenty-four hours, Bartgis was classified as an in-patient and that such
classification triggered the ancillary charges limitation provision in her policy. Pricener explained that when the
ancillary charges limitation was in effect, essentially all charges from the hospital except for basic room and
board were subject to the ancillary charges limitation provision contained in Bartgis' policy.
Bartgis then sought the assistance of her friend and attorney, Margaret Manes. Manes reviewed the policy
and also concluded that Wohlers had erred. Manes called Pricener, who provided Manes with the same
explanation for denying the claim that she had given to Bartgis. When Manes requested to speak to a supervisor,
Manes was required to fax a letter of legal representation before anyone would speak with her. Manes faxed a
letter of representation to Pricener at Wohlers's office.
Subsequently, Manes received a letter from Wohlers explaining that because Bartgis' stay in the hospital had
exceeded twenty-four hours, the ancillary charges limitation provision in Bartgis' policy had been triggered.
Distraught, Bartgis attempted to obtain a major medical insurance plan through another carrier but was
unsuccessful because of her pre-existing medical condition. Throughout this period, Bartgis became further
upset, losing sleep and her appetite. During the following three months, she developed two bladder infections
and an upper-respiratory infection, suffered dramatic weight loss, and felt generally terrible.
On July 15, 1993, Bartgis filed a civil complaint against Allianz and Wohlers alleging breach of
contract, fraud, bad faith, and violations of the Nevada Unfair Claims Practices Act.
Allianz and Wohlers alleging breach of contract, fraud, bad faith, and violations of the Nevada Unfair Claims
Practices Act. Bartgis sought both compensatory and punitive damages. After Bartgis filed her complaint,
Allianz offered to pay the entire amount in dispute from the hospital bill, plus attorney's fees, in return for
Bartgis' relinquishment of her claims for fraud and bad faith. Bartgis refused.
At trial, the jury returned a verdict in favor of Bartgis and against Allianz and Wohlers on all claims: (1)
$8,757.75 in contract damages; (2) $275,000.00 in non-economic compensatory damages for emotional distress;
and (3) that both Allianz and Wohlers were subject to punitive damages.
Following the punitive damage phase of the trial, the jury assessed exemplary damages in the amounts of
$500,000.00 and $7,500,000.00 against Wohlers and Allianz respectively. Judgment was entered on May 19,
1995. Wohlers and Allianz now appeal, and Bartgis cross-appeals with respect to the district court's failure to
award post-judgment interest on the punitive damage awards.
1

DISCUSSION
The jury's finding of bad faith is supported by substantial evidence
Allianz first contends that there is insufficient evidence to support the jury's finding of bad faith because it
had reasonable grounds upon which to deny making full payment on Bartgis' claim. Specifically, Allianz asserts
that based on the language of the ancillary charges limitation provision, a genuine issue existed as to its
obligation under Bartgis' policy which, in turn, obviates its bad faith liability for failure to pay Bartgis' claim.
2
We disagree.
__________

1
We note that counsel for appellants herein did not represent appellants in the district court proceedings.

2
Allianz and Wohlers make two other challenges to Bartgis' favorable bad faith verdict. First, they contend
that the jury's bad faith and fraud verdicts are fatally inconsistent because if they had fraudulently
misrepresented the amount of coverage under the policy by informing Bartgis that the policy afforded more
coverage than in fact it did, then they could not be held liable for bad faith failure to pay a claim. Conversely, if
the policy did cover the full amount of plaintiff's claim, then nothing was concealed from [Bartgis] and there was
no fraud or actionable nondisclosure. We reject this argument. It is preposterous to suggest that an insurer's
fraudulent acts could, in turn, insulate it from bad faith liability and vice versa. Rather, from the evidence
adduced at trial, the jury could have found that appellants'/cross-respondents' fraudulent actions constituted a
breach of the duty of good faith and fair dealing, thereby exposing them to bad faith liability. Likewise, we see
no inherent inconsistencies in the jury's verdict.
Secondly, Allianz and Wohlers assert that the district court's inability to find as a matter of law that Bartgis
was entitled to full payment of her claim
It is well settled in Nevada that every contract imposes upon the contracting parties the
duty of good faith and fair dealing. Hilton Hotels v. Butch Lewis Productions, 109 Nev. 1043, 1046,
862 P.2d 1207, 1209 (1993). As we explained in Ainsworth v. Combined Insurance Co., 104 Nev. 587, 592,
763 P.2d 673, 676 (1988), [t]he relationship of an insured to an insurer is one of special confidence.
3
A
consumer buys insurance for security, protection, and peace of mind. (Footnote added.) While an insured
assumes various duties under an insurance contractsuch as the timely payment of premiumsthe insurer
assumes the concomitant duty to negotiate with its insureds in good faith and to deal with them fairly. Id.
Bad faith is established where the insurer acts unreasonably and with knowledge that there is no reasonable
basis for its conduct. Guaranty Nat'l Ins. Co. v. Potter, 112 Nev. 199, 206, 912 P.2d 267, 272 (1996). In
reviewing a determination of bad faith, this court will not disturb a trial court's findings of fact unless they are
clearly erroneous and not based on substantial evidence. Id.
[Headnote 1]
In Sparks v. Republic National Life Insurance Co., 647 P.2d 1127, 1137 (Ariz. 1982), the Arizona Supreme
Court faced a similar situation wherein the defendant insurance company asserted that the evidence was
insufficient to support a finding of bad faith because its obligation under the insurance contract was fairly
debatable.' In Sparks, the insureds suffered catastrophic injuries in a small plane crash while their health
insurance policy was in effect. Id. at 1131. Subsequently, after the insured's small business went bankrupt due to
their debilitating injuries and inability to work, the insurer terminated their health insurance policy for
underpayment and denied them any further medical benefits for injuries sustained while their policy had been in
force. Id.
__________
pursuant to her policy demonstrates . . . the unsoundness of her bad faith claim. This argument is not
persuasive. Initially, we note that Bartgis did not move the district court for either summary judgment or a
directed verdict. More importantly, although we recognize that some jurisdictions have adopted the directed
verdict rule, see, e.g., National Savings Life Ins. Co. v. Dutton, 419 So.2d 1357, 1362 (Ala. 1982) (explaining
that in order to establish a prima facie case of bad faith, the plaintiff must proffer sufficient evidence
demonstrating that the plaintiff is entitled to a directed verdict on the contract claim), the rule adhered to by a
vast majority of jurisdictions is that a plaintiff need not establish that it is entitled to a directed verdict on the
contract claim in order to establish a prima facie bad faith claim. See William M. Shernoff, et al., Insurance Bad
Faith Litigation 5.02[3], at 5-21 (1998). We believe that the majority rule represents the more reasoned
approach and, thus, we decline to adopt the directed verdict rule.

3
With regard to first party claims, we have determined this relationship to be akin but not ascending to a
fiduciary relationship.
In rejecting the insurance company's argument that its obligation pursuant to the policy
was debatable due to a certain policy provision, and in concluding that substantial evidence supported the
giving of the bad faith instruction, the Sparks court held:
We disagree with the [insurance company's] contention that an insurer's belief that a portion of its
insurance contract precludes coverage raises an absolute defense to a claim of bad faith. If the insurer's
interpretation of its own contract as excluding coverage could render an insured's claim fairly
debatable, then insurers would be encouraged to write ambiguous insurance contracts, secure in the
knowledge that an obscure portion of the policy would provide an absolute defense to a claim of bad
faith. Although the insurer's belief that the validity of the insured's claim was fairly debatable is a defense
to a charge of bad faith, such a belief is a question of fact to be determined by the jury.
Id. at 1137.
In similar fashion, we reject Allianz's assertion that its interpretation of the ancillary charges limitation
provision in Bartgis' policy provided reasonable grounds upon which to deny Bartgis' claim, thereby sheltering it
from bad faith liability. To the contrary, substantial evidence was presented to the jury from which it could have
concluded that Allianz and Wohlers had engaged in bad faith.
[Headnote 2]
Specifically, the jury heard evidence of the November 1990 letter from Wohlers to Bartgis, which had been
pre-approved by Allianz, that made no mention of the harsh ancillary charges limitation provision. Further, the
evidence adduced at trial established that in the same letter, Allianz and Wohlers made the significant
misrepresentation that the new Allianz policy contained comparable benefits with Bartgis' previous MONY
policy, a policy which did not contain the ancillary charges limitation provision. Additionally, the jury heard
evidence that the defendants continued to conceal the ancillary charges limitation provision in subsequent
communications to Bartgis. Finally, the evidence presented at trial established that by way of Allianz's and
Wohlers's tortured interpretation of the arcane ancillary charges limitation provision, Bartgis' policywhich
Allianz and Wohlers had ostensibly represented as a comprehensive major medical insurance policycovered
only hospital room and board. By interpreting the policy in a manner that denied coverage for all medically
necessary procedures and expenses such as the operating and recovery room expenses, anesthesia, all
medications, sutures, and roughly ninety percent of Bartgis' hospital bill, Allianz and Wohlers deprived
Bartgis of the peace of mind and security for which she had bargained.
deprived Bartgis of the peace of mind and security for which she had bargained.
Based on these facts, we conclude that Allianz's failure to inform Bartgis of the significant reduction in
coverage, its representation that coverage under the two policies was comparable, its absurd interpretation of the
ancillary charges limitation provision, and its denial of Bartgis' claim pursuant to that provision, were
unreasonable. Accordingly, we conclude that the jury's finding of bad faith is supported by substantial evidence.
The jury's finding of fraud is supported by substantial evidence
Allianz and Wohlers argue that Bartgis failed as a matter of law to prove the elements of her fraud claim.
Specifically, Allianz contends that it never made or intended any misrepresentation, and that Bartgis failed to
prove that she relied on any of Allianz's representations. We disagree.
[Headnote 3]
As an initial matter, Allianz and Wohlers assert that the jury instruction defining clear and convincing
evidence, upon which the jury predicated its finding of both fraud and punitive damages, was erroneous.
4
Specifically, they assert that the definition provided by the district court offered little guidance to the jury as to
the meaning of the clear and convincing evidence standard. We disagree.
In Addington v. Texas, 441 U.S. 418, 432-33 (1979), the Supreme Court explained that in order to satisfy
due process, instructions on the clear and convincing standard need only inform the factfinder that the proof
must be greater than the preponderance-of-the-evidence standard applicable to other categories of civil cases.
Consistent with this teaching, in Topaz Mutual Co. v. Marsh, 108 Nev. 845, 850-51, 839 P.2d 606, 610
(1992), we concluded that the identical clear and convincing instruction at issue in the present case was
sufficient to ameliorate an otherwise erroneous instruction that suggested that damages for fraud could be
established by a preponderance of the evidence. Accordingly, we conclude that the clear and convincing
evidence instruction used in this case was sufficient, and that the district court did not err in so instructing the
jury.
Turning to the substance of Allianz's and Wohlers's fraud argument, we have previously held that fraud must
be proven by clear and convincing evidence as to each of the following elements: (1) a false representation made
by the defendant; (2) defendant's knowledge or belief that the representation is false {or
insufficient basis for making the representation);
__________

4
During trial, the district court instructed the jury that [c]lear and convincing evidence is evidence which is
beyond a mere preponderance of the evidence.
knowledge or belief that the representation is false (or insufficient basis for making the representation); (3)
defendant's intention to induce the plaintiff to act or to refrain from acting in reliance upon the
misrepresentation; (4) plaintiff's justifiable reliance upon the misrepresentation; and (5) damage to the plaintiff
resulting from such reliance. Bulbman, Inc. v. Nevada Bell, 108 Nev. 105, 111, 825 P.2d 588, 592 (1992).
Further, this court will not overturn the jury's verdict if it is supported by substantial evidence, unless, from
all the evidence presented, the verdict was clearly wrong. Bally's Employees' Credit Union v. Wallen, 105
Nev. 553, 555-56, 779 P.2d 956, 957 (1989). The reviewing court must assume that the jury believed the
evidence favorable to [the prevailing party] and made all reasonable inferences in [that party's] favor. Id., 105
Nev. at 555, 779 P.2d at 957.
[Headnote 4]
Here, by way of Wohlers's November 1990 and January 1991 letters to Bartgis, which concealed the
ancillary charges limitation provision and which misrepresented the Allianz policy as being comparable to
Bartgis' previous MONY policy, the jury could have concluded that Wohlers and Allianz had deliberately
misrepresented the policy and had concealed the ancillary charges limitation in order to induce Bartgis'
enrollment in the policy.
In assuming that the jury believed the foregoing evidence in favor of Bartgis, and made all reasonable
inferences from such evidence in her favor, we conclude that the jury could have found that Allianz and Wohlers
were liable for fraud. Accordingly, we conclude that the jury's finding of fraud is supported by substantial
evidence.
The compensatory damage award is not excessive
[Headnote 5]
At the conclusion of trial, the jury awarded Bartgis $275,000.00 in non-economic compensatory damages for
emotional distress. On appeal, Allianz and Wohlers assert that the evidence presented at trial was insufficient to
support the jury's finding that Bartgis suffered compensable emotional harm and that the jury's award was
excessive. We disagree.
It is well established that this court will affirm an award of compensatory damages unless the award is so
excessive that it appears to have been given under the influence of passion or prejudice.' Guaranty Nat'l Ins.
Co. v. Potter, 112 Nev. 199, 206, 912 P.2d 267, 272 (1996) (quoting NRCP 59(a)(6)). The size of the award
alone is not conclusive evidence that it was the result of passion or prejudice. Id. at 207, 912 P.2d at 272.
Rather, the core of the matter seems to be that an appellate court will disallow or reduce the award if
its judicial conscience is shocked.
disallow or reduce the award if its judicial conscience is shocked.' Id. (quoting Miller v. Schnitzer, 78 Nev.
301, 309, 371 P.2d 824, 829 (1962)).
Based on our review of the record on appeal, we conclude that the amount of Bartgis' compensatory damages
award was not the product of passion or prejudice. Evidence presented during trial established that as a result of
appellant's fraudulent misrepresentations, concealment, and bad faith course of conduct, Bartgis was deprived of
her peace of mind and sense of security during a post-operative and vulnerable juncture of her life. Throughout
this period, evidence presented at trial indicated that Bartgis suffered numerous stress-related bladder infections,
loss of appetite, and loss of sleep. Further, the jury heard evidence of Bartgis' dramatic weight loss of
approximately seventeen pounds from the time that Wohlers denied her claim until the time of trial. Bartgis
testified as to the nature of these ailments, along with her anxiety and financial hardship. Although Allianz
offered to pay the disputed amount plus attorney's fees shortly after these proceedings were commenced, the
award is still not so excessive or without basis as to require reduction or elimination on appeal.
The district court did not err in finding that Wohlers was contractually obligated on an insurance policy between
Bartgis and Allianz
The jury in this case found that Wohlers and/or Allianz had breached its contractual obligations to
[Bartgis]. Wohlers argues that because it was not a party to the insurance contract between Bartgis and Allianz,
it could not be held liable for any policy-based contractual claims or bad faith claims emanating from a breach of
the duty of good faith and fair dealing. In response, Bartgis asserts that as a full service administrator that shared
in Allianz's profits, Wohlers was contractually obligated to her by way of the medical insurance policy. We
agree.
[Headnote 6]
In general, no one is liable upon a contract except those who are parties to it. County of Clark v. Bonanza
No. 1, 96 Nev. 643, 648-49, 615 P.2d 939, 943 (1980). However, according to a well-established exception to
this general rule, where a claims administrator is engaged in a joint venture with an insurer, the administrator
may be held liable for its bad faith in handling the insured's claim, even though the organization is not
technically a party to the insurance policy. William M. Shernoff, et al., Insurance Bad Faith Litigation
2.03[1], at 2-10 (1998).
Pursuant to this generally recognized exception, in Farr v. Transamerica Occidental Life Insurance Co., 699
P.2d 376, 386 {Ariz. Ct. App. 19S4), the Arizona Court of Appeals concluded that an
insurance administrator was sufficiently involved in a joint venture with the insurer to
expose it to bad faith liability based on evidence that the administrator collected
premiums, handled claims, and received a commission on collected premiums and a
percentage of renewal commissions.
(Ariz. Ct. App. 1984), the Arizona Court of Appeals concluded that an insurance administrator was sufficiently
involved in a joint venture with the insurer to expose it to bad faith liability based on evidence that the
administrator collected premiums, handled claims, and received a commission on collected premiums and a
percentage of renewal commissions.
[Headnote 7]
In the instant case, and in similar fashion, we conclude that the evidence sufficiently established that Wohlers
and Allianz were involved in a joint venture to an extent sufficient to expose Wohlers to all policy-based
contractual claims and bad faith liability. Here, the evidence proffered at trial indicated that Wohlers developed
promotional material, issued policies, billed and collected premiums, paid and adjudicated claims, and assisted
Allianz in the development of the ancillary charges limitation provision. Further, because Wohlers shared in
Allianz's profits, it had a direct pecuniary interest in optimizing Allianz's financial condition by keeping claims
costs down. Indeed, Wohlers's administrative responsibilities and its special relationship with Allianz are more
indicative of the existence of a joint venture than the situation presented in Farr.
Due to the extent of Wohlers's administrative responsibilities, policy management duties, and special
relationship with Allianz, we conclude that Wohlers and Allianz were involved in a joint venture to an extent
sufficient to expose Wohlers to liability on all contract-based and bad faith claims.
The district court erred in finding that Wohlers was liable under NRS 686A.310
[Headnote 8]
Wohlers asserts that it is not an insurer within the meaning of the applicable statutory definition and, thus, it
cannot be held liable for alleged unfair claims practices proscribed under NRS 686A.310 because the statute
applies only to insurance companies. We agree.
We have previously held that in determining what the legislature intended, the title of a statute may be
considered in construing the statute. A Minor v. Clark Co. Juvenile Ct. Servs., 87 Nev. 544, 548, 490 P.2d 1248,
1250 (1971). The title of NRS 686A.310 reads Unfair practices in settling claims; liability of insurer for
damages. (Emphasis added.) From a plain reading of its title, there is no indication that the legislature intended
NRS 686A.310 to apply to other entities beyond insurers.
[Headnote 9]
At trial, Bartgis relied on NRS 686A.520 for the assertion that Wohlers was an "insurer" for
purposes of NRS 6S6A.310.
Wohlers was an insurer for purposes of NRS 686A.310. NRS 686A.520 provides, in relevant part:
1. The provisions of . . . NRS 686A.010 to NRS 686A.310, inclusive, apply to
companies.
2. For the purposes of subsection 1, unless the context requires that a section apply
only to insurers, any reference in those sections to insurer must be replaced by a
reference to company.
(Emphasis added.) The term company is defined as a person engaged in the business of
entering into agreements. NRS 686A.330(2). The term agreement is defined as a contract
under which a person agrees to pay an insurance premium in advance, on behalf of the
insured or the prospective insured, in exchange for some consideration such as repayment
with interest. NRS 686A.330. After a thorough review of the record, we conclude that no
evidence exists that indicates Wohlers financed or paid premiums on behalf of Bartgis.
Further, despite the fact that the title of NRS 686A.310 clearly states that the following provisions apply
to the liability of insurers, the district court instructed the jury that NRS 686A.310 applied to one or both
defendants. Based on the foregoing reasoning, we conclude that NRS 686A.310 does not apply to Wohlers
because it is not an insurer or company within the meaning of the applicable statutory law. Therefore, the district
court erred in applying the provisions of NRS 686A.310 to Wohlers.
[Headnote 10]
In the alternative, Bartgis asserts that NRS 686A.020 brings Wohlers within the ambit of liability under NRS
686A.310. This argument is not persuasive. NRS 686A.020 provides, in relevant part, that:
A person shall not engage in this state in any practice which is defined in NRS 686A.010 to 686A.310,
inclusive, as, or determined pursuant to NRS 686A.170 to be, an unfair method of competition or an
unfair or deceptive act or practice in the business of insurance.
Bartgis asserts that this section applies to Wohlers because Wohlers is a person within the meaning of the
statute. Although person is not defined in this particular section, NRS 0.039 defines person, in relevant part,
as a natural person, any form of business or social organization and any other nongovernmental legal entity
including, but not limited to, a corporation, partnership, association, trust or unincorporated organization.
Admittedly, Wohlers comes within the NRS 0.039 definition of person. However, when considering unfair
claims practices, the jury found Wohlers liable for violating NRS 6S6A.310, which expressly
proscribes unfair practices in settling claims by an insurer, which Wohlers is not.
jury found Wohlers liable for violating NRS 686A.310, which expressly proscribes unfair practices in settling
claims by an insurer, which Wohlers is not. We are not willing to expand the definition of insurer and
company beyond that which has been provided by the legislature and, thus, we reject Bartgis' assertions that
Wohlers's actions constituted a violation of NRS 686A.310. Accordingly, we reverse the jury's determination
that Wohlers was liable for violating NRS 686A.310.
[Headnotes 1113]
Our reversal of Wohlers's NRS 686A.310 liability in no way compromises our affirmance of Wohlers's
liability on all contract-based, fraud, and bad faith claims.
5
Notwithstanding our determination that Wohlers is
not an insurer within the ambit of NRS 686A.310, Wohlers may still be held liable for all common law
contract and bad faith claims and punitive damages. In general, the majority rule maintains that a defendant's
liability or exoneration pursuant to an unfair claims statutory scheme does not preclude a common-law tort
cause of action for bad faith. William M. Shernoff, et al., Insurance Bad Faith Litigation 6.04[3], at 6-39
(1998). Recognizing the validity of the majority rule, Wohlers concedes that a reversal of its NRS 686A.310
liability would not, in turn, insulate it from punitive damages stemming from any of Bartgis' other claims.
Accordingly, our reversal of Wohlers's NRS 686A.310 liability does not jeopardize our affirmance of the
jury's finding of Wohlers's liability on all common law contract-based claims, fraud, and bad faith.
The district court did not err in finding that Allianz violated NRS 686A.310
Allianz argues that Bartgis failed to set forth the essential elements necessary to show a violation of the
Nevada Unfair Claims Practices Act. We disagree.
The district court instructed the jury regarding seven unfair practices set forth in NRS 686A.310.
6
At the
conclusion of trial, the jury determined that Allianz and Wohlers had engaged in unfair claims
practices.
__________

5
Additionally, our reversal of Wohlers's NRS 686A.310 liability in no way necessitates a new trial with
respect to any of Bartgis' remaining claims. While we acknowledge that when a jury returns a general verdict on
multiple claims, and it is impossible to determine on which claims the jury predicated liability, an error on one or
more of the claims necessitates a new trial. See, e.g., Lightenburger v. Gordon, 81 Nev. 553, 407 P.2d 728
(1965). Here, however, the jury's special verdict clearly indicates that the jury found Wohlers liable on all claims
including contract, fraud, bad faith, and statutory unfair claims practices. Accordingly, our reversal of Wohlers's
NRS 686A.310 liability does not alter the jury's finding of liability on Bartgis' remaining claims.

6
The list of unfair practices included:
the jury determined that Allianz and Wohlers had engaged in unfair claims practices.
[Headnote 14]
Based on our review of the record, we conclude that the jury's verdict that Allianz engaged in one or more
unfair claims practices is supported by substantial evidence. As previously indicated, the jury heard evidence
indicating that in the Allianz-approved November 1990 and January 1991 letters to Bartgis, the Allianz policy
was misrepresented as being comparable to Bartgis' previous MONY policy. Further, the evidence suggested
that Allianz had unilaterally inserted the arcane ancillary charges limitation provision into Bartgis' policy and
then failed to disclose this provision or explain its intended effect. Additionally, the jury heard evidence
indicating that Allianz had acted unreasonably in denying her claim through its absurd interpretation of the
ancillary charges limitation provision. The jury also heard evidence of Allianz's failure to offer Bartgis a
reasonable explanation, on the basis of her policy, for the denial of her claim.
Based on these facts, we conclude that the jury's finding that Allianz violated provisions of NRS 686A.310 is
supported by substantial evidence.
The punitive damages assessments are excessive as a matter of law
At the conclusion of trial, the jury assessed $7,500,000.00 in punitive damages against Allianz and
$500,000.00 against Wohlers.
__________
1. Misrepresenting to insureds or claimants pertinent facts or insurance policy provisions relating to
any coverage at issue;
2. Failing to acknowledge and act reasonably promptly upon communications with respect to claims
arising under an insurance policy;
3. Failing to effectuate prompt, fair and equitable settlements of a claim in which liability of the
insurer has become reasonably clear;
4. Compelling insureds to institute litigation to recover amounts due under an insurance policy by
offering substantially less than the amounts ultimately recovered in actions brought by such insureds,
when the insureds have made claims for amounts reasonably similar to the amounts ultimately recovered;
5. Attempting to settle a claim by an insured for less than the amount to which a reasonable person
would have believed he was entitled by reference to written or printed advertising material accompanying
or made part of an application;
6. Failing to settle claims promptly, where liability has become reasonably clear, under one portion of
the insurance policy coverage in order to influence settlements under other portions of the insurance
policy coverage;
7. Failing to provide promptly to an insured a reasonable explanation of the basis in the insurance
policy, with respect to the facts of the insureds' claim and the applicable law, for the denial of her claim
or for an offer to settle or compromise her claim.
Wohlers. On appeal, Allianz and Wohlers argue that the jury's assessment of $8,000,000.00 in punitive damages
was excessive. Although we conclude that substantial evidence exists to support the jury's finding of fraud and
bad faith necessary to justify an assessment of punitive damages, the respective punitive damage amounts
assessed against both Allianz and Wohlers are excessive as a matter of state law.
7

NRS 42.005 provides that punitive damages may be awarded in an action for the breach of an obligation
not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty
of oppression, fraud or malice, express or implied. When a prevailing plaintiff's compensatory damages
exceeds $100,000.00, punitive damages are capped by statute to three times the amount of the compensatory
damages. See NRS 42.005(1)(a). When the plaintiff recovers less than $100,000.00 in compensatory damages,
punitive damages must be limited to a maximum of $300,000.00. See NRS 42.005(b). Significantly, the
foregoing statutory caps on punitive damages do not apply to [a]n insurer who acts in bad faith regarding its
obligations to provide insurance coverage. NRS 42.005(2)(b).
[Headnote 15]
In Guaranty National Insurance Co. v. Potter, 112 Nev. 199, 208, 912 P.2d 267, 273 (1996), we reiterated
the following standard for reviewing the excessiveness of a punitive damages award:
Punitive damages are legally excessive when the amount of damages awarded is clearly disproportionate
to the degree of blameworthiness and harmfulness inherent in the oppressive, fraudulent or malicious
misconduct of the tortfeasor under the circumstances of a given case. If the awarding jury or judge
assesses more in punitive damages than is reasonably necessary and fairly deserved in order to punish the
offender and deter others from similar conduct, then the award must be set aside as excessive.
(quoting Ace Truck v. Kahn, 103 Nev. 503, 509, 746 P.2d 132, 136-37 (1987)). In determining whether a
punitive damages award is excessive pursuant to this standard, we will consider a variety of factors including
the financial position of the defendant, culpability and blameworthiness of the tortfeasor, vulnerability and
injury suffered by the offended party, the extent to which the punished conduct offends the public's sense of
justice and propriety, and the means which are judged necessary to deter future misconduct
of this kind.
__________

7
We hold that the jury's assessment of punitive damages is excessive solely as a matter of state law. Thus, we
do not consider Allianz's and Wohlers's argument, premised on BMW of North America, Inc. v. Gore, 517 U.S.
559, 116 S. Ct. 1589 (1996), that the punitive damages awarded in this case are grossly excessive pursuant to the
Fourteenth Amendment of the Federal Constitution.
and the means which are judged necessary to deter future misconduct of this kind. Id. at 208,
912 P.2d at 273-74 (quoting Ace Truck v. Kahn, 103 Nev. 503, 510, 746 P.2d 132, 137
(1987)).
[Headnote 16]
Based on the standard we reiterated in Guaranty National Insurance Co., we conclude that the jury's
respective punitive damage assessments against Allianz and Wohlers are excessive as a matter of law. From the
facts of this case, we conclude that these awards are clearly disproportionate to the degree of reprehensibility of
Allianz's and Wohlers's conduct. Evidence presented at trial indicated that Allianz attempted to settle the case by
offering to pay the full amount of Bartgis' claim and all of her attorney's fees after learning of her dispute over
the ancillary charges limitation provision. Additionally, Allianz and Wohlers presented evidence indicating that
of the small percentage of claimants who were affected by the ancillary charges limitation provision, numerous
claims were resolved in favor of the policyholders at the completion of Allianz's internal appeals process.
Moreover, although the jury heard evidence attesting to Allianz's and Wohlers's fraudulent conduct and bad
faith, the assessment against Wohlers is nearly twenty-one percent of that company's net worth.
8
While the facts
of this case demonstrate that Wohlers engaged in fraudulent misrepresentation and bad faith conduct, we
conclude that this assessment exceeds the deterrent effect intended by an award of punitive damages.
In similar fashion, the facts presented at trial demonstrated that Allianz had engaged in fraudulent
misrepresentation and bad faith conduct. However, while the assessment against Allianz amounts to merely two
and one-half percent of that company's $300,000,000.00 net worth, we conclude that Allianz's conduct in this
case does not justify a punitive damage assessment that is approximately thirty times greater than Bartgis' award
of $275,000.00 in compensatory damages.
Based on the foregoing, we conclude that the jury's punitive damage assessments against Allianz and
Wohlers are excessive and disproportionate to their degree of blameworthiness. The respective punitive damage
awards assessed by the jury in this case exceed the punishment and deterrent effect intended by an award of
punitive damages. Accordingly, the jury's punitive damage assessment against Allianz is reduced from
$7,500,000.00 to $3,750,000.00, and the punitive damage assessment against Wohlers is
reduced from $500,000.00 to $150,000.00.
__________

8
During trial, the jury heard evidence indicating that Allianz's net worth was $300,000,000.00 and Wohlers's
net worth was $2,435,000.00. Based on their respective net worth, the jury's assessment of $7,500,000.00 in
punitive damages against Allianz amounted to approximately two and one-half percent of its net worth, and the
$500,000.00 punitive damage assessment against Wohlers amounted to approximately twenty-one percent of its
net worth.
$3,750,000.00, and the punitive damage assessment against Wohlers is reduced from $500,000.00 to
$150,000.00.
Bartgis is entitled to post-judgment interest on punitive damages
[Headnote 17]
In her cross-appeal, Bartgis argues that the district court erred in denying her motion for post-judgment
interest on the punitive damage award pursuant to NRS 17.130.
9
We agree.
Although Allianz and Wohlers assert that Bartgis is not entitled to post-judgment interest on punitive
damages pursuant to our decision in Ainsworth v. Combined Ins. Co., 105 Nev. 237, 244, 774 P.2d 1003,
1009 (1989) (concluding that an award of post-judgment interest on punitive damages would not further the
underlying purposes and policies of punitive damages), we have recently modified our Ainsworth decision.
In Powers v. USAA, 114 Nev. 690, 962 P.2d 596 (1998), we held that NRS 17.130 allowed for
post-judgment interest on punitive damages on the reasoning that such damages comprise part of a prevailing
plaintiff's judgment as defined by NRS 17.130. Id. at 19-20. In concluding that NRS 17.130 allowed for
post-judgment interest on punitive damages, and in modifying our Ainsworth decision, we explained that [t]he
purpose of post-judgment interest is to compensate the plaintiff for loss of the use of the money awarded in the
judgment without regard to the elements of which that judgment is composed.' Id. at 19 (quoting Air
Separation v. Lloyd's of London, 45 F.3d 288, 290 (9th Cir. 1973)).
[Headnotes 18, 19]
Accordingly, pursuant to our decision in Powers, Bartgis is entitled to post-judgment interest on her punitive
damage award.
10

__________

9
In relevant part, NRS 17.130 provides:
1. In all judgments . . . rendered by any court of justice, for any debt, damages or costs . . . the
amount must be computed, as near as may be, in dollars and cents . . . .
the judgment draws interest from the time of service of the summons and complaint until satisfied, except
for any amount representing future damages, which draws interest only from the time of the entry of the
judgment until satisfied . . . .

10
Although Bartgis purports to appeal from the district court's order denying her post-judgment motion for
post-judgment interest on the punitive damages, we conclude that this order is not an appealable special order
after final judgment. See Wilkinson v. Wilkinson, 73 Nev. 143, 145, 311 P.2d 735, 736 (1957) (explaining that
[t]he mere fact that the order in point of time is made after a final judgment has been entered does not render it
appealable. It must affect the rights of the parties growing out of final judgment). Nevertheless, we construe
Bartgis' appeal as one from the final judgment, which failed to award her post-judgment interest on the punitive
damages
CONCLUSION
We conclude that substantial evidence supports the jury's finding of bad faith and fraud against both Allianz
and Wohlers. Further, we conclude that the compensatory damage award was not excessive, and, due to the
existence of a joint venture between Wohlers and Allianz, that the district court did not err in finding that
Wohlers was contractually obligated on Bartgis' insurance policy.
Likewise, we conclude that substantial evidence supports the jury's finding that Allianz engaged in unfair
claims practices proscribed by NRS 686A.310. However, because Wohlers is not an insurer within the
meaning of the applicable statutory definition, we reverse Wohlers's NRS 686A.310 liability. Lastly, we
conclude that the punitive damages assessed against both Allianz and Wohlers are excessive as a matter of law,
and that the district court erred in denying Bartgis post-judgment interest on the punitive damage award.
Based on the foregoing, the punitive damage assessment against Allianz is reduced from $7,500,000.00 to
$3,750,000.00, and the punitive damage assessment against Wohlers is reduced from $500,000.00 to
$150,000.00. Accordingly, we remand this case solely for a determination of post-judgment interest on the
modified punitive damage award as of the date the judgment was entered.
__________
award. See Foreman v. Eagle Thrifty Drugs & Markets, 89 Nev. 533, 536, 516 P.2d 1234, 1236 (1973).
Additionally, Bartgis purports to appeal from the district court's order denying her post-judgment motions for
sanctions and discovery. We do not discern, however, how Bartgis was aggrieved with respect to these issues.
Although Bartgis brought her post-judgment motion for sanctions and further discovery in the context of
Wohlers and Allianz's motion for a new trial, the district court denied the motion for a new trial. Therefore, it
does not appear that Bartgis was aggrieved with respect to these post-judgment issues. See NRAP 3A(a) (only
aggrieved party may appeal from an appealable order or judgment); City of Reno v. Harris, 111 Nev. 672, 676,
895 P.2d 663, 666 (1995) (noting that an aggrieved party is one whose property right or personal right is
substantially or adversely affected by the order or judgment from which the appeal is taken). Consequently, we
conclude that we lack jurisdiction to address these issues.
____________
114 Nev. 1271, 1271 (1998) Matter of Varain
In The Matter of the HONORABLE RANDY P. VARAIN, Justice of the Peace, Schurz
Township, County of Mineral, State of Nevada.
No. 30867
December 9, 1998 969 P.2d 305
Appeal from a decision of the Nevada Commission on Judicial Discipline imposing a public written
reprimand and ordering appellant to enroll in a judicial ethics class for violating the Nevada Code of Judicial
Conduct.
Justice of the peace appealed from decision of Commission on Judicial Discipline
imposing public reprimand on findings that he engaged in improper ex parte communication
with incarcerated criminal defendant and improperly involved himself in case in which he
had recused himself. The supreme court, Rose, J., held that: (1) justice's direct, but limited,
involvement in case in which he knew victim, victim's mother, and defendant before
disqualifying himself was warranted by exigent circumstances; (2) jailhouse communication
with defendant was not an improper ex parte communication as inquiry was limited to
ensuring defendant's personal safety in light of defendant's highly suspicious 3:00 a.m. arrest;
and (3) justice's subsequent reassignment of case did not violate Judicial Canons in light of
his lack of knowledge that case had been settled and because the reassignment was
administrative in nature.
Reversed.
Maupin, J., dissented in part.
Dean R. Heidrich, Reno, for Appellant.
Fred Berkley, Special Prosecutor, Las Vegas, for Respondent.
1. Judges.
Supreme court's review of factual findings of Commission on Judicial Discipline is confined to a determination of whether the
evidence in the record as a whole provides clear and convincing support for the Commission's findings.
2. Judges.
Although the supreme court must apply a deferential standard of review to the factual determinations of the Commission on
Judicial Discipline, court is not bound by the Commission's conclusions of law.
3. Judges.
Judge need not disqualify himself merely because he is acquainted with the parties appearing before him.
Judge's decision to not voluntarily disqualify himself in the midst of compelling circumstances should be accorded substantial
weight and should not be reversed on appeal absent an abuse of discretion.
5. Justices of the Peace.
Limited and direct involvement of justice of the peace in criminal prosecution in which he knew victim, victim's mother and
defendant by making ex parte contact with incarcerated defendant shortly after his arrest, rather than immediately disqualifying
himself, did not violate Code of Judicial Conduct, where justice's limited involvement was directed at salutary purpose of guaranteeing
personal safety of defendant, who had been arrested in middle of night by deputy sheriff who was friend of victim's mother, and not
toward affecting merits of state's investigation or prosecution, and was followed by justice's disqualification of himself after taking
measures to protect defendant's personal safety. Code of Jud. Conduct, Canons 2(A),(B), (3)(B)(1).
Brief jailhouse communication by justice of peace with incarcerated defendant shortly after defendant's arrest was not an improper
ex parte communication in violation of Code of Judicial Conduct; exigent circumstances presented by 3:00 a.m. arrest by deputy
sheriff who was friend of victim's mother justified jailhouse contact with defendant, which was limited to inquiring about defendant's
well-being, for purpose of ensuring defendant's personal safety. Code of Jud. Conduct, Canon 3(B)(7).
Justice of the peace did not commit judicial misconduct by administratively reassigning defendant's case after justice had recused
himself from matter and after parties had entered into plea agreement before another judge, where there was no evidence of any
personal bias, reassignment was largely result of miscommunication and justice's lack of knowledge that case had been settled, and
reassignment did not affect merits of case. Code of Jud. Conduct, Canon 3(E)(1)(a).
OPINION
Justice of the Peace Randy Varain (Judge Varain) was issued a public written reprimand and ordered to complete a course in judicial
ethics after the Nevada Commission on Judicial Discipline (the Commission) determined that Judge Varain had violated several canons of
the Nevada Code of Judicial Conduct. The Commission found that Judge Varain had engaged in an improper ex parte contact with an
incarcerated criminal defendant, and had reassigned the defendant's case to another judge, after the defendant and the State had entered into
a plea agreement.
Judge Varain now appeals from the Commission's decision, arguing that his contact with the defendant was justified due to his concern
for the defendant's personal safety. Additionally, Judge Varain argues that his administrative reassignment of the defendant's case was
warranted because he had not been informed that the defendant and the State had entered into a plea agreement. We agree. Accordingly, we
reverse the Commission's decision and vacate its imposition of discipline.
FACTS
Judge Varain serves as a part-time Justice of the Peace in Schurz Township, Mineral County. In January
1996, Bonnie Hughes (Hughes), the Schurz Justice's Court Clerk, discovered that her fourteen-year-old daughter
had become sexually active with a man who was in his mid-twenties. Judge Varain knew both Hughes' daughter
and the man with whom she had become sexually involved.
Upon learning of her daughter's involvement with a much older man, Hughes went to Judge Varain to ask his
advice. Judge Varain recommended that Hughes seek counseling for her daughter, and instructed her to inform
the District Attorney's office of her allegations. Instead, Hughes contacted the Mineral County Sheriff's
Department. Hughes had close ties to the sheriff's department because her ex-husband, another close personal
friend named Pat Thyne (Dep. Thyne), and her current boyfriend all currently served as deputy sheriffs for
Mineral County.
On Friday, February 9, 1996, Hughes went to Dep. Thyne's home to discuss the matter. Several hours later,
at approximately 2:50 a.m., Dep. Thyne put himself on duty, proceeded to the man's residence, and arrested him.
Dep. Thyne contacted Judge Varain at approximately 5:00 a.m. to report his actions and inform him that the
defendant was in custody.
Due to the nature of the alleged crime and Hughes' close ties to the Mineral County Sheriff's Department,
Judge Varain became concerned for the defendant's personal safety. At approximately 9:00 a.m., Judge Varain
proceeded to the county jail to check on the defendant's welfare; upon his arrival, two Nevada Highway Patrol
officers and a Mineral County deputy sheriff accompanied Judge Varain to the defendant's cell. In response to
Judge Varain's questioning, the defendant indicated that he had not been harmed. With the approval of the
district attorney, the defendant was then released from custody on his own recognizance. Thereafter, Judge
Varain recused himself from the case, and the matter was reassigned to Justice of the Peace Paul Freitag (Judge
Freitag) and set for arraignment on June 7, 1996.
In April 1996, Karen Boyles (Boyles) replaced Hughes as the Schurz Justice's Court Clerk. Prior to the June
7th hearing, the district attorney and the defendant reached a plea agreement whereby in exchange for a guilty
plea on a reduced charge, the defendant would receive probation and a suspended jail sentence. At the June 7,
1996, preliminary hearing, the parties informed Judge Freitag that they had reached a plea agreement; Judge
Freitag consented to the resolution of the case in this manner and instructed the parties to submit the written plea
agreement to him in Sparks at a later date. Boyles, who was relatively new in her position as Schurz
Justice's Court Clerk, did not know that the parties had entered into a plea agreement.
position as Schurz Justice's Court Clerk, did not know that the parties had entered into a plea agreement.
After this hearing, Boyles approached Judge Varain and informed him that the parties had left the courthouse
without informing her of any decisions that had been made. Consequently, both she and Judge Varain were
unaware that the matter had been resolved by way of a plea agreement. Due to their lack of knowledge in the
matter, Judge Varain instructed Boyles to assign the case to a different Justice of the Peace, and to draft a letter
to the parties informing them of the court's action.
After receiving Judge Varain's letter dated June 12, 1996, the district attorney responded by letter dated June
13, 1996.
1
Shortly thereafter, Judge Varain responded to the district attorney's letter.
2
Additionally, on June
17, 1996, the defendant's counsel sent a letter to Boyles indicating that any further court appearances were
unnecessary in light of the parties' June 7, 1996, plea agreement before Judge Freitag.
Eventually, the district attorney dismissed all criminal charges against the defendant after the different Justice
of the Peace failed to appear at the rescheduled hearing. Thereafter, Hughes filed a complaint with the
Commission alleging that Judge Varain had committed judicial misconduct through his handling of the matter.
On April 7, 1997, formal charges were filed before the Commission, alleging that Judge Varain had violated
numerous Canons of the Nevada Code of Judicial Conduct by conducting an ex parte visitation with the
defendant while he was in jail, and by reassigning the case to a different Justice of the Peace
after the parties had entered into a plea agreement before Judge Freitag.
__________

1
The district attorney's letter read as follows:
I am in receipt of your letter dated June 12, 1996, and confess I am baffled by its contents. The letter
suggests you have entered an order in a matter after you have recused yourself because of a personal
conflict of interest. I fail to understand what involvement you can have in this matter, particularly since
Judge Freitag has accepted the motions filed in open court on June 7, 1996, and has instructed us to
submit the necessary written plea agreement to him for final disposition.
The only valid orders that can be issued must come from Judge Freitag. I must view any other order
as tampering. The plea agreement has been made and the matter was continued by Judge Freitag for the
purpose of allowing counsel to memorialize the agreement. I believe any order issued by you
contravening the arrangements made through Judge Freitag is improper in light of your stated conflict.

2
Judge Varain's second letter read as follows:
I must advise you that Judge Freitag was requested to set in for one particular day because of a
conflict with the [defendant's] case. That case was continued. A new date was set and another Judge was
asked to set on that day. Your office does not dictate to this Court on what judge you want to set and hear
what cases you want. Any attempt to do so this Court would view as an attempt to control the Judiciary. I
fail to see your concern in this matter unless you personally have a reason to interfere with the Court in
ensuring an impartial judge in hearing this case.
reassigning the case to a different Justice of the Peace after the parties had entered into a plea agreement before
Judge Freitag.
On June 24, 1997, the Commission conducted a formal hearing regarding the allegations against Judge
Varain. At this hearing, Judge Varain denied that he had done anything improper, and reiterated that he had
visited the defendant while he was in custody due to the unusual circumstances surrounding his 3:00 a.m. arrest
and concerns for the defendant's personal safety. Additionally, Boyles testified that Judge Varain had instructed
her to set another court date before a different Justice of the Peace because neither she nor Judge Varain had any
knowledge of the parties' June 7th plea agreement before Judge Freitag.
On August 7, 1996, the Commission entered its findings of fact and conclusions of law. The Commission
found that Judge Varain had improperly involved himself in a criminal matter in which he personally knew both
the alleged victim and the defendant. Further, the Commission found that by visiting the jail to check on the
defendant's welfare, Judge Varain had engaged in an improper ex parte communication. Lastly, the Commission
found that Judge Varain acted improperly by reassigning the case to a different Justice of the Peace after the
parties had reached a plea agreement before Judge Freitag on June 7, 1996.
Based on its findings of fact, the Commission concluded that Judge Varain had violated Canons 2(A), 2(B),
3(B)(1), 3(B)(7), and 3(E)(1)(a) of the Nevada Code of Judicial Conduct. Accordingly, the Commission issued a
public written reprimand against Judge Varain and ordered him to complete a judicial ethics class at the National
Judicial College.
Judge Varain now appeals from the Commission's decision and imposition of discipline.
DISCUSSION
Judge Varain's limited involvement in the case, and his communication with an incarcerated criminal defendant,
did not constitute violations of the Nevada Code of Judicial Conduct
The Commission concluded that Judge Varain's direct involvement in the case constituted violations of
Canons 2(A),
3
2(B),
4
and 3{B){1)5 of the Nevada Code of Judicial Conduct because he
personally knew the alleged victim, the victim's mother, and the defendant in the case.
__________

3
Canon 2(A) provides:
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.

4
In relevant part, Canon 2(B) provides:
A judge shall not allow family, social, political or other relationships to influence the judge's judicial
conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests
of the
3(B)(1)
5
of the Nevada Code of Judicial Conduct because he personally knew the alleged victim, the victim's
mother, and the defendant in the case. On appeal, Judge Varain argues that his direct involvement did not affect
the merits of the State's prosecution, but was instead narrowly limited to ensuring the personal safety of an
incarcerated defendant who had been arrested under highly unusual circumstances. Further, Judge Varain argues
that because he promptly disqualified himself from the case after ensuring that the defendant had not been
harmed, his limited involvement was both ethical and appropriate. We agree.
[Headnotes 1, 2]
This court's review of the Commission's factual findings is confined 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
we must apply a deferential standard of review to the Commission's factual determinations, we are not bound by
the Commission's conclusions of law. Id.
[Headnotes 3, 4]
A judge need not disqualify himself merely because he is acquainted with the parties appearing before him.
Jacobson v. Manfredi, 100 Nev. 226, 230, 679 P.2d 251, 254 (1984). Further, a judge's decision to not
voluntarily disqualify himself in the midst of compelling circumstances should be accorded substantial weight
and should not be reversed on appeal absent an abuse of discretion. Goldman v. Bryan, 104 Nev. 644, 649, 764
P.2d 1296, 1299 (1988).
[Headnote 5]
In the instant case, we conclude that Judge Varain's limited and direct involvement in the matter did not
constitute a violation of the Nevada Code of Judicial Conduct. Although Judge Varain directly involved himself
in a case in which he personally knew the alleged victim, the victim's mother, and the defendant, Judge Varain
did not have a duty to disqualify himself merely because he knew the parties. See Jacobson, 100 Nev. at 230,
679 P.2d at 254. Further, Judge Varain's limited involvement was directed at the salutary purpose of
guaranteeing the personal safety of an incarcerated defendant and not towards affecting the
merits of the State's investigation or prosecution.
__________
judge or others; nor shall a judge convey or permit others to convey the impression that they are in a
special position to influence the judge . . . .

5
Canon 3(B)(1) provides:
A judge shall hear and decide matters assigned to the judge except those in which disqualification is
required.
incarcerated defendant and not towards affecting the merits of the State's investigation or prosecution. Lastly,
because Judge Varain did indeed disqualify himself after taking measures to protect the defendant's personal
safety, we conclude that his limited involvement was both appropriate and commendable.
[Headnote 6]
Likewise, we conclude that Judge Varain's brief jailhouse communication with the defendant did not
constitute an improper ex parte communication in violation of Canon 3(B)(7)
6
of the Nevada Code of Judicial
Conduct. Due to the circumstances surrounding the defendant's 3:00 a.m. arrest by Dep. Thyne, we conclude that
exigent circumstances existed which justified Judge Varain's limited jailhouse contact with the defendant for the
purpose of ensuring the defendant's personal safety. See In The Matter of Judicial Disciplinary Proceedings
Against Aulik, 429 N.W.2d 759, 767 (Wis. 1988) (explaining that the prohibition against ex parte contacts is not
absolute, and that [e]xigent circumstances may permit a judge to communicate and act ex parte). Because
Judge Varain limited the scope of his inquiry to the defendant's well-being, his brief communication with the
defendant did not affect the substance or merits of the State's prosecution. Accordingly, we conclude that Judge
Varain's jailhouse communication with the defendant fell within the purview of the emergency exception
contained in Canon 3(B)(7)(a).
7

Judge Varain did not commit judicial misconduct by administratively reassigning the defendant's case after he
had recused himself from the matter and after the parties had entered into a plea agreement
[Headnote 7]
The Commission concluded that Judge Varain's reassignment of the case to a different Justice of the Peace
constituted a violation of Canon 3{E){1){a)S in light of his previous recusal from the case, and
the parties' plea agreement before Judge Freitag on June 7, 1996.
__________

6
In relevant part, Canon 3(B)(7) provides:
. . . 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 . . . .

7
Canon 3(B)(7)(a) provides:
(a) Where circumstances require, ex parte communications for scheduling, administrative purposes or
emergencies that do not deal with substantive matters or issues on the merits are authorized; provided:
(i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result
of the ex parte communication, and
(ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte
communication and allows an opportunity to respond.
of Canon 3(E)(1)(a)
8
in light of his previous recusal from the case, and the parties' plea agreement before Judge
Freitag on June 7, 1996. On appeal, Judge Varain argues that his administrative reassignment of the case was not
evidence of any personal bias, but was instead warranted because neither he nor the Court Clerk knew that the
case had been settled. We agree.
The standard for assessing judicial bias is whether a reasonable person, knowing all the facts, would harbor
reasonable doubts about [a judge's] impartiality. PETA v. Bobby Berosini, Ltd., 111 Nev. 431, 438, 894 P.2d
337, 341 (1995); see also Richard E. Flamm, Judicial Disqualification 5.5 (1996). Whether a judge's
impartiality can reasonably be questioned under an objective standard, however, is a question of law and this
court will exercise its independent judgment of the undisputed facts. Berosini, 111 Nev. at 437, 894 P.2d at 341
(citing Flier v. Superior Court (Perkins), 28 Cal. Rptr.2d 383, 386 (Ct. App. 1994); State v. Rochelt, 477
N.W.2d 659, 661 (Wis. Ct. App. 1991)).
Based on the undisputed facts of this case, we conclude that Judge Varain's administrative reassignment of
the defendant's case did not constitute a violation of Canon 3(E)(1)(a). While the Commission argues that Judge
Varain's reassignment was improper because both the district attorney and defense counsel had informed Judge
Varain by letter that the parties had resolved the case by way of a plea agreement, we note that both letters were
sent to Judge Varain after he had made the administrative reassignment to a different pro tem judge.
Although Judge Varain did indeed reassign the case to a different judge after he had recused himself and
after the parties had entered into a plea agreement, our review of the record indicates that Judge Varain's
reassignment was an administrative action that did not affect the merits of the case. Further, as Judge Varain
testified, the reassignment was largely the result of miscommunication and his lack of knowledge that the case
had been settled. The undisputed facts do not create a reasonable doubt concerning Judge Varain's impartiality.
Although Judge Varain's actions in this matter were not entirely appropriate, and he should not have taken
remedial action once he learned that the case had been reassigned, we conclude that his actions did not warrant
the punishment that was imposed. Consequently, we conclude that Judge Varain's administrative
reassignment did not violate Canon 3{E){1){a) of the Nevada Code of Judicial Conduct.
__________

8
Canon 3(E)(1)(a) provides:
(1) 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.
Varain's administrative reassignment did not violate Canon 3(E)(1)(a) of the Nevada Code of Judicial Conduct.
CONCLUSION
We conclude that Judge Varain did not violate Canons 2(A), 2(B), and 3(B)(1) by involving himself in a case
where he knew the alleged victim, the victim's mother, and the defendant because exigent circumstances existed
which warranted his direct, though limited, involvement. Further, we conclude that Judge Varain's jailhouse
communication with the defendant did not constitute a violation of Canon 3(B)(7) because Judge Varain's
commendable inquiry was limited to ensuring the defendant's personal safety in light of the defendant's highly
suspicious 3:00 a.m. arrest. Lastly, we conclude that Judge Varain's reassignment of the case did not constitute a
violation of Canon 3(E)(1)(a) in light of Judge Varain's lack of knowledge that the case had been settled, and
because the reassignment was administrative in nature.
Based on the foregoing, we reverse the decision of the Nevada Commission on Judicial Discipline, and direct
the Commission to withdraw its public reprimand of Judge Varain and to strike its order compelling him
to attend a course in judicial ethics.
9

The circumstances of this controversy appear unique. I would suggest that only a handful of judicial officers
in this state have faced the problem that confronted Judge Varain on the night of the defendant's arrest. The
situation was further complicated by the ongoing dispute that existed between Judge Varain and the Mineral
County District Attorney, Brian Kunzi.
The jail house visit
I agree that the visit to the jail and the release of the defendant do not warrant discipline. While the concern
over the safety of the defendant was probably, in hindsight, exaggerated, I do not believe that Judge Varain
should have been disciplined for checking on the inmate's welfare.
1
Further, the release of the inmate, with the
apparent agreement of the prosecution, did not undermine Judge Varain's judicial office.
__________

9
The Honorable Miriam Shearing did not participate in the decision of this matter.

1
There was strong evidence that Judge Varain also demanded transfer of the inmate. This was clearly
inappropriate. In any case, Mr. Kunzi properly advised him in that regard.
The rescheduled hearing
The negative dynamic between Judge Varain and Mr. Kunzi led, in my view, to a misunderstanding
entertained by both over their respective motives. The letters exchanged on June 13 were both ill-advised and
calculated to exacerbate the dispute, both parties, of course, being convinced of their respective moral
imperatives. Based on the extent of discipline imposed, the commission evidently agrees.
The commission was faced with conflicting evidence in connection with the motives of the protagonists and,
most pertinent to these proceedings, the actual intent of Judge Varain when he apparently overrode the
disposition of the justice of the peace pro tempore, appointed to sit in his place. First, the letters exchanged with
regard to the rescheduling of the hearings clearly indicate the district attorney felt that the judge was
intentionally meddling in a matter from which he had disqualified himself. Second, they also confirm the judge's
feeling that his judicial prerogatives were under attack. In retrospect, neither was probably true. However, the
commission also heard evidence that the letter of June 12, 1996, re-setting the matter, was accompanied by a
transcript of the June 7 proceedings. That transcript unequivocally reflected the plea agreement and the fact that
the justice of the peace pro tempore would be finally concluding the matter. With this evidence in place (threats
by Judge Varain to take the justice of the peace pro tempore to the judicial discipline commission.
2
the ongoing
feud between the judge and Mr. Kunzi, and Judge Varain's attitude toward his clerk's behavior), the commission
could rightly have concluded that the re-scheduling of the hearing before yet another judge constituted improper
interference with the process.
3
This finding is further supported by written confirmation provided to Judge
Varain that the matter was to be resolved by Judge Freitag. Even after being advised of the negotiated
settlement, Judge Varain's refusal to vacate the continued hearing date effectively forced the parties to take the
arrangement for approval before a second substitute justice of the peace.
4

__________

2
The defense attorney, Mr. Scott Freeman, testified to a statement by Judge Varain in that regard.

3
I also note that Mr. Kunzi and Mr. Freeman disagree as to whether Judge Varain told Mr. Freeman that the
defense should not accept any plea negotiation. Mr. Freeman testified that no such statement was made while
Mr. Kunzi testified to his belief that such a conversation did, in fact, occur.

4
Given that the agreement was to be enforced via a counterplea, no further action by any other judicial
officer was necessary.
I would note parenthetically that the ultimate dismissal of the case when the second judge failed to appear for
the continued hearing may have been the result of an overreaction by Mr. Kunzi, given that defense counsel
apparently remained agreeable to the negotiations.
I therefore conclude that the allegations of improper conduct after Judge Varain formally recused himself are
supported by substantial evidence. I would note, however, that mitigating circumstances exist upon which the
commission could have declined action of any kind. Thus, while I agree that the issuance of a public reprimand
may have been unwarranted, the discipline actually imposed seems to account for those mitigating
circumstances. Therefore, given their leniency, the disciplinary measures imposed should not be overturned.
____________
114 Nev. 1281, 1281 (1998) Cameron v. State
WAYNE CAMERON, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 26291
December 14, 1998 968 P.2d 1169
Appeal from a judgment of conviction, entered pursuant to a guilty plea, of one count of lewdness with a
minor under the age of fourteen and a sentence of ten years in the Nevada State Prison. Eighth Judicial District
Court, Clark County; Don P. Chairez, Judge.
The supreme court, Springgate, D. J., held that comments made by sentencing judge did
not exhibit impermissible bias or prejudice.
Affirmed.
Rose, J., and Springer, C. J., dissented.
Susan Martin, Miami, Florida, for Appellant.
Judges.
Comments by judge, who sentenced defendant to statutory maximum term of ten years imprisonment for lewdness with a minor,
that We should be concerned with punishment, did not reflect his personal interest in the outcome of the case and improper judicial
bias in violation of statute governing disqualification of judges or Code of Judicial Conduct, requiring judge to recuse himself, but
showed that he was offended by the facts of the crime committed. NRS 1.230; Code of Jud.Conduct, Canon 3.
OPINION
By the Court, Springgate, D. J.:
In June of 1993, appellant was working on a car at the home of an acquaintance, Mr. Wheeler. Appellant was
sick that day and had to use the bathroom on several occasions. At one point, after appellant had been in the
house, Wheeler ascertained from his three-year-old daughter that appellant had touched the child's vagina.
Wheeler threw appellant off the premises. When appellant was subsequently questioned by the police, he
confessed to having licked the child's vagina once.
Appellant was convicted pursuant to a guilty plea of one count of lewdness with a minor under the age of
fourteen. He was initially sentenced to the maximum term of ten years in prison. However, before a final written
judgment of conviction was formally entered, appellant sought and obtained a resentencing hearing before a
different district judge. At the second sentencing hearing on May 5, 1994, appellant was again sentenced to the
maximum term of ten years in the Nevada State Prison. Appellant challenges his sentence in this appeal.
Appellant contends that comments by the district judge at the second sentencing hearing reflected a personal
interest in the outcome of the case and improper judicial bias in violation of NRS 1.230 and Canon 3 of the
Nevada Code of Judicial Conduct.
1
He contends that the district judge should have recused himself at the time
of sentencing. We have reviewed the record on appeal, and we conclude that appellant's claim is without merit.
Canon 3(B)(5) provides, in relevant part, that A judge shall perform judicial duties without bias or
prejudice."
__________

1
Appellant cited the judge's following comments as objectionable:
Frankly, I don't care whether it [appellant's conduct] was predatory or non-predatory.
. . .
We're not concerned with rehabilitation. We should be concerned about punishment.
. . .
I'm a former prosecutor in the DA's office, and for the life of me, I can't see why the prosecutor reduced it
from a sexual assault with a minor to lewdness with a minor.
. . . as a former prosecutor, I'm aware of the shortcomings that the probation department has in terms of
their sentencing guidelines.
And finally, the judge stated:
. . . I[,] like Mr. Berrett [the prosecutor] and like the Wheelers[,] happen to be the father of a three year
old daughter, and I also have a daughter who is seven years old. And I've asked myself what I would do if
somebody would have done this to my daughter.
Like the Wheelers, I live in Henderson, so I feel to a large degree their big concern is punishment, as
my big concern would be.
perform judicial duties without bias or prejudice. The bias prohibited in Canon 3(B)(5) is bias against a party or
a class of people:
[N]either bias nor prejudice refer[s] to the attitude that a judge may hold about the subject matter of a
lawsuit. That a judge has a general opinion about a legal or social matter that relates to the case before
him or her does not disqualify the judge from presiding over the case.
Jeffrey M. Shaman, et al., Judicial Conduct and Ethics 4.04, at 101 (2d ed. 1995). Nothing
in this case suggests that the district judge had any personal feelings of animosity toward
appellant. Rather, the district judge was offended by the facts of the crime committed.
2

In addition, remarks of a judge made in the context of a court proceeding are not considered indicative of
improper bias or prejudice unless they show that the judge has closed his or her mind to the presentation of all
the evidence. Id. 4.07, at 105. The record in this case reflects that the district judge carefully considered all the
evidence, including the psychiatrists' reports, before rendering his decision.
[S]o long as a judge remains open-minded enough to refrain from finally deciding a case until all of the
evidence has been presented, remarks made by the judge during the course of the proceedings will not be
considered as indicative of disqualifying bias or prejudice.
Id. at 105-106. The statements made by the district judge in this case do not exhibit
impermissible bias or prejudice.
Moreover, this court has repeatedly declined to interfere with sentencing when the sentence is legal and
within the statutory limits and where the appellant cannot show that the district court relied on highly suspect or
impalpable evidence. Lloyd v. State, 94 Nev. 167, 576 P.2d 740 (1978); Silks v. State, 92 Nev. 91, 545
P.2d 1159 (1976). Nothing in the record indicates that the judge relied on impalpable or highly suspect evidence.
Appellant's arguments are without merit, and we affirm appellant's conviction and sentence.
3

__________

2
Compare, e.g., Earl v. State, 111 Nev. 1304, 1310-12, 904 P.2d 1029, 1032-34 (1995) (cumulative error
where court called the defendant's testimony malarkey, suggested that defense counsel was intoxicated, and
proposed in front of the jury to teach defense counsel how to practice law); Parodi v. Washoe Medical Ctr., 111
Nev. 365, 892 P.2d 588 (1995) (error where court injected levity into proceedings and denigrated defense
counsel).

3
The Honorable Margaret M. Springgate, Judge of the Second Judicial District Court, was designated by the
Governor to sit in place of The Honorable A. William Maupin, Justice, who voluntarily recused himself from
participation in this appeal. Nev. Const. art. 6, 4.
Shearing and Young JJ., concur.
Rose, J., with whom, Springer, C. J., agrees, dissenting:
The district court judge who sentenced Cameron did precisely what jurors are admonished not to do by
placing himself in the shoes of the victim. The district judge also ignored all of the primary points to be
considered at sentencing, except for the assessment of punishment. This sentence is excessive and unreliable,
and thus should be reversed.
The district judge, who stated that he has a daughter and lives in Henderson, indicated that
his paramount concern would be punishment if his daughter were victimized:
I[,] like Mr. Berrett [the prosecutor] and like the Wheelers[,] happen to be the father
of a three year old daughter, and I also have a daughter who is seven years old. And I've
asked myself what I would do if somebody would have done this to my daughter.
Like the Wheelers, I live in Henderson, so I feel to a large degree their big concern is
punishment, as my big concern would be.
While this may be the forthright concern of a father upon speculating as to his emotional
reaction if his daughter had been exposed to a lewd act, a judge has additional responsibilities
beyond engaging in retributive speculation.
Jurors are instructed that they are not to place themselves in the victim's shoes when deliberating, and this
court has held that such an argument by a prosecutor is improper. See McGuire v. State, 100 Nev. 153, 158,
677 P.2d 1060, 1064 (1984) (reiterating that it is unacceptable for the prosecutor to request the jury to stand in
the shoes of the victim). The district judge did just that in sentencing Cameron to the maximum possible
sentence.
In doing this, the judge rejected the other factors that should normally be considered in sentencing, such as
rehabilitation and the defendant's potential future danger to society. The Division of Parole and Probation
determined that Cameron was not a threat to society and was a strong candidate for rehabilitation. Independent
medical experts confirmed that Cameron was not a pedophile and concurred in the Department's
recommendation. The district judge rejected this evidence and the Division's sentencing recommendations out of
hand, stating that we're not concerned with rehabilitation. We should be concerned about punishment. When a
judge violates the principles of sentencing, the sentence should be reversed just as we would if a jury had made
such an error.
Cameron has never committed a felony and the Division, an entity that never shrinks from recommending a
heavy sentence, recommended that Cameron receive a four-year suspended sentence and be
granted probation.
recommended that Cameron receive a four-year suspended sentence and be granted probation. The State
concurred. The district judge rejected all the evidence in Cameron's favor, along with the recommendations
made at sentencing. I view this as further evidence that the district judge was too personally involved in this case
and thus the sentence is unreliable. Accordingly, I would reverse the case and remand for a new sentencing
hearing.
____________
114 Nev. 1285, 1285 (1998) Hennie v. State
EDWARD ROBERT HENNIE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 28642
December 14, 1998 968 P.2d 761
Appeal from a judgment of conviction entered upon jury verdicts of three counts of grand larceny and one
count of attempted grand larceny. Third Judicial District Court, Lyon County; Mario G. Recanzone, Judge.
The district court denied defendant's motion for a new trial following his conviction of
burglary, grand larceny, felony theft from a vending machine, and attempted theft. Defendant
appealed. The supreme court held that newly discovered evidence justified a new trial.
Patrick Gilbert, Minden, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Robert E. Estes, District Attorney, and John Paul
Schlegelmilch, Deputy District Attorney, Lyon County, for Respondent.
1. Criminal Law.
Grant or denial of new trial on the ground of newly discovered evidence is within the discretion of the trial court. NRS 176.515.
2. Criminal Law.
General standard for a new trial based on newly discovered evidence is that: (1) the evidence must be newly discovered; (2) it must
be material to the defense; (3) it could not have been discovered and produced for trial even with the exercise of reasonable diligence;
(4) it must not be cumulative; (5) it must indicate that a different result is probable on retrial; (6) it must not simply be an attempt to
contradict or discredit a former witness; and (7) it must be the best evidence the case admits. NRS 176.515.
3. Criminal Law.
Newly discovered impeachment evidence may be sufficient to justify granting a new trial if the witness impeached is so important
that impeachment would necessitate a different verdict. NRS 176.515.
4. Criminal Law.
Evidence that witnesses who testified against defendant accused of burglary, grand larceny, and theft, conspired with each other to
murder witness' ex-wife and that one witness was substantially in debt to the other, was not cumulative but justified a new trial.
Defendant claimed he was framed by witnesses, defendant was largely convicted based on the testimony of the witnesses, jury was
under the mistaken impression that witnesses were neutral, and knowledge of the conspiracy was critical to defendant's defense. NRS
176.515.
OPINION
Per Curiam:
Between October and December 1994, a series of property crimes was committed in the Fernley, Nevada area. Based largely on
circumstantial evidence and the testimony of the State's two key witnesses, Stanley Brown and Maurice Marineau, appellant Edward Robert
Hennie was ultimately charged with committing the crimes.
During trial, Hennie asserted his innocence and claimed that he had been framed for the various crimes by his roommates, Brown and
Marineau. At the conclusion of trial, the jury found Hennie guilty of burglary, grand larceny, felony theft from a vending machine, and
attempted theft. At his sentencing hearing several months after the conclusion of his trial, Hennie learned that Marineau and Brown had
been involved in a criminal conspiracy to murder Marineau's ex-wife during November 1994. Additionally, Hennie learned that Brown, in
contrast to his trial testimony, was substantially indebted to Marineau in the amount of $2500.00. Hennie filed a motion for a new trial
based on this newly discovered evidence, but the district court denied Hennie's motion on the ground that such evidence was cumulative.
Hennie now appeals, arguing that the district court erred in denying his motion for a new trial based on newly discovered evidence. We
agree. Accordingly, we reverse Hennie's conviction and remand for a new trial.
1

FACTS
During the fall and winter of 1994, several property crimes were committed in the Fernley, Nevada
area.
__________

1
Hennie also argues that there was insufficient evidence to establish probable cause to bind him over for trial.
Further, Hennie argues that the district court erred in denying his motion for separate trials, denying him the
opportunity to fully cross-examine two adverse witnesses, and in refusing to provide the jury with his proposed
jury instructions. He also claims that the prosecutor committed prosecutorial misconduct by commenting on
Hennie's post-arrest silence during closing arguments. After thorough consideration of the record on appeal and
the briefs filed herein, we conclude that these additional arguments are without merit.
were committed in the Fernley, Nevada area. On October 24, 1994, Tucker's Pharmacy was burglarized and
various prescription and non-prescription drugs, exceeding $250.00 in value, were stolen. On December 11,
1994, a Nevada Bell telephone booth, containing in excess of $250.00 in its coin box, was stolen from outside
JR's Ranch House. Additionally, in the early morning hours of December 19, 1994, Mission Linen was
burglarized and several vending machines in the employee break room were vandalized and damaged. The
amount of money and goods stolen during the Mission Linen burglary exceeded $250.00.
Daryl Revels, Mission Linen's plant engineer, discovered the break-in when he arrived for work at
approximately 3:00 a.m. and immediately contacted the Lyon County Sheriff's Department. Revels informed
Deputy Brett Palmer that when he arrived for work, he saw an orange-colored van in the parking lot with its
headlights turned off. The van proceeded slowly around the south side of the building and then departed the
parking lot in a southerly direction on Lyon Drive.
Deputy Palmer noted that Revel's description of this van was similar to another van involved in an unrelated
matter. Based on this similarity, Deputy Palmer proceeded to the Marineau residence where he believed the van
would be located; upon arriving, Deputy Palmer observed an orange-colored van parked in front of Marineau's
residence and determined that it matched the description of the van that Revels saw in the Mission Linen parking
lot.
The following morning, Deputy Palmer and Sergeant Thompson returned to Marineau's residence to compare
the suspect van with pieces of a vehicle's fog light cover and various metal brackets that were found in Mission
Linen's parking lot. Deputy Palmer noticed that pieces of the suspect van's fog light cover and metal brackets
were missing. After determining that the items found at the crime scene matched the areas on the suspect van
where those items would normally be attached, Deputy Palmer impounded the vehicle.
The van belonged to Brown; Brown and Hennie each rented rooms from Marineau. Hennie was currently
employed at Mission Linen, and both Brown and Marineau had previously worked for that business. When
Brown learned later that day that the police had impounded his van, he immediately went to the Lyon County
Sheriff's substation to meet with Sgt. Thompson. During questioning, Brown denied any involvement in the
Mission Linen burglary and informed Sgt. Thompson that Hennie had borrowed his van the previous evening
during the time of the Mission Linen burglary.
On December 21, 1994, while Marineau and Brown were cleaning Marineau's garage, they found a coin box
which Brown immediately recognized as a coin box from a pay telephone booth.
immediately recognized as a coin box from a pay telephone booth. Marineau promptly called the Lyon County
Sheriff's office, and a sheriff's deputy informed him that he would retrieve the coin box the following morning.
Marineau then placed the coin box on top of some barrels outside of his garage. Later that evening, Hennie went
to the Marineau residence, retrieved his personal belongings, and informed Marineau that he was moving to
Reno.
The following morning, when sheriff's deputies arrived at the Marineau residence to retrieve the coin box, it
was missing. Marineau, Brown, and the officers began a search and Marineau eventually found the coin box
inside his utility trailer underneath some garbage. The serial number on the coin box matched the serial number
of the telephone booth that had been stolen from JR's Ranch House.
On December 24, 1994, a Mission Linen employee found a telephone booth, covered with a white mattress
pad in the melting snow, near the south fence of the Mission Linen property. The serial number of this telephone
booth matched both the serial number of the telephone booth that had been stolen from JR's Ranch House and
the coin box found in Marineau's garage.
On February 23, 1995, Hennie was charged with numerous felony offenses including burglary, grand larceny,
and theft. During Hennie's trial, the State called Brown and Marineau as its key witnesses. Brown testified that
on the morning of the Mission Linen burglary, at approximately 12:30 a.m., he allowed Hennie to borrow his
van. After Hennie departed, Brown worked in his garage until approximately 2:30 a.m., and then retired to bed.
Brown concluded his testimony by adding that he was finally turning his life around and had a good job; thus
he would not risk losing everything by lying or engaging in criminal activity.
Marineau testified that Hennie had given him a pair of boots with treads that were similar to the tracks found
outside Mission Linen, and that Hennie had asked him to make a key for a telephone booth coin box. In
presenting himself as a neutral and unbiased witness, Marineau concluded his testimony by reiterating that both
Hennie and Brown were merely his tenants, and that while he had known Brown for quite some time, he and
Brown were no more than acquaintances.
At the conclusion of trial, the jury convicted Hennie of one count each of grand larceny, burglary, felony
theft from a vending machine, and attempted felony theft of a vending machine. On December 4, 1995, while
appearing in court for sentencing, Hennie learned for the first time that during November 1994, Marineau had
paid Brown $600.00 to hire someone to murder Marineau's ex-wife, and that both Marineau and Brown had been
charged with conspiracy to commit murder. Brown used the $600.00 from Marineau to purchase the
orange Chevrolet van that was used in the Mission Linen burglary.
$600.00 from Marineau to purchase the orange Chevrolet van that was used in the Mission Linen burglary.
Hennie also learned that contrary to Brown's trial testimony, Brown was substantially indebted to Marineau in
the amount of $2500.00.
Based on the newly discovered evidence that Marineau and Brown had been engaged in a conspiracy to
commit murder, and of Brown's indebtedness to Marineau, Hennie filed a motion for a new trial pursuant to
NRS 176.515. The district court denied Hennie's motion on the ground that this newly discovered evidence was
cumulative because Hennie had extensively attacked Brown's credibility during trial. Following the denial of
Hennie's motion for a new trial, the district court sentenced Hennie to fourteen years in the Nevada State Prison.
Hennie now appeals from the district court's denial of his motion for a new trial.
DISCUSSION
At trial, Hennie maintained his innocence and advanced a theory of defense that he had been framed for the
crimes by Brown and Marineau. On appeal, Hennie argues that the district court abused its discretion in denying
his motion for a new trial based on the newly discovered evidence that Brown and Marineau had been involved
in a conspiracy to murder Marineau's ex-wife, and that Brown had been substantially indebted to Marineau and
thus may have had a financial motive for committing the crimes. Hennie argues that because he was convicted
largely on the basis of Brown's and Marineau's uncorroborated testimony, the newly discovered evidence of their
conspiracy to commit murder, and Brown's indebtedness to Marineau, would increase the probability of a
different result on retrial. We agree.
[Headnotes 1-3]
Pursuant to NRS 176.515, the district court may grant a new trial based on newly discovered evidence if the
motion is made within two years after the verdict or finding of guilt.
2
The grant or denial of a new trial on the
ground of newly discovered evidence is within the discretion of the trial court. Sanborn v. State, 107 Nev. 399,
406, 812 P.2d 1279, 1284 (1991). In Callier v. Warden, 111 Nev. 976, 901 P.2d 619 (1995), we reiterated the
general standard for a new trial based on newly discovered evidence as follows:
__________

2
1. The court may grant a new trial to a defendant . . . on the ground of newly discovered evidence.
. . . .
3. A motion for a new trial based on the ground of newly discovered evidence may be made only
within 2 years after the verdict or finding of guilt.
(1) the evidence must be newly discovered; (2) it must be material to the defense; (3) it could not have
been discovered and produced for trial even with the exercise of reasonable diligence; (4) it must not be
cumulative; (5) it must indicate that a different result is probable on retrial; (6) it must not simply be an
attempt to contradict or discredit a former witness; and (7) it must be the best evidence the case admits.
Id. at 988, 901 P.2d at 626. Further, newly discovered impeachment evidence may be
sufficient to justify granting a new trial if the witness impeached is so important that
impeachment would necessitate a different verdict. King v. State, 95 Nev. 497, 500, 596 P.2d
501, 503 (1979).
[Headnote 4]
In the instant case, Hennie was convicted largely on the basis of Brown's and Marineau's testimony. Hennie
did not learn of their conspiracy to commit murder, along with Brown's $2500.00 indebtedness to Marineau,
until after his trial had concluded. Thus, the jury was never presented with this crucial impeachment testimony.
Because of the importance of Brown's and Marineau's testimony in convicting Hennie, knowledge of the
conspiracy and its impact on Marineau's and Brown's credibility would have been extremely material to Hennie's
defense. Additionally, even with the exercise of reasonable diligence, Hennie's ability to discover the conspiracy
and produce evidence of it during trial was limited due to the secretive context within which Brown and
Marineau had entered their conspiracy.
Further, evidence of Brown's and Marineau's conspiracy to commit murder and Brown's substantial
indebtedness to Marineau is not cumulative. At trial, the jury was under the mistaken impression that Marineau
was a neutral and unbiased witness, rather than a co-conspirator in a plot to murder his ex-wife. Likewise, Brown
testified that he had no motive to steal because he was not in debt, had a good job, was recently married, and
would not jeopardize the quality of his life by engaging in further criminal activity. The jury did not hear
evidence of Brown's $2500.00 indebtedness to Marineau, nor the fact that he accepted $600.00 from
Marineauwith which he purchased the orange van that was used during the Mission Linen burglaryto hire
someone to murder Marineau's ex-wife. This newly discovered evidence, which the jury never heard, severely
undermines the credibility of the State's two key witnesses upon whose testimony Hennie was largely convicted.
Because of the tenuous link connecting Hennie to these crimes, we conclude that a different result would
have been probable had the jury been presented with this newly discovered evidence.
Moreover, because of the critical nature of Brown's and Marineau's testimony, and the probability of a different
verdict had they been further impeached, the newly discovered impeachment evidence comprises Hennie's best
evidence which sufficiently justifies granting Hennie a new trial. See King, 95 Nev. at 500, 596 P.2d at 503.
Based on the foregoing, we conclude that the district court abused its discretion in denying Hennie's motion
for a new trial based on the newly discovered evidence of Brown's and Marineau's conspiracy to commit murder,
and Brown's substantial indebtedness to Marineau. Accordingly, we reverse Hennie's conviction and remand for
a new trial.
____________
114 Nev. 1291, 1291 (1998) Miller v. Jones
STEVE MILLER, Appellant, v. JAN LAVERTY JONES, Respondent.
No. 29391
December 29, 1998 970 P.2d 571
Appeal from an order of the district court granting summary judgment in favor of respondent Jan Laverty
Jones (Jones) in a defamation action. Eighth Judicial District Court, Clark County; A. William Maupin, Judge.
Plaintiff mayoral candidate brought claims of libel and intentional infliction of emotional
distress (IIED) against opposing candidate, relating to opponent's campaign flier stating
police detective accuses [plaintiff] of giving false information in a report concerning cocaine
found in a car [plaintiff] was driving. The district court granted summary judgment for
defendant. Plaintiff appealed. The supreme court, Young, J., held that: (1) genuine issues of
material fact regarding falsity of statement and defendant's actual malice precluded summary
judgment as to public-figure defamation claim, and (2) plaintiff did not establish severe or
extreme emotional distress, as element of intentional infliction of emotional distress (IIED).
Shearing, J., dissented in part. Springer, C. J., dissented.
Bourgault & Harding, Las Vegas, for Appellant.
Carelli & Miller, Las Vegas; Kummer Kaempfer Bonner & Renshaw, Las Vegas, for Respondent.
1. Judgment.
Genuine issue of material fact exists when a reasonable jury could return a verdict for the nonmoving party. NRCP 56(c).
Supreme court reviews orders granting summary judgment de novo. NRCP 56(c).
3. Libel and Slander.
Ordinarily, the question of whether a statement is defamatory is one of law; however, where a statement is susceptible of multiple
interpretations, one of which is defamatory, the resolution of this ambiguity is left to the finder of fact.
It is left to the factfinder to determine whether the statement, if defamatory, is false.
Statement in mayoral candidate's campaign flier, that police detective accuses [opponent] of giving false information in a report
concerning cocaine found in a car [opponent] was driving was, as matter of law, intended as factual assertion. Statement contained no
language alerting reader that it was merely opinion, statement's truth or falsity was objectively verifiable, and statement was juxtaposed
in flier with reproductions of newspaper articles, thus lending air of accuracy to the statement.
6. Judgment.
Genuine issue of material fact as to falsity of statement, in mayoral candidate's campaign flier, that police detective accuses
[opponent] of giving false information in a report concerning cocaine found in a car [opponent] was driving, precluded summary
judgment for defendant candidate in opponent's defamation case.
Libel plaintiff, who was mayoral candidate and elected official in the city at time of the candidacy, was public figure, and thus,
plaintiff was required to show opposing candidate's actual malice as to allegedly defamatory statement in opponent's campaign flier.
Fact that mayoral candidate offered to make public apology for allegedly defamatory statement about opponent did not establish,
as matter of law, the absence of defendant candidate's actual malice, as element of public-figure defamation claim. U.S. Const. amend.
1.
Recklessness, as basis for actual malice element of public-figure defamation claim, may be established through evidence of
negligence, motive, and intent. U.S. Const. amend. 1.
10. Judgment.
Genuine issue of material fact as to actual malice precluded summary judgment for defendant mayoral candidate in opposing
candidate's public-figure defamation claim relating to defendant candidate's statement in campaign flier that police detective accuses
[opponent] of giving false information in a report concerning cocaine found in a car [opponent] was driving. U.S. Const. amend. 1.
11. Damages.
Plaintiff mayoral candidate, by alleging only that he was depressed for some time after opposing candidate's allegedly defamatory
statement about plaintiff, did not establish severe or extreme emotional distress, as element of intentional
infliction of emotional distress {IIED).
about plaintiff, did not establish severe or extreme emotional distress, as element of intentional infliction of emotional distress (IIED).
Plaintiff presented no evidence that he had sought medical or psychiatric assistance and presented no objectively verifiable indicia of
severity of his emotional distress.
12. Damages.
In order to prevail in intentional infliction of emotional distress (IIED) claim, plaintiff must show: (1) extreme and outrageous
conduct on part of defendant; (2) intent to cause emotional distress or reckless disregard for causing emotional distress; (3) that
plaintiff actually suffered extreme or severe emotional distress; and (4) causation.
Libel plaintiff's claims were not brought without reasonable grounds, and thus, defendant was not entitled to statutory attorney
fees. Plaintiff's complaint and evidence stated prima facie public-figure defamation claim and defendant presented no evidence that
claim was brought for improper purpose. NRS 18.010(2)(a).
Supreme court will not set aside trial court's decision to award statutory attorney fees absent an abuse of trial court's discretion.
NRS 18.010(2)(a).
OPINION
Appellant Steve Miller (Miller) and respondent Jones were candidates in the May 7, 1991 Las Vegas mayoral election. On May 3
and 4, 1991, the Thursday and Friday before the election, Jones' campaign staff distributed a flier which contained reproductions of
newspaper articles unfavorable to Miller. Next to each article was a brief sentence, drafted by Jones' campaign staff, which purported to
summarize the contents of the article. Jones reviewed the flier and approved it for distribution.
One of the items reproduced in the flier was from the August 30, 1988 Las Vegas Sun. This article reported that Miller had informed
the police that a small amount of what appeared to be cocaine had been discovered in an automobile which Miller had purchased for a
family member. A body shop had discovered the substance while repairing the car. Miller told the police that he had instructed the body
shop owner not to touch anything until the police arrived. However, when the police arrived to examine the automobile, they were told that
a member of Miller's family had instructed the body shop to destroy the purported drugs.
1
The article quoted the report of
Detective Ken Wellington {"Wellington"), a Las Vegas Metro police officer, as stating that "it is
this officer's opinion that Councilman Steve Miller was dishonest .
__________

1
It was never established whether the substance found in the car was cocaine. Miller testified in his
deposition that he told the police that the substance was a narcotic because he suspected that the previous owner
of the car had a drug problem.
(Wellington), a Las Vegas Metro police officer, as stating that it is this officer's opinion that Councilman
Steve Miller was dishonest . . . by giving this officer false information about advising the owner . . . not to touch
the items. The article also reported that Wellington's superior had stated, I think [Wellington] read too much
into the conversation. However, this last statement was deleted from the reproduction of the article contained in
the flier.
The summary of this article printed in the campaign flier stated, A police detective accuses Miller of giving
false information in a report concerning cocaine found in a car Miller was driving.
On May 3, 1991, Miller's attorney sent Jones a letter demanding a retraction of the allegation that Miller had
driven an automobile in which cocaine was discovered. The letter asserted that this allegation is made without
any justification and is absolutely false in nature. On May 6, 1991, Miller's attorney wrote Jones another letter,
sent by facsimile, which stated that if Jones did not publicly retract the statement at issue by 1 p.m. on that date,
Miller would file suit against Jones.
On May 6, 1991, Jones' attorney sent a reply to this letter in which he stated that
[t]o the extent that the typewritten descriptive which accompanied the reprint of the
article may be read to infer that cocaine was found in the vehicle at a time when the
Councilman was driving the Porsche, you are correct that the statement could be
misconstrued and our client did not, and does not intend to imply that such was the
case. . . .
Please consider the foregoing as complying with your retraction demand and convey the apologies of
Ms. Jones and her campaign staff for any misunderstanding.
In separate correspondence that same day, Jones agreed to make this letter of retraction
public.
Nonetheless, on May 6, 1991, Miller filed an action in the district court against Jones for defamation,
intentional infliction of emotional distress (IIED), and negligent infliction of emotional distress. On May 24,
1991, Jones filed her answer and counterclaim for abuse of process.
On March 5, 1993, Jones moved for summary judgment, with respect to Miller's complaint only, on the
grounds that the allegedly defamatory statement was either true or made without actual malice. Jones argued that
the statement was true based upon Miller's testimony, during his deposition, that he had driven the car around the
block before his daughter purchased it.
2
On April 19, 1993, the district court granted Jones'
motion for summary judgment and ordered Miller to pay Jones $1,164.S0 in costs and
$20,000.00 in attorney's fees.
__________

2
It is not clear when the purported cocaine was discovered in relation to the time Miller test drove the
Porsche. However, Miller did testify that his
April 19, 1993, the district court granted Jones' motion for summary judgment and ordered Miller to pay Jones
$1,164.80 in costs and $20,000.00 in attorney's fees. The court also filed thorough findings of fact and
conclusions of law in support of its order granting summary judgment. However, these findings did not make any
mention of facts supporting the award of attorney's fees and costs. On April 26, 1993, the district court filed
supplemental findings of fact which stated that attorney's fees were awarded because Miller's complaint was
brought without reasonable grounds.
On May 20, 1993, Miller filed a notice of appeal from the district court's order of summary judgment. On
January 18, 1994, this court dismissed the appeal without prejudice on the grounds that the district court's order
did not constitute a final judgment because Jones' counterclaim had not been resolved. Furthermore, the district
court had not certified its judgment as final pursuant to NRCP 54(b).
On March 14, 1994, Miller filed a motion to reconsider the order granting summary judgment in light of this
court's decision in Posadas v. City of Reno, 109 Nev. 448, 851 P.2d 438 (1993), which had been published
shortly after the district court granted Jones' motion for summary judgment. In addition, each party moved for
partial summary judgment in his or her favor with respect to Jones' counterclaim. On August 26, 1994, the
district court filed an order denying Miller's motion to reconsider and denying both Miller's and Jones' motions
for summary judgment. This order also purported to certify the judgment as final pursuant to NRCP 54(b).
On September 16, 1994, Miller filed a notice of appeal from the district court's order of August 23, 1994. On
May 26, 1995, this court again filed an order dismissing the appeal without prejudice on the grounds that
unresolved issues remained with respect to Jones' counterclaim.
On May 31, 1995, the district court filed an order dismissing Jones' counterclaim pursuant to a stipulation
between the parties. On July 2, 1996, Miller filed his timely notice of appeal from this order and from the
underlying orders granting summary judgment in Jones' favor and denying Miller's motion to reconsider.
DISCUSSION
Miller first contends that because genuine issues of material fact remain as to whether the
statement at issue was false and made with actual malice, the district court erred by granting
Jones' motion for summary judgment.
__________
daughter sold the automobile three to four months after purchasing it. Therefore, he drove the car within a few
months or weeks of the discovery of the possible narcotics.
made with actual malice, the district court erred by granting Jones' motion for summary judgment. We agree.
[Headnotes 1, 2]
448, 452, 851 P.2d 438, 441-42 (1993). While we construe the pleadings and proof in the light most favorable to
the non-moving party, that party is not entitled to build its case on gossamer threads of whimsy, speculation,
and conjecture. Id. We review orders granting summary judgment de novo. Bulbman, Inc. v. Nevada Bell, 108
Nev. 105, 110, 825 P.2d 588, 591 (1992).
[Headnotes 3, 4]
In order to prevail on his defamation claim, Miller must prove, inter alia, that the statement published in
Jones' campaign flier was a false statement of fact, as opposed to a statement of opinion. Wellman v. Fox, 108
Nev. 83, 87, 825 P.2d 208, 210 (1992). Ordinarily, the question of whether a statement is defamatory is one of
law. However, where a statement is susceptible of multiple interpretations, one of which is defamatory, the
resolution of this ambiguity is left to the finder of fact. Posadas, 109 Nev. at 453, 851 P.2d at 442. Furthermore,
it is left to the factfinder to determine whether the statement, if defamatory, is false. Id.
[Headnote 5]
In this case, Jones argues that because the statement at issue was published in the context of a political
campaign, it would have been read as a statement of opinion. The district court determined that [t]he written
material concerning the Plaintiff and published by the Defendant consists, in part, of statements of fact that are
true and, in part, the expression of opinion, or political hyperbole, published in the course of a campaign for
public office. However, we conclude that both the text of the statement and the context of the flier in which it
appeared indicate that as a matter of law, the statement was intended as a factual assertion. We further conclude
that genuine issues of material fact remain as to whether the statement was false.
The allegedly defamatory statement purported to summarize the contents of the newspaper report by stating
that [a] police detective accuses Miller of giving false information in a report concerning cocaine found in a car
Miller was driving. This statement contains no language which would alert the reader that the statement is
merely one of opinion. Furthermore, the truth or falsity of the matter asserted by this statement is,
at least in principle, objectively verifiable;
sity of the matter asserted by this statement is, at least in principle, objectively verifiable; the statement that
cocaine was found in a car Miller was driving is either true or not true. In addition, the statement was
contained in a flier which juxtaposed newspaper articles about Miller with statements summarizing the contents
of each article. The effect of the reproductions of newspaper reports in the flier is to lend the contents of the flier
an air of accuracy; the reports seem designed to indicate to the reader that the points made by the flier are not
merely Jones' opinion, they are independently reported and verified facts. Therefore, we conclude that as a
matter of law, the statement at issue here is an unequivocally factual assertion which, if untrue, is defamatory.
3

The United States Supreme Court has held that an allegedly defamatory statement is not considered false
unless it would have a different effect on the mind of the reader from that which the pleaded truth would have
produced.' Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 517 (1990) (quoting R. Sack, Libel, Slander,
and Related Problems 138 (1980)).
In Posadas, the plaintiff was a police officer under investigation for improperly attempting to influence a
traffic court proceeding. During the course of this investigation, the plaintiff, while under oath, admitted that he
had lied earlier in the investigation. An officer of the defendant municipality issued a press release stating that
the plaintiff admitted he lied under oath. We agreed that this statement could be construed to mean either that
the plaintiff perjured himself or that the plaintiff had admitted under oath to lying on a prior occasion. Because
one of these constructions was defamatory and one was not, we held that the jury should determine whether the
statement was defamatory. Posadas, 109 Nev. at 451-53, 851 P.2d at 440-42.
[Headnote 6]
We conclude that Posadas is directly analogous to the present case. The phrase cocaine found in a car
Miller was driving lends itself most naturally to the construction that Miller either drove the car as a matter of
course during the relevant time frame, or was driving it at or near the time when cocaine was found in the car.
There is no evidence in the record which suggests that this was the case. Miller stated in his deposition that he
had driven the car a short distance prior to purchase. Although the statement at issue could be interpreted as
stating that cocaine was found in a car which Miller had once driven, this is a strained reading; the verb was
driving signifies something quite different than the verb "had driven."
__________

3
Our dissenting colleague seems to argue that because the campaign flyer included a reproduction of the
newspaper article, which was admittedly not defamatory, the flyer as a whole was not defamatory. However, for
the reasons set forth herein, we conclude that questions of fact remain as to whether the statement was
defamatory.
ent than the verb had driven. Therefore, we conclude that this statement was at least susceptible to a
construction which made untrue factual assertions.
At oral argument, Jones asserted that the flier could accurately have stated: cocaine found in a car Miller
owned, or cocaine found in a car Miller had driven. Miller argues that these phrases would have had the same
effect on a reader as the statement which was printed; Miller would have been subject to the same degree of
ridicule or obloquy in either case. Therefore, Jones concludes, the flier was not defamatory under Masson.
We conclude that Jones reads Masson too broadly. Jones seems to assume that the above-quoted language
from Masson states a test for determining whether a statement is defamatory. However, the court clearly states
that this is a test which applies only to the determination of whether a statement is false. Thus, Jones'
unsupported assertion that the statement as published would have subjected Miller to no more ridicule than the
truth would have is simply not relevant. The statement at issue seems likely to have created in the mind of the
reader a factual scenario at odds with the truth. Therefore, we conclude that under Posadas as well as Masson,
genuine issues of material fact exist as to whether the statement at issue here was defamatory.
Miller next asserts that a genuine issue of fact exists as to whether Jones acted with actual malice in
publishing the flier at issue. Jones counters that the district court correctly determined that Miller failed to
present any evidence that the written material concerning the plaintiff was published by the defendant with actual
malice. We conclude that Miller's argument has merit.
[Headnotes 7, 8]
It is well settled that the First Amendment to the United States Constitution
prohibits a public official from recovering damages for a defamatory falsehood relating to his official
conduct unless he proves that the statement was made with actual malicethat is, with knowledge that
it was false or with reckless disregard of whether it was false or not.
New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1963). In Curtis Publishing v. Butts, 388 U.S. 130
(1967), the Supreme Court extended these constitutional limitations to cases involving plaintiffs who are public
figures. Because Miller was an elected official in Las Vegas and a candidate in the Las Vegas mayoral race, he
was a public figure at the relevant time and, therefore, must show that Jones published the flier at issue with
either knowledge of its falsity or reckless disregard as to whether the statement was true
or not.4
knowledge of its falsity or reckless disregard as to whether the statement was true or not.
4

[Headnote 9]
We have previously held that a reckless disregard for the truth may be found where the defendant
entertained serious doubts as to the truth of the statement, but published it anyway. Posadas, 109 Nev. at 454,
851 P.2d at 443. Recklessness may be established through evidence of negligence, motive, and intent. Id. In
Posadas, we held that the totality of the circumstances provided sufficient evidence for a jury to find actual
malice. We relied on the fact that the defendant knew or should have known that the allegedly defamatory
statement was capable of a misleading and false construction and on evidence of animosity which the defendant
had demonstrated toward the plaintiff.
[Headnote 10]
In the present case, we conclude that the evidence Miller presented to the district court is sufficient to
support a jury finding that Jones acted with actual malice in publishing the flier. No mention was made in the
article of Miller ever having driven the automobile in question; the article stated only that Miller had purchased
the car for a family member. Therefore, Jones had no reason to believe that Miller was driving the car at the time
the alleged cocaine was found. Furthermore, the reproduction of the article contained in the flier was cropped in
such a manner as to delete certain information favorable to Miller. We conclude that based upon this evidence, a
jury could reasonably find that Jones acted with a reckless disregard for the truth in publishing the statement at
issue. Accordingly, we conclude that the district court erred in granting Jones' motion for summary judgment on
the defamation cause of action.
[Headnote 11]
Miller next argues that the district court erred by granting summary judgment in Jones' favor on Miller's IIED
claim. Jones argues that Miller failed to present any evidence showing that he suffered severe or extreme
emotional distress. We conclude that Miller's argument is meritless.
[Headnote 12]
In order to prevail in an IIED claim, a plaintiff must show (1) extreme and outrageous conduct on
the part of the defendant;
__________

4
Justice Springer's dissent argues that the circumstances of this case, including Jones' offer to make a public
apology, demonstrate that Jones did not act with malice. This argument seems to substitute a broad, general
notion of malice for the concept of actual malice, as defined in New York Times v. Sullivan. We conclude that
Jones' offer to make an apology is simply one factor in the determination of whether the statement was published
with knowledge that it was false or with reckless disregard of whether it was false or not. New York Times v.
Sullivan, 367 U.S. at 279-80.
extreme and outrageous conduct on the part of the defendant; (2) intent to cause emotional distress or reckless
disregard for causing emotional distress; (3) that the plaintiff actually suffered extreme or severe emotional
distress; and (4) causation. Posadas, 109 Nev. at 456, 851 P.2d at 444 (citing Star v. Rabello, 97 Nev. 124, 125,
625 P.2d 90, 91-92 (1981)).
After a thorough review of the record and the briefs, we conclude that Miller fails to point to any evidence
which demonstrates that he suffered from severe or extreme emotional distress. Although Miller stated in his
deposition that he was depressed for some time, he did not seek any medical or psychiatric assistance. He
presented no objectively verifiable indicia of the severity of his emotional distress. We conclude that Miller's
brief depositional testimony regarding depression was insufficient to raise a genuine issue of material fact as to
whether he suffered severe emotional distress. Accordingly, we conclude that the district court did not err in
granting summary judgment on the IIED claim.
[Headnote 13]
Miller next argues that the district court abused its discretion in awarding attorney's fees to Jones. We agree.
[Headnote 14]
NRS 18.010(2)(a) provides that the district court may award attorney's fees to a prevailing party when the
court finds that the claim . . . was brought without reasonable ground or to harass the prevailing party. It is well
settled that we will not set aside a trial court's decision to award attorney's fees absent an abuse of the district
court's discretion. Nelson v. Peckham Plaza Partnerships, 110 Nev. 23, 26, 866 P.2d 1138, 1139-40 (1994).
In the present case, the district court issued supplemental findings of fact which stated only that Miller's
complaint was brought without reasonable grounds. We conclude that this finding is not supported by the
record. For the reasons set forth above, Miller's complaint and the evidence in the case are sufficient to survive
Jones' motion for summary judgment. Miller's complaint stated a prima facie defamation case. The key factual
allegations of the complaint are supported by the record. Jones presented no evidence which suggests that Miller
filed his complaint for an improper purpose. Therefore, we conclude that Miller had reasonable grounds to bring
the complaint. Accordingly, we conclude that the district court abused its discretion by awarding attorney's fees
to Jones.
For these reasons, we reverse the order of the district court granting summary judgment in Jones' favor with
respect to the defamation claim, affirm with respect to the IIED claim, vacate the district court's award of
attorney's fees, and remand the case to the district court for further proceedings consistent with
this opinion.5
to the district court for further proceedings consistent with this opinion.
5

Rose, J., and Wagner, D. J., concur.
Shearing, J., concurring in part and dissenting in part:
I agree with the majority that summary judgment on the claim of intentional infliction of emotional distress
was appropriate. I also agree that the record does not support the finding that Miller's claim was frivolous or
filed for an improper purpose and that the district court therefore abused its discretion by awarding Jones
attorney fees and costs. However, I would affirm the district court's grant of summary judgment on the
defamation claim.
The statement complained of is: A police detective accuses Miller of giving false information in a report
concerning cocaine found in a car Miller was driving. It is conceded that the entire statement is true, except for
the allegation that Miller was driving the car.
Factual assertions are not actionable unless they have no basis in truth. Wellman v. Fox, 108 Nev. 83, 88,
825 P.2d 208, 210 (1992) (citing Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990)). The factual assertions in
Wellman were made in the context of an election and are much further from the truth than the assertion made in
this case. However, in Wellman, the court held that such exaggerated statements are permissible in contexts in
which the statements would be interpreted by a reasonable person as mere rhetorical hyperbole. Wellman, 108
Nev. at 88, 825 P.2d at 211.
I submit that the statement about which Miller complains had a basis in fact. Miller owned and had driven the
car in which he reported that cocaine could be found. Furthermore, the article makes clear that the white powder
was found while the car was in an auto repair shop, not while Miller was driving. If it had been stated that Miller
owned the car, which was true, it would have been just as damaging, if not more than the actual statement. The
statement complained of was substantially true and therefore not actionable. Thus, I would affirm the district
court's order granting summary judgment as to all claims.
Springer, C.J., dissenting:
I believe that the trial court was correct in dismissing the libel claim. Mr. Miller's libel case is based entirely
on one sentence that appeared in a campaign flier published by Respondent Jones. The sentence reads:
__________

5
The Honorable Richard Wagner, Judge of the Sixth Judicial District Court, was designated by the Governor
to sit in place of The Honorable A. William Maupin, Justice. Nev. Const. art. 6, 4.
A police detective accuses Miller of giving false information in a report concerning cocaine found in a car
Miller was driving.
The only part of the sentence that Appellant Miller claims to be libelous is the part stating
that cocaine was found in a car Mr. Miller was driving. Mr. Miller claims that the sentence in
question makes it appear, erroneously, that he was driving a car that had cocaine in it. In his
brief, Mr. Miller argues that the sentence properly should have read that cocaine was found
in a car which Miller had driven rather than as a car that Mr. Miller was driving. Mr. Miller
tells us in his brief that if he were permitted to go to trial, he would bring in an expert witness
to testify as to the less than subtle difference between the use of the present tense and past
tense of the verb drive.' There is, however, no necessity for expert testimony on the point;
Ms. Jones readily concedes that use of the imperfect tense, was driving, could, indeed, if
taken out of context, have created the false impression that Mr. Miller was driving at the time
cocaine was in the car.
As pointed out in the majority opinion, when Ms. Jones was advised by Mr. Miller of the possible
consequences of her using the term was driving instead of had driven, Ms. Jones responded to Mr. Miller's
plaint and advised him that although the was driving could be misconstrued, she did not, and does not
intend to imply that cocaine was present in a car at a time when the Councilman [Miller] was driving. Ms.
Jones offered to make her clarification public and extended her apology for any misunderstanding.
As Ms. Jones readily conceded, if the expression is taken to mean that Mr. Miller was driving at the time the
cocaine was found in his car, then such an assertion is false. It does not appear to me, however, that it is
materially false for it really does not matter whether Mr. Miller had driven the car or was driving the car
prior to the time that the white substance that was thought by some to be cocaine was discovered during
inspection of his car at a body repair shop. The district court was correct, then, in concluding that Ms. Jones' use
of the words was driving did not comprise a false statement of material fact.
The manner in which the substance was found in Mr. Miller's car is very clearly set out in the political
flier. It was found, by chance, while the car was in a body repair shop. Ms. Jones understood, and anyone
reading the flier understood, that the substance was found in the shop and not at the time that Mr. Miller was
driving his car. No one was driving the car at the time the cocaine was found. As I see it (and as the trial
court saw it), it simply does not matter whether Ms. Jones said that Mr. Miller had been driving or was driving
his car when the substance was "found" in the car while it was in the repair shop.
was found in the car while it was in the repair shop. As a matter of law, there was no false statement of a
material fact.
____________
114 Nev. 1304, 1304 (1998) Consolidated Generator v. Cummins Engine
CONSOLIDATED GENERATORNEVADA, INC., dba CONSOLIDATED GENERATOR
SERVICE, a Nevada Corporation, Appellant/Cross-Respondent, v. CUMMINS
ENGINE COMPANY, INC., an Indiana Corporation Doing Business in the State of
Nevada, Respondent/Cross-Appellant, and INGERSOLLRAND COMPANY, dba
INGERSOLLRAND CONSTRUCTION EQUIPMENT AND SALES, a New Jersey
Corporation Qualified to Do Business in the State of Nevada, Respondent.
No. 29409
December 29, 1998 971 P.2d 1251
Appeal from a district court order granting partial summary judgment to respondents. Cross-appeal from a
district court order granting summary judgment to appellant. Eighth Judicial District Court, Clark County;
Joseph S. Pavlikowski, Judge.
Buyer of portable generators brought action against generators' manufacturer and
manufacturer of generators' engines. The district court granted partial summary judgment to
the manufacturers and awarded buyer repair costs, and appeal was taken. The supreme court
held that: (1) California law applied to buyer's breach of warranty claims; (2) fact issues
precluded summary judgment on buyer's claims for breach of express warranty, breach of
implied covenant of good faith and fair dealing, and repair costs; (3) buyer was not in privity
with generator manufacturer, barring claim for breach of implied warranty; (4) garagemen's
lien statute did not apply to buyer; and (5) buyer did not have claim against generator
manufacturer for interference with prospective business advantage.
Christensen & Boggess, Las Vegas, for Appellant/Cross-Respondent.
Barker, Brown, Busby, Chrisman & Thomas, Las Vegas, for Respondent/Cross-Appellant, Cummins
Engine.
Christopher G. Gellner, Las Vegas, for Respondent Ingersoll-Rand.
1. Sales.
California law, rather than Nevada law, applied to generator buyer's breach of warranty claims against generators' manufacturer
and manufacturer of generators' engines, although buyer was a Nevada corporation and generators were located in Nevada. Buyer did
not have contracts with manufacturers, and sellers' contract with generator manufacturer was negotiated and performed in California.
Supreme court reviews a summary judgment order de novo.
3. Sales.
California law requires privity for breach of implied warranty of merchantability and breach of implied warranty of fitness claims.
4. Sales.
Under California law, generator buyer who obtained generators from original purchaser was not in privity with either generators'
manufacturer or manufacturer of engines used in generators, barring its claim against the manufacturers for breach of implied
warranty.
5. Sales.
California law does not require privity for claims of breach of express warranty when a consumer relies on representations made by
a manufacturer in labels or advertising materials.
6. Sales.
Generator buyer's allegations that it relied on oral and written representations of generator manufacturer's representatives stated
claim for breach of implied warranty under California law, and put manufacturer on notice that issue of breach of express warranty
would be litigated.
7. Judgment.
Evidence raised genuine issue of material fact as to whether generator buyer relied on continuous duty representations in sales
literature of generator manufacturer and manufacturer of engines used in the generators, precluding summary judgment in buyer's
action against the manufacturers for breach of express warranty under California law.
8. Judgment.
Evidence raised genuine issue of material fact as to whether generator buyer assumed ownership of generators before original
purchaser filed for bankruptcy and listed generator manufacturer as a secured creditor, precluding summary judgment in buyer's action
against the manufacturer for breach of express warranty.
9. Sales.
Under California law, a manufacturer cannot disclaim express descriptions of certain detailed capacities in brochures.
10. Automobiles.
Garagemen's lien statute did not apply to generator buyer that was not in the business of keeping a garage or place for the storage,
maintenance, keeping or repair of motor equipment. NRS 108.270(1).
11. Torts.
The following elements must be proven to establish the tort of interference with prospective business advantage: (1) prospective
contractual relationship between the plaintiff and a third party; (2) defendant's knowledge of this prospective relationship; (3) intent to
harm the plaintiff by preventing the relationship; (4) absence of privilege or justification by the defendant; and, (5) actual harm to
plaintiff as a result of defendant's conduct.
12. Torts.
Generator manufacturer was justified in requesting that buyer's portable generators be parked after buyer obtained the generators
from intermediate purchaser, barring buyer's claim against the manufacturer for interference with prospective business advantage.
13. Conspiracy.
Actionable civil conspiracy consists of a combination of two or more persons who, by some concerted action, intend to accomplish
an unlawful objective for the purpose of harming another, and damage results from the act or acts.
ful objective for the purpose of harming another, and damage results from the act or acts.
Supreme court need not consider conclusory arguments which fail to address the issues in the case.
15. Contracts.
An implied covenant of good faith and fair dealing is recognized in every contract under Nevada law.
16. Judgment.
Genuine issue of material fact as to whether engine manufacturer breached its express warranties in connection with engines
installed on portable generators established that there was genuine issue of material fact as to whether manufacturer breached its
implied covenant of good faith, precluding summary judgment on generator buyer's claim for breach of implied covenant of good faith
and fair dealing.
17. Contracts.
Covenant of good faith and fair dealing was implied in repair work performed for portable generator buyer by engine
manufacturer, both under warranty and for which buyer paid.
On appeal from final judgment, interlocutory orders entered prior to the final judgment may properly be heard by supreme court.
19. Witnesses.
Rule requiring subpoena to be personally served barred subpoena naming out-of-state employees and officers of corporations to be
served on counsel for the corporations. NRCP 45(c).
20. Judgment.
Genuine issues of material fact concerning the length of generator engine manufacturer's written warranty and whether certain
costs were covered under warranty precluded summary judgment on generator buyer's claim for repair costs.
OPINION
Per Curiam:
Appellant Consolidated Generator-Nevada (CGN) rented portable generators (gensets)
from Consolidated Generator Services (CGS) shortly after CGN's incorporation in May 1989. The gensets
were originally purchased by CGS from Ingersoll-Rand (IR) and they are equipped with Cummins engines. IR
and Cummins both have written warranties that exclude express and implied warranties, as well as consequential
or incidental damages.
CGN claims to have purchased ten of the gensets from CGS in an agreement memorialized in a letter. CGN
also claims to have received transfer of the gensets in February 1990. On May 11, 1990, CGS filed a Chapter 11
Bankruptcy in the Central District of California. IR was listed as a secured creditor and twenty-five IR gensets
were listed as security. In January 1991, the bankruptcy court ordered CGS to turn the gensets over
to IR.
ruptcy court ordered CGS to turn the gensets over to IR. IR tried to recover from CGN the ten gensets CGN
claimed to own. Due to a dispute concerning their ownership, the gensets were parked in early 1991. On April
30, 1991, CGN filed a garagemen's lien against IR.
CGN experienced many problems with the gensets before they were parked. Cummins and IR were aware of
problems with the gensets, including the fact that the continuous duty generators should only be used for
stand-by applications. Cummins and IR agreed to certain repairs and replacements. However, the parties dispute
the length and coverage of the warranty and additional protection.
CGN filed a complaint against IR alleging: (1) breach of implied warranties; (2) foreclosure of statutory lien
and declaratory relief; (3) interference with prospective business advantage; (4) unjust enrichment; and (5) debt
due and owing. CGN filed a complaint against Cummins alleging: (1) breach of implied warranties; (2) breach of
implied covenant of good faith; (3) breach of express warranty; and (4) unjust enrichment. CGN then filed an
amended complaint consolidating the cases that listed all the claims for relief alleged in the IR complaint and
added the claim of civil conspiracy.
IR and Cummins filed motions for summary judgment in March 1991. The district court denied both motions
by an order dated April 17, 1996. Shortly thereafter, IR filed a motion for rehearing and a motion for summary
judgment arguing that the court should apply California law to the warranty claim. Cummins joined in the
motions. On May 8, 1996, the district court granted IR's and Cummins' motions as to all of CGN's claims except
whether CGN was entitled to recover damages for unreimbursed repair costs to the gensets. The court found that
California law applied to the warranty claim and that based on California law, there were no express or implied
warranties that applied to the alleged sale of the ten gensets from CGS to CGN.
On May 20, 1996, CGN filed a motion for summary judgment on the issue of repair costs. The court granted
CGN's motion for summary judgment and awarded CGN $22,736.96 in repair costs to be paid by Cummins.
CGN filed a timely notice of appeal as to all issues except the repair costs. Cummins cross-appealed the
award of repair costs.
DISCUSSION
First, CGN argues that the district court erred in applying California law, rather than Nevada law, to their
breach of express and implied warranty claims. In order to determine what state's law to apply in a contract case,
this court has adopted the substantial relationship test.
stantial relationship test. Sotirakis v. U.S.A.A., 106 Nev. 123, 125-26, 787 P.2d 788, 790-91 (1990). This court
has delineated five factors to consider in determining whether a state possesses a substantial relationship with a
contract:
a. the place of contracting,
b. the place of negotiation of the contract,
c. the place of performance,
d. the location of the subject matter of the contract, and
e. the domicile, residence, nationality, place of incorporation and place of business of
the parties.
Williams v. United Services Auto. Ass'n, 109 Nev. 333, 334-35, 849 P.2d 265, 266 (1993)
(quoting Sotirakis, 106 Nev. at 126, 787 P.2d at 790). Additionally, the transaction must not
violate a strong public policy of Nevada. Id. at 334, 849 P.2d at 266.
[Headnote 1]
The parties disagree as to which contract the Sotirakis test should be applied: (1) the original purchase
agreement between CGS and IR; or (2) additional agreements or contracts entered into between CGN and IR or
Cummins. We hold that there were no agreements or contracts between CGN and IR or CGN and Cummins on
which a warranty claim can be based. Therefore, we conclude that the warranty claims must be based on the
original agreement between CGS and IR.
We further hold that in applying the Sotirakis factors to the original agreement, California bears the most
significant relationship to the original contract. The contracting took place in California, the contract was
negotiated in California, and the contract was performed in California. Although the gensets are now in Nevada,
IR does business in Nevada, and CGN is a Nevada corporation, the majority of the factors support the district
court's ruling. Additionally, we hold that applying California law to this contract does not violate a strong public
policy of Nevada. Thus, we hold that the district court properly applied California law to the warranty claims.
[Headnote 2]
Second, CGN argues that the district court misapplied California law in granting IR's and Cummins' motions
for summary judgment as to the breach of express and implied warranty claims. This court reviews a summary
judgment order de novo. Walker v. American Bankers Ins., 108 Nev. 533, 536, 836 P.2d 59, 61 (1992).
Summary judgment may only be granted when there is no genuine issue of material fact for trial. NRCP 56(c).
[Headnotes 3, 4]
California law requires privity for breach of implied warranty of merchantability and breach of
implied warranty of fitness claims.
of merchantability and breach of implied warranty of fitness claims. Rodrigues v. Campbell Industries, 151 Cal.
Rptr. 90, 93 (Ct. App. 1978). Since CGS was the original purchaser of the gensets and CGN allegedly bought
the gensets from CGS, CGN is not in privity with either IR or Cummins. Thus, we hold that no genuine issue of
material fact remains for trial and the district court was correct in granting IR's and Cummins' motions for
summary judgment as to CGN's implied warranty claims.
[Headnotes 5, 6]
California law does not require privity for claims of breach of express warranty when a consumer relies on
representations made by a manufacturer in labels or advertising materials. Fundin v. Chicago Pneumatic Tool
Co., 199 Cal. Rptr. 789, 793-94 (Ct. App. 1984). Therefore, the lack of privity between CGN and IR and CGN
and Cummins does not preclude CGN from recovering on the breach of express warranty claim. However, IR
argues that CGN did not plead the claim of breach of express warranty in either its original complaint or its
amended complaint, and therefore, this claim does not apply to IR.
In Hall v. SSF, Inc., 112 Nev. 1384, 1391, 930 P.2d 94, 98 (1996), this court held that defendants were on
notice as to the claim of negligent hiring where the complaint stated that [d]efendants were negligent in failing
to adequately train and supervise . . . . This court noted that we liberally construe pleadings to place matters
into issue which are fairly noticed to the adverse party. Id. (quoting Pittman v. Lower Court Counseling, 110
Nev. 359, 365, 871 P.2d 953, 957 (1994)). We hold that IR was on notice that the issue of breach of express
warranty would be litigated because the pleadings, while not expressly stating a claim for breach of express
warranty, stated the elements for the claim under the implied warranty cause of action. The complaint alleged
that CGN relied upon the oral and written representations of IR representatives. Therefore, we hold that the
claim of breach of express warranty applies to IR.
[Headnote 7]
Under the California Commercial Code, an express warranty is [a]ny affirmation of fact or promise made by
the seller to the buyer which relates to the goods and becomes part of the basis of the bargain. Cal. Com. Code
2313 (West 1998). The district court found that CGN did not rely on any brochures or literature of IR or
Cummins in purchasing the gensets and that, therefore, no genuine issue of material fact existed as to the issue of
breach of express warranty. However, there is evidence in the form of an affidavit that CGN's president relied on
the continuous duty representations made in the Cummins and IR literature in purchasing the gensets from
CGS.
[Headnotes 8, 9]
IR argues that the district court had a right to disbelieve this evidence because of conflicting statements in
depositions and affidavits, citing to Aldabe v. Adams, 81 Nev 280, 402 P.2d 34 (1965) and Bank of Las Vegas
v. Hoopes, 84 Nev. 585, 445 P.2d 937 (1968). However, we conclude that IR's reliance on Aldabe and Hoopes
is misplaced. Aldabe and Hoopes are concerned with one party's own conflicting statements being used to create
a genuine issue of material fact when no conflict between adversaries exists. That is not the case here because
there is a conflict between adversaries. Thus, based on the affidavit, we hold that a genuine issue of material fact
exists as to whether any of IR's and Cummins' representations became a part of the bargain.
IR and Cummins also argue that because CGN is not an owner of the gensets and because IR and Cummins
have excluded all express warranties, there is no genuine issue of material fact as to the express warranty issue.
We hold that a genuine issue of material fact exists as to whether CGN is an owner of the gensets because there
is evidence that CGN assumed ownership of the gensets in February 1990, before CGS filed for bankruptcy and
IR was listed as a secured creditor. In addition, under California law, a manufacturer cannot disclaim express
descriptions of certain detailed capacities in brochures. Fundin v. Chicago Pneumatic Tool Co., 199 Cal. Rptr.
789, 794-95 (Ct. App. 1984). Therefore, we hold that the issue of express warranties could not have been
decided on summary judgment based on disclaimer.
Thus, we hold that because a genuine issue of material fact exists as to whether IR or Cummins breached
their express warranties to CGN, the district court improvidently granted summary judgment on the issue of
express warranties under California law.
Third, CGN argues that the district court erred in granting IR's and Cummins' motions for summary judgment
on CGN's remaining claims except for whether CGN was entitled to repair costs. We disagree as to the
garagemen's lien, interference with prospective business relations, civil conspiracy, unjust enrichment, and debt
due and owing claims. However, we agree that the claim of breach of implied covenant of good faith and fair
dealing was improperly decided on summary judgment as to Cummins. This court reviews a summary judgment
order de novo. Walker, 108 Nev. at 536, 836 P.2d at 61.
[Headnote 10]
The garagemen's lien statute provides for a lien for a person in the business of: . . . [k]eeping a garage or
place for the storage, maintenance, keeping or repair of . . . motor equipment. NRS 10S.270{1).
NRS 108.270(1). We hold that because CGN is not in such a business, this statute is not applicable in this case.
Thus, we conclude that the district court was correct in granting IR's motion for summary judgment as to the
garagemen's lien claim.
[Headnotes 11, 12]
The following elements must be proven to establish the tort of interference with prospective business
advantage:
(1) a prospective contractual relationship between the plaintiff and a third party; (2) the defendant's
knowledge of this prospective relationship; (3) the intent to harm the plaintiff by preventing the
relationship; (4) the absence of privilege or justification by the defendant; and, (5) actual harm to the
plaintiff as a result of the defendant's conduct.
Leavitt v. Leisure Sports Inc., 103 Nev. 81, 88, 734 P.2d 1221, 1225 (1987). We hold that because IR was
justified in requesting that the gensets be parked, CGN cannot prove the elements of the tort under Leavitt. We
conclude that the district court was therefore correct in granting IR's motion for summary judgment as to this
issue.
[Headnote 13]
An actionable civil conspiracy consists of a combination of two or more persons who, by some concerted
action, intend to accomplish an unlawful objective for the purpose of harming another, and damage results from
the act or acts. Hilton Hotels v. Butch Lewis Productions, 109 Nev. 1043, 1048, 862 P.2d 1207, 1210 (1993)
(citing Sutherland v. Gross, 105 Nev. 192, 196, 772 P.2d 1287, 1290 (1989)). We hold that since there is no
evidence that Cummins and IR agreed and intended to harm CGN, the district court was correct in granting both
parties' motions for summary judgment on the civil conspiracy issue.
[Headnote 14]
As to the claims of unjust enrichment and debt due and owing, CGN provided no authority or facts on which
to base its claim that these issues were improperly decided on summary judgment. CGN stated that genuine
issues of material fact existed but provided no citation to an issue of fact in dispute. This court need not consider
conclusory arguments which fail to address the issues in the case. See SIIS v. Buckley, 100 Nev. 376, 382, 682
P.2d 1387, 1390 (1984). Therefore, we decline to address these arguments.
[Headnotes 15-17]
An implied covenant of good faith and fair dealing is recognized in every contract under Nevada law.
Pemberton v. Farmers Ins. Exchange, 109 Nev. 7S9, 792-93, S5S P.2d 3S0, 3S2 {1993).
Ins. Exchange, 109 Nev. 789, 792-93, 858 P.2d 380, 382 (1993). As the covenant applies to [e]very contract or
duty in the Nevada Uniform Commercial Code, it thus applies to warranties. NRS 104.1203. This court has
held that good faith is a question of fact. Mitchell v. Bailey & Selover, Inc., 96 Nev. 147, 150, 605 P.2d 1138,
1139 (1980). Since we have held that a genuine issue of material fact exists as to whether Cummins breached its
express warranties, we correspondingly hold that a genuine issue of material fact exists as to whether Cummins
breached its implied covenant of good faith and fair dealing in its express warranties.
1
In addition, Cummins
performed much repair work for CGN, some under warranty and some for which CGN paid. The covenant of
good faith and fair dealing was also implied in these contracts and duties and the question of good faith is a
question of fact that should have been left to the jury. We, therefore, hold that the district court improvidently
granted summary judgment on this issue as to Cummins.
[Headnote 18]
Fourth, CGN argues that the district court abused its discretion in its determination of three interlocutory
orders. Although these orders are not independently appealable, since CGN is appealing from a final judgment
the interlocutory orders entered prior to the final judgment may properly be heard by this court. See Summerfield
v. Coca Cola Bottling Co., 113 Nev. 1291, 1293-94, 948 P.2d 704, 705 (1997).
[Headnote 19]
We hold that the district court did not abuse its discretion in any of these orders. First, we hold that the
district court did not abuse its discretion in granting IR's and Cummins' motions to quash subpoenas naming
out-of-state employees and officers of Cummins and IR, which had been served upon counsel for Cummins and
IR, because Nevada Rules of Civil Procedure 45(c) requires that a subpoena be personally served. Second, we
hold that the court did not abuse its discretion in excluding deposition testimony from an earlier related case,
because Cummins was not a party to the earlier case and is not in privity with a party to the earlier case. See
NRS 51.325. Third, we hold that the court did not abuse its discretion in not allowing CGN to list Gia
McGillivray as a witness because the request was made less than a week before trial. See EDCR 2.67.
__________

1
CGN did not plead the claim of breach of implied covenant of good faith in the original complaint against
IR or in the amended complaint. Additionally, there is no evidence in the complaints that IR was on notice as to
this claim. Therefore, we hold that this claim does not apply to IR.
[Headnote 20]
Lastly, Cummins cross-appealed the district court's award of repair costs on summary judgment. This court
reviews a summary judgment order de novo. Walker, 108 Nev. at 536, 836 P.2d at 61. We hold that the issue of
repair costs was improperly decided on summary judgment since genuine issues of material fact remain
concerning the length of Cummins' written warranty and whether certain costs were covered under warranty.
Accordingly, we affirm the judgment of the district court on the issues of breach of implied warranties, the
garagemen's lien, interference with prospective business relations, civil conspiracy, unjust enrichment, and debt
due and owing. Since we hold that genuine issues of material fact remain, we reverse the district court's
judgment on the issues of breach of express warranties as to both IR and Cummins, breach of implied covenant
of good faith and fair dealing as to Cummins, and the issue of repair costs. We remand the matter to the district
court for further proceedings consistent with this opinion.
____________
114 Nev. 1313, 1313 (1998) Allum v. Valley Bank of Nevada
ROBERT L. ALLUM, Appellant, v. VALLEY BANK OF NEVADA, a Nevada State
Chartered Banking Association; NEVADA FIRST DEVELOPMENT
CORPORATION, a Banking Holding Company and a Nevada Corporation; VALLEY
MORTGAGE COMPANY, a Mortgage Company and Wholly Owned Subsidiary of
Valley Bank of Nevada; KENNETH CALLAHAN and ARTHUR DANIEL
RYSSMAN, Respondents.
No. 24604
December 30, 1998 970 P.2d 1062
Appeal from an order of the district court denying appellant's motion for a new trial. Second Judicial District
Court, Washoe County; Mark Handelsman, Judge.
Former bank employee brought retaliatory discharge claims against former employer,
alleging he was terminated for whistleblowing and for refusing to participate in suspected
illegal conduct relating to loan underwriting requirements. The district court entered
judgment on jury's verdict for employer. Employee appealed. The supreme court, Shearing, J.,
held that, as matters of first impression: (1) recovery for retaliatory discharge under state law
may not be had upon mixed motives theory; (2) employee was required to show only that
he reasonably suspected, in good faith, that employer participated in illegal conduct; and
(3) employee was not required to show that employee was given choice of either participating
in suspected conduct or facing termination.
Springer, C. J., and Maupin, J., dissented in part.
Kenneth J. McKenna, Reno, for Appellant.
Beasley, Holden & Kern, Reno; Ryley, Carlock & Appelwhite and Charles Lee Chester and William August
Richards, Phoenix, Arizona, for Respondents.
No appeal may be taken from a trial court order denying a post-judgment motion for judgment notwithstanding the verdict
(JNOV).
An employer commits a tortious discharge by terminating an employee for reasons that violate public policy.
3. Banks and Banking.
Whether former bank employee's employment was at-will or by contract was irrelevant to employee's tortious discharge action
against employer.
In a Title VII mixed motives retaliatory discharge case, the employee can recover upon a showing that the adverse employment
decision resulted from a mixture of legitimate reasons and prohibited discriminatory motives. 42 U.S.C. 2000e et seq.
Recovery for retaliatory discharge under state law may not be had upon a mixed motives theory, and thus, an employee must
demonstrate that his protected conduct was the proximate cause of his discharge.
6. Master And Servant.
While an actual violation of public policy is sufficient in a claim for retaliatory discharge based on employee's whistleblowing, it is
not essential, and the employee is required to show only that he reasonably suspected, in good faith, that the employer participated in
illegal conduct.
A claim for tortious discharge is available to an employee who was terminated for refusing to engage in conduct that he, in good
faith, believed to be illegal.
An employee alleging retaliatory discharge for employee's refusal to engage in suspected illegal conduct is not required to prove
that the employee was given a choice of either participating in the conduct or facing termination.
9. Appeal and Error; Banks and Banking.
Error was not harmless in jury instruction, in bank employee's retaliatory discharge action based on employee's refusal to engage in
suspected illegal conduct, that required employee to prove that the employee was given a choice of either participating in the conduct
or facing termination.
Former bank employee waived any potential error in trial court's failure to send the jury out again after jury had been polled
regarding their verdict for employer in employee's retaliatory discharge action, as employee's attorney did not object in trial court to
trial court's failure to send jury out again and employee's subsequent motion for new trial did not contest the polling process. Const. art.
1, 3; NRS 16.190.
OPINION
Robert L. Allum was a loan officer for Valley Mortgage Company (VMC). He alleges that Valley Bank of Nevada (Valley) created
VMC,
for the purpose of transferring funds from the regulated bank to the unsupervised exempted mortgage company to enable the
Defendant, Valley Mortgage Company, to make loans to selected persons without adhering to the ordinary underwriting criteria,
banking regulations and loan loss reserve requirements for loans made by the Defendant, Valley Bank of Nevada.
In early 1989, Allum claims to have discovered that a number of VMC loans violated rules and regulations of the Federal Housing
Administration (FHA). He contends that his supervisors threatened to discharge employees who refused to become involved in these
loans. Allum reported his findings to the management of VMC, who promptly prohibited him from participating in certain transactions.
Allum alleges that he disapproved other loans he believed to be in violation of FHA rules, only to have his decisions overturned by
Daniel Ryssman, VMC's vice-president. Allum claims Ryssman would fabricate necessary information to make it appear that the loans met
FHA requirements.
In July of 1989, Allum reported specific rule violations directly to the FHA. He claims that, as a result, the FHA audited VMC's Reno
office and issued a report ordering termination and rescission of one loan agreement. Employees of Valley investigated Allum's contentions
during the first week of April 1990. On April 19, 1990, Allum was terminated.
Respondents claim that Allum was discharged because he was disruptive, failed to follow directions, failed to comply with company
policies, and was abusive to other employees.
Allum sued Valley, VMC, Nevada First Development Corporation, Valley Capitol Corporation, Kenneth Callahan (VMC's president),
and Ryssman (hereinafter collectively referred to as Valley) for wrongful discharge.
[Headnote 1]
The jury returned a general verdict in favor of Valley, and judgment was entered in accordance with the
jury's verdict on February 16, 1993. Thereafter, Allum unsuccessfully moved for a judgment notwithstanding the
jury's verdict, as well as for a new trial. Although the district court found one of the contested jury instructions to
be improper, it denied Allum's motion on the ground that the error was harmless. Allum appeals from the district
court's order denying his motion for a new trial.
1

DISCUSSION
Standard of Review
NRCP 59 provides:
(a) A new trial may be granted to all or any of the parties and on all or part of the
issues for any of the following causes or grounds materially affecting the substantial
rights of the parties:
. . . .
(7) Error in law occurring at the trial and objected to by the party making the motion; . .
. .
The decision to grant or deny a motion for a new trial rests within the sound discretion of the
trial court and will not be disturbed on appeal absent palpable abuse. Pappas v. State, Dep't
Transp., 104 Nev. 572, 574, 763 P.2d 348, 349 (1988). Having considered the parties' briefs
and having had the benefit of oral argument of counsel, we conclude that the district court
abused its discretion in denying Allum's motion for a new trial.
Introduction
[Headnote 2]
An employer commits a tortious discharge by terminating an employee for reasons that violate public policy.
Western States Minerals Corp. v. Jones, 107 Nev. 704, 712, 819 P.2d 206, 212 (1991). The district court in this
case noted that
this state has a strong public policy in ensuring that banks within this state comply with FHA
mortgage-related regulations. Bank employees and officers should be encouraged to report such illegal
activity in this area, and the retaliatory termination of an employee or officer who does so, or who
refuses to engage in such illegal activity, is in violation of the public policy of this
state.
__________

1
Although Allum also purports to appeal from that portion of the district court's order denying his
post-judgment motion for judgment notwithstanding the verdict, we have previously explained that no such
appeal may be taken. See Uniroyal Goodrich Tire v. Mercer, 111 Nev. 318, 320 n.1, 890 P.2d 785, 787 n.1
(1995).
refuses to engage in such illegal activity, is in violation of the public policy of this state.
Generally stated, the jury below was instructed that Allum could recover for tortious discharge if he proved
that he was discharged in retaliation for (1) whistleblowing, or (2) refusing to participate in illegal conduct.
Allum takes issue with the trial court's tortious discharge instructions, the characterization of his employment
contract, and the manner in which the jury was polled after it rendered the verdict.
At-Will Employment Contract
[Headnote 3]
This court has held that the type of employmenteither at-will or by contractis immaterial to a tortious
discharge action. See D'Angelo v. Gardner, 107 Nev. 704, 718, 819 P.2d 206, 216 (1991) (holding that a claim
for tortious discharge stands by itself and is not dependent on a contract of continued employment between the
parties). In this case, both parties agree that whether the employment contract was at-will is irrelevant. Thus,
because the type of employment contract does not affect our analysis and because there is no actual controversy
between the parties on this issue, we will not comment further. See Applebaum v. Applebaum, 97 Nev. 11, 12,
621 P.2d 1110, 1110 (1981) (this court will not render advisory opinions on abstract questions); see also Nev.
Const., art. 6 4.
Tortious Discharge
Allum pressed two separate claims for retaliatory discharge. First, that he was fired for whistle-blowing;
second, that he was fired for refusing to participate in suspected illegal conduct. The court gave separate
instructions on these two theories (nos. 25
2
and 26
3
, discussed below). Instruction 25 conditioned recovery
on proof that Allum was discharged because of whistle-blowing activities regarding
conduct that was, in fact, illegal; instruction 26 conditioned recovery on proof that Allum
was discharged because of his refusal to participate in illegal activities.
__________

2
That instruction states:
In order to establish the claim of retaliatory discharge, plaintiff must prove each of the following
elements:
1. That defendants participated in illegal conduct;
2. That an important public policy violation was embodied in the law that was broken;
3. That plaintiff reported the illegal conduct to the FHA; and
4. That plaintiff was discharged from his employment because he made the report to the FHA.

3
That instruction states:
In order to establish the claim, plaintiff must prove each of the following elements:
1. Plaintiff was given the choice between participating in illegal conduct or losing his job;
recovery on proof that Allum was discharged because of whistle-blowing activities regarding conduct that was,
in fact, illegal; instruction 26 conditioned recovery on proof that Allum was discharged because of his refusal to
participate in illegal activities.
Mixed Motives
At trial, Allum asked the court to instruct the jury that, to establish the claim of retaliatory discharge, he must
prove that he was discharged, in part, because he made the report. The court rejected Allum's proposal and
instructed the jury that Allum must prove that he was fired because he made the report, implying that the sole
reason for discharge was his whistleblowing activities. On appeal, Allum contends that he was entitled to
recovery if he was fired, at least in part, for whistle-blowing and/or refusal to participate in his employer's
illegal activities. Thus, Allum argues that the case should be remanded because a mixed motives analysis, one
occasionally invoked by federal district courts in discrimination cases brought under Title VII of the Civil Rights
Act of 1964, should apply generally to retaliatory discharge cases brought under state law.
[Headnote 4]
In a Title VII mixed motives case, the plaintiff can recover upon a showing that the adverse employment
decision resulted from a mixture of legitimate reasons and prohibited discriminatory motives. See Price
Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989); see also Luciano v. Olsten Corp., 110 F.3d 210, 217-18 (2d
Cir. 1997); Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1110 (9th Cir. 1991). To
succeed on a mixed-motives theory, the plaintiff must demonstrate that it is more likely than not that a protected
characteristic played a motivating part in [the] employment decision.' Sischo-Nownejad v. Merced
Community College Dist., 934 F.2d 1104, 1110 (9th Cir. 1991) (citing Price Waterhouse v. Hopkins, at 244,
247 n.12). The burden then shifts to the defendant employer to show that it would have made the same decision
absent the unlawful motive. Id.
There is no Nevada authority addressing whether, outside the realm of Title VII, employees may recover if
retaliation was merely one factor in the employer's decision to terminate. Thus, we examine case law from other
jurisdictions.
__________
2. An important public policy violation was embodied in the illegal conduct which plaintiff was told
he must participate in;
3. Plaintiff refused to participate in the illegal conduct; and
4. Defendants discharged plaintiff from employment because he refused to participate in the illegal
conduct.
In Rozier v. St. Mary's Hospital, 411 N.E.2d 50, 51 (Ill. Ct. App. 1980), plaintiff alleged that she was fired
for reporting various abuses and improper conduct. The court granted the defendant's motion for summary
judgment, in part, because it was
of the opinion that the discharged employee's action should not be allowed where, as here, plaintiff's own
discovery deposition reveals a legitimate reason for her discharge. . . . [W]e believe plaintiff's employer
was justified in concluding that plaintiff had lied with respect to job-related matters and in terminating
her employment on that basis.
Id. at 54.
In Thompson v. Abbott Laboratories, 549 N.E.2d 1295 (Ill. Ct. App. 1990), plaintiff argued that she was
entitled to a mixed motives instruction, pursuant to which she need only prove that her pursuit of worker's
compensation benefits was a motivating factor in her discharge. Id. at 1303, 1307. The appellate court affirmed
the trial court's refusal to grant such an instruction. Id. In a concurring opinion, Judge Reinhard explained that
giving a mixed motive instruction, . . . would effectively expand the tort by allowing plaintiff to prove
retaliatory discharge even though an employer terminated the plaintiff for a legitimate reason . . . .
[I]nstructing on mixed motive would have a devastating impact on the at-will doctrine. Rather, I believe
the current law requiring the plaintiff to establish causality strikes the appropriate balance between an
employee's right not to be fired in contravention of a clearly mandated policy and an employer's right to
discharge an employee at will for any reason or no reason.
Id. at 1309 (Reinhard, J. concurring).
In Aiken v. Business and Industry Health Group, Inc., 886 F. Supp. 1565 (D. Kan. 1995), the court held that
a plaintiff must show he was discharged because he reported to superiors or to public authorities serious
misconduct . . . . Id. at 1571 (citing Loomstein v. Medicare Pharmacies, Inc., 750 S.W.2d 106, 112 (Mo. Ct.
App. 1988), Boyle v. Vista Eyewear, Inc., 700 S.W.2d 859, 878 (Mo. Ct. App. 1985), and Hansome v.
Northwestern Cooperage Co., 679 S.W.2d 273, 275 (Mo. 1984)).
[Headnote 5]
Although this court has not specifically addressed whether a mixed motives analysis applies in tortious
discharge cases outside of Title VII, we take this opportunity to adopt the approach followed by other states and
federal courts that have considered the issue. We hold that recovery for retaliatory discharge under state law may
not be had upon a mixed motives theory; thus, a plaintiff must demonstrate that his protected
conduct was the proximate cause of his discharge.
plaintiff must demonstrate that his protected conduct was the proximate cause of his discharge.
4
Here, the
district court instructed the jury that Allum was required to prove, by a preponderance of the evidence, that he
was discharged because he made the report to the FHA. Therefore, the jury was properly instructed on this issue.
We note that the case at bar involves tortious dischargeit is not a discrimination case. Even if it were,
judicial application of a mixed motives analysis occurs in only a small subset of all employment
discrimination cases in which the employer may have had more than one motive. Miller v. Cigna Corp., 47 F.3d
586, 597 n.9 (3d Cir. 1995). Further, we conclude that the use of the mixed motives concept in the context of
wrongful termination cases would have the effect of undermining the Nevada legislature's intent in creating the
at-will doctrine. Accordingly, until the legislature chooses to intervene, we decline to adopt a mixed motives
approach to tortious discharge cases.
Proof of Valley's Participation in Illegal Conduct
Allum also argues that instructions no. 25 (defining the whistleblowing claim) and no. 26 (defining the
refusal to participate in illegal conduct claim) contained errors of law because recovery was conditioned on
proof that VMC, in fact, participated in illegal misconduct. Valley argued at trial and maintains on appeal that
public policy is not served by reporting conduct which is not illegal. Allum contends that he should only have
been required to prove that he suspected the defendants were engaging in illegal activity. We have not, as yet,
specifically addressed this issue.
In Wiltsie v. Baby Grand Corp., 105 Nev. 291, 774 P.2d 432 (1989), we stated the following:
We believe that whistleblowing activity which serves a public purpose should be protected. So long as
employees' actions are not merely private or proprietary, but instead seek to further the public good, the
decision to expose illegal or unsafe practices should be encouraged.
Id. at 293, 774 P.2d at 433 (quoting Wagner v. City of Globe, 722 P.2d 250, 257 (Ariz.
1986)). In Sands Regent v. Valgardson, 105 Nev. 436, 777 P.2d 898 (1989), this court stated
that public policy tortious discharge actions are severely limited to those rare and
exceptional cases where the employer's conduct violates strong and compelling public
policy." Id. at 440, 777 P.2d at 900 {footnote omitted).
__________

4
Accordingly, we conclude that Nev. J. I. 4.04 is appropriate in these cases. It provides:
[The] proximate cause of injury, damages, loss, or harm is a cause which, in natural and continuous
sequence, produces the injury, damage, loss, or harm, and without which the injury, damages, loss, or
harm, would not have occurred.
strong and compelling public policy. Id. at 440, 777 P.2d at 900 (footnote omitted).
Allum relies on Palmer v. Brown, 752 P.2d 685 (Kan. 1988), in which the Kansas Supreme Court held:
Public policy requires that citizens in a democracy be protected from reprisals for performing their
civil duty of reporting infractions of rules, regulations, or the law pertaining to public health, safety, and
the general welfare. Thus, we have no hesitation in holding termination of an employee in retaliation for
the good faith reporting of a serious infraction of such rules, regulation, or the law by a co-worker or an
employer . . . is an actionable tort.
Id. at 689-90. That court also refers to good faith reporting as that not motivated by malice,
spite, jealousy or personal gain as opposed to a good faith belief that an infraction has
occurred. Id. at 690. Other jurisdictions have also considered this issue.
In McQuary v. Bel Air Convalescent Home, Inc., 684 P.2d 21 (Or. Ct. App. 1984), a nurse was fired after
she threatened to report that her employer had abused a patient. The court stated:
[W]e turn to the question whether she must prove that [the defendant's] actions in fact constituted
patient abuse in the broad sense of the term, or must only show that she in good faith believed that they
did . . . . We . . . hold that an employe [sic] is protected from discharge for good faith reporting of what
the employe [sic] believes to be patient mistreatment to an appropriate authority.
Id. at 23-24 (footnote omitted); see also Melchi v. Burns International Security Services, 597
F. Supp. 575 (E.D. Mich. 1984) (citing legislation prohibiting termination for reporting
suspected violations of law (M.C.L. 15.361)).
The reasoning espoused by the court in McQuary supports this court's goal expressed in Wiltsie, to encourage
the decision to expose illegal or unsafe practices. Wiltsie, 105 Nev. at 293, 774 P.2d at 433. In McQuary, the
Oregon court also stated the following:
We are required to choose between competing social values: Either plaintiff must act at her peril in
making a complaint, risking her job if the complaint later turns out to be unfounded, or the employer must
act at its peril in firing her, risking damages if she turns out to have acted in good faith. On balance, we
believe that the social harm from reporting in good faith a complaint that may turn out, after
investigation, to be unfounded is potentially far less than the harm of not reporting a well-founded
complaint for fear of the consequences.
Id. at 23-24.
Arizona appears in agreement. In Wagenseller v. Scottsdale Memorial Hospital, 710 P.2d 1025 (Ariz. 1985),
Wagenseller claimed she was fired for refusing to participate in activities which arguably would have violated
the Arizona indecent exposure statute. Id. at 1035 (emphasis added). That court held that the termination for
refusal to commit an act which might violate A.R.S. 13-1402 may provide the basis of a claim for wrongful
discharge. Id. (emphasis added).
[Headnote 6]
Valley relies on Wagner v. City of Globe, 722 P.2d 250, 257 (Ariz. 1986) (cited with approval in Wiltsie,
105 Nev. 291, 774 P.2d 432), for the proposition that the plaintiff must show that a law has actually been
violated. In that case, the Supreme Court of Arizona held that,
[t]he relevant inquiry is not limited to whether any particular law or regulation has been violated,
although that may be important, but instead emphasizes whether some important public policy interest
embodied in the law has been furthered by the whistleblowing activity.
Wagner, 722 P.2d at 257. Contrary to Valley's assertion, case law suggests that while an actual violation is
sufficient in a claim for retaliatory discharge, it is not essential. See generally Wagenseller (holding that
employee may refuse to participate in behavior which violates public policy, even though no technical violation
of the law results). We hold that instructions no. 25 and no. 26 were given in error insofar as they required proof
that the defendants actually participated in illegal conduct. The district court should have required Allum to
show that he reasonably suspected, in good faith, that Valley participated in illegal conduct. We conclude that
the district court abused its discretion in denying Allum's motion for a new trial with respect to his contentions
that instructions no. 25 and no. 26 were given in error. We therefore reverse the district court's order and remand
for a new trial with a proper instruction specifying that Allum is required to show only that he reasonably
suspected, in good faith, that Valley participated in illegal conduct.
Refusal to Participate in Illegal Conduct
Allum submits that jury instruction no. 26 (defining the refusal to participate in illegal conduct claim)
contained one additional error. Allum argues that he was not obligated to prove he was given an express choice
between participating in illegal conduct or losing his job, or that he was told he must participate. Because this
court has not addressed whether an employee's termination for refusal to participate in his employer's
illegal activities violates Nevada public policy, we will confront that issue now.5
for refusal to participate in his employer's illegal activities violates Nevada public policy, we will confront that
issue now.
5

[Headnote 7]
In Western States Minerals Corp. v. Jones, 107 Nev. 704, 719, 819 P.2d 206, 216 (1991), this court held that
a claim for tortious discharge should be available to an employee who was terminated for refusing to engage in
unsafe conduct at his employer's request. A claim for tortious discharge should also be available to an employee
who was terminated for refusing to engage in conduct that he, in good faith, believed to be illegal.
6
Any other
conclusion . . . would encourage unlawful conduct by employers and force employees to either consent and
participate in violation of the law or risk termination. Vermillion v. AAA Pro Moving & Storage, 704 P.2d
1360, 1362 (Ariz. 1985).
Allum claims that this court should recognize the tortious discharge cause of action even if Valley did not
expressly inform him that he would be fired if he refused to participate.
In its order denying Allum's motion for a new trial, the district court noted that the precise language used in
jury instruction no. 26 was technically too narrow.
7
The court noted that the problem with Valley's position was
that an employee asked to perform illegal activities is not privy to the intentions of his or her employer.
Employees generally recognize that the refusal to act as requested by an employer risks termination for
insubordination. The employer need not explicitly present the employee with the . . . choice of acting
illegally or being terminated; the employee knows the likely consequences of refusing to perform as
requested.
Several jurisdictions recognize a cause of action for wrongful discharge where the plaintiff claims he was
terminated in retaliation for conduct either required or prohibited by law. These courts do not require the
plaintiff to allege that he was given a choice between his job and participating in the illegal conduct. See Dugan
v. Bell Telephone, 876 F. Supp. 713 (W.D. Pa. 1994); Perry v. Hartz Mountain Corp., 537 F. Supp.
13S7, 13S9 {S.D. Ind. 19S2);
__________

5
See Schlang v. Key Airlines, Inc., 794 F. Supp. 1493, 1506 (D. Nev. 1992), vacated in part, 158 F.R.D. 666
(D. Nev. 1994).

6
The modern trend favors the right of a discharged employee to bring suit upon a showing that the discharge
violated public policy because it was motivated by a desire to punish the employee for failing to cooperate with
the employer's illegal schemes. Wanda Ellen Wakefield, Annotation, Liability for Discharging At-Will
Employee for Refusing to Participate in, or for Disclosing, Unlawful or Unethical Acts of Employer or
Coemployees, 9 A.L.R. 4th 329, 333-34 (1981).

7
Nonetheless, the court denied Allum's motion because it determined that the error was harmless.
Perry v. Hartz Mountain Corp., 537 F. Supp. 1387, 1389 (S.D. Ind. 1982); Shearin v. E.F. Hutton Group, Inc.,
652 A.2d 578, 585-89 (Del. 1994); Remington Freight Lines, Inc. v. Larkey, 644 N.E.2d 931, 937 (Ind. Ct. App.
1994); Winkleman v. Beloit Memorial Hospital, 483 N.E.2d 211 (Wis. 1992); Sheets v. Teddy's Frosted Foods,
Inc., 427 A.2d 385 (Conn. 1980).
[Headnotes 8, 9]
We agree that the district court erroneously required Allum to show that he was given a choice to either
participate in the conduct or face termination. However, we conclude that the error was not harmless and the
district court should have granted a new trial in light of the error. A claim for tortious discharge should be
available to an employee who was terminated for refusing to engage in conduct that he, in good faith, reasonably
believed to be illegal. Accordingly, we reverse the district court's order and remand for a new trial with a proper
instruction.
Jury Poll
[I]n civil cases, if three fourths of the Jurors agree upon a verdict it shall stand and have the same force and
effect as a verdict by the whole Jury. . . . Nev. Const., art. 1, 3. [A]ny party may request that the jury be
polled. . . . If more than one-fourth of the jurors disagree [with the verdict as read], the jury shall be again sent
out; but if no disagreement is expressed, the clerk shall fully record the verdict . . . and the jury shall be
discharged . . . . NRS 16.190.
In this case, after the jury read the verdict in favor of the Defendants and against the Plaintiff, the court
asked each juror, is this your verdict as read? One of the jurors said that it was not. Four of the jurors
responded that it was. One juror responded, [w]ith reservations. I don't feel well about it, but, yes. Another
juror answered, yes, with reservations, and one juror answered, [w]ith certain reservations.
[Headnote 10]
Allum claims that a new trial should be ordered because four of the eight jurors expressed some
disagreement. Thus, Allum alleges, under NRS 16.190, the jury should have been sent out for further
deliberations. Valley contends that since Allum did not object to the manner in which the jury was polled at trial,
he should be precluded from appealing this issue.
[F]ailure to object to asserted errors at trial will bar review of an issue on appeal. McCullough v. State, 99
Nev. 72, 74, 657 P.2d 1157, 1158 (1983); see also Commonwealth v. Jackson, 324 A.2d 350, 353 (Pa. 1974)
(one cannot be heard to challenge unanimity of verdict where he fails to question the jurors' answers or
requests that jurors be further interrogated); Scott v. Chapman, 71 Nev. 329, 331, 291
P.2d 422, 423 {1955).
requests that jurors be further interrogated); Scott v. Chapman, 71 Nev. 329, 331, 291 P.2d 422, 423 (1955).
In this case, after the jury was polled, the judge thanked the jurors and indicated he would order that the
verdict be recorded on the minutes of the court at this time. At that point, Allum's attorney did not object to the
court's decision not to send the jury out again. In addition, Allum's subsequent motion for a new trial did not
contest the polling process. Therefore, we conclude that Allum's failure to object waived any potential error.
8
Finally, the reservations as to the verdict did not, in this case, amount to a retraction by the jurors in question.
CONCLUSION
At-Will Employment Status
Whether Allum was employed at-will was not relevant to these claims of retaliatory discharge. Accordingly,
we did not comment on the at-will employment issue here.
Mixed Motives
We refuse to apply a mixed motives analysis to tortious discharge cases. We hold that the jury was instructed
properly that Allum had the burden of proving, by a preponderance of the evidence, a direct causal connection
between his report to the FHA, or his refusal to participate in arguably illegal conduct, and his termination.
Valley's Participation in Illegal Conduct
We hold that instructions no. 25 and no. 26 were given in error insofar as they required proof that the
defendants actually participated in illegal conduct. The district court should have required Allum to show that he
reasonably suspected, in good faith, that Valley participated in illegal conduct.
Allum's Refusal to Participate in Illegal Conduct
The district court also erred in instructing the jury that Allum was required to show he was explicitly given a
choice between participating in illegal conduct and losing his job. We conclude that the error was not harmless
and the district court should have granted a new trial in light of the error.
Jury Poll
Allum waived any objection he had to the manner in which the jury was polled because he failed to
object at trial.
__________

8
Allum's attorney was unable to appear when the jury read the verdict, but another attorney was present on
his behalf. There were no objections made by the substitute attorney.
jury was polled because he failed to object at trial. Thus, we dismiss Allum's jury poll argument.
Accordingly, we reverse the district court's order denying Allum's motion for a new trial and remand this
matter to the district court. On remand, the district court shall conduct a new trial in accordance with the
conclusions reached in this opinion.
Sringer, C. J., concurring in part and dissenting in part:
I agree with the majority that a retaliatory discharge plaintiff must demonstrate that his protected conduct
was the proximate cause of his discharge. I dissent, however, because I believe that the majority
unwisely adopts Nevada Pattern Civil Jury Instructions (Nev. Civ. J. I.) No. 4.04 as the
definition of proximate cause in this case. In a case such as this, where the evidence permits a
reasonable finding that an employee was terminated for a combination of legitimate and
prohibited reasons, there may be several causes without which the injury [i.e. termination] . .
. would not have occurred. Nev. Civ. J. I. No. 4.04.
1
Consequently, the question for the jury
should not be whether the prohibited reason was the but for cause of the termination, but
whether the prohibited reason was a substantial, rather than negligible, factor in the
termination decision.
Therefore, rather than adopting the but for proximate cause definition, Nev. Civ. J. I. No. 4.04, as does the
majority, I would adopt the substantial factor definition, Nev. Civ. J. I. No. 4.04A, which provides: A legal
cause of injury, damage, loss, or harm is a cause which is a substantial factor in bringing about the injury,
damages, loss, or harm. (Emphasis added.) The comments to BAJI 3.76 (1982 Revision), from which this
instruction is taken, points out that it overcomes the inapplicability of the but for rule of causation to two or
more responsible causes. I would remand this case to the district court with instructions to use the substantial
factor test set forth above, rather than the needlessly confusing proximate cause instruction adopted today by
the majority. I concur with the majority in all other respects.
I agree with the mixed motives analysis espoused by the majority and that, in an action alleging wrongful
discharge for refusal to participate in illegal conduct, a plaintiff is not required to plead and prove that he or she
was given an express choice to comply or not comply.
__________

1
Nev. Civ. J. I. No. 4.04 provides: A proximate cause of injury, damage, loss, or harm is a cause which, in
natural and continuous sequence, produces the injury, damage, loss, or harm, and without which the injury,
damage, loss, or harm, would not have occurred.
comply or not comply. I disagree, however, with the majority conclusion that an employee seeking damages for
tortious discharge in connection with whistleblowing should not be required to prove that the employer's
conduct as reported was actually illegal. In Sands Regent v. Valgardson, 105 Nev. 436, 777 P.2d 898 (1989),
this court, as noted by the majority, stated that public policy tortious discharge actions are severely limited to
those rare and exceptional cases where the employer's conduct violates strong and compelling public policy. Id.
at 440, 777 P.2d at 900 (footnote omitted).
The Nevada legislature has not seen fit to abrogate the common law rule concerning at-will employment.
See Southwest Gas Corp. v. Ahmad, 99 Nev. 594, 596, 668 P.2d 261, 263 (1983) (Steffen, J., dissenting).
Employment is presumptively at will, subject to certain exceptions, such as when the employee enjoys a
contract, express or implied, of continued employment; or where termination of the employee
offends a well-recognized public policy consideration. See Western States Minerals Corp. v.
Jones, 107 Nev. 704, 712, 819 P.2d 206, 211-12 (1991); Hansen v. Harrah's, 100 Nev. 60,
675 P.2d 394 (1984).
Whistleblowing is properly protected conduct when the employee has acted for the public good and not in
pursuit of private interests. See Wiltsie v. Baby Grand Corp., 105 Nev. 291, 774 P.2d 432 (1989). Thus,
liability should be conditioned upon a finding that the employer's reported conduct was either in violation of law
or a strong and compelling public policy of this state. If the conduct is not found to be illegal, no public policy is
served by the whistleblowing, the employer is forced to retain a hostile employee who it otherwise has the right
to discharge, and the employer is forced to keep an otherwise at-will employee when the employer has done
nothing wrong. Thus, the majority, in my view, creates an exception to the at-will presumption that should be left
to the legislature.
____________
114 Nev. 1327, 1327 (1998) Sutton v. State
JERRY MICHAEL SUTTON, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 28732
December 30, 1998 972 P.2d 334
Appeal from a judgment of conviction pursuant to a jury verdict of trafficking in a controlled substance,
possession of a controlled substance, and possession of a short-barrelled shotgun. Eighth Judicial District Court,
Clark County; Donald P. Chairez, Judge.
The supreme court, Rose, J., held that trial court's error in admitting evidence of
prescription and non-prescription drugs was not harmless.
Albregts & Albregts, Las Vegas, for Appellant.
Chief Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Evidence of prescription and non-prescription drugs seized from defendant's home did not fall under the res gestae doctrine, where
state's case against defendant for trafficking in and possession of a controlled substance, and possession of a short-barrelled shotgun
was not predicated on the uncharged prescription and non-prescription drugs. NRS 48.035(3).
2. Criminal Law.
Trial court's admission of evidence of prescription and non-prescription drugs seized from defendant's home in drug prosecution
case was prejudicial, thus requiring reversal.
OPINION
Appellant Jerry Michael Sutton was charged with and convicted of trafficking in a controlled substance, possession of a controlled
substance, and possession of a short-barrelled shotgun after his friend, Rickie Goodyear, who had become a confidential informant for the
Henderson Police Department (HPD), made two controlled purchases of methamphetamine from Sutton at Sutton's residence. During a
search of Sutton's home and property, officers found 10.28 grams of methamphetamine, marijuana, numerous weapons along with large
quantities of ammunition, and prescription and non-prescription pills. Additionally, officers found a short-barrelled shotgun in an adjacent
shed.
Although Sutton was not charged with possession of the prescription and non-prescription pills, during trial the State was allowed to
introduce into evidence a container of the pills over Sutton's objections. At the conclusion of trial, Sutton was sentenced to a term of six
years' imprisonment.
Sutton now appeals, arguing that the district court abused its discretion in admitting the container of pills.
discretion in admitting the container of pills. We agree; thus, we reverse Sutton's conviction and remand for a
new trial.
1

FACTS
During the first week of May 1994, Goodyear, one of Sutton's friends, contacted HPD Detective Robert
Wamsley and informed him that Sutton was selling methamphetamine from his residence. Goodyear had become
angry with Sutton because he believed that Sutton was facilitating his wife's affair with another man by
permitting them to spend time together at Sutton's home. As a result, Goodyear decided to seek revenge against
Sutton by becoming a police informant.
Later that week, Goodyear again contacted Det. Wamsley and informed him that he had arranged to purchase
methamphetamine from Sutton. Based on Goodyear's tip, Det. Wamsley and Goodyear proceeded to Sutton's
residence to conduct a controlled purchase of methamphetamine. From his vehicle parked nearby, Det. Wamsley
observed Goodyear and Sutton walk around the left side of Sutton's house and through a gate. Approximately
five minutes later, Goodyear returned from the same side of the house, got inside Det. Wamsley's vehicle, and
handed him two plastic bags of methamphetamine which Goodyear claimed he had purchased from Sutton. On
May 10, 1994, Det. Wamsley and Goodyear made another similar controlled purchase of methamphetamine
from Sutton at his residence.
Based on Goodyear's two purchases of methamphetamine from Sutton, Det. Wamsley sought and was
granted a warrant to search Sutton's house. On May 12, 1994, HPD officers executed the search warrant. Sutton
was not present when officers searched his home, although Sutton's wife and son, along with his houseguest,
John Skorheim, were present. During their search, HPD officers found a freezer in Sutton's backyard which
contained a plastic bag with 10.28 grams of methamphetamine and a quantity of marijuana. Additionally,
officers found marijuana, large quantities of prescription and non-prescription drugs, numerous guns, and
considerable amounts of ammunition inside Sutton's residence. Lastly, officers found a short-barrelled shotgun in
a shed adjacent to Sutton's house.
__________

1
Sutton also argues that the district court erred in admitting a photograph depicting weapons and ammunition
allegedly owned by him. Additionally, Sutton asserts that the district court erred in admitting statements made by
his wife during the execution of the search warrant, that the prosecutor committed misconduct during the trial,
that the district court erred in refusing to provide the jury with his proposed instructions, and that the search
warrant was invalid due to a lack of probable cause. After careful review of the record on appeal and the briefs
filed herein, we conclude that Sutton's additional arguments are without merit.
to Sutton's house. Skorheim was asleep in the shed when the officers seized the weapon.
On April 10, 1995, Sutton was charged with five felony counts including two counts of selling a controlled
substance, one count each of trafficking in and possession of a controlled substance, and one count of possession
of a short-barrelled shotgun. The State did not charge Sutton with possession of the other firearms or
prescription drugs.
During trial, Sutton admitted to the possession of the marijuana, but denied ownership of the short-barrelled
shotgun. Further, Sutton denied making any sales of methamphetamine to Goodyear and contended that
Goodyear had planted the methamphetamine on his property the day before Goodyear and Det. Wamsley made
the first controlled purchase of the drug.
Sutton's houseguest, Skorheim, testified that the short-barrelled shotgun belonged to him, and that Sutton had
no knowledge that the weapon was in his possession. Additionally, Skorheim testified that on the day prior to the
execution of the search warrant, he was present when Goodyear arrived at Sutton's house and asked Sutton to
store some methamphetamine for him so that Goodyear could retrieve the drugs the following day.
Det. Wamsley testified that Skorheim denied ownership of the short-barrelled shotgun on the day police
searched Sutton's residence. Although the State had not charged Sutton with possession of prescription drugs,
during Det. Wamsley's testimony the State introduced into evidence over Sutton's objection a plastic container of
large amounts of prescription and non-prescription drugs.
At the conclusion of trial, the jury found Sutton guilty of trafficking in and possession of a controlled
substance, and possession of a short-barrelled shotgun. The district court sentenced Sutton to a term of six years
in prison on the trafficking count, and two concurrent four-year prison terms for the possession of a controlled
substance and the possession of a short-barrelled shotgun.
Sutton now appeals.
DISCUSSION
[Headnote 1]
Sutton argues that the district court erred in admitting evidence of prescription and non-prescription drugs
that were seized during the search of Sutton's home because such evidence did not form the basis of any of the
charged crimes. Specifically, Sutton maintains that the discovery of the container of pills, and any testimony
relating to its seizure, could have been omitted without damaging the State's case as to the other
charges.
the State's case as to the other charges. Accordingly, Sutton contends that the container of pills does not fall
within the res gestae exception codified at NRS 48.035(3).
2
We agree.
According to the res gestae doctrine,
when several crimes are intermixed or blended with one another, or connected such that they form an
indivisible criminal transaction, and when full proof by testimony, whether direct or circumstantial, or
any one of them cannot be given without showing the others, evidence of any or all of them is admissible
against a defendant on trial for any offense which is itself a detail of the whole criminal scheme.
Allan v. State, 92 Nev. 318, 321, 549 P.2d 1402, 1404 (1976) (citing People v. Thomas, 83
Cal. Rptr. 879 (Ct. App. 1970)).
In State v. Shade, 111 Nev. 887, 894, 900 P.2d 327, 331 (1995), we revisited the applicability of the res
gestae doctrine and explained that:
In reading NRS 48.035 as a whole, it is clear that where the res gestae doctrine is applicable . . . the
controlling question is whether witnesses can describe the crime charged without referring to related
uncharged acts. If the court determines that testimony relevant to the charged crime cannot be introduced
without reference to uncharged acts, it must not exclude the evidence of the uncharged acts.
(Footnote omitted.) In Shade, we held that the district court erred in excluding evidence of
Shade's uncharged heroin purchase because this purchase occurred contemporaneously with
the offenses for which Shade was charged, arose out of the same transaction, involved the
same participants, and was inextricably intertwined with the charged crimes and completed
the story leading up to Shade's ultimate arrest. Id. at 895, 900 P.2d at 331.
In the instant case, the State argues that the prescription and non-prescription pills constituted admissible res
gestae evidence because their close proximity to the marijuana and methamphetamine suggested that all of the
evidence was intertwined. Further, the State asserts that because the illegal drugs and prescription pills were
found in the same relative location at approximately the same time, the testifying police officers could not
provide an account of their search without referring to the uncharged pills.
__________

2
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 act in controversy or 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.
account of their search without referring to the uncharged pills. We find these arguments unpersuasive.
[Headnote 2]
Although the police discovered the illegal drugs in close proximity to the prescription pills, this case is
distinguishable from Shade in several important respects. In Shade, the State could not introduce evidence of the
charged offenses without reference to Shade's uncharged heroin purchase; here the State could have easily
introduced testimony pertaining to the discovery and seizure of the illegal drugs and short-barrelled shotgun
without introducing the container of highly prejudicial prescription pills for which Sutton was not charged.
Moreover, in Shade, the State could not effectively prosecute Shade on any of the charged offenses without
proffering evidence of Shade's uncharged heroin purchase and concomitant police surveillance activity; in the
instant case, the State's case against Sutton for trafficking in and possession of a controlled substance, and
possession of a short-barrelled shotgun was in no way predicated upon the uncharged container of pills.
As evidenced by the prosecutor's repeated and improper references to the pills during both opening and
closing arguments, we conclude that the State's primary purpose in proffering evidence of the uncharged
container of pills was to inflame the jury against Sutton in an attempt to obtain a conviction. Because the State
could have introduced evidence of the crimes for which Sutton was charged without making reference to the
uncharged container of pills, we reject the State's arguments and conclude that the uncharged container of pills
did not constitute admissible res gestae evidence. Due to its highly prejudicial nature, we conclude that the
district court's admission of the uncharged container of pills was manifestly wrong. See Petrocelli v. State, 101
Nev. 46, 52, 692 P.2d 503, 508 (1985). Accordingly, we reverse Sutton's conviction and remand for a new trial.
Shearing, J., with whom, Maupin, J., agrees, dissenting:
I would affirm the judgment of conviction.
I do not agree that it was error for the district court to admit into evidence the container of prescription and
non-prescription drugs found in Sutton's house during a search, even though these drugs were not part of charged
crimes. The general rule is that evidence of other crimes or wrongs is not admissible to prove the character of a
person in order to show that he committed the crimes charged. NRS 48.045(2). However, such evidence may be
admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
mistake or accident. I agree that these drugs were not appropriately introduced pursuant to NRS 48.035(3). The
discovery of the drugs was not so closely related to the discovery of the other contraband that discovery of the
latter could not be described without referring to the former. The contraband involved in the crimes with which
Sutton was charged was found in the freezer and shed in Sutton's backyard, while the drugs were found in his
house.
However, there is another basis for the introduction of these. The defense in this case was that Sutton was a
totally innocent man who was set up by the informant, a former friend. During the opening statement, defense
counsel stated, the reason you're here is about an angry, unscrupulous man who acted on his revenge, and
because of that revenge, he set up an honest and unsuspecting person. Under NRS 48.045(2), evidence of
other crimes is admissible to show absence of mistake. In the face of Sutton's defense that the police informant
planted all the drugs in the backyard and that Sutton was totally innocent, the evidence of similar contraband
inside the house, to which the informant did not have access, was properly admitted to rebut the defense.
____________
114 Nev. 1333, 1333 (1998) Kopicko v. Young
JILL E. KOPICKO and RONALD KOPICKO, Appellants, v. RICHARD W. YOUNG,
INDIVIDUALLY and LAW OFFICES OF RICHARD W. YOUNG, a Professional
Corporation, Respondents.
No. 29444
December 30, 1998 971 P.2d 789
Appeal from an order of the district court granting summary judgment in a legal malpractice case. Second
Judicial District Court, Washoe County; Brent T. Adams, Judge.
Clients brought legal malpractice action against attorney relating to dismissal of clients'
underlying products liability action. The district court dismissed based on attorney's
limitations defense. Clients appealed. The supreme court, Maupin, J., held that a litigation
malpractice claim does not accrue, for purposes of commencing the running of the statute of
limitations, until the client suffers legal damages from the dismissal of the underlying
litigation; overruling Gonzales v. Stewart Title, 111 Nev. 1350, 905 P.2d 176 (1995).
Springmeyer Law Firm, Minden, for Appellants.
Wait & Shaffer, Reno, for Respondents.
Supreme court would review trial court's granting of attorney's motion for dismissal in legal malpractice action as an order
granting summary judgment, as attorney's motion for dismissal was supported by a number of documents that were outside the
pleadings, including correspondence between attorney and clients, and trial court relied on those documents. NRCP 12(b)(5), (c), 56.
2. Judgment.
A genuine issue of material fact exists, precluding summary judgment, when a reasonable jury could return a verdict for the
nonmoving party. NRCP 56(c).
Supreme court reviews orders granting summary judgment de novo.
Clients' litigation malpractice claim against attorney did not accrue, for purposes of commencing running of statute of limitations,
until clients suffered legal damages from trial court's dismissal of the underlying products liability litigation on statute of limitations
grounds, as underlying litigation was per se viable until manufacturer affirmatively alleged limitations defense, and a number of tolling
issues required resolution before underlying litigation could be dismissed. NRS 11.207(1).
Litigation malpractice claim does not accrue, for purposes of commencing running of statute of limitations, until client suffers
legal damages from dismissal of underlying litigation; overruling Gonzales v. Stewart Title, 111 Nev. 1350, 905 P.2d 176 (1995).
6. Action.
In the context of transactional legal malpractice, the presence of separate litigation regarding the transaction as of the
commencement of the malpractice action will compel a stay of the malpractice action pending the resolution of the underlying action.
NRCP 41(e).
OPINION
Appellants Jill E. Kopicko and Ronald Kopicko (collectively, the Kopickos) retained respondents Richard W. Young and the Law
Offices of Richard W. Young, a Professional Corporation (Young), to represent them in a products liability action against breast implant
manufacturers. On December 4, 1989, the Kopickos filed a complaint for personal injuries naming Mentor Corporation, Heyer-Schulte,
American Hospital Supply Corporation, and Does 1-20. Young then discovered that the manufacturer of the implants was Dow Corning
Corporation (Dow). On January 25, 1991, Young filed a stipulation for dismissal of all defendants.
missal of all defendants. The court ordered dismissal with prejudice.
On February 1, 1991, through Young, the Kopickos moved for leave to amend the complaint in the original
action to add Dow as a defendant. The district court denied this motion because the case had previously been
dismissed, in its entirety, with prejudice.
On February 12, 1991, Young held a meeting with the Kopickos in which he informed them that there might
be a problem with their case. On February 13, 1991, Young wrote the Kopickos a letter advising them that their
case had been dismissed and outlined possible alternatives for future action. However, Young made it clear that
any chance for success was poor and that, in his opinion, the suggested alternatives would be unsuccessful.
Young's letter also advised the Kopickos of a potential legal malpractice claim against him and that they should
seek other counsel.
The Kopickos acknowledged the letter and told Young to pursue the alternate course of action. Shortly after
the exchange of letters, the Kopickos spoke with another attorney about the situation. However, that attorney did
not intervene.
On May 21, 1991, Young filed a complaint in federal court against Dow. The matter was transferred to the
Northern District of Alabama per 28 U.S.C. 1407, but was dismissed on statute of limitation grounds by order
of October 12, 1993.
1

On October 16, 1995, the Kopickos filed a complaint against Young for legal malpractice based upon his
representation of them in their action against Dow. On February 8, 1996, Young filed a motion to dismiss on the
grounds that the Kopickos' claim was barred under the four-year limitation period of NRS 11.207(1).
2
The
district court ordered the case dismissed on these grounds, concluding that the statute began to run on February
13, 1991, when Young informed the Kopickos of a potential malpractice claim against him.
On June 11, 1996, the Kopickos filed a motion for reconsideration, which the district court denied. The
Kopickos now appeal.
DISCUSSION
[Headnote 1]
If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and
not excluded by the court, [a motion to dismiss under NRCP 12{b){5)] shall be treated as
one for summary judgment and disposed of as provided in Rule 56."
__________

1
Thereafter, the federal district court granted preliminary approval of a settlement of a breast implant
products liability class action suit. Jill opted into this settlement, pursuant to which she was entitled to recover
$630,000.00. However, on May 15, 1995, Dow filed for bankruptcy. The Kopickos assert that this essentially
precluded them from recovering under the terms of the settlement.

2
The applicability of the two-year limitation period of NRS 11.207(1) is not at issue.
side the pleadings are presented to and not excluded by the court, [a motion to dismiss under NRCP 12(b)(5)]
shall be treated as one for summary judgment and disposed of as provided in Rule 56. NRCP 12(c).
Here, Young's motion for dismissal was supported by a number of documents that were outside the
pleadings, including the correspondence between Young and the Kopickos. The district court's order similarly
relied on these documents. Therefore, we conclude that the district court's dismissal of the case must be reviewed
as an order granting summary judgment in Young's favor.
[Headnotes 2, 3]
448, 452, 851 P.2d 438, 441-42 (1993). While this court construes the pleadings and proof in the light most
favorable to the non-moving party, that party is not entitled to build its case on gossamer threads of whimsy,
speculation, and conjecture. Id. This court reviews orders granting summary judgment de novo. Bulbman, Inc.
v. Nevada Bell, 108 Nev. 105, 110, 825 P.2d 588, 591 (1992).
[Headnote 4]
The Kopickos first argue that the district court erred by finding that the statute of limitations barred their
claim against Young. The Kopickos postulate that they did not sustain damages until the Dow issue was
ultimately resolved. We agree.
The district court resolved this matter based upon the Kopickos' discovery of the existence of their claim in
February of 1991. Rather than dispose of this matter based upon discovery of the claim for legal injury, this
matter should have been resolved based upon the fact that the cause of action for professional negligence did not
accrue until the federal district court dismissed the underlying matter on October 12, 1993. While the alleged
acts of omission constituting malpractice clearly had occurred as of the time of Mr. Young's correspondence of
February 13, 1991, legal damages were not sustained until the federal action against Dow was dismissed on
statute of limitation grounds.
[Headnotes 5, 6]
This matter involves a claim that, through an act of professional negligence, Young allowed the limitation
period on the underlying suit to expire. That action was per se viable until the limitation defense was
affirmatively alleged and the matter resolved on that basis.
basis. The limitation defense was subject to waiver if not alleged, and a number of tolling issues required
resolution before the matter could be dismissed. See FRCP 8(c). Therefore, the ultimate malpractice action
against Young did not accrue until dismissal because no legal damages had yet been sustained as a result of the
alleged negligence.
3
Compare, Semenza v. Nevada Med. Liability Ins. Co., 104 Nev. 666, 668, 765 P.2d 184,
186 (1988), and K.J.B., Inc. v. Drakulich, 107 Nev. 367, 811 P.2d 1305 (1991).
For the foregoing reasons, we conclude that the trial court erred by granting Young's motion for summary
judgment. Accordingly, we reverse the order of the district court and remand the case for further proceedings
consistent with this opinion.
4

Shearing and Rose, JJ., concur.
Springer, C.J., concurring:
I agree with the majority's holding that the malpractice action against Young did not accrue until dismissal of
the litigation in which the negligence allegedly occurred. The majority rightly concludes that no legal damages
had been sustained as a result of the alleged negligence until the occurrence of that event. I write separately to
note that this conclusion is compelled by our decision in K.J.B., Inc. v. Drakulich, 107 Nev. 367, 811 P.2d
1305 {1991), which is cited in the briefs.
__________

3
We have previously held that [a]n action [for attorney malpractice] accrues when the litigant discovers, or
should have discovered, the existence of damages, not the exact numerical extent of those damages. Gonzales v.
Stewart Title, 111 Nev. 1350, 1353, 905 P.2d 176, 178 (1995). Additionally, we have held that the statute of
limitations begins to run in an attorney malpractice action when the plaintiffs knew or should have known of
damages sustained even though the underlying litigation continued. Charleson v. Hardesty, 108 Nev. 878,
883-84, 839 P.2d 1303, 1307 (1992). These cases are inapposite because they involve claims of transactional
rather than litigational malpractice. As explained, termination of the underlying proceedings was critical in the
context of a claim of litigation negligence. Thus, to the extent that Gonzales rejects a distinction between
transactional and litigation malpractice, Gonzales is hereby overruled.
Additional comment is required with regard to our ruling in Gonzales that discovery of an act of
transactional legal malpractice requires suit to conclusion against the attorney when there is pending separate
litigation that would define the extent of damages. We now conclude that, in the context of transactional legal
malpractice, the presence of separate litigation regarding the transaction as of the commencement of the
malpractice action will compel a stay of the malpractice action pending the resolution of the underlying action.
That stay is effective for the purpose of the two-and five-year provisions of NRCP 41(e). To that further limited
extent, Gonzales is also overruled.

4
We take this opportunity to note that the February 1991 letter from Young to the Kopickos exuded the type
of professionalism we expect from attorneys licensed in this state. We make no comment on the merits of the
negligence and causation claims.
(1991), which is cited in the briefs. In K.J.B. this court held that the statute of limitations in NRS 11.207(1)
does not commence to run against a cause of action for attorney malpractice until the conclusion of the
underlying litigation wherein the malpractice allegedly occurred. 107 Nev. at 370, 811 P.2d at 1306. We
reasoned that, pursuant to NRS 11.207(1), the statute of limitations will not commence to run until the plaintiff
sustains damage as a result of the attorney's conduct and that:
Where there has been no final adjudication of the client's case in which the malpractice allegedly
occurred, the element of injury or damage remains speculative and remote, thereby making premature the
cause of action for professional negligence. Semenza v. Nevada Med. Liability Ins. Co., 104 Nev. 666,
765 P.2d 184 (1988) (quoting Amfac Distributing Corp. v. Miller, 673 P.2d 795, 796 ([Ariz. Ct. App.]
1983).
107 Nev. at 369-70, 811 P.2d at 1306. In the present case, which also arises out of alleged
litigation malpractice, the element of damage similarly remained speculative and remote until
dismissal of the underlying litigation, and thus insufficient to give rise to the professional
negligence cause of action.
I also agree with the majority that Gonzales v. Stewart Title, 111 Nev. 1350, 905 P.2d 176 (1995), is
factually inapposite, although I disagree with the majority's intimation in footnote three that there is anything in
Gonzales that is contrary to today's decision. In Gonzales, a transactional malpractice case, this court held that
the statute of limitations commenced to run prior to the completion of litigation arising out of the defendant
attorney's allegedly negligent drafting of a promissory note. Gonzales expressly distinguished K.J.B., the
controlling authority in this case, reasoning: While K.J.B. involved attorney error in the course of litigation, the
instant case involved a drafting error that gave rise to the litigation . . . . 111 Nev. at 1352-53, 905 P.2d at
177. Contrary to the assertion in Justice Young's dissent that Gonzales is irreconcilable with today's ruling,
Gonzales in fact reaffirmed the principle that, in a litigation malpractice case, the statute of limitations does not
commence to run until completion of the underlying litigation in which the negligence allegedly occurred. As set
forth in Gonzales: Unlike a drafting error that gives rise to a lawsuit, the existence of any damages from an
error in ongoing litigation is not known until the litigation concludes. Consequently, the elements of the
limitation statute are not satisfied until that time. Id. at 1354, 905 P.2d at 179.
I disagree with both the reasoning and the result of the majority opinion, and therefore dissent.
The majority claims that the malpractice action did not accrue until dismissal of the underlying litigation
because no legal damages had been sustained. However, we have previously held in Gonzales v. Stewart Title,
111 Nev. 1350, 1353, 905 P.2d 176, 178 (1995), that the exact numerical extent of those damages need
not be determined to begin the running of the statute of limitations. The litigant merely had to know or should
have known of the existence of damages to start the statute of limitations running.
1

The majority concludes that Gonzales and Charleson are inapposite because they are transactional rather
than litigational malpractice cases. However, Gonzales specifically held that it was not distinguishing between
transactional and litigational malpractice cases. Gonzales, 111 Nev. at 1354, 905 P.2d at 179. Therefore, the
majority today overrules Gonzales to that extent.
I believe that there is no reason to differentiate between attorney malpractice actions that occur in the context
of litigation and those that arise out of a transactional setting for purposes of determining the running of the
statute of limitations. In either case, a cause of action for attorney malpractice should begin to run when the
litigant knows or should have known of the existence of any damages. Public policy encourages litigants to
bring their actions to an end as quickly as possible, hence the existence of statutes of limitations. Id. at 1352,
905 P.2d at 177.
The legislature did not feel it necessary to distinguish between transactional malpractice actions and
litigational malpractice actions. Why should this court do so now? The majority fails to provide any explanation
as to why this court should adopt two separate rationales concerning the statute of limitations for attorney
malpractice in transactional and litigational cases. My colleagues also do not point out how overruling Gonzales
will make the law in this area better. In my view, the result of the majority's opinion will be confusion for the
practicing attorney.
__________

1
Chief Justice Springer's concurrence concludes that K.J.B. disposes of the issue at bar because that case
holds that damages in litigation malpractice suits are not sustained until the conclusion of the underlying
litigation. However, in Gonzales, which was decided four years after K.J.B., this court suggested that a plaintiff
sustains damage' by assuming the expense, inconvenience and risk of having to maintain such litigation, even if
he wins it. Gonzales v. Stewart Title, 111 Nev. 1350, 1354, 905 P.2d 176, 179 (1995). This court went on to
say that other statutory limitations are not tolled in order to wait for damages to accrue to a sum certain. Hence, I
conclude that the rule in Gonzales should be followed over that in K.J.B.
I conclude that there is no reason to disturb the rationale of Gonzales, and the majority provides no analysis
or reasoning to persuade me otherwise. I still believe today, as I did in Gonzales, that a litigant sustains
damages when he or she discovers their existence, not when damages are calculated to an exact dollar amount.
Here, the Kopickos knew or should have known of the existence of damages when Young advised them that they
might have an action against him due to his failure to name the correct defendants in their complaint. Hence,
under Gonzales, the four-year statute of limitations began to run, at the very latest, on February 13, 1991,
thereby barring the Kopickos' claim filed on October 16, 1995.
For the reasons discussed above, I respectfully dissent.
____________
114 Nev. 1340, 1340 (1998) Hayes v. SIIS
EDNA HAYES, Appellant, v. THE STATE INDUSTRIAL INSURANCE SYSTEM, nka
EMPLOYERS INSURANCE COMPANY OF NEVADA, Respondent.
No. 29965
December 30, 1998 971 P.2d 1257
Appeal from an order of the district court granting respondent's petition for judicial review and reversing the
appeals officer's award of workers' compensation benefits. Second Judicial District Court, Washoe County; Janet
J. Berry, Judge.
Claimant sought workers' compensation benefits for work-related injury to her right knee.
The district court reversed the appeals officer's decision and denied benefits, and claimant
appealed. The supreme court, Springer, C. J., held that claimant's right knee injury was
compensable as a new late developing manifestation of earlier work-related left knee injury.
Nancyann Leeder, Nevada Attorney for Injured Workers and Peter J. Sferrazza, Deputy, Carson City, for
Appellant.
Lenard Ormsby, General Counsel and John R. McGlamery, Associate General Counsel, State Industrial
Insurance System, Carson City, for Respondent.
Claimant's injury to her right knee, caused by limp resulting from work-related injury to her left knee, was a compensable
industrial injury, rather than an aggravation of her left knee injury, for purposes of statute barring recovery of workers' compensation
benefits for aggravation of a work-related injury in a manner that does not arise out of the course of
employment.
114 Nev. 1340, 1341 (1998) Hayes v. SIIS
work-related injury in a manner that does not arise out of the course of employment. NRS 616C.160, 616C.175(2).
Statute barring recovery of workers' compensation benefits for aggravation of a work-related injury in a manner that does not arise
out of the course of employment was devised to require the greater, primary cause burden of proof to be applied only in cases in
which a claimant's industrial injuries were aggravated by a non-industrial cause and not to cases in which there was no intervening
cause, but merely an extension of the injuries suffered in the industrial accident. NRS 616C.175(2).
Statute barring recovery of workers' compensation benefits for aggravation of a work-related injury in a manner that does not arise
out of the course of employment does not apply where the industrial injury manifests itself in the form of symptoms that were not
present at the time of the original compensable injury but were newly developed manifestations of the original, industrial injury.
NRS 616C.160, 616C.175(2).
Workers' compensation claimant's age and weight were not aggravations of work-related injuries to her left and right knee,
disqualifying her from benefits under statute barring recovery of workers' compensation benefits for aggravation of a work-related
injury in a manner that does not arise out of the course of employment. Aggravations were merely conditions that played a part in the
industrial accidents' effects on claimant in the course of time. NRS 616C.160, 616C.175(2).
OPINION
The district court granted judicial review and reversed the decision of an administrative appeals officer who granted appellant Edna
Hayes' industrial compensation claim. Ms. Hayes sought treatment of her right knee for pain and other physical problems relating to her
right knee which arose out of and were caused by industrially-related partial permanent disability of her left knee. We reverse the judgment
of the district court and remand with instructions to reinstate the decision of the appeals officer who granted the claim.
The appeals officer reversed the State Industrial Insurance System's (SIIS) denial of the claim and authorized treatment of Ms. Hayes'
right knee after concluding that the claimant's right knee condition is a compensable consequence of the work-related left knee injury.
The appeals officer recognized that part of Ms. Hayes' right knee problems might be related to her gain in weight and to the aging process,
but determined, in accordance with NRS 616C.160,
1
that, because of the causal relationship between the
industrial injury and Ms. Hayes' right knee complaints, Ms. Hayes was entitled to
treatment.
__________

1
NRS 616C.160 provides:
NRS 616C.160 Newly developed injury or disease: Inclusion in
114 Nev. 1340, 1342 (1998) Hayes v. SIIS
between the industrial injury and Ms. Hayes' right knee complaints, Ms. Hayes was entitled to treatment.
[Headnotes 13]
SIIS's position in denying this claim is that overlaying NRS 616C.160 is another, superseding statute, NRS
616C.175(2),
2
which prevents Ms. Hayes from being treated for her work-related right knee problems unless
she can show that her permanently injured left knee is not only the cause, but the primary cause, of her right
knee problems. As pointed out in the district court's order, the appeals officer rejected SIIS' argument and
refused to apply NRS 616C.175. We conclude that the appeals officer was right and that NRS 616C.175
does not apply to the facts of this case. NRS 616C.175(2) was devised to require the greater, primary cause
burden of proof to be applied only in cases in which a claimant's industrial injuries were aggravated by a
non-industrial cause and not to cases in which there was no intervening cause, but merely an extension of the
injuries suffered in the industrial accident. NRS 616C.175(2) does not apply in cases such as this one, where
the industrial injury manifests itself in the form of symptoms that were not present at the time of the original
compensable injury but were newly developed manifestations of the original, industrial injury. NRS
616C.160.
3

__________
original claim for compensation; limitation. If, after a claim for compensation is filed pursuant to NRS
616C.020:
1. The injured employee seeks treatment from a physician or chiropractor for a newly developed
injury or disease; and
2. The employee's medical records for the injury reported do not include a reference to the injury or
disease for which treatment is being sought, or there is no documentation indicating that there was
possible exposure to an injury described in paragraph (b) of subsection 2 of NRS 616A.265,
the injury or disease for which treatment is being sought must not be considered part of the employee's
original claim for compensation unless the physician or chiropractor establishes by medical evidence a
causal relationship between the injury or disease for which treatment is being sought and the original
accident.

2
NRS 616C.175(2) provides as follows:
2. An employee is not entitled to compensation pursuant to the provisions of chapters 616A to 616D,
inclusive, of NRS if:
(a) He sustains an injury by accident arising out of and in the course of his employment, and
(b) He subsequently aggravates, precipitates or accelerates the injury in a manner that does not arise
out of and in the course of his employment,
unless the injury described in paragraph (a) is the primary cause of the resulting condition.

3
We note that these proceedings were brought under NRS 616C.160, the thrust of which is that an employee
seeks treatment for a newly developed injury or disease, which is to say, newly developed in the sense of
114 Nev. 1340, 1343 (1998) Hayes v. SIIS
It should be noted early on that Ms. Hayes' right knee disability is an industrial injury. Although it took some
time to manifest itself, her right knee injury was part of the industrial accident suffered on September 13, 1979.
Just as the 1979 fall caused physical injuries to the left knee which resulted in a joint replacement, it also caused
physical injury (albeit, later-manifesting, newly developed injury) to her right knee. Ms. Hayes' antalgic
(pain-avoiding) limp caused the problems in her right knee. It might just as well have caused hip or back
problems, in which case these injuries would have to be defined as being part of the industrial accident and not
an aggravation of injuries caused by the industrial accident.
4
As discussed below, an aggravation of her left
knee injury would be the result of a subsequent, intervening injury or cause that caused her left knee to be put
into a worse condition than it was put into by the accident. Let it be understood that Ms. Hayes' right knee
problems are the result of the September 13, 1979 accident and not merely an aggravation of her left knee
injuries.
The appeals officer properly concluded that Ms. Hayes was merely seeking treatment for newly developed,
industrially-related knee problems and that she was, therefore, entitled to coverage under NRS 616C.160
merely by showing that her right knee problems were causally related to the work related injury to her left
knee. SIIS's contention appears to be that, although Ms. Hayes may have made a prima facie case under NRS
616C.160, under the superseding NRS 616C.175(2), Ms. Hayes is not entitled to compensation. The
superseding statute denies compensation to any claimant who has sustained an industrial accident that is later
aggravated by non-industrial causes. NRS 616C.175(2) denies recovery to a claimant who (1) subsequently
aggravates, precipitates or accelerates an industrial injury, (2) in a manner that does not arise out of
and in the course of his employment" unless {3) the industrial injury, rather than the
subsequent, non-industrial aggravation, precipitation or acceleration is shown to be the
"primary cause" of the resulting condition for which compensation is sought.
__________
newly-manifested problems or symptoms relating to a pre-existing industrial accident or disease. This
controversy was prosecuted, decided and appealed on NRS 616C.160 and the overlaying statute, NRS
616C.175. A parallel, but different, procedure to reopen a claim is provided for in NRS 616C.390. Ms. Hayes
did not seek to reopen a claim; rather, she sought only treatment from a physician for troubles suffered to
her right knee which were causally related to an industrial injury to her left knee. We do not find it necessary to
involve the court in a discussion of any niceties relating to differences that might exist between reopening a
claim and merely seeking treatment for a newly developed manifestation of a work-connected injury because,
in the present case, we are required to deal only with procedures specifically related to NRS 616C.160.

4
It should be recognized that Ms. Hayes may be described as a fragile claimant, perhaps more disposed to
suffer from her accident than others. Degenerative changes in her left knee were diagnosed at the time of her
1979 accident. She suffers from a similar condition in her right knee. Obviously, this condition cannot be used
by SIIS as a basis for denying her claim.
114 Nev. 1340, 1344 (1998) Hayes v. SIIS
that does not arise out of and in the course of his employment unless (3) the industrial injury, rather than the
subsequent, non-industrial aggravation, precipitation or acceleration is shown to be the primary cause of the
resulting condition for which compensation is sought. In order for the primary cause requirement of NRS
616C.175(2) to apply to Ms. Hayes' claim, the industrial injury to her left knee must have been aggravated,
precipitated or accelerated by some cause that did not arise out of the industrial accident. The main reason that
NRS 616C.175(2) does not apply to Ms. Hayes' case is that she does not suffer from an aggravated left knee,
she suffers from symptoms to her right knee that were directly caused by the 1979 injury to her left knee.
The appeals officer, in support of the decision to allow the right leg claim, recited the following evidence:
[T]he claimant testified that she had no problem with her right knee prior to her
industrial accident on September 13, 1979, when she slipped on the ice, while she was
working
. . . .
Claimant testified that her left knee injury caused her to depend on her right knee for all
of her mobility during the period from 1979 until 1982.
Edna Hayes' treating physician, Dr. Porras' medical reporting indicates that claimant's
left knee injury caused her to depend on her right knee for all of her mobility during the
period from 1979 until 1982. As a result of the abnormal stress on her right knee, she
developed degenerative changes in her right knee by August 1992.
Dr. Thompson performed a record review and indicated in June 1995 that Ms. Hayes'
current right knee problem is due to a combination of her age, her weight which is not
the insurer's responsibility, the preexisting arthritic changes, and the consequences of
the industrial left knee condition which caused severe antalgic gait. He believed the
insurer would be responsible for 25%.[
5
]
__________

5
Although the appeals officer's findings stated that Dr. Thompson believed the insurer would be responsible
for 25%, Dr. Thompson's report indicates that there were a number of interacting causes for her right knee
complaints, which included the left knee industrial injury, degenerative disease and overweight and commented
that she is getting older and that a person might break it up that 25% SIIS copability [sic]; the other factors
were not [under] SIIS['] control to do anything aboutthe age and the weight. (Emphasis added.) Apparently,
then, Dr. Thompson thought that, since SIIS was not responsible for Ms. Hayes' getting older and gaining
weight, a person might conclude that SIIS was not responsible and, therefore, not liable to pay for an industrial
injury-related problem that the hearing officer concluded was a compensable consequence of the 1980
industrial injury. Even if NRS 616C.175(2) applied to the facts of this case, Dr. Thompson did not express an
opinion that the right knee problem was primarily caused in a
114 Nev. 1340, 1345 (1998) Hayes v. SIIS
Based upon the foregoing evidence, the hearing officer concluded that the newly developed right knee
condition was caused by the original accident and that the right knee condition was a compensable
consequence of the original accident. The appeals officer based her decision on NRS 616C.160, and found it
unnecessary to consider NRS 616C.175(2).
The district court reversed the holding of the appeals officer on the ground that the appeals officer should
have applied NRS 616C.175, and ruled that Ms. Hayes was required by the statute to show that her left
knee injury of 1979 was the primary cause of the right knee condition she sought treatment for in 1994.
The district court held that NRS 616C.160[, which permits a claimant to seek treatment for newly
developed symptoms merely by showing a causal relationship between the injury or disease for which
treatment is being sought and the original industrial injury,] must be read in conjunction with NRS
616C.175(2)[, which places an additional burden on the claimant to show that the newly developed condition
is primarily caused by the original work-related injury.] If these statutes are to be read in conjunction, they
must be read in a way that gives force and effect to both. NRS 616C.175(2) is a superseding and
disqualifying statute that applies in special cases in which an employee is not entitled to compensation. One
statute, NRS 616C.160, applies one standard of proof to one kind of situation; the other, NRS 616.175(2),
applies another standard of proof in a different kind of situation. The general rule, as set by NRS 616C.160,
authorizes continued treatment of the sequelae of an industrial accident in cases in which the claimant can show
that new symptoms, newly developed complaints, were caused by the original accident.
6
The exception to
the general rule that a claimant may "seek[] treatment" for work-connected, "newly developed .
__________
manner that does not arise out of employment; rather, he merely suggested that some hypothetical person might
see SIIS as being only 25% copable [sic]. Although there is evidence to support a finding that the industrial
accident was the primary cause of Ms. Hayes' right knee problems, there is no evidence that Ms. Hayes
aggravated in any way her 1979 left knee injury.

6
In her reply brief, Ms. Hayes gives us the example of a claimant who has an industrial injury to her left
knee, and during subsequent treatment of her left knee, her right knee is mistakenly operated. If the claimant
were to seek treatment for complications to her mis-operated right knee, the language of NRS 616C.175(2)
would not apply. It would not be correct to conclude that the exampled claimant, using the wording of NRS
616C.175(2), subsequently aggravates, precipitates or accelerates the [original] injury in a manner that did not
arise out of and in the course of [her] employment. One reason that the statute would not apply in the example
is that the claimant's problems with the operated right knee are part of and a compensable consequence of the
original left knee injury and cannot possibly be called an aggravation of the left knee injury. The other reason
that the statute does not apply is that the right knee problems did arise out of and in the course of
114 Nev. 1340, 1346 (1998) Hayes v. SIIS
may seek[] treatment for work-connected, newly developed . . . disease merely by showing that the new
problems are causally related to (caused by) the original injury is stated in NRS 616C.175(2), which provides
that a claimant is not entitled to compensation, under certain stated circumstances.
As explained, application of the NRS 616.175(2) exception comes into play only in cases where an
industrial accident has been aggravated by subsequent non-industrial events. NRS 616C.175(2) applies only
to non-industrial aggravations of industrial accidents. Ms. Hayes' present right knee problems are as much a part
of her industrial accident as her left knee problems. She is not claiming that she aggravate[d] her left knee
injury, nor is there any finding in the record that she did or did not aggravate a previous injury. We have defined
aggravate in the present context as to make worse, more serious or more severe. Morrow v. Asamera
Minerals, 112 Nev. 1347, 929 P.2d 959 (1996). There is no evidence here that Ms. Hayes' industrial, left knee
injury was aggravate[d] or that it was in any way made worse or more serious. As stated, the right knee
problem is merely a late-developing manifestation of the same, industrial accident. It would not be inaccurate to
say that Ms. Hayes suffered an industrial injury to both of her knees because her problems in each knee have a
direct work-related causation.
[Headnote 4]
In enacting NRS 616C.175(2), it appears that the legislature was careful to restrict the special, primary
cause burden to limited kinds of cases, namely, those in which an industrial injury was later aggravated
7
by a
non-industrial cause, that is to say, a cause that does not arise out of and in the course of his employment. If,
for example, Ms. Hayes had, off the job, fallen down a flight of stairs and injured her previously-injured left
knee, NRS 616C.175(2) would go into effect, and she would have the burden of showing that the first,
industrial accident, and not the stair-fall, was the primary cause of right knee complaints for which she was
seeking treatment. Ms. Hayes, it is true, was getting older and heavier, as Dr. Thompson pointed out, but the
older and heavier Ms. Hayes is still the Ms. Hayes who suffered the original industrial injury
to her left knee.
__________
[her] employment. There is no causation unrelated to the industrial accident. As stated above, NRS 616.175(2)
relates to subsequent non-industrial aggravations, events which are not applicable to the present case.
Affirmance of the district court's application of NRS 616C.175(2) to the facts of this case would be in
violation of NRS 616C.160. It is not necessary to cancel out NRS 616C.160 by applying NRS 616C.175(2). The
example given above demonstrates this proposition.

7
We cannot understand how a past industrial accident could be subsequently precipitate[d] or accelerate[d]
by a future non-industrial accident; so we center our attention on the word aggravates rather than the other
words in the three-word series.
114 Nev. 1340, 1347 (1998) Hayes v. SIIS
Ms. Hayes is still the Ms. Hayes who suffered the original industrial injury to her left knee. When a claimant
comes to SIIS with complaints that an industrially-related permanent disability is causing pain and difficulties
for which treatment is indicated, SIIS should not be able to send the claimant away, saying: Your problem is
that you are too old and too fat. Even if your industrial injury caused your present problems, age and overweight
are your primary' problems; so we are going to deny your claim. The reason that SIIS should not be able to
take this kind of approach to denying claims for newly developed manifestations of an industrial accident that
are referred to in NRS 616C.160 is that when we get older (and perhaps get heavier) we are a bit more fragile
and a bit more likely to seek medical care for our ills. These conditions are not aggravations of industrial
accidents, but merely conditions that play a part in the effects that the industrial accident may have upon us in
the course of time.
The appeals officer was right and the trial judge was wrong. NRS 616C.175(2) does not place a burden
above that of NRS 616C.160 upon claimants who continue to suffer from the consequences of an industrial
accidentjust because they have gotten older and heavier and perhaps a bit more susceptible to the pains and
tribulations that are the concededly direct compensable consequence of a previous industrial injury. Ms.
Hayes' original industrial accident and injury to her left knee were not subsequently aggravate[d] by a
non-industrial cause, that is to say in a manner that does not arise out of and in the course of [her]
employment. Ms. Hayes was merely suffering complaints that were directly related to her left knee injury. It is
difficult to understand how her complaints can be seen in any other light. If Ms. Hayes had complained of pain
in her left knee, which was caused by the original injury, or had complained of pain in her back which was
caused by the original injury, her claim probably would have been unhesitatingly accepted. SIIS's mistaken
characterization of Ms. Hayes' right knee problem as being an aggravation of her left knee injury is what gave
rise to this controversy. Certainly Ms. Hayes cannot be denied compensation for her industrial injury just
because her industrial injury has now manifested itself in the opposite knee. NRS 616C.175(2) does not apply
to the facts of this case. There is no need to remand this case for further proceedings in which Ms. Hayes must
prove that the right knee problems which, admittedly, can be traced directly to her left knee injury, were
primarily caused by that industrial injury. The judgment of the district court is, therefore, reversed, and this
matter is remanded with instructions that the district court reinstate the decision of the appeals officer.
Shearing, Rose, and Young, JJ., concur.
114 Nev. 1340, 1348 (1998) Hayes v. SIIS
I concur in the result, concluding that NRS 616C.175(2) does not apply to preclude recovery on this
claim. The appeal officer's decision under NRS 616C.160 was supported by substantial evidence.
____________
114 Nev. 1348, 1348 (1998) Bobby Berosini, Ltd. v. PETA
BOBBY BEROSINI, LTD., a Nevada Corporation, and BOHUMIL BEROUSEK, aka
BOBBY BEROSINI, Appellants/Cross-Respondents, v. PEOPLE FOR THE
ETHICAL TREATMENT OF ANIMALS, aka PETA, a Delaware Non-Profit
Corporation; and JEANNE ROUSH, Respondents/Cross-Appellants, and
PERFORMING ANIMAL WELFARE SOCIETY, aka PAWS, a California
Non-Profit Corporation, and PAT DERBY, Respondents.
No. 29103
December 30, 1998 971 P.2d 383
Appeal and cross-appeal from an order of the district court awarding costs and attorney's
fees to respondents. Eighth Judicial District Court, Clark County; Nancy A. Becker, Judge.
Animal trainer brought suit against animal rights organization, animal welfare group, and
individuals alleging defamation and invasion of privacy from showing and distribution of
videotape made while trainer prepared animals for show. The district court entered judgment
in favor of animal trainer, and individuals and organizations appealed. The supreme court,
Springer, C. J., held that evidence was insufficient to support the verdict and reversed. PETA
v. Bobby Berosini, Ltd., 111 Nev. 615, 895 P.2d 1269 (1995). The district court awarded
organizations and individuals their costs and attorney fees. Organizations and individuals
cross-appealed. The supreme court held that: (1) animal rights organization was not entitled
to costs for investigative services, photocopies, long distance telephone charges, and jurors'
fees; (2) animal welfare group was not entitled to costs; (3) animal rights organization and
animal welfare group were not entitled to attorney fees; (4) animal rights organization was
entitled to prejudgment interest on allowable costs; and (5) animal rights organization was not
entitled to attorney fees on appeal.
McKnight & Hendrix, Las Vegas, for Appellants/Cross-Respondents.
Wright, Judd & Winckler, Las Vegas; Hirschkop & Associates, P.C., Alexandria, Virginia, for
Respondents/Cross-Appellants PETA and Roush.
Foley & Jones and Daniel T. Foley, Las Vegas, for Respondents PAWS and Derby.
1. Costs.
The determination of allowable costs is within the sound discretion of the trial court.
2. Costs.
Statutes permitting the recovery of costs are to be strictly construed because they are in derogation of the common law.
3. Costs.
Costs must be reasonable. NRS 18.005.
4. Libel and Slander; Torts.
Animal rights organization was not entitled to costs for investigative services in defending against defamation and invasion of
privacy action brought by animal trainer, where organization failed to show how the fees were incurred and why they were necessary.
NRS 18.005.
Animal rights organization was not entitled to costs for photocopies, long distance telephone charges, or jurors' fees in defending
against defamation and invasion of privacy action brought by animal trainer, where organization failed to provide sufficient justifying
documentation or itemizations to determine accuracy or reasonableness of costs. NRS 18.005(3), (12), (13).
Animal welfare organization was not entitled to costs in defending against defamation and invasion of privacy action brought by
animal trainer, absent sufficient supporting documentation and specific itemization. NRS 18.005.
7. Costs.
The decision to award attorney's fees is within the sound discretion of the trial court.
A district court's award of attorney fees will not be disturbed on appeal absent a manifest abuse of discretion.
9. Costs.
For purposes of an award of attorney fees, under statute governing award of attorney fees, a claim is groundless if the allegations in
the complaint are not supported by any credible evidence at trial. NRS 18.010(2)(b).
10. Costs.
Animal rights organization and animal welfare group were not entitled, under statute governing award of attorney fees, to attorney
fees in defending against defamation and invasion of privacy action brought by animal trainer, where action was neither groundless nor
frivolous. NRS 18.010(2)(b).
11. Interest.
Statute governing award of prejudgment interest included both damages and costs permitting animal rights organization to claim
prejudgment interest on allowable costs in defending against defamation and invasion of privacy action
brought by animal trainer.
ment interest on allowable costs in defending against defamation and invasion of privacy action brought by animal trainer. NRS
17.130(1).
12. Interest.
Prejudgment interest will be disallowed only in those situations where a party is unable to substantiate when a particular cost was
incurred. NRS 17.130.
13. Costs.
In general, attorney fees are not recoverable absent a statute, rule or contractual provision to the contrary.
14. Costs.
Attorney fees and costs on appeal are permitted only in those contexts where an appeal has frivolously been taken or been
processed in a frivolous manner. NRS 18.010; NRAP 38.
OPINION
Per Curiam:
This case involves an appeal and cross-appeal from the district court's order granting respondents/cross-appellants, People for the
Ethical Treatment of Animals (PETA), and Performing Animal Welfare Society (PAWS), $144,000.00 and $42,000.00, respectively, in
attorney's fees, and $228,625.48 and $6589.91, respectively, in costs.
On appeal, Bobby Berosini (Berosini) contends that the district court abused its discretion in awarding several items of
respondents/cross-appellants' costs and in awarding attorney's fees pursuant to NRS 18.010(2)(b) as a sanction for prosecuting a frivolous
claim. We agree. Accordingly, for the reasons set forth below, we reverse the district court's award of several categories of costs to PETA
and PAWS, and vacate PETA and PAWS' award of attorney's fees pursuant to NRS 18.010(2)(b) in its entirety.
FACTS
The underlying material facts of this case are well known and are reported in detail in PETA v. Berosini, Ltd., 111 Nev. 615,
895 P.2d 1269 (1995). On August 2, 1989, approximately three days after a tape which depicted Berosini beating his stage animals aired on
a national television program, Berosini filed a complaint against PETA and PAWS for defamation of character, intrusion, appropriation,
tortious interference with contract, conspiracy, and injunction.
At the conclusion of trial, the jury unanimously found that Berosini had been defamed and that his privacy had been invaded.
Consequently, the jury awarded Berosini damages totaling $4,200,000.00. The district court subsequently denied PETA and PAWS'
post-trial motion for JNOV, after which they appealed the jury's verdict to this court.
PAWS' post-trial motion for JNOV, after which they appealed the jury's verdict to this court.
On February 9, 1994, PETA, PAWS, and Berosini entered into a stipulation agreeing
that they would file their memorandum of costs within two weeks after this court issued a
remittitur. On May 22, 1995, we issued our decision reversing Berosini's favorable judgment
in its entirety, after concluding that Berosini had failed to present sufficient evidence to
support the verdict. See PETA, 111 Nev. at 639, 895 P.2d at 1285.
On May 31, 1995, we issued a remittitur in the case, and June 2, 1995, PAWS timely
filed its memorandum of costs pursuant to the February 9, 1994, stipulation. On June 6, 1995,
by agreement of the parties, the district court entered its order extending the date for PETA to
file its amended memorandum of costs until June 23, 1995. Pursuant to the district court's
order, PETA timely filed its second memorandum of costs on June 23, 1995.
By order dated May 29, 1996, the district court awarded PETA $228,625.48 and
PAWS $6589.91 in costs. Additionally, the district court awarded PETA $144,000.00 and
PAWS $42,000.00 in attorneys' fees pursuant to NRS 18.010(2)(b), as a sanction against
Berosini for filing a frivolous lawsuit. However, in making this ruling with respect to
attorney's fees, the district court found that the totality of Berosini's complaint was not
frivolous. With respect to PETA's request for attorney's fees, the district court found:
[T]here is a much greater factual basis for the possibility ofor for the filing of conspiracy and false
light charges, and for a defamation action based upon the showing of a tape that had been enhanced and
at the same time making a number of comments with regard to the concept of abuse that PETA did.
Because I find there is much greater evidence against the PETA defendants . . . I find that there is a
greater validity to the suit as against PETA.
Because the district court concluded that much of Berosini's claim against PETA was
meritorious, the district court determined, with respect to attorney's fees pursuant to NRS
18.010(2)(b), that:
[F]or purposes of apportionment whatever attorney's fees I find to be reasonable with regard to PETA
will be apportioned on the basis of a sixty-forty ratio. That is, forty percent of the lawsuit I think had a
great deal of validity, sixty percent of it I felt did not.
Based on this ratio, the district court awarded PETA $144,000.00 in attorney's fees.
Berosini now appeals, and PETA cross-appeals, from the district court's order
granting PETA and PAWS costs and attorney's fees.
DISCUSSION
The district court abused its discretion in awarding several categories of costs to PETA and
PAWS due to insufficient documentation
Berosini asserts that the district court abused its discretion in awarding the full
amount of PETA and PAWS' costs because they failed to provide sufficient documentation
and itemization in their respective cost memoranda.
1
We agree.
[Headnotes 13]
The determination of allowable costs is within the sound discretion of the trial court. However, statutes
permitting the recovery of costs are to be strictly construed because they are in derogation of the common law.
Gibellini v. Klindt, 110 Nev. 1201, 1205, 885 P.2d 540, 543 (1994). Pursuant to NRS 18.005, costs must be
reasonable. We have held that reasonable costs must be actual and reasonable, rather than a reasonable
estimate or calculation of such costs . . . . Gibellini, 110 Nev. at 1206, 885 P.2d at 543.
Although Berosini challenges fifteen specific cost categories of the district court's award of costs to
PETA, our review of the record on appeal has indicated that only four of the cost categories are problematic. In
the first cost category, we note that the district court awarded PETA $3561.25 in fees for investigative services.
Although investigative fees are not specifically recoverable pursuant to NRS 18.005, a district court may
nonetheless award costs for additional items pursuant to NRS 18.005(16) on the condition that such fees are
reasonable, necessary and incurred in the action.
2

[Headnote 4]
Here, although PETA submitted itemized material in support of its request for investigative fees, PETA
did not attempt to demonstrate how such fees were necessary to and incurred in the present action.
__________

1
Berosini also asserts that the district court abused its discretion in awarding costs to PETA because PETA's
memorandum of costs was untimely filed. Pursuant to the district court's order dated June 6, 1995, PETA had
until June 23, 1995 to file its amended memorandum of costs. In compliance with the district court's order,
PETA filed its amended memorandum of costs on June 23, 1995. Accordingly, Berosini's challenge to the
timeliness of PETA's amended memorandum of costs is without merit.

2
In part, NRS 18.005(16) provides that costs can be allowed for [a]ny other reasonable and necessary
expense incurred in connection with the action . . . .
sent action. Because we must strictly construe statutes permitting the recovery of costs, see
Gibellini, 110 Nev. at 1205, 885 P.2d at 543, we conclude that PETA has failed to justify its
entitlement to costs for investigative fees. Accordingly, the district court abused its discretion
in awarding PETA such costs.
[Headnote 5]
In addition to fees for investigative services, the district court awarded PETA $6089.64 in costs for
photocopies and $4974.69 in costs for long distance telephone charges. Both categories of costs are recoverable
pursuant to NRS 18.005 (12)-(13). However, based on our review of the record on appeal, we note that PETA
failed to provide sufficient justifying documentation beyond the date of each photocopy and the total
photocopying charge. Moreover, PETA failed to provide any itemization with respect to its request for long
distance telephone costs. Because of PETA's insufficient documentation, we are unable to determine the
reasonableness of these cost awards. Accordingly, the district court abused its discretion in awarding PETA such
costs.
Additionally, the district court awarded PETA costs for jurors' fees in the amount of $12,370.00.
Although jurors' fees are recoverable pursuant to NRS 18.005(3), PETA's supplemental documentation of costs
fails to contain any itemization or justifying documentation with respect to this cost. Accordingly, we are unable
to ascertain whether such costs were accurately assessed and, thus, we conclude that the district court abused its
discretion in awarding PETA $12,370.00 in jury fees.
[Headnote 6]
Finally, we note that the district court awarded $6589.91 in costs to PAWS. Based on our review of the
record on appeal, we note that PAWS' memorandum of costs is completely void of any specific itemization.
Because of the lack of sufficient supporting documentation, we conclude that the district court abused its
discretion in awarding costs to PAWS.
The district court abused its discretion in awarding attorney's fees pursuant to NRS 18.010(2)(b)
Berosini argues that the district court abused its discretion in awarding PETA $144,000.00 and PAWS
$42,000.00 in attorneys' fees pursuant to NRS 18.010(2)(b). Specifically, Berosini asserts that his favorable trial
verdict below, combined with the fact that his claim was legally sufficient to withstand summary judgment and a
post-trial motion for JNOV, conclusively establishes that [his] complaint was brought on reasonable grounds.
We agree.
[Headnotes 7, 8]
The decision to award attorney's fees is within the sound discretion of the trial court.
cretion of the trial court. Bergmann v. Boyce, 109 Nev. 670, 674, 856 P.2d 560, 563 (1993).
A district court's award of attorney's fees will not be disturbed on appeal absent a manifest
abuse of discretion. Nelson v. Peckham Plaza Partnerships, 110 Nev. 23, 26, 866 P.2d 1138,
1139-40 (1994).
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.
[Headnote 9]
In Allianz Ins. Co. v. Gagnon, 109 Nev. 990, 996, 860 P.2d 720, 724 (1993), we explained that for
purposes of an award of attorney's fees pursuant to NRS 18.010(2)(b), [a] claim is groundless if the allegations
in the complaint . . . are not supported by any credible evidence at trial.' (quoting Western United Realty, Inc.
v. Isaacs, 679 P.2d 1063, 1069 (Colo. 1984)).
In Barozzi v. Benna, 112 Nev. 635, 639, 918 P.2d 301, 303 (1996), we again visited the issue of
attorney's fees pursuant to NRS 18.010(2)(b) and explained that [i]f an action is not frivolous when it is
initiated, then the fact that it later becomes frivolous will not support an award of [attorney's] fees.' (quoting
Duff v. Foster, 110 Nev. 1306, 1309, 885 P.2d 589, 591 (1994)).
[Headnote 10]
Based on the foregoing authority, we conclude that the district court abused its discretion in awarding
attorney's fees pursuant to NRS 18.010(2)(b). At the time Berosini filed his amended complaint on March 29,
1990, the status of Nevada law was unclear as to whether a videotape could be considered false for purposes
of a defamation claim. The viability of Berosini's claim is underscored by the fact that he won a trial judgment in
the district court after withstanding summary judgment and a post-trial motion for JNOV. Based on these facts
alone, it is difficult to contend that Berosini filed his claim without reasonable ground or to harass the
prevailing party. NRS 18.010(2)(b).
Moreover, as our cases regarding the propriety of attorney's fees pursuant to NRS 18.010(2)(b) make
clear, this court's subsequent reversal of Berosini's trial verdict does not establish, as PETA contends, that
Berosini filed his complaint with improper motives or without reasonable grounds. Accordingly, we conclude
that the district court abused its discretion in awarding attorney's fees to PETA and PAWS pursuant to NRS
18.010(2)(b).3
that the district court abused its discretion in awarding attorney's fees to PETA and PAWS
pursuant to NRS 18.010(2)(b).
3

The district court abused its discretion in failing to award prejudgment interest on the
awarded costs
In its cross-appeal, PETA argues that the district court abused its discretion in
disallowing pre-judgment interest on the awarded costs.
4
We agree.
1. In all judgments and decrees, rendered by any court of justice, for any debt, damages or costs, and
in all executions issued thereon, the amount must be computed, as near as may be, in dollars and cents,
rejecting smaller fractions, and no judgment, or other proceedings, may be considered erroneous for that
omission.
the judgment draws interest from the time of service of the summons and complaint until satisfied . . . .
In Gibellini v. Klindt, 110 Nev. 1201, 1209, 885 P.2d 540, 545 (1994), we rejected a
challenge to the propriety of an award of prejudgment interest on costs by holding that NRS
17.130(1) refers to judgments . . . for any debt, damages or costs.' Thus, we conclude that the
term judgment' encompasses both damages and costs, so that prejudgment interest is
recoverable on costs. We concluded by adding that [i]f a party is unable to prove when
costs were incurred, interest on those costs should be awarded only from the time of
judgment. Id.
[Headnotes 11, 12]
Based on the foregoing authority, we conclude that PETA is entitled to prejudgment interest on those costs
that were sufficiently itemized in its supplemental memorandum of costs.
__________

3
In its cross-appeal, PETA asserts that the district court abused its discretion in not awarding the full amount
of attorney's fees it had requested pursuant to NRS 18.010(2)(b), and in not awarding attorney's fees, again
pursuant to NRS 18.010(2)(b), for multiple counsel. Because we conclude that the district court abused its
discretion in awarding PETA and PAWS any amount of attorney's fees pursuant to NRS 18.010(2)(b), we
conclude that PETA's arguments with respect to these two issues are without merit.

4
PETA also asserts that the district court abused its discretion in ruling that Bobby Berosini, Ltd. would not
be held jointly and severally liable for PETA's costs. Based on our review of the record on appeal, we note that
the district court determined that PETA's original memorandum of costs against Bobby Berosini, Ltd. was
untimely filed in 1990. Moreover, PETA failed to challenge the district court's ruling at that time. Accordingly,
we conclude that the district court did not abuse its discretion in disallowing costs against Bobby Berosini, Ltd.
ciently itemized in its supplemental memorandum of costs. Although Berosini contends that
neither Gibellini nor NRS 17.130 entitle a party to prejudgment interest as a matter of right,
in Gibellini we indicated that prejudgment interest will be disallowed only in those situations
where a party is unable to substantiate when a particular cost was incurred. Accordingly, the
district court abused its discretion in denying PETA prejudgment interest on costs.
The district court did not abuse its discretion in disallowing attorney's fees incurred by PETA
on appeal
PETA argues that the district court abused its discretion in disallowing attorney's fees
that PETA incurred in appealing Berosini's favorable trial judgment to this court. PETA
contends that NRAP 38, which limits attorney's fees on appeal to frivolous appeals, does not
limit the applicability or scope of NRS 18.010. Accordingly, PETA asserts that it is entitled
to an award of attorney's fees for its appeal of Berosini's trial judgment pursuant to NRS
18.010. We disagree.
[Headnote 13]
In general, attorney's fees are not recoverable absent a statute, rule or contractual provision to the
contrary. Rowland v. Lepire, 99 Nev. 308, 315, 662 P.2d 1332, 1336 (1983) (citations omitted). The decision
to award attorney's fees is within the sound discretion of the trial court, whose decision will not be disturbed on
appeal absent a manifest abuse of that discretion. Nelson v. Peckham Plaza Partnerships, 110 Nev. 23, 26, 866
P.2d 1138, 1139-40 (1994).
[Headnote 14]
In the instant case, we note that the text of NRS 18.010 is silent with respect to attorney's fees on
appeal. Pursuant to NRAP 38, attorney's fees and costs on appeal are permitted only in those contexts where an
appeal has frivolously been taken or been processed in a frivolous manner.
5
Accordingly, because NRS
18.010 does not explicitly authorize attorney's fees on appeal, and because NRAP 38(b) limits
attorney's fees on appeal to those instances where an appeal has been taken in a frivolous manner, we
conclude that PETA is not entitled to attorney's fees incurred through its appeal of Berosini's favorable trial
judgment.
__________

5
The full text of 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.
instances where an appeal has been taken in a frivolous manner, we conclude that PETA is
not entitled to attorney's fees incurred through its appeal of Berosini's favorable trial
judgment. Accordingly, the district court did not abuse its discretion in denying PETA such
fees.
CONCLUSION
We conclude that the district court abused its discretion in awarding PETA
$12,370.00 in jury fees, $6089.64 in photocopying charges, $4974.69 in long distance
telephone charges, and $3561.25 in investigative fees. Additionally, because PAWS failed to
provide sufficient supporting documentation, we conclude that the district court abused its
discretion in awarding $6589.91 in costs to PAWS.
Further, we conclude that the district court abused its discretion in awarding PETA and
PAWS attorney's fees pursuant to NRS 18.010(2)(b), and in disallowing PETA prejudgment
interest on costs. Lastly, we conclude that the district court did not abuse its discretion in
disallowing attorney's fees that PETA incurred on appeal, and that all remaining issues raised
by PETA in its cross-appeal are without merit.
Based on the foregoing, we reduce PETA's total cost award of $228,625.48 by
$26,995.58, for a revised cost award of $201,629.90. Additionally, we reverse PETA and
PAWS' attorney's fees awarded pursuant to NRS 18.010(2)(b), and reverse PAWS' cost award
of $6589.91 in its entirety. Finally, we remand this case solely for a determination of
prejudgment interest on PETA's modified cost award.
6

____________
114 Nev. 1357, 1357 (1998) Holmes v. State
KEVIN RAY HOLMES, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 29276
December 30, 1998 972 P.2d 337
Appeal from a judgment of conviction pursuant to a jury verdict on one count each of murder with the use of
a deadly weapon and attempted murder with the use of a deadly weapon. Eighth Judicial District Court, Clark
The supreme court held that: (1) district court did not err by allowing State to prosecute
defendant for murder on theories of premeditation and felony-murder after justice's court
dismissed underlying robbery felony due to insufficient evidence, but
__________

6
this appeal.
allowing State to prosecute defendant for murder on theories of premeditation and
felony-murder after justice's court dismissed underlying robbery felony due to insufficient
evidence, but (2) submission of erroneous reasonable doubt instruction, in combination with
prosecutor's improper argument analogizing reasonable doubt with various major life
decisions, was reversible error.
Steven G. McGuire, State Public Defender, Peter R. LaPorta, Deputy Public Defender, Kent R. Hart and
Harriet E. Cummings, Appellate Deputy Public Defenders, Carson City, for Appellant.
District court did not violate defendant's due process rights by allowing state to prosecute him for murder on theories of
premeditation and felony-murder after justice's court had dismissed underlying robbery felony due to insufficient evidence. U.S. Const.
amend. 14; NRS 200.030.
2. Criminal Law.
Failure to object at the trial level generally precludes the right to assign error on appeal.
3. Homicide.
Pursuant to first-degree murder statute, the commission of a felony and premeditation are merely alternative means of establishing
the single mens rea element of first-degree murder, rather than constituting independent elements of the crime. NRS 200.030.
4. Criminal Law.
Submission of erroneous reasonable doubt instruction, which required doubt to be actual and substantial, in combination with
prosecutor's improper argument analogizing reasonable doubt with various major life decisions, was reversible error in murder
prosecution. NRS 175.211.
5. Criminal Law.
Use of a disapproved reasonable doubt instruction constitutes reversible error when coupled with any other attempt to supplement,
change, or clarify the statutory reasonable doubt definition. NRS 175.211.
6. Criminal Law.
Because the reasonable doubt standard requires the jury to reach a subjective state of near certitude on the facts in issue,
prosecutorial commentary analogizing reasonable doubt with major life decisions such as buying a house or changing jobs is improper
because these decisions involve elements of uncertainty and risk-taking and are wholly unlike the kinds of decisions that jurors must
make in criminal trials. NRS 175.211.
OPINION
Per Curiam:
On the afternoon of June 12, 1995, Claudia Dukes (Dukes) died from a single gunshot wound to the head
after an all-night crack cocaine party at her Las Vegas apartment. Two individuals who were in Dukes' apartment
when she was shot identified appellant Kevin Ray Holmes (Holmes) as the assailant.
At the conclusion of Holmes's trial, the jury convicted Holmes of one count each of murder with the use of a
deadly weapon and attempted murder with the use of a deadly weapon. The district court subsequently sentenced
Holmes to two consecutive life terms with the possibility of parole for murder, along with a concurrent sentence
of two consecutive twenty-year terms for attempted murder.
Holmes now appeals, arguing that the district court erred in allowing the State to seek a conviction for
murder on theories of premeditation and felony-murder after the justice's court had dismissed the underlying
predicate felony of robbery due to insufficient evidence. Additionally, Holmes asserts that the district court's
submission of an erroneous reasonable doubt jury instruction, combined with improper prosecutorial
commentary on the meaning of the reasonable doubt standard, constitutes reversible error.
While we reject Holmes's first assignment of error, we conclude that the errors raised in his second
assignment of error were prejudicial. Accordingly, for the reasons set forth below, we reverse Holmes's
conviction and remand for a new trial.
1

FACTS
During the afternoon of June 11, 1995, several people gathered in Dukes' Las Vegas apartment to smoke
crack cocaine. Present were Dukes, her niece Sharyl Renee Shaw (Shaw), Derrick Smith (Smith), and appellant
Holmes. Throughout the afternoon and evening, Shaw observed that Holmes had in his possession a brown
paper bag that Holmes claimed contained large amounts of cash. During the party, Holmes gave money on
several separate occasions to both Dukes and Smith and directed them to purchase more
crack cocaine for the group.
__________

1
We conclude that Holmes's conviction warrants reversal solely on this issue. Accordingly, we decline to
consider Holmes's additional arguments that the district court abused its discretion in (1) allowing the State to
endorse four witnesses on the first day of trial, (2) denying his motion for a continuance to investigate the
witnesses, and (3) in admitting evidence of his prior bad acts.
occasions to both Dukes and Smith and directed them to purchase more crack cocaine for the group.
At approximately 7:00 p.m., Holmes and Smith left Dukes' apartment with the brown paper bag.
Approximately forty-five minutes later, they returned to the apartment, whereupon Holmes accused Smith of
stealing $100.00 from him. Smith denied taking the money and instead implicated Dukes in the theft. Dukes
denied stealing Holmes's money, and then left her apartment to spend the evening with her sister.
After Dukes had left, Shaw, Smith, and Holmes remained in Dukes' apartment and continued to smoke crack
cocaine. Eventually, Smith departed Dukes' apartment at 4:30 a.m. Holmes departed at approximately 6:00 a.m.,
and Shaw departed the apartment at approximately 6:30 a.m.
At approximately 12:00 p.m., Shaw returned to Dukes' apartment. An hour later, as Shaw was sitting outside
in front of Dukes' apartment complex, Holmes and another man approached Shaw and asked whether Dukes was
home. Sensing that something was wrong, Shaw replied that Dukes was not in the apartment and that she did not
know where Dukes was. After Holmes had departed, Dukes emerged from her apartment and asked Shaw to go
to the store to purchase some beer. While enroute, Shaw encountered a friend named Larry Toler (Toler), who
accompanied Shaw to the store and then back to Dukes' apartment.
After arriving back at Dukes' apartment, Toler and Shawwho were both high from smoking crack cocaine
that morningbegan drinking beer in Dukes' kitchen. Shortly thereafter, there was a knock at the door; both
Toler and Shaw heard Dukes greet an individual and invite him inside. When the individual momentarily entered
the kitchen, both Toler and Shaw recognized that the individual was appellant Holmes. Holmes and Dukes then
went into the living room and began conversing.
Approximately ten minutes later, Shaw and Toler, who were both still in the kitchen drinking beer, heard
what sounded like a loud firecracker emanate from the living room. Toler dropped his beer, ran from the kitchen,
and attempted to exit the apartment through the front door. Before Toler could exit, Holmes grabbed him around
the neck from behind, stuck a pistol into his back, and fired. Wounded, Toler managed to struggle free and
attempted to jump out the apartment window. During this attempt, Holmes pointed the gun at Toler a second
time and fired, but the weapon jammed. Toler and Holmes then both ran from the apartment through the front
door, each man running in separate directions upon exiting.
After hearing the first gunshot, Shaw crawled between the stove and refrigerator and remained in this hidden
position for several minutes.
minutes. During this time, Shaw heard a second gunshot. After hearing the struggle between Holmes and Toler
subside, Shaw ran from the apartment screaming. While fleeing, Shaw observed Dukes, lying on the sofa, along
with Dukes' purse and various items from the purse scattered about the sofa.
Shortly after the shootings, Las Vegas Metropolitan Police Department (LVMPD) officers arrived on the
scene. Upon entering the apartment, Det. Franks observed Dukes on the sofa, along with blood, shell casings,
and a brown purse near the sofa that had been torn open. Based on his experience, Det. Franks surmised that the
shell casings appeared to be from a .380 handgun. Det. Becker also observed a purse that had been torn and its
contents spilled out on the sofa.
Dukes was transported to University Medical Center in Las Vegas, where she died from a single gunshot
wound to the head. After both Shaw and Toler identified Holmes as the shooter from a photographic lineup, Det.
Franks learned that Holmes had moved to Louisiana. On June 19, 1995, LVMPD officers executed a search
warrant on Holmes's Las Vegas apartment and recovered .380 ammunition. On June 21, 1995, LVMPD officers
contacted Holmes's mother in Louisiana and informed her that Holmes was under investigation for Dukes'
murder. On June 23, 1995, after voluntarily agreeing to return to Nevada, LVMPD officers met Holmes at the
Las Vegas bus station and placed him under arrest. In his statement to the police, Holmes admitted to being at
Dukes' crack party on the night before she was murdered; however, he denied killing Dukes or wounding Toler
on the afternoon of June 12th.
On June 23, 1995, the State filed a criminal complaint charging Holmes with one count each of murder
(open) with the use of a deadly weapon, attempted murder with the use of a deadly weapon, and robbery with the
use of a deadly weapon. On July 25, 1995, the justice's court conducted a preliminary hearing during which both
Shaw and Toler identified Holmes as the assailant. In support of the robbery charge, the State presented
evidence that Dukes' purse had been torn open and its contents scattered on the living room sofa. At the
conclusion of the preliminary hearing, the justice's court concluded that the State had proffered sufficient
evidence to bind Holmes over for trial on the murder and attempted murder charges, but the court dismissed the
robbery charge due to insufficient evidence.
On August 1, 1995, the State filed a criminal information charging Holmes with one count each of murder
(open) and attempted murder. The State's charge of open murder alleged two theories of criminal liability: that
Holmes had committed premeditated murder; or felony murder, in that Holmes had committed the killing
during the perpetration or attempted perpetration of a robbery.
ted the killing during the perpetration or attempted perpetration of a robbery.
Holmes's trial commenced on February 12, 1996. During trial, Shaw and Toler testified on behalf of the
State. Although Toler identified Holmes as the shooter, he and Shaw both conceded that they were high on crack
cocaine and alcohol when Dukes was murdered. After two days of testimony, the State rested its case. Holmes
presented no witnesses or evidence in his defense but instead opted to argue that the State had failed to meet its
burden of proving his guilt beyond a reasonable doubt.
During trial, the district court instructed the jury on reasonable doubt as follows:
A reasonable doubt is one based on reason. It is not mere possible doubt but is such a doubt as would
be actual and substantial, not mere possibility or speculation.
If you have a reasonable doubt as to the guilt of the defendant, he is entitled to a verdict of not guilty.[
2
]
(emphasis added) (footnote added).
During closing argument, the prosecutor attempted to illustrate the definition of reasonable doubt by stating:
Well, I submit to you, ladies and gentlemen that in your life when you're dealing with
more weighty affairs, and that's the first statement, it is not mere possible doubt but
such a doubt as would govern or control a person in more weighty affairs in life. Every
day you have something in your personal life that to you is considered a more weighty
affair. Obviously, sitting on a murder trial today is a more weighty affair. Buying a car,
buying a house. To one person buying a car might be a major weighty affair, buying a
house is [sic] weighty affair. When you go to buy a house or when you go buy a car or
anything you're doing involves a weighty affair in your opinion, you have doubts. But
you have to ask yourself, are they reasonable doubts. An example, you go buy a house.
Do you want to buy a house that costs you $200,000 but it's going to be later on a ton of
apartment houses built right over your wall that brings the value down. When you go
there to buy the house, you get there and look at the house and you look at
everything in the house and you see the arches and the carpet and you fall in love
with it and you want that house, but still have those doubts.
__________

2
There is a one-word difference between this definition of reasonable doubt, and the definition required by
NRS 175.211. The statutorily mandated reasonable doubt definition does not contain the word substantial. See
NRS 175.211.
go there to buy the house, you get there and look at the house and you look at
everything in the house and you see the arches and the carpet and you fall in love with it
and you want that house, but still have those doubts. God, are they going to build an
apartment house near there? Are they going to put a freeway behind me? Is it going to
mess up my house? That's a doubt. But you go ahead and buy the house because of
what you saw in that house, because that's what convinced you.
And that's exactly what a trial is.
(emphasis added).
At the conclusion of trial, the jury convicted Holmes of one count of first-degree murder and one count of
attempted murder. The district court sentenced Holmes to life in prison with the possibility of parole on the
first-degree murder charge, with a consecutive life term for the use of a weapon. For the attempted murder
charge, the district court sentenced Holmes to a concurrent term of twenty years in prison with an additional
twenty-year consecutive sentence for the use of a deadly weapon.
Holmes now appeals.
DISCUSSION
The district court did not violate appellant's due process rights by allowing the State to
prosecute him for murder on theories of premeditation and felony-murder after the justice's
court had dismissed the underlying felony due to insufficient evidence
[Headnote 1]
Holmes contends that the district court violated his right of due process by permitting the State to seek a
conviction for murder based on theories of premeditation and felony-murder after the justice's court had
dismissed the underlying predicate charge of robbery due to insufficient evidence. We disagree.
[Headnote 2]
Initially, we note that Holmes failed to object during trial to the State's reliance on premeditation and
felony-murder theories in its attempt to seek a murder conviction. It is well recognized that failure to object at
the trial level generally precludes the right to assign error on appeal. Sterling v. State, 108 Nev. 391, 394, 834
P.2d 400, 402 (1992). However, we have decided to reach the merits of Holmes's argument in order to clarify an
important issue for the benefit of the bench and bar.
[Headnote 3]
Pursuant to NRS 200.030, the commission of a felony and premeditation are merely alternative means of
establishing the single mens rea element of first degree murder, rather than constituting
independent elements of the crime.
mens rea element of first degree murder, rather than constituting independent elements of the crime.
3
See also
Schad v. Arizona, 501 U.S. 624, 637 (1991) (noting that under Arizona law, premeditation and the commission
of a felony are not independent elements of the crime [of first degree murder], but rather are mere means of
satisfying a single mens rea element).
Consistent with our approach, many jurisdictions have held that the State may seek a conviction for murder
based on a theory of felony-murder without even charging the underlying predicate felony. See Stephens v. Borg,
59 F.3d 932, 935 (9th Cir. 1995); People v. Thomas, 740 P.2d 419, 425 n.5 (Cal. 1987); In re Walker, 518 P.2d
1129, 1139-40 (Cal. 1974) (explaining that where the State intends to rely on a felony-murder theory, the
predicate felony need not be pleaded). See also State v. Clark, 386 S.E.2d 191, 194 (N.C. 1989) (explaining that
a murder indictment in the form prescribed by statute will support a first degree murder verdict based upon any
theory set forth in the first degree murder statute).
Accordingly, we reiterate that premeditation and felony-murder are alternate theories upon which the State
may rely in its attempt to establish the mens rea element of the crime of first degree murder. Although the
justice's court had dismissed the felony robbery charge due to insufficient evidence, the State was not precluded
from advancing the theory at trial that Holmes had murdered Dukes during the commission of a robbery. Based
on the foregoing, and the fact that Holmes had ample notice of the theories upon which the State planned to rely,
we conclude that the district court did not violate Holmes's due process rights by allowing the State to seek a
conviction for murder alleging theories of premeditation and felony-murder.
4

__________

3
1. 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, kidnapping, 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.

4
In a related argument, Holmes asserts that because the State was allowed to prosecute him for murder based
on two theoriespremeditation and an allegedly improper theory of felony murderit is possible that the jury
found [Holmes] guilty without having found that he had the specific intent to kill. We reject this argument. We
have concluded that both theories upon which the State reliedpremeditation and felony-murderwere
permissible and, thus, Holmes's additional assignment of error is moot. Moreover,
The district court's submission of an erroneous reasonable doubt instruction, combined with improper
prosecutorial commentary on the meaning of the reasonable doubt standard, constitutes reversible error
[Headnote 4]
Holmes argues that the district court's submission of an erroneous reasonable doubt instruction in violation of
NRS 175.211(1)-(2), combined with the prosecutor's improper commentary on the reasonable doubt standard,
requires reversal of his conviction because such errors enabled the jury to convict . . . on a lesser burden of
proof than is constitutionally required. We agree.
1. A reasonable doubt is one based on reason. It is not mere possible doubt, but is such a doubt as
would govern or control a person in the more weighty affairs of life. If the minds of the jurors, after the
entire comparison and consideration of all the evidence, are in such a condition that they can say they feel
an abiding conviction of the truth of the charge, there is not a reasonable doubt. Doubt to be reasonable
must be actual, not mere possibility or speculation.
2. No other definition of reasonable doubt may be given by the court to juries in criminal actions in
this state.[
5
]
(emphasis added) (footnote added).
[Headnote 5]
Although the command of the statute is clear, we have previously held that minor deviations from the
statutorily prescribed reasonable doubt instruction constituted harmless error where there was overwhelming
evidence of guilt and no other trial error. See Meek v. State, 112 Nev. 1288, 1297, 930 P.2d 1104, 1110 (1996)
(concluding that the identical reasonable doubt instruction used in the instant case did not, in isolation, constitute
reversible error). However, in McCullough v. State, 99 Nev. 72, 75, 657 P.2d 1157, 1158 (1983), we held that
the use of a disapproved reasonable doubt instruction constituted reversible error when coupled with any other
attempt to supplement, change, or clarify the statutory reasonable doubt definition.
In the instant case, the district court submitted an erroneous reasonable doubt instruction in
violation of NRS 175.211, and the prosecutor exacerbated the district court's error by
improperly analogizing reasonable doubt with major life decisions such as buying a house
or purchasing a car.
__________
because the jury need not reach unanimity with respect to either theory, see Schad v. Arizona, 501 U.S. 624, 631
(1991), we conclude that the jury's general verdict is unproblematic.

5
As previously indicated, unlike the reasonable doubt instruction used at Holmes's trial, the statutorily
mandated reasonable doubt instruction does not contain the word substantial. See NRS 175.211.
reasonable doubt instruction in violation of NRS 175.211, and the prosecutor exacerbated the district court's
error by improperly analogizing reasonable doubt with major life decisions such as buying a house or purchasing
a car. The convergence of these two errors during Holmes's trial brings this case squarely within the purview of
the rule we announced in McCullough.
As we explained in McCullough, [t]he concept of reasonable doubt is inherently qualitative. Any attempt to
quantify it may impermissibly lower the prosecution's burden of proof, and is likely to confuse rather than
clarify. Id. at 75, 657 P.2d at 1159. Moreover, because the reasonable doubt standard requires the jury to reach
a subjective state of near certitude' on the facts in issue, see id. at 75, 657 P.2d at 1158 (quoting Jackson v.
Virginia, 443 U.S. 307, 315 (1979)), we have maintained that prosecutorial commentary analogizing reasonable
doubt with major life decisions such as buying a house or changing jobs is improper because these decisions
involve elements of uncertainty and risk-taking and are wholly unlike the kinds of decisions that jurors must
make in criminal trials. See Quillen v. State, 112 Nev. 1369, 1382, 929 P.2d 893, 902 (1996).
Accordingly, we reaffirm our commitment to the rule we announced in McCullough. The lower courts of this
state must defer to the legislature's institutional competence and adhere to the statutorily prescribed reasonable
doubt instruction codified at NRS 175.211. Additionally, we caution the prosecutors of this state that they
venture into calamitous waters when they attempt to quantify, supplement, or clarify the statutorily prescribed
reasonable doubt standard.
Therefore, the district court's submission of an erroneous reasonable doubt instruction in violation of NRS
175.211, in combination with the prosecutor's improper argument analogizing reasonable doubt with various
major life decisions, constitutes reversible error. We cannot say that these errors were harmless.
CONCLUSION
We conclude that the district court did not err by allowing the State to prosecute Holmes for murder on
theories of premeditation and felony-murder after the justice's court had dismissed the underlying robbery felony
due to insufficient evidence. However, we conclude that the district court's submission of an erroneous
reasonable doubt instruction, in combination with the prosecutor's improper argument analogizing reasonable
doubt with various major life decisions, constitutes reversible error.
Based on the foregoing, we reverse Holmes's conviction and remand for a new trial.
____________
114 Nev. 1367, 1367 (1998) Wright v. Osburn
SANDRA D. WRIGHT, fka SANDRA OSBURN, Appellant, v. DAVID L. OSBURN,
Respondent.
No. 28714
December 30, 1998 970 P.2d 1071
Appeal from a decree of divorce setting child support, spousal support, and denying an award of attorney
fees. Eighth Judicial District Court, Clark County; Steven E. Jones, Judge Family Court Division.
Divorce action was brought. The district court awarded the parties joint legal and physical
custody of their children and ordered husband to pay $100 per month per child for child
support and $500 per month for five years in rehabilitative spousal support, and wife
appealed. The supreme court, Shearing, J., held that trial court abused its discretion in
ordering husband to pay spousal support of only $500 per month for five years.
Bruce I. Shapiro, Ltd., Las Vegas, for Appellant.
Laura Wightman FitzSimmons, Las Vegas, for Respondent.
When custody of children is shared equally, the determination of who receives child support payments and the amount of that
payment can be determined as follows: calculate the appropriate percentage of gross income for each parent; subtract the difference
between the two; and require the parent with the higher income to pay the parent with the lower income that difference.
2. Divorce.
District court abused its discretion in ordering husband to pay rehabilitative spousal support of only $500 per month for five years.
Wife had been homemaker and primary caretaker for children during marriage, she enabled husband to obtain advanced degree and
establish career, and it was very unlikely that, in five years, wife would be able to earn income that would enable her to either maintain
lifestyle she enjoyed during marriage or lifestyle commensurate with that of husband.
3. Divorce.
Disparity in income is a factor to be considered in the award of attorney fees in marital dissolution action.
OPINION
Sandra D. Wright and David L. Osburn were married in April 1982 and divorced in March 1996. They had three children:
Robert, born February 1984; Lindsay, born October 1986; and Alexandra, born July 1989. At the time of their
marriage, Sandra and David were attending Brigham Young University. In 1983, Sandra obtained a degree in
design and David obtained a degree in business and finance. After graduating, Sandra worked while David
obtained his masters degree in business administration. Sandra became a full-time homemaker in 1984 after the
birth of their first child. David was employed by Bank of America, where he remained at the time of trial. David
also teaches accounting at the community college.
The district court awarded the parties joint legal and physical custody of their three children, with physical
custody of the children rotated weekly. The district court ordered David to pay Sandra $100 per month per child
for child support and $500 per month for five years in rehabilitative spousal support but denied an award for
attorney fees. Sandra appeals those portions of the order regarding child support, spousal support and attorney
fees.
The child support ordered by the district court was the minimum specified under NRS 125B.070(1),
despite the fact that the evidence showed that David's monthly income was $5,177 per month, while Sandra's
income was $1,600 per month. While the district court articulated the necessity of attempt[ing] to maintain
comparable lifestyles for the children between the parents' respective households when the parents have joint
physical custody, its order is at odds with this goal.
In Barbagallo v. Barbagallo, 105 Nev. 546, 779 P.2d 532 (1989), this court discussed the difficulty of
fairly allocating child support responsibilities between divorced parents with disparate incomes who share equal
physical custody of their children. Unfortunately, Barbagallo did not choose to follow the guidance set forth by
the legislature in NRS Chapter 125B as to how the child support responsibilities should be allocated when
parents share physical custody equally. The result has been that decisions of the district courts vary widely on
similar facts.
[Headnote 1]
This court now returns to the language in NRS Chapter 125B for determining the appropriate allocation of
child support in shared physical custody arrangements. In NRS 125B.020 and NRS 125B.070, the legislature set
forth an objective standard with regard to the support of minor children. These measures, when read together,
require each parent to provide a minimum level of support for his or her children, specified by the legislature as
a percentage of gross income, depending on the number of children and absent special circumstances. NRS
125B.020 and 125B.070. This requirement is independent of the custody arrangements. Therefore, when custody
is shared equally, the determination of who receives child support payments and the amount of
that payment can be determined as follows:
who receives child support payments and the amount of that payment can be determined as follows: Calculate
the appropriate percentage of gross income for each parent; subtract the difference between the two and require
the parent with the higher income to pay the parent with the lower income that difference. In this case, with three
children, we would take twenty-nine percent of $1,600, Sandra's monthly income, and twenty-nine percent of
$5,177, David's monthly income and subtract the difference. In this case, David would be required to pay Sandra
$1,037 each month. This approach embodies the legislative enactment, and provides the uniformity and
predictability which was the legislative aim. Of course, the district court also has the option to adjust the amount
of the award where special circumstances exist. See NRS 125B.080(9).
Regarding the award of spousal support, the legislature has failed to set forth an objective standard for
determining the appropriate amount. Absent such a standard, there appears to be a disparity in the awards for
spousal support on similar facts even greater than for child support. In Sprenger v. Sprenger, 110 Nev. 855,
859, 878 P.2d 284, 287 (1994), this court set forth factors for the district court to consider in its determination,
but the weight to be given each of the factors is left to the discretion of the district court.
[Headnote 2]
In this case, the district court awarded Sandra rehabilitative spousal support of $500 per month for five years.
She had earned a degree in design years ago, but she had not worked in the field for the thirteen years of their
marriage. In fact, at the time of the divorce she was employed as a secretary. Sandra had been a homemaker and
primary caretaker for the parties' three children during their marriage. She enabled David to obtain an advanced
degree and establish a career. David purchased a large home after the divorce, but Sandra was unable to do so
and lives in an apartment. It appears very unlikely that in five years, Sandra will be able to earn an income that
will enable her to either maintain the lifestyle she enjoyed during the marriage or a lifestyle commensurate with,
although not necessarily equal to, that of David, at least until she remarries or her financial circumstances
substantially improve. Id. at 860, 878 P.2d at 287. Considering the relevant factors for determining an
appropriate spousal support award outlined in Sprenger, it does not appear that the district court's award was
just and equitable, having regard to the conditions in which the parties will be left by the divorce. See NRS
125.150(1)(a). Therefore, we conclude that the district court abused its discretion in ordering spousal support of
only $500 per month for five years.
[Headnote 3]
The disparity in income is also a factor to be considered in the award of attorney fees. It is not clear that the
district court took that factor into consideration.
For the foregoing reasons, we reverse those portions of the district court's decree setting child support,
spousal support and denying attorney fees and remand this case to the district court for reevaluation of child
support, spousal support and attorney fees.
I dissent. I would affirm the judgment of the trial court.
My main objection to the majority opinion is that it unfairly and improvidently conjures out of thin air a new
child support formula to be applied in cases of joint, equal custody. I say thin air because the court states no
basis in law or reason
1
for the carelessly-concocted, split-the-difference formula that is adopted here, namely:
Calculate the appropriate percentage of gross income for each parent; subtract the difference between the two
and require the parent with the higher income to pay the parent with the lower income that difference.
The mother and father of these three children share physical custody jointly and equally. The father earns
more than the mother. To give the children the benefit of the father's greater earnings, the trial court correctly
followed Barbagallo v. Barbagallo, 105 Nev. 545, 779 P.2d 532 (1989), and required the father to pay to the
mother $300.00 per month to make up for the difference. The district court decided, properly, in my opinion,
that under the circumstances of this case and under the various NRS 125B.080 factors referred to in
Barbagallo that the payment of $100.00 per child would be fair and just in this case. By inventing its own
child-support formula, this court will be requiring the father to pay over $1,000.00 per month, almost twice as
much as any other legislatively-adopted formula that I have been able to locate.
__________

1
As I read the majority opinion, its reasoning seems to be that the legislature favors requir[ing] each parent
to provide a minimum level of support for his or her children, specified by the legislature as a percentage of
gross income. The legislature has not provided a formula in cases of joint physical custody; therefore, reasons
the majority, in the absence of a legislative percentage-of-income formula, this court should make the
determination of . . . the appropriate percentage. I disfavor the court's enacting a percentage formula of this
kind because to do so properly involves taking into account many difficult social issues and policy-setting
functions, functions that can be suitably carried out only by the legislative branch of government. It is not the
invasion of the legislative prerogative that disturbs me most about this case, however, it is the slipshod,
by-guess-and-by-golly way that the court has gone about enacting a new child support formula.
locate.
2
Although I am deeply concerned about the unfairness suffered by this father, what is of most concern to
me now is the unfairness that will be suffered by virtually every joint custodian who has greater earning power
than the other joint custodian. Once the word gets out that an excessive, judicially-imposed formula is going to
be unexceptionably applied to the joint custodian with the greater income, I fear that it will deter parents from
entering into joint custody arrangements. Most joint custodial parents would not object to paying child support
to the parent earning less income, but after a certain point the child support becomes more of a subsidy to the
payee parent than it is a benefit to the children. As things stand, unless the legislature acts to create a reasonable
formula to be applied in joint custody cases, I am afraid that today's ruling will give great pause to the parent
who earns more money than the other before agreeing to accept joint custody. I think that this is detrimental to
the best interests of Nevada's children.
__________

2
The main point that I am trying to make in this dissenting opinion is that if the court is going to legislate it
should do so in a measured and fair way. The court should have examined the various legislative formulas that
have been adopted in these kinds of cases and selected the optimal approach to be adopted in this state. As
things stand, the court did not even pretend to do this.
There are many legal and policy matters that must be taken into consideration in the formulation of standards
for child support payments that must be made by one parent to another. Most states have adopted one of two
approaches, the income sharing approach or the Massachusetts approach, sometimes called the marginal
expenditure model. In adopting a child support model, legislatures necessarily weigh the question of fairness to
the child support obligor against the objective of providing adequately for the child. Another consideration is
avoiding any shocking disproportion between the standard of living of a child and either of his parents. Formulas
cannot be reasonably enacted by legislature or court without giving serious attention to the various alternatives
available.
The following is an example of how a rationally-devised formula might work in a joint custody case. If the
marginal expenditure model were employed, child support payments in this case would be computed as follows:
The total statutory child support obligation of both parents would first be calculated ($5,177.00 + $1,600.00 =
$6,777.00 x 29% = $1,965.00). The marginal expenditure method adjusts for the additional costs of two
households by an arbitrary increase of 50%; thus $1,965.00 plus 50% of $1,965.00 ($982.00) = $2,947.00,
calculated as the total child support expenditure of both households. Half of $2,948.00, or $1,474.00, is required
in each household. Of the total income of the two parties, the husband earns 69% and the wife earns 31%. Of the
$1,474.00 needed in the wife's home, the husband must contribute 69%; thus the husband must pay $1,017.00.
Of the $1,474.00 needed in the husband's home, the wife must pay 31% or $457.00. Setting off these two
obligations results in the husband's owing to the wife the difference between $1,017.00 and $457.00 or $560.00
per month. The arbitrary formulation adopted by the majority is grossly unfair to this obligor and to all joint
custody obligors in the future.
The district court did not go beyond the bounds of its discretion in deciding this case, and I would affirm the
trial court's judgment.
____________
114 Nev. 1372, 1372 (1998) SIIS v. Engel
STATE INDUSTRIAL INSURANCE SYSTEM, Appellant, v. MARK ENGEL, Respondent.
No. 29234
December 30, 1998 971 P.2d 793
Appeal from district court order denying a petition for judicial review. Second Judicial District Court,
Washoe County; Janet J. Berry, Judge.
Claimant sought workers' compensation vocational rehabilitation benefits for work-related injury to his lower
back. The appeals officer reversed the determination of the State Industrial Insurance System (SIIS) and granted
benefits. The district court denied the SIIS's petition for judicial review, and the SIIS appealed. The supreme
court, Maupin, J., in a matter of first impression, held that claimant was entitled, under statute, to benefits where
his temporary non-participation in rehabilitation program was not willful but due to quarantine imposed by
health department after he contracted non-industrial tuberculosis.
Affirmed.
Young and Shearing, JJ., dissented.
Lenard T. Ormsby, General Counsel, and John R. McGlamery, Associate General Counsel, State Industrial
Insurance System, Carson City, for Appellant.
Edward M. Bernstein & Associates and Laurence B. Irwin, Las Vegas, for Respondent.
The function of the supreme court in reviewing an administrative decision is identical to that of the district court.
A reviewing court shall not substitute its judgment for that of an agency with regard to a question of fact. NRS 233B.135(3).
3. Statutes.
The administrative construction of a statute is a question of law requiring independent appellate review.
4. Statutes; Telecommunications.
Where a statute is clear on its face, the supreme court is not empowered to go beyond the face of a statute to lend it a construction
contrary to its clear meaning.
114 Nev. 1372, 1373 (1998) SIIS v. Engel
Claimant was entitled to workers' compensation vocational rehabilitation benefits for work-related lower back injury under statute
governing vocational rehabilitation maintenance, even though claimant was unable to participate in rehabilitation program. Claimant's
temporary non-participation was not willful but due to quarantine imposed by health department after he contracted non-industrial
tuberculosis. NRS 616C.575.
Workers' compensation vocational rehabilitation benefits may not be suspended under statute governing vocational rehabilitation
maintenance when an employee, who is otherwise eligible to receive such benefits, is temporarily unable to participate in the requisite
vocational rehabilitation program as a result of a non-industrial medical condition. NRS 616C.575.
OPINION
Respondent Mark Engel (Engel) injured his lower back in the course of his employment. The severity of the injury prevented his
return to work in his previous job capacity. Because his employer could not accommodate his limitations, Engel sought vocational
rehabilitation benefits pursuant to NRS 616C.590.
1
On April 25, 1995, Engel signed a vocational rehabilitation
agreement with the State Industrial Insurance System (SIIS), acknowledging his responsibility to participate in
a rehabilitation plan pursuant to NRS 616C.555.
2

On August 15, 1995, the SIIS learned that Engel had contracted non-industrial tuberculosis. Because of a
quarantine imposed by the Washoe County Health Department, Engel was unable to attend a scheduled meeting
with a rehabilitation counselor assigned to develop his vocational rehabilitation program.
__________

1
NRS 616C.590(1)(a)-(c) states that an injured employee is eligible for vocational rehabilitation services if:
(a) The treating physician or chiropractor approves the return of the injured employee to work but
imposes permanent restrictions that prevent the injured employee from returning to the position that he
held at the time of his injury;
(b) The injured employee's employer does not offer employment that the employee is eligible for
considering the restrictions imposed pursuant to paragraph (a); and
(c) The injured employee is unable to return to gainful employment at a gross wage that is equal to or
greater than 80 percent of the gross wage that he was earning at the time of his injury.

2
NRS 616C.555 requires the development of vocational rehabilitation programs for persons qualifying for
rehabilitation assistance.
114 Nev. 1372, 1374 (1998) SIIS v. Engel
The SIIS suspended Engel's rehabilitation benefits until he could fully participate in the vocational
rehabilitation program. On appeal, a Department of Administration hearing officer affirmed the suspension of
benefits. Thereafter, an appeals officer reversed these determinations and ordered the SIIS to pay Engel
vocational rehabilitation maintenance benefits during his tuberculosis quarantine.
The SIIS filed a petition for judicial review in the Second Judicial District Court, which was denied on
August 27, 1996. The SIIS timely appealed. We affirm.
DISCUSSION
Standard of Review
This case presents an issue of first impression in Nevada: namely, whether the SIIS may suspend vocational
rehabilitation benefits during a period of temporary non-participation in a vocational rehabilitation program,
where the failure to participate is not volitional.
[Headnotes 1-3]
The function of this court in reviewing an administrative decision is identical to that of the district court.
Hudson v. Horseshoe Club Operation Co., 112 Nev. 446, 452, 916 P.2d 786, 790 (1996). A reviewing court
shall not substitute its judgment for that of an agency with regard to a question of fact. NRS 233B.135(3).
However, questions of law are reviewed de novo. SIIS v. United Exposition Services Co., 109 Nev. 28, 30, 846
P.2d 294, 295 (1993). The administrative construction of a statute is a question of law requiring independent
appellate review. Maxwell v. SIIS, 109 Nev. 327, 329, 849 P.2d 267, 269 (1993).
The SIIS improperly suspended Engel's vocational rehabilitation maintenance pursuant to NRS 616C.575
NRS 616C.575(2) defines vocational rehabilitation maintenance as the amount of compensation paid to
an injured employee while he is participating in a program of vocational rehabilitation . . . . (Emphasis added.)
[Headnote 4]
NRS 616C.575(2) provides that vocational rehabilitation maintenance shall be paid to an injured employee
only when he or she is participating in a program of vocational rehabilitation. Where a statute is clear on its
face, [w]e are 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).
114 Nev. 1372, 1375 (1998) SIIS v. Engel
Because the legislature did not distinguish between excusable and inexcusable non-participation, the SIIS
argues that the plain meaning of NRS 616C.575(2) compels the conclusion that any non-participation,
volitional or non-volitional, bars eligibility for vocational rehabilitation benefits.
3

NRS 616C.575 notwithstanding, Engel contends that NRS 616C.230(4) governs this dispute:
An injured employee's compensation, other than accident benefits, must be suspended
if:
(a) A physician or chiropractor determines that the employee is unable to undergo
treatment, testing or examination for the industrial injury solely because of a condition
or injury that did not arise out of and in the course of his employment; and
(b) It is within the ability of the employee to correct the non-industrial condition or
injury.
Engel argues that NRS 616C.230(4)(a) and (b) do not authorize the SIIS to suspend an employee's
benefits where, as here, it is not within the employee's ability to correct the non-industrial condition.
Accordingly, Engel contends that he is eligible for compensation despite his quarantine for active tuberculosis.
The appeals officer and the district court agreed. Although we conclude this analysis is not entirely correct, we
affirm the district court for the reasons set forth below. See Rosenstein v. Steele, 103 Nev. 571, 575, 747
P.2d 230, 233 (1987).
[Headnote 5]
NRS 616C.230(4) provides that the SIIS must suspend benefits if an employee is unable to undergo
treatment, testing or examination for [an] industrial injury due to a non-industrial condition and it is within his
ability to correct the non-industrial condition. However, while NRS 616C.230(4) sets forth the general
circumstances under which the SIIS must suspend benefits other than accident benefits, it does not govern all
situations where benefits may be discontinued. NRS 616C.575 governs conditions for the payment of vocational
rehabilitation benefits; an issue not encompassed by the general suspension provisions of NRS 616C.230(4).
However, there is no clear directive from the legislature that a worker is not participating under NRS
616C.575 during a non-volitional absence from a rehabilitation program due to illness.
__________

3
The hearing officer below relied on NAC 616.102 and NAC 616.0835, regulations promulgated pursuant to
NRS 616C.575(1)(a) and (b), to justify the determination to suspend benefits. These regulations concern
grounds for suspension, which include refusal to cooperate with the insurer in the development of a program and
failure to report for scheduled activities. However, because there was no refusal to participate, these regulations
do not apply.
114 Nev. 1372, 1376 (1998) SIIS v. Engel
to illness. Contrary to the position taken by the SIIS, the only time at which maintenance by statute may not be
paid is when the injured worker refuses to participate. Thus, to promote the purposes of the rehabilitation
statute, we conclude that non-participation, justifying suspension of benefits must be willful, and that intervening
illness does not suspend participation.
4

[Headnote 6]
We therefore hold that the SIIS, pursuant to NRS 616C.575, may not suspend vocational rehabilitation
benefits when an employee, who is otherwise eligible to receive such benefits, is temporarily unable to
participate in the requisite vocational rehabilitation program as a result of a non-industrial medical condition.
The judgment of the district court is affirmed.
5

Springer, C. J., and Rose, J., concur.
Young, J., with whom Shearing, J., agrees, dissenting:
The notion that the legislature intended for the citizens of Nevada to pay vocational rehabilitation benefits to
individuals who are not participating in a vocational rehabilitation program strains credibility, defies logic, and, I
believe, is in direct contravention of the plain meaning of both the Nevada Revised Statutes and the Nevada
Administrative Code. Therefore, I must respectfully disagree with my colleagues in the majority.
As the majority aptly notes, [w]e are 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). Indeed,
[u]nder long established principles of statutory construction, when a statute is susceptible to but one
natural or honest construction, that alone is the construction that can be given. We have also consistently
held that where there is no ambiguity in a statute, there is no opportunity for judicial construction and the
law must be followed regardless of result.
Randono v. CUNA Mutual Ins. Group, 106 Nev. 371, 374, 793 P.2d 1324, 1326 {1990)
{citations omitted).
__________

4
NRS 616C.555(3) provides maximum time periods for rehabilitation programs. However, NRS 616C.560
provides for reasonable extensions of these deadlines. Thus, the NRS 616C.555(3) time frames are not
jurisdictional as to the length of any particular program and, therefore, not jurisdictional as to the period during
which rehabilitation maintenance may be paid.

5
Our decision today also provides a level of certainty in enforcement. The dissent's construction of the SIIS
rehabilitation scheme leaves open the problem of how much non-participation in connection with less serious
illnesses would be tolerated.
114 Nev. 1372, 1377 (1998) SIIS v. Engel
P.2d 1324, 1326 (1990) (citations omitted). I believe NRS 616C.575(2) has but one natural or
honest construction.
Nevada Revised Statute 616C.575(2) is clear and unambiguous on its face: vocational rehabilitation
maintenance is the amount of compensation paid to an injured employee while he is participating in a program
of vocational rehabilitation . . . . (Emphasis added.) The legislature conspicuously fails to make any distinction
between excusable and inexcusable non-participation.
In footnote three, the majority discusses the inapplicability of Nevada Administrative Code (NAC)
provisions 616.102 and 616.0835. They assert that these regulations are inapplicable because Engel did not
refuse, or make a volitional choice not to participate in a rehabilitation program. Contrary to the majority's
suggestion, refusal to participate is but one ground for termination of benefits, not necessarily the only one.
These sections of NAC, promulgated by the Division of Industrial Relations, add further credence to a plain
meaning interpretation of the statute. In addition to a worker's refusal to participate as a basis for suspension or
termination of benefits, NAC states that vocational rehabilitation benefits may also be suspended or terminated if
an injured employee fails to report for scheduled activities or fails to participate in a program of vocational
rehabilitation. See NAC 616.0835(2)(a)(2) and NAC 616.102(2)(a) (1995) (presently codified as NAC
616C.577(2)(a)(2) and NAC 616C.601(2)(a) (1998), respectively). These subsections do not require the
worker actually to refuse to participate in a rehabilitation program for benefits to be terminated; they require
merely the lack of participation.
The crux of the majority's reasoning seems to reside in their interpretation of the word participating, as it is
used in NRS 616C.575(2). The majority states that the legislature provides no clear directive that a
worker's non-volitional absence from a vocational rehabilitation program may preclude him or her from
receiving benefits. Presumably, the word participating, as it is interpreted by the majority, takes on a new
meaning that includes not merely the actual participation in a vocational rehabilitation program, but also
phantom participation whenever an employee has not overtly refused to participate. I believe this construction of
the statute will frustrate the purposes of the vocational rehabilitation statute.
Moreover, stretching the definition of participating to include excusable non-participation defies the clear
directive from the legislature that the statute is not to be construed broadly or liberally. In its legislative
declarations for the Nevada Industrial Insurance Act the legislature addresses this issue. The statute reads as
follows:
1. The provisions of chapters 616A to 617, inclusive, of NRS must be interpreted and
construed to ensure the quick and efficient payment of compensation to injured and
disabled employees at a reasonable cost to the employers who are subject to the
provisions of those chapters;
114 Nev. 1372, 1378 (1998) SIIS v. Engel
NRS must be interpreted and construed to ensure the quick and efficient payment of compensation to
injured and disabled employees at a reasonable cost to the employers who are subject to the provisions of
those chapters;
2. A claim for compensation filed pursuant to the provisions of chapters 616A to
616D, inclusive, . . . must be decided on its merit and not according to the principle of
common law that requires statutes governing workers' compensation to be liberally
construed because they are remedial in nature;
. . . .
4. For the accomplishment of these purposes, the provisions of chapters 616A to 617,
inclusive, of NRS must not be interpreted or construed broadly or liberally in favor of
an injured or disabled employee or his dependents, or in such a manner as to favor the
rights and interests of an employer over the rights and interests of an injured or disabled
employee or his dependents.
NRS 616A.010 (1998) (emphasis added); see also Nevada Industrial Insurance Act, 1993
Nev. Stat., ch. 265, sec. 11, 1, 2 and 4, at 660. I believe the majority's interpretation of the
meaning of the word participating clearly defies the legislative intent.
Finally, the majority concludes that [c]ontrary to the position taken by SIIS, the only time at which
maintenance by statute may not be paid' is when the injured worker refuses' to participate. This holding,
according to the majority, will promote the purposes of the rehabilitation statute. I find it troubling that the
majority offers no citation to authority, analysis, or support for these conclusory remarks.
Although it seems to belabor the obvious, the purpose of Nevada's vocational rehabilitation program is to
place injured or disabled workers back in the work force. The majority's holding does not promote that purpose
and, indeed, frustrates that purpose by expending scarce funds on workers who are not actually rehabilitating.
For those workers who are unable to participate in a vocational rehabilitation program, the legislature has
created other safety nets in the form of various industrial insurance and welfare benefit programs.
I believe that the payment of vocational rehabilitation benefits was designed to be concurrent with actual
participation in a vocational rehabilitation program. Hence, it is Engel's non-participation that is dispositive in
the present case, not the reason for his non-participation.
I am cognizant of the unfortunate situation in which Engel finds himself, however, I do not believe that his
remedy lies in the vocational rehabilitation program.
114 Nev. 1372, 1379 (1998) SIIS v. Engel
tional rehabilitation program. I am not suggesting that he is forever precluded from receiving vocational
rehabilitation benefits but, rather, that his eligibility be reevaluated when his illness no longer prevents him from
participating in a rehabilitation program. In the meantime, other alternative benefits such as supplemental
security income or welfare benefits may offer him relief until he is able to participate in a vocational
rehabilitation program. Indeed, the statutory scheme does not contemplate vocational rehabilitation benefits as
the sole means of achieving the goals of rehabilitation. See NRS 616C.530 (articulating priorities for returning
injured employee to work, including providing training and job skills in existing or new vocation).
I do not believe that excusable non-participation is tantamount to actual participation. Accordingly, I would
hold that SIIS, pursuant to NRS 616C.575, may suspend vocational rehabilitation benefits when an employee
is unable to actually participate in a vocational rehabilitation program.
1

____________
114 Nev. 1379, 1379 (1998) Grayson v. State Farm Mut. Auto. Ins.
LOUISE P. GRAYSON, Appellant, v. STATE FARM MUTUAL AUTOMOBILE
INSURANCE, Respondent.
No. 29832
December 30, 1998 971 P.2d 798
Appeal from an order of the district court granting respondent's motion for summary judgment in an action
seeking to recover underinsured motorist coverage benefits. Eighth Judicial District Court, Clark County; Gene
T. Porter, Judge.
Insured filed suit for underinsured motorist (UIM) benefits for injuries arising from
accident. Insurer moved for summary judgment on ground that action was time-barred when
brought more than six years after accident. The district court entered summary judgment for
insurer, and insured appealed. The supreme court, Rose, J., held that limitations period did
not begin to run until insurer denied UIM claim, and thus action was timely brought within
six-year statute of limitations.
Maupin and Young, JJ., dissented.
Parker, Nelson & Arin, Las Vegas; Beckley, Singleton, Jemison, Cobeaga & List and Daniel F. Polsenberg,
Las Vegas, for Appellant.
__________

1
I agree with my colleagues that the district court misapplied NRS 616C.230(4).
Pearson & Patton and Theodore J. Kurtz, Las Vegas, for Respondent.
Six-year statute of limitations on cause of action for benefits under underinsured motorist (UIM) provision of an automobile policy
does not begin to run until insurer's breach of insurance contract, in other words, until insurer refuses to pay claim. NRS 11.190(1)(b).
2. Insurance.
Insurers may include explicit, unambiguous time limitations in their insurance policies to protect against claims that are remote in
time.
3. Insurance.
Insurers may rely on equitable remedy of laches to protect against costs associated with any unreasonable delay on part of insured
in making claim.
Insured's claim for underinsured motorist (UIM) benefits was not barred by six-year statute of limitations when made more than
six years after accident, as limitations period ran from insurer's refusal to pay claim. NRS 11.190(1)(b).
OPINION
Appellant Louise P. Grayson (Grayson) sought to recover underinsured motorist (UIM) coverage benefits from her insurance carrier,
State Farm Mutual Automobile Insurance (State Farm). The district court found that the statute of limitations barred Grayson's cause of
action because she filed her claim more than six years after her accident. Thus, the district court entered summary judgment in favor of
State Farm.
On appeal, Grayson contends that the district court erred in finding that the six-year limitations period began to run on the date of the
accident. We agree, and for the reasons set forth below, we reverse the district court's grant of State Farm's motion for summary judgment
and remand for trial.
FACTS
On June 12, 1990, Ms. Grayson was involved in an automobile accident with Jerardo Menchaca-Estrada (Estrada). Grayson's former
attorney failed to file suit against Estrada within the two-year tort statute of limitations. As a result, Grayson filed suit against her former
attorney alleging legal malpractice.
During the course of Grayson's legal malpractice action against her former attorney, Grayson discovered that Estrada had automobile
bodily injury liability insurance with the statutory minimum limits of $15,000.00 per person. Grayson, believing that the value of her
injuries exceeded the $15,000.00 per person limits of Estrada's insurance, filed suit against State Farm, her
UIM carrier.
value of her injuries exceeded the $15,000.00 per person limits of Estrada's insurance, filed suit against State
Farm, her UIM carrier. State Farm moved for summary judgment, arguing that the six-year statute of limitations
1
barred Grayson's claim for benefits because she filed her claim on August 2, 1996, six years and two months
after the accident. The district court agreed and granted State Farm's motion for summary judgment. Grayson
now appeals.
DISCUSSION
[Headnote 1]
This case presents an issue of first impression in Nevada: When does the statute of limitations begin to run
on a cause of action for benefits under an UIM provision of an automobile policy? Courts in other jurisdictions
have addressed this issue and the overwhelming majority of these jurisdictions have concluded that the
limitations period begins to run on a UIM claim upon the insurer's breach of the insurance contract.
2

These cases are based on the rationale that it would be illogical to begin the statute of limitations before the
insured even has a justiciable claim for breach of contract. See Allstate Ins. Co. v. Spinelli, 443 A.2d 1286 (Del.
1982). Although our UIM statutory scheme provides the insured with the option to file a suit against her UIM
carrier prior to obtaining a judgment against the tortfeasor,
3
if the insured chooses not to do so, an action for
breach of contract will not lie at the time of the accident because the UIM carrier has not yet been
called upon to fulfill a promise under the contract.
__________

1
NRS 11.190 (1)(b) provides that an action upon a written contract must be brought within six years.

2
See, e.g., Blutreich v. Liberty Mut. Ins. Co., 826 P.2d 1167 (Ariz. Ct. App. 1991); Allstate Ins. Co. v.
Spinelli, 443 A.2d 1286 (Del. 1982); Eidemiller v. State Farm Mut. Auto. Ins., 915 P.2d 161 (Kan. Ct. App.
1996); Whitten v. Concord General Mut. Ins. Co., 647 A.2d 808 (Me. 1994); Lane v. Nationwide Mut. Ins. Co.,
582 A.2d 501 (Md. 1990); Metro. Prop. & Liability v. Walker, 620 A.2d 1020 (N.H. 1993); Uptegraft v. Home
Ins. Co., 662 P.2d 681 (Okla. 1983); Vega v. Farmers Ins. Co., 895 P.2d 337 (Or. 1995); Alvarez v. American
General Fire & Cas., 757 S.W.2d 156 (Tex. Ct. App. 1988); Safeco Ins. Co. v. Barcom, 773 P.2d 56 (Wash.
1989); Plumley v. May, 434 S.E.2d 406 (W.Va. 1993). We recognize that a minority of jurisdictions hold that
the statute of limitations begins to accrue at the time of the accident. See, e.g., Bayusik v. Nationwide Mutual
Ins. Co., 659 A.2d 1188 (Conn. 1995); State Farm Mut. Auto. Ins. Co. v. Kilbreath, 419 So.2d 632 (Fla. 1982);
Commercial Union Ins. Co. v. Wraggs, 284 S.E.2d 19 (Ga. Ct. App. 1981).

3
Under NRS 690B.020, an insured has a claim against the carrier as soon as the insured under the policy
becomes legally entitled to recover damages from the uninsured motoristthat is, as of the time of the
accident. See also Lee v. Allstate Ins. Co., 648 F. Supp. 1295 (D. Nev. 1986).
the UIM carrier has not yet been called upon to fulfill a promise under the contract. See Lane v. Nationwide
Mut. Ins. Co., 582 A.2d 501, 505 (Md. 1990).
Moreover, practically speaking, it would be fundamentally unfair to time-bar an insured from compensation
that she bargained for because an insured may not be aware until long after the accident that she will need to
pursue a claim against her UIM insurer. Specifically, at the time of the accident or even several years thereafter,
the insured may not know the extent of her injuries, the amount of the tortfeasor's available coverage, or whether
the cost of her medical treatment will exceed the value of the tortfeasor's insurance policy and available assets.
We note that such a circumstance occurred in the present case because it was not until several years after the
accident, when Grayson was involved in the legal malpractice action, that Grayson learned that Estrada's
insurance coverage was insufficient to cover her claims arising from the accident.
Further, the policy underlying UIM insurance supports our conclusion. We note that [t]he Nevada
Legislature intended that uninsured and underinsured motorist benefits be available to Nevada citizens. Mann v.
Farmers Insurance Exchange, 108 Nev. 648, 650, 836 P.2d 620, 621 (1992) (citation omitted). UIM
insurance serves an important public purpose to provide maximum and expeditious protections to the innocent
victims of financially irresponsible motorists . . . Green v. Selective Insurance Co. of America, 676 A.2d 1074,
1078 (N.J. 1996). Accordingly, in our view, there is no reason to time-bar an insured from claiming benefits
bargained for in an insurance contract by beginning the statute of limitations before the insured is notified that
her UIM carrier has failed to fulfill its promise to pay a claim.
[Headnotes 2, 3]
Although State Farm does not allege that they were prejudiced by Grayson's delay in making a claim, State
Farm contends that tolling the statute of limitations until the insurer refuses to pay a claim results in a cause of
action without any time limitation.
4
However, the fallacy in this argument is that the insurer can protect itself
from claims that are remote in time by including explicit, unambiguous time limitations in its insurance
contracts. See Blutreich v. Liberty Mut. Ins. Co., 826 P.2d 1167, 1171 (Ariz. Ct. App. 1991); see also National
Union Fire Ins. v. Reno's Executive Air, 100 Nev. 360, 364, 6S2 P.2d 13S0, 13S2 {19S4).
__________

4
Additionally, State Farm contends that Grayson's claim is time-barred because she failed to demand
payment from State Farm. We note that State Farm's argument defies logic because if Grayson failed to make a
demand, then State Farm could not have possibly breached by refusing Grayson's claim, and thus the statute of
limitations would not even have started to accrue, much less have barred Grayson's claim.
Reno's Executive Air, 100 Nev. 360, 364, 682 P.2d 1380, 1382 (1984). Additionally, the equitable remedy of
laches would protect insurers from the costs associated with any unreasonable delay on the part of the insured.
Southward v. Foy, 65 Nev. 694, 705-06, 201 P.2d 302, 307 (1948).
[Headnote 4]
Accordingly, we conclude that the district court erred in granting State Farm's motion for summary judgment
because Grayson's claim was not time-barred. The statute of limitations did not begin to run until State Farm
refused payment of Grayson's claim. The date of this refusal is an issue of fact to be determined upon remand.
Therefore, we reverse the judgment of the district court and remand this case for proceedings consistent with this
opinion.
Springer, C.J., and Shearing, J., concur.
Maupin, J., with whom, Young, J., agrees, dissenting:
Under our scheme for the recovery of UIM benefits, the insured has a right to bring a direct action against
the carrier after a collision with an uninsured motorist, regardless of whether a judgment has been obtained
against the tortfeasor. See Lee v. Allstate Ins. Co., 648 F. Supp. 1295 (D. Nev. 1986). Implicit in this is the right
to bring the direct action at any time after the cause of action against the actual tortfeasor accrues. Accrual
occurs, consistent with the ruling in Lee, when a person insured under the policy becomes legally entitled to
recover damages
1
from the uninsured motorist. Since rights under the contract exist as of the collision, the
six-year limitation period should start to run at that time.
I realize that the major treatises and the majority recognize a trend toward accrual from the time of claim
denial.
2
However, six years from the date of an accident with an uninsured motorist is not an unreasonable time
for a claimant to commence direct proceedings for UIM benefits.
__________

1
NRS 690b.020(1).

2
A. Widiss, A Guide to Uninsured Motorist Coverage 2.25 (Supp. 1981), cited with approval in Blutreich
v. Liberty Mut. Ins. Co., 826 P.2d 1167 (Ariz. Ct. App. 1991).
____________
114 Nev. 1384, 1384 (1998) Siragusa v. Brown
JOANNE SIRAGUSA, Appellant, v. PATRICIA L. BROWN; PATRICIA L. BROWN,
LIMITED, a Nevada Corporation; and BECKLEY, SINGLETON, DELANOY,
JEMISON & LIST, CHTD., a Nevada Corporation, Respondents.
TOM GRIMMETT as Trustee for the Bankruptcy Estate of VINCENT SIRAGUSA,
Appellant, v. PATRICIA L. BROWN; PATRICIA L. BROWN, LIMITED, a Nevada
Corporation, Respondents.
No. 27904
December 30, 1998 971 P.2d 8010
Appeal from an order of the district court granting respondents' motion to dismiss and motion for summary
judgment in an action for violations of state and federal RICO statutes and various state law tort claims. Eighth
Judicial District Court, Clark County; Peter I. Breen, Judge.
Former wife brought tort and state civil Racketeer Influenced and Corrupt Organization
(RICO) claims against former husband's attorneys, alleging that attorneys assisted former
husband in fraudulently conveying his interests in medical practice partnerships. The district
court granted summary judgment for attorneys. Former wife appealed. The supreme court,
Rose, J., held that: (1) action for civil conspiracy accrues, for limitations purposes, when the
plaintiff discovers or should have discovered all necessary facts constituting conspiracy,
overruling Aldabe v. Adams, 81 Nev. 280, 402 P.2d 34 (1965); (2) state civil RICO statute
does not require showing of pattern and continuity of criminal activity; and (3) genuine
issues of material fact as to when former wife should have discovered fraud, civil conspiracy,
and state civil RICO claims against attorneys precluded summary judgment dismissal on
limitations grounds.
Reversed in part, and remanded.
Maupin, J., and Springer, C. J., dissented in part.
Rumph & Peyton, Las Vegas, for Appellant Siragusa.
Alverson, Taylor, Mortensen, Nelson & Sanders and Daniel D. Heaton, Las Vegas, for Appellant Grimmett.
Rawlings, Olson, Cannon, Gormley & Desruisseaux and Don F. Shreve, Las Vegas, for Respondent Brown.
Beckley, Singleton, Jemison, Cobeaga & List, Las Vegas; Pearson, Patton, Shea, Foley & Kurtz, Las Vegas,
for Respondent Beckley, et al.
Summary judgment should be affirmed only if, upon reviewing the evidence in the light most favorable to nonmoving party,
appellate court finds that no genuine issues of fact were created by the pleadings and proof below.
Former wife's awareness that her former husband and his medical practice partners allegedly had conspired to fraudulently convey
former husband's partnership assets did not constitute discovery by former wife, for purposes of commencing the running of limitations
period, of the facts constituting the fraud allegedly perpetrated by former husband's attorneys. NRS 11.190(3)(d).
A plaintiff who relies upon the delayed discovery rule is not required to allege, as justification for the delayed accrual of the cause
of action, the time and manner of discovery and the circumstances excusing the delayed discovery.
An action for civil conspiracy accrues, for purposes of commencing the running of statute of limitations, when the plaintiff
discovers or should have discovered all of the necessary facts constituting a conspiracy claim; overruling Aldabe v. Adams, 81 Nev.
280, 402 P.2d 34 (1965). NRS 11.220.
Question of when plaintiff knew or in exercise of proper diligence should have known of facts constituting elements of conspiracy
cause of action, for purposes of commencing the running of limitations period, is question of fact for the trier of fact. NRS 11.220.
6. Judgment.
Genuine issue of material fact as to when former wife should have discovered identity of attorney for former husband who
allegedly aided and abetted scheme to fraudulently convey former husband's medical practice partnership interests precluded summary
judgment dismissal, on limitations grounds, of former wife's fraud and civil conspiracy claims against attorney. NRS 11.190(3)(d),
11.220.
The alleged intentional concealment by former husband's attorneys of their alleged role in fraudulently conveying former husband's
medical practice partnership interests did not excuse former wife from exercising due diligence in discovering attorneys' rule, for
purposes of commencing the accrual of limitations period for former wife's fraud and conspiracy claims against the attorneys. NRS
11.190(3)(d), 11.220.
8. Racketeer Influenced and Corrupt Organizations.
Former wife's complaint stated cause of action against former husband's attorneys for violating state civil Racketeer Influenced and
Corrupt Organization (RICO) statute by allegedly aiding and abetting former husband and his medical practice partners by fraudulently
conveying medical partnership interests, as former wife alleged numerous specific crimes relating to racketeering. NRS 207.390,
207.400(1)(b), (c), (h), 207.470.
State civil Racketeer Influenced and Corrupt Organization (RICO) statute does not require showing of pattern and continuity
of criminal activity. NRS 207.360, 207.390, 207.470.
The intent and effect of the state Racketeer Influenced and Corrupt Organization (RICO) statute need not be the same as the
federal RICO statute where the state legislature has not spoken. 18 U.S.C. 1961 et seq.; NRS 207.350 et seq.
Only where uncontroverted evidence proves that the plaintiff discovered or should have discovered the facts giving rise to the
claim should such a determination be made as a matter of law.
Injury, within meaning of state Racketeer Influenced and Corrupt Organization (RICO) limitations statute stating that civil
action must be commenced within five years after violation occurs or injured person sustains injury, encompasses discovery of both an
injury and the cause of that injury. NRS 207.520.
13. Judgment.
Genuine issue of material fact as to when former wife should have discovered her injury from alleged role of former husband's
attorney in aiding and abetting former husband in fraudulently conveying medical partnership interests precluded summary judgment
dismissal, on limitations grounds, of former wife's state civil Racketeer Influenced and Corrupt Organization (RICO) claims against
attorney. NRS 207.520.
OPINION
Pursuant to a divorce settlement agreement, appellant Joanne Siragusa (Joanne) perfected a UCC lien on the assets of her ex-husband,
Vincent Siragusa, M.D./Siragusa, Chtd. (Vince), relating to several medical practice partnerships. Vince defaulted on marital debts owed to
Joanne; Joanne then received a $1.3 million judgment against Vince. Before she could enforce her UCC lien, Vince filed for bankruptcy
and alleged that he no longer had any medical practice assets, and that he had transferred his interests to one of his partners free of Joanne's
lien.
Joanne and the trustee of Vince's bankruptcy estate, appellant Tom Grimmett (the trustee), filed suit against respondent law firm
Beckley, Singleton, Delanoy, Jemison & List, Chtd. (Beckley), and its agent and shareholder, Patricia L. Brown/Patricia L. Brown, Ltd.
(Brown),
1
the attorney for the medical practice partnerships. The complaint alleged that Brown had
masterminded a scheme to defraud Joanne of her rights in Vince's medical practice
partnership assets in violation of state and federal law.
__________

1
Except where it is necessary to distinguish between the two, we will refer to Joanne and the trustee
collectively as Joanne. Likewise, we will refer to Beckley and Brown collectively as Brown wherever
possible.
scheme to defraud Joanne of her rights in Vince's medical practice partnership assets in violation of state and
federal law. The district court granted summary judgment against Joanne and dismissed her complaint as being
barred by the statute of limitations and/or insufficiently pleaded. Joanne appeals from the district court's
summary judgment and dismissal of her claims against Brown. We conclude that the district court erred in
granting summary judgment against Joanne and in dismissing her state civil Racketeer Influenced and Corrupt
Organization (RICO) and tort causes of action.
FACTS
In 1983, Joanne and Vince entered into a property settlement agreement incident to their divorce. Vince,
John Bowers, M.D., and Paul Heeren, M.D., were one-third partners in Heart Institute of Nevada and two related
entitiesHeart Institute Properties and Heart Institute Catherization Laboratory (collectively HIN or the
medical practice partnerships). Pursuant to the divorce property settlement, Vince received his HIN
partnership interest, valued at $2.4 million, as his sole property. To satisfy Joanne's community property
interests Vince agreed to pay Joanne $1.2 million pursuant to a promissory note secured by a UCC lien on all of
his interest in the medical practice partnership.
By May of 1987, Vince had defaulted on his debt to Joanne. On November 5, 1987, Joanne obtained a $1.3
million judgment against Vince in state court for breach of his property settlement obligations. On November 10,
1987, prior to the judgment having been reduced to writing and prior to Joanne enforcing her lien on Vince's
partnership interests, Vince filed for bankruptcy.
Brown was the attorney for the medical practice partnerships. In November of 1987, Brown merged her law
firm with that of Beckley.
2
Prior to Vince's filing for bankruptcy, Joanne's counsel had corresponded with
Brown regarding Joanne's interest in Vince's share of HIN and a planned reorganization of the medical practice
partnerships. HIN was purportedly being reorganized due to severe financial difficulties.
In December 1987, after Vince had filed for bankruptcy, Brown met with the trustee. In January 1988, Vince
filed his schedules and statement of affairs with the bankruptcy court, which asserted that Vince no longer had
any interest in HIN. Attached to this schedule was a several hundred page "Addendum,"
prepared by Brown, explaining that Vince had been forced to terminate his interest in HIN
in September 19S7prior to filing for bankruptcybecause he had defaulted on the HIN
partnership agreements.
__________

2
Joanne assigns liability to Beckley through its merger agreement with Brown stating that Brown's alleged
post-merger misconduct was undertaken by her in the scope, course and capacity as both a principal and agent
of, and were ratified, confirmed and adopted by, Beckley. Joanne further asserts that Beckley ratified,
confirmed, and assumed . . . all pre-Merger liabilities of Brown.
schedule was a several hundred page Addendum, prepared by Brown, explaining that Vince had been forced
to terminate his interest in HIN in September 1987prior to filing for bankruptcybecause he had defaulted on
the HIN partnership agreements. Vince's bankruptcy petition and related documents asserted that his marital
payment obligations pursuant to the divorce decree were no longer secured by Joanne's lien.
On May 4, 1988, Vince was released from all dischargeable debts in the bankruptcy. On June 24, 1988,
Joanne filed an application in bankruptcy court to examine Vince, Bowers, Heeren, and Brown, concerning the
termination of Vince's partnership interest, the reorganization of HIN, and to subpoena related documents. In her
application, Joanne explained that information in the Addendum and other documents was incomplete and
inconsistent with information previously obtained from [Vince] in the divorce proceedings. Joanne stated that it
was necessary to immediately examine Brown as to the acts, conduct, property and financial condition of
[Vince].
On May 2, 1989, Joanne filed an adversary complaint in bankruptcy court against Vince, Bowers, Heeren,
HIN, and Doe defendants. The adversary complaint alleged that Joanne's UCC lien was valid, and that Vince
had fraudulently conveyed his interest in the partnerships to the remaining members of HIN under the auspices
of a forced sale default provision in Vince's partnership contract. Joanne further alleged that Vince, Bowers, and
Heeren had conspired to defraud Joanne of her rights pursuant to the divorce agreement, and asked that Vince's
bankruptcy discharge be revoked.
The adversary complaint referred to HIN's counsel on several occasions, noting that Brown had told Joanne's
counsel, prior to Vince's filing for bankruptcy, that the reorganization of HIN would not affect Joanne's interest.
Joanne also raised the issue of whether backdated documents had been used in the reorganization. Finally, the
adversary complaint alleged that through discovery, Joanne had discovered evidence of fraud, including
material misstatements and omissions in the . . . Addendum which was prepared by Brown.
In December of 1990, pursuant to an affidavit, Heeren described a scheme allegedly masterminded by
Brown and Bowers, wherein Brown and the three doctors executed a paper reorganization so as to insulate
HIN from any of Vince's divorce liabilities to Joanne. According to Heeren, in numerous meetings Brown and
Bowers explained the following: By utilizing backdated documents, it was to appear that Vince had been
thrown out of the medical practice partnerships ninety days before he filed for bankruptcy; Vince and Heeren
were to temporarily transfer all of their interest in the partnerships to Bower's alter ego
corporation, Cardiology Associates of Nevada {CAN);3
their interest in the partnerships to Bower's alter ego corporation, Cardiology Associates of Nevada (CAN);
3
all of the preexisting ownership interests of Bowers, Heeren, and Vince would be fully and completely
restored once Ms. Siragusa's divorce claims had been resolved; and Heeren and Vince would continue to
receive their partnership share of profits as independent contractor/employees of HIN in the interim.
According to Joanne, Heeren's affidavit was her first notice that Brown was involved in a conspiracy to
defraud her of her interest in Vince's HIN assets. On December 1, 1990, the federal statutes were changed to
allow supplemental jurisdiction in the bankruptcy court. Invoking this federal jurisdiction, on February 28, 1991,
Brown was joined as a Doe defendant in the adversary bankruptcy complaint on theories of fraud and
conspiracy. Brown sought dismissal on statute of limitation grounds; however, the bankruptcy court adopted
Joanne's argument that the complaint against Brown and Beckley related back to the original 1989 complaint.
On August 22, 1993, pursuant to an order of the bankruptcy court recommending withdrawal of reference,
the federal district court dismissed Joanne's claims against Brown for lack of subject matter jurisdiction. The
federal district court concluded that Joanne could not argue simultaneously that Brown was brought into the
action in 1989 for statute of limitation purposes, but was not brought in until after 1990 for supplemental
jurisdiction purposes.
In the fall of 1993, Joanne filed a complaint in the instant state action against Brown alleging sixteen causes
of action including claims for fraud, conspiracy, and violations of state and federal RICO laws. Joanne filed a
similar action in federal district court. On March 14, 1994, the federal action was dismissed on the grounds that
the federal RICO claims were barred by the statute of limitations and that the federal court lacked subject matter
jurisdiction over the remaining state claims. The court of appeals affirmed the federal district court's decision.
Grimmett v. Brown, 75 F.3d 506 {9th Cir. 1996), cert. dismissed, 519 U.S. 233 {1997).
__________

3
According to Joanne's complaint, after Bowers obtained 100% ownership of Vince's and Heeren's interests
in HIN, he transferred all of HIN's assets to CAN and sold stock in CAN to various CAN doctor-employees.
Bowers told these stockholders that Joanne's adversary complaint exposed CAN to no more than $250,000 in
liability; Bowers did not tell the stockholders that the adversary complaint also sought to undo the HIN
reorganization (i.e., the transfer of that entity's assets to CAN). See Grimmett v. Brown, 75 F.3d 506, 509 (9th
Cir. 1996). Joanne's complaint further alleges that additional CAN stock was sold through November 1991 to
other doctor-employees and that in 1992, Bowers told CAN stockholders seeking redemption that their shares
were valueless.
75 F.3d 506 (9th Cir. 1996), cert. dismissed, 519 U.S. 233 (1997).
4

The state district court (the district court) subsequently granted summary judgment against Joanne,
concluding that the federal RICO and state law tort claims were barred by the statute of limitations. The district
court concluded that the statute of limitations for these claims accrued no later than May 1989, when she filed
her adversary complaint in the bankruptcy action. Since no applicable limitations period was greater than four
years, the lower court concluded that because Joanne's claims were not filed before May 1993, they were
untimely. The district court rejected Joanne's fraudulent concealment and equitable tolling defenses to the statute
of limitations.
The state RICO claims were also dismissed on statute of limitations grounds and/or for failure to plead a
sufficient pattern of continuous racketeering activity. Joanne appeals from the summary judgment and dismissal
of her various claims.
DISCUSSION
The district court erred in concluding as a matter of law that appellants' fraud and
conspiracy claims were barred by the statutes of limitation
[Headnote 1]
Summary judgment should be affirmed only if, upon reviewing the evidence in the light most favorable to
Joanne, this court finds that no genuine issues of fact were created by the pleadings and proof below. Tore, Ltd.
v. Church, 105 Nev. 183, 185, 772 P.2d 1281, 1282 (1989).
In her opening brief, Joanne does not distinguish between her state and federal claims; she argues that all
claims were timely. As part of her response, Brown presents support for the state district court's decision
dismissing the federal RICO claims as barred by the Ninth Circuit's interpretation of the federal four-year statute
of limitations. However, in her reply brief, Joanne asserts [t]hese [(federal RICO)] issues are before the United
States Supreme Court . . . . Consequently, Joanne is not appealing the federal RICO issues, only the Nevada
RICO issues. (Emphasis added.) Accordingly, we conclude that Joanne is not challenging the district court's
dismissal of the federal RICO claims in this appeal. Before we address the dismissal of the state RICO claims,
we will consider the dismissal of Joanne's tort claims.
__________

4
On September 13, 1994, the trustee stipulated to dismissal of his state court claims against Beckley. We
direct the clerk of this court to amend the caption on this court's docket so as to conform with the caption on this
opinion.
RICO claims, we will consider the dismissal of Joanne's tort claims.
5

NRS 11.190(3)(d) provides for a three-year statute of limitations for fraud actions which accrues upon the
discovery by the aggrieved party of the facts constituting the fraud. The district court determined that
statements in the 1989 adversary complaint demonstrated that Joanne had knowledge of facts which would have
enabled them, in the exercise of proper diligence, to investigate further and file an action for fraud within 3 years
or by January 1991.
[Headnote 2]
By May 1989, Joanne was aware that various members of HIN had concocted a sham transfer of Vince's
interests so as to protect those medical practice assets from Joanne's lien and from being included in the
bankruptcy estate. However, we conclude that such awareness did not, as a matter of law, constitute discovery by
Joanne of facts constituting the fraud allegedly perpetrated by Brown.
We have held that [w]hen the plaintiff knew or in the exercise of proper diligence should have known of the
facts constituting the elements of his cause of action is a question of fact for the trier of fact. Oak Grove Inv. v.
Bell & Gossett Co., 99 Nev. 616, 623, 668 P.2d 1075, 1079 (1983); see also Millspaugh v. Millspaugh, 96 Nev.
446, 449, 611 P.2d 201, 202 (1980) (stating that time of discovery is a question for the fact-finder where the
facts are susceptible to opposing inferences). The Ninth Circuit has further held that under a discovery-based
statute of limitations such as ours, the time of discovery may be decided as a matter of law only where
uncontroverted evidence proves that the plaintiff discovered or should have discovered the fraudulent conduct.
Nevada Power Co. v. Monsanto Co., 955 F.2d 1304, 1307 (9th Cir. 1992).
Civil conspiracy is governed by the catch-all provision of NRS 11.220, which provides that an action must
be commenced within 4 years after the cause of action shall have accrued.
__________

5
The seventh and eighth causes of action are labelled Fraud and Conspiracy Against Joanne and Fraud
and Conspiracy Against the Bankruptcy Estate, respectively. The remaining eight causes of action allege
conspiracy against either Joanne or Vince's bankruptcy estate in conjunction with conversion, intentional
interference with contractual relations/prospective economic advantage, and prejudicing/defrauding a lien
creditor. In reviewing the Brown/Beckley motion for summary judgment, the state district court concluded that
the gravamen of all the state law claims alleged fraud or conspiracy. The parties have not challenged this
designation on appeal; therefore, we too shall consider only the statutes of limitations applicable to fraud and
conspiracy causes of action. See Hartford Ins. v. Statewide Appliances, 87 Nev. 195, 197-98, 484 P.2d 569,
(1971) (stating that the term action in NRS 11.190 refers to the nature or subject matter and not to what the
pleader says it is).
within 4 years after the cause of action shall have accrued. We have previously held that the four-year statute of
limitations runs from the date of the injury rather than the date the conspiracy is discovered. Aldabe v. Adams,
81 Nev. 280, 286, 402 P.2d 34, 37-38 (1965). In the instant case, the district court concluded that the alleged
injury likely occurred in 1987 when Vince's interests were transferred to Bowers and HIN was reorganized by
way of transferring assets to CAN and no later than May 1989, when Joanne filed her adversary bankruptcy
proceeding. Accordingly, the district court concluded that Joanne's conspiracy claims expired in May 1993.
Our statute of limitations jurisprudence has significantly evolved since the issuance of Aldabe. In Oak Grove
Investors v. Bell & Gossett Co., 99 Nev. 616, 623, 668 P.2d 1075, 1079 (1983), we held that the term
accrued' as used in NRS 11.220, incorporates the same diligent discovery' rule that is present in NRS
11.190(3). We explained that [t]o hold otherwise would transmute the statute from one of limitation into
one of abolition. . . . Such a result is not consonant with the legislative purpose of the statute.' Id. (quoting
Malasev v. Bd. of County Road Comm'rs, 215 N.W. 2d 598, 599 (Mich. Ct. App. 1974)).
[Headnote 3]
More recently, in Petersen v. Bruen, 106 Nev. 271, 792 P.2d 18 (1990), we commented on the distinction
between the discovery rule and the general rule of accrual of a cause of action for statute of limitations
purposes:
The general rule concerning statutes of limitation is that a cause of action accrues when the wrong
occurs and a party sustains injuries for which relief could be sought. An exception to the general rule has
been recognized by this court and many others in the form of the so-called discovery rule. Under the
discovery rule, the statutory period of limitations is tolled until the injured party discovers or reasonably
should have discovered facts supporting a cause of action.
The rationale behind the discovery rule is that the policies served by statutes of limitation do not
outweigh the equities reflected in the proposition that plaintiffs should not be foreclosed from judicial
remedies before they know that they have been injured and can discover the cause of their injuries. . . .
6
106 Nev. at 274, 792 P.2d at 20 {emphasis and footnote added) {citations omitted);
__________

6
In Prescott v. United States, 523 F. Supp. 918, 940-41 (D. Nev. 1981), which we cite in Petersen, the
federal court held: Plaintiff who relies upon this delayed discovery rule must plead facts justifying delayed
accrual of his action. The complaint must allege: (1) the time and manner of discovery, and (2) the
circumstances excusing delayed discovery. We reject Brown's contention that appellants failed to
satisfy the pleading requirements for a claim of delayed discovery.
106 Nev. at 274, 792 P.2d at 20 (emphasis and footnote added) (citations omitted); see also
Massey v. Litton, 99 Nev. 723, 727, 669 P.2d 248, 251 (1983) (holding that a medical
malpractice claim accrued when the plaintiff knew or should have known both the fact of
damage suffered and the realization that the cause was the health care provider's negligence);
Sorenson v. Pavlikowski, 94 Nev. 440, 581 P.2d 851 (1978) (holding that an action for legal
malpractice did not accrue until the plaintiff discovered or should have discovered all facts
material to the cause of action).
[Headnotes 4, 5]
Based upon our post-Aldabe jurisprudence, we hold that an action for civil conspiracy accrues when the
plaintiff discovers or should have discovered all of the necessary facts constituting a conspiracy claim. To the
extent that Aldabe is inconsistent with our holding today, it is overruled. As in the case of fraud, [w]hen the
plaintiff knew or in the exercise of proper diligence should have known of the facts constituting the elements of
[a conspiracy] cause of action is a question of fact for the trier of fact. Oak Grove, 99 Nev. at 623, 668 P.2d at
1079.
[Headnote 6]
In concluding that Joanne's tort claims accrued when she discovered or should have discovered facts
constituting her claims, we must address her argument that part of discovering facts constituting a cause of
action is discovering the identity of a specific tortfeasor, to wit: Brown. In Spitler v. Dean, 436 N.W.2d 308
(Wis. 1989) the Wisconsin Supreme Court held that the identity of the tortfeasor is a critical element of an
enforceable claim: . . . . The statute should not commence to run until the plaintiff with due diligence knows to a
reasonable probability of injury, its nature, its cause, and the identity of the allegedly responsible defendant.'
Id. at 310 (quoting Borello v. U.S. Oil Co., 388 N.W.2d 140 (1866)). The Spitler court reasoned:
The public policy justifying the accrual of a cause of action upon the discovery of the injury and its
cause applies equally to the discovery of the identity of the defendant in this case. We have consistently
recognized the injustice of commencing the statute of limitations before a claimant is aware of all the
elements of an enforceable claim. A statute of limitations barring relief to victims before the defendant is,
or could be discovered violates this guarantee of fairness.
. . . .
__________
tention that appellants failed to satisfy the pleading requirements for a claim of delayed discovery. The express
requirements of Prescott are not the law of Nevada.
However, . . . the expansion of the discovery rule carries with it the requirement that
the plaintiff exercise reasonable diligence . . . . Plaintiffs may not close their eyes to
means of information reasonably accessible to them and must in good faith apply their
attention to those particulars within their reach.
The issue of reasonable diligence is ordinarily one of fact.
Id. at 310-311 (citations omitted).
[Headnote 7]
Applying this rule, it is clear that mere ignorance of Brown's identity will not delay accrual of even a
discovery-based statute of limitations if the fact finder determines that Joanne failed to exercise reasonable
diligence in discovering Brown's role in the alleged tortious activities. Joanne asserts that Brown concealed her
role in the alleged fraudulent and conspiratorial conduct; however, even if there were issues of intentional
concealment, such wrongful conduct would not excuse her failure to exercise due diligence. See Western
Mountain Oil, Inc. v. Gulf Oil Corp., 575 F. Supp. 813 (D. Nev. 1983). Thus, on remand the trier of fact must
determine whether Joanne's discovery of Brown's involvement was delayed due to her alleged attempts to
conceal her role and whether Joanne could have, nonetheless, discovered her identity earlier through diligent
inquiry.
7

__________

7
Joanne was under no obligation to pursue the known defendants (i.e. the medical practice partners) in state
court. As such, assuming Brown did wrongfully conceal her role in the activities alleged in the instant complaint,
it cannot be said that Joanne could have successfully utilized NRCP 10(a).
However, we specifically reject appellants' argument that because they were litigating the same issues against
Brown in the bankruptcy proceedings as were set forth in the instant complaint, the limitation periods were tolled
during the pendency of those bankruptcy proceedings. We disagree with the district court's conclusion that
appellants had unclean hands because we conclude that they did not pursue their action against Brown in the
bankruptcy proceedings in bad faith. Nonetheless, we hold that our prior cases tolling the statutes of limitations
during the pendency of other proceedings are limited to their facts and have no broader application in the instant
case. See e.g., State, Dep't Human Resources v. Shively, 110 Nev. 316, 871 P.2d 355 (1994) (tolling fraud claim
during pendency of administrative claim where State was required to pursue administrative action, and law
favored resolution in that forum); Copeland v. Desert Inn Hotel, 99 Nev. 823, 673 P.2d 490 (1983) (holding that
the doctrine of equitable tolling applies in the context of Nevada's antidiscrimination laws).
We further reject appellants' assertion that the limitations periods were tolled until they knew what relief, if
any, they would receive in bankruptcy court. See Grimmett v. Brown, 75 F.3d 506, 515-17 (9th Cir. 1996)
(rejecting appellants' same assertion under Ninth Circuit law); Gonzalez v. Stewart Title of Northern Nevada,
111 Nev. 1350, 1353, 905 P.2d 176, 178 (1995) (An action accrues when the litigant discovers, or should have
discovered, the existence of damages, not the exact numerical extent of those damages.).
Dismissal of the Nevada RICO claims
In the instant complaint, Joanne set forth three claims against Brown seeking relief under Nevada's civil
RICO statute, NRS 207.470.
8
The complaint asserts that Brown violated NRS 207.400(1)(b),(c), and (h)
9
by aiding and abetting Vince, Bowers, and Heeren in racketeering activity in order to obtain the lucrative
financial rewards of the medical practice partnerships at the expense and to the detriment of Joanne, the
Bankruptcy Estate and the Other Victims.
10
Specifically, Joanne's complaint charges Brown with the
following Crimes related to racketeering:
11
Multiple instances of grand larceny, embezzlement, obtaining
money or property by false pretenses, perjury or subornation of perjury, offering false evidence, and securities
fraud.
12
Joanne seeks over $6 million for each of these three violations and asks for treble
damages pursuant to NRS 207.470{1).
__________

8
Joanne's complaint describes four alleged schemes: The scheme to fraudulently acquire and maintain
Vince's medical practice interest; the scheme to fraudulently acquire and maintain Heeren's medical practice
interest; the CAN stock sales scheme; and the scheme to obstruct justice.

9
NRS 207.400(1) provides in pertinent part:
It is unlawful for a person:
. . . .
(b) Through racketeering activity to acquire or maintain, directly or indirectly, any interest in
or control of any enterprise.
(c) Who is employed by or associated with any enterprise to conduct or participate, directly or
indirectly, in:
(1) The affairs of the enterprise through racketeering activity; or
(2) Racketeering activity through the affairs of the enterprise.
. . . .
(h) To conspire to violate any of the provisions of this section.

10
Joanne's complaint describes these other victims as the CAN stockholders whose redemption requests
were refused and who were allegedly told by Bowers that their stock was worthless, Valley Bank of Nevada as a
bankruptcy creditor who received only $2500 from Vince's bankruptcy estate in compromise of a $350,000 debt,
Heeren, and Vince. We note that if the facts are as Joanne has asserted, Vince and Heeren would not be entitled
to recover under state RICO laws. In Allum v. Valley Bank of Nevada, 109 Nev. 280, 283, 849 P.2d 297,
(1993), cert. denied, 510 U.S. 857 (1993), we held that, inter alia, a plaintiff seeking RICO damages must not
have participated in the commission of the predicate act. Although neither Vince nor Heeren are named as
defendants in the instant action, Joanne's complaint alleges that they both took part in Brown's alleged fraudulent
schemes to insulate the medical practice partnerships from Joanne's interests therein; Vince and Heeren allegedly
agreed to transfer their shares in the partnerships to Bowers and, ultimately, to CAN, while continuing to receive
full partnership benefits throughout Vince's bankruptcy proceedings. Thus, it cannot be said that either Vince or
Heeren are victims of the alleged racketeering activity; the alleged predicate acts are part of a valid RICO
claim only to the extent that by their commission Joanne suffered injury.

11
These crimes are listed at NRS 207.360.

12
Exhibits 1, 4, and 5 to Joanne's complaint set forth in great detail the specific acts constituting the alleged
predicate acts (i.e., crimes related to racketeering) of grand larceny (NRS 205.220), embezzlement (NRS
seeks over $6 million for each of these three violations and asks for treble damages pursuant to NRS 207.470(1).
Racketeering activity means engaging in at least two crimes related to racketeering that have the same
or similar pattern, intents, results, accomplices, victims or methods of commission, or are otherwise
interrelated by distinguishing characteristics and are not isolated incidents, if at least one of the incidents
occurred after July 1, 1983, and the last of the incidents occurred within 5 years after a prior commission
of a crime related to racketeering.
The district court appears to have dismissed Joanne's Nevada RICO claims on two alternate grounds(1)
inadequate pleading of RICO violations; and (2) statute of limitations. We conclude that dismissal on either of
these grounds constituted reversible error.
Sufficiency of the pleadings
[Headnote 8]
We first consider whether the district court properly dismissed Joanne's Nevada RICO claims on the basis of
Beckley's 12(b)(5) motion. In Hale v. Burkhardt, 104 Nev. 632, 764 P.2d 866 (1988), this court stated:
[W]e are mindful that the trial court's NRCP 12(b)(5) dismissal of the RICO cause of action must be
carefully reviewed. A claim should not be dismissed on this ground unless it appears to a certainty that
the plaintiff is not entitled to relief under any set of facts which could be proved in support of the claim.
Id. at 636, 764 P.2d at 868 (emphasis added). We then held that [a] civil RICO pleading must, in that portion of
the pleading which describes the criminal acts that the defendant is charged to have committed, contain a
sufficiently plain, concise and definite' statement of the essential facts such that it would provide a person of
ordinary understanding with notice of the charges. Id. at 638, 764 P.2d at 869-70. Having reviewed the
complaint, we conclude that the Nevada RICO claims were sufficiently pleaded so as to survive the motion for
dismissal.
Unlike the claimant in Hale, Joanne sets forth numerous specific acts constituting the asserted crimes related
to racketeering.
__________
205.300), obtaining money or property under false pretenses (NRS 205.380), perjury or subornation of perjury
(NRS 199.200), offering false evidence (NRS 199.210), and securities fraud (NRS 90.750).
The complaint alleges that Brown is guilty of grand larceny, obtaining money or property by false pretenses,
embezzlement, and/or securities fraud to the extent that she (1) represented to Joanne, the trustee, and the
bankruptcy court that there were legitimate reasons for Vince's removal from the medical practice partnerships;
(2) backdated documents submitted to the bankruptcy court in an attempt to legitimize the sham reorganization
and transfers of Vince's and Heeren's partnership interests to Bowers, who then transferred all of HIN's assets to
Bower's solely owned corporationCANleaving HIN behind as a mere shell in Vince's bankruptcy; (3) made
agreements with Vince and Heeren to hold their HIN interests sub rosa and to restore those interests at a later
time; and (4) aided and abetted Bowers in defrauding CAN stockholders who were refused redemption of their
stock and not informed of CAN's full potential liability to Joanne. Joanne's complaint further asserts specific
instances wherein Brown perjured herself or suborned perjury and offered false evidence throughout the
bankruptcy proceedings.
In reviewing the sufficiency of Joanne's complaint, the district court concluded that to plead a Nevada RICO
claim, there must be a pattern of racketeering activity as is required by the federal RICO statute. The federal
RICO statute provides that a pattern of racketeering activity' requires at least two acts of racketeering activity,
one of which occurred after the effective date of this chapter . . . and the last of which occurred within ten years .
. . after the commission of a prior act of racketeering activity. 18 U.S.C. 1961(5) (1988).
13

In H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989), the Court reviewed the dismissal of a
federal RICO action for failure to state a claim (FRCP 12(b)(6)). The Court concluded that to satisfy the
definition of a pattern of racketeering activity, a mere showing of two criminal predicate acts would not suffice;
rather, the plaintiff must show both relationship and continuitythat the racketeering predicate crimes are
related, and that they either constitute or threaten long-term criminal activity. H.J. Inc., 492 U.S. at 237-239.
[Headnote 9]
Applying the law of federal RICO, the district court in the instant case opined that [t]o allege a state RICO
claim in Nevada, the plaintiff must allege and prove continued criminal activity or the threat of continued
criminal activity. The district court granted the motion to dismiss upon determining that the alleged
schemes wherein Brown allegedly conspired with Bowers to take over the medical
practice partnerships did not constitute a pattern and lacked the requisite continuity of
ongoing criminal activity.
__________

13
The federal statute roughly equates racketeering activity to those acts which Nevada has labelled Crime
related to racketeering in NRS 207.360. 18 U.S.C. 1961(1) (1988).
alleged schemes wherein Brown allegedly conspired with Bowers to take over the medical practice partnerships
did not constitute a pattern and lacked the requisite continuity of ongoing criminal activity. We conclude that the
district court erred in concluding that Nevada's RICO statute is analogous to the federal statute and requires a
showing of pattern and continuity as those terms have been defined in federal jurisprudence.
We have said that Nevada's anti-racketeering statutes . . . are patterned after the federal [RICO] statutes.
Hale v. Burkhardt, 104 Nev. 632, 634, 764 P.2d 866, 867 (1988). However, we have also noted that
Nevada's civil RICO statute differs in some respects from the federal civil RICO statute. Id. at 635, 764 P.2d at
868. One critical distinction is found in comparing the language of 18 U.S.C. 1961(5) with that of NRS
207.390. The federal statute provides that a claimant must plead a pattern of racketeering activity and that such
a pattern requires at least two predicate acts; Nevada's RICO statute does not speak in terms of a pattern of
racketeering and provides that racketeering activity means two predicate acts of the type described in NRS
207.390 and NRS 207.360.
In Sedima, S.P.R.L. v. Imrex Co., the United States Supreme Court noted the critical linguistic distinction
between requires and means. 473 U.S. 479, 496 n.14 (1985). The Court explained:
. . . [T]he definition of a pattern of racketeering activity . . . states that a pattern requires at least
two acts of racketeering activity, [18 U.S.C.] 1961(5) (emphasis added), not that it means two such
acts. The implication is that while two acts are necessary, they may not be sufficient. Indeed, in common
parlance two of anything do not generally form a pattern.
Id.
In Computer Concepts, Inc. v. Brandt, 801 P.2d 800 (Or. 1990), the Oregon Supreme Court distinguished its
state RICO statute from the federal RICO statute: Oregon's definitional statute uses the phrase pattern of
racketeering activity means engaging in at least two incidents of racketeering activity, and continues with
language similar to that contained in NRS 207.390.
14
Brandt, 801 P.2d at 807 (emphasis added). The Brandt
court concluded that the word "means" {also used in NRS 207.390) implied that the
definition was self-contained and there was no additional patternJcontinuity
requirement.
__________

14
Or. Rev. Stat. 166.715(4) provides:
Pattern of racketeering activity means engaging in at least two incidents of racketeering activity that
have the same or similar intents, results, accomplices, victims or methods of commission or otherwise are
interrelated by distinguishing characteristics, including a nexus to the same enterprise, and are not
isolated incidents, provided at least one of such incidents occurred after November 1, 1981, and that the
last of
court concluded that the word means (also used in NRS 207.390) implied that the definition was
self-contained and there was no additional pattern/continuity requirement. Id. at 807-08. The Oregon court
concluded that a plaintiff need only allege the elements clearly set forth in its statute. We interpret our statute in
the same manner.
[Headnote 10]
In light of the clear distinction between means and requires noted by both the Supreme Court and other
jurisdictions, the district court was incorrect in its assertion that [a]lthough Nevada's RICO statute does not use
the word pattern,' the language of 18 U.S.C. 1961(5) is functionally no different than our requirement. Had
the state legislature intended Nevada's RICO provisions to mirror the federal statute in this area, it would have
expressly adopted the requires language of the federal statute.
15
See State ex rel. Corbin v. Pickrell, 667 P.2d
1304, 1311 (Ariz. Ct. App. 1983) (interpreting Arizona's RICO statutes and noting the differences between the
state and federal versions).
16

Accordingly, we hold that there is no pattern/continuity requirement as is required under federal law. A state
RICO complaint need allege no more than that which is set forth in the Nevada statute. In the instant case,
Joanne's complaint sufficiently set forth at least two not isolated predicate acts that have the same or similar
pattern, intents, results, accomplices, victims or methods of commission. NRS 207.390. Therefore, the
district court erred in dismissing Joanne's state RICO claims for failure to sufficiently plead those causes of
action.
17

__________
such incidents occurred within five years after a prior incident of racketeering conduct.

15
We have held that certain aspects of federal RICO law are relevant to the interpretation of Nevada's RICO
statutes. See e.g., Allum, 109 Nev. At 286, 849 P.2d at 301 (applying federal RICO causation analysis).
However, we reject Brown's contention that the intent and effect of Nevada RICO must be the same as Federal
RICO where the Nevada legislature has not spoken. Moreover, the legislature has spoken by choosing to adopt
language with critical distinctions from the federal statute.

16
In reviewing the relevant legislative history of Nevada's RICO statute, we note that there was testimony
before the Assembly Judiciary Committee stating that Arizona's RICO statute was relied upon in drafting
Nevada's RICO statute.

17
Beckley's brief asserts that one of the asserted predicate crimes was NRS 205.0832(7), which provides that
taking property in which another holds a security interest with intent to defraud that person constitutes theft.
Beckley then points out that this statute was adopted in 1989, after the property in which Joanne had an interest
was transferred prior to the bankruptcy in 1987. Joanne did not plead this provision in her complaint and merely
raised it in response to Beckley's assertion below that the 1985 theft statutes did apply
Statute of limitations
We must next consider whether dismissal of Joanne's Nevada RICO claims was nonetheless proper as being
barred by the statute of limitations. NRS 207.520 provides that a criminal action or proceeding under NRS .
. . 207.400 may be commenced at any time within 5 years after the conduct in violation of the section occurs
[and] a civil [RICO] action or proceeding under NRS 207.470 may be commenced at any time within 5 years
after the violation occurs or after the injured person sustains the injury, whichever is later.
Joanne's complaint sets forth several relevant times during which Brown allegedly engaged in the various
crimes related to racketeering: November 1986 at which time Brown allegedly began planning the sham
reorganization of the medical practice partnerships; the fall of 1987 at which time Brown further devised,
conspired, conducted, implemented and/or participated in the Reorganization; November 10, 1987, the date
Vince filed his bankruptcy petition, April 1990 to November 1991 when CAN doctor-employees purchased
CAN stock; and late 1992 when CAN stock redemptions were allegedly refused. Joanne maintains that Brown's
scheme to obstruct justice has continued through the filing of the instant complaint.
Applying Nevada's five year limitations period, the district court found that Vince's November 1987
bankruptcy filing was a necessary predicate crime, which must have been predated by the first predicate
crimeconspiracy to divest Joanne of her interest in Vince's partnership. Thus, the lower court concluded that
the violation of the RICO statutes occurred no later than November of 1987. The district court next considered
when Joanne sustained injury under NRS 207.520. The court concluded that by June of 1988the date
Joanne applied to the bankruptcy court to interview Brown and the medical practice partners, and sought
subpoenas against those same partiesJoanne knew or should have known about their injury and that Brown
was involved in a conspiracy and the five year limitations period began to run.
[Headnote 11]
Once again, we note the general rule that the question of when a claimant discovered or should have
discovered the facts constituting a cause of action is one of fact. Oak Grove Inv. v. Bell & Gossett Co., 99
Nev. 616, 623, 66S P.2d 1075, 1079 {19S3).
__________
and bar Joanne's claims. Assuming arguendo that NRS 205.0832(7) is not applicable, Joanne's complaint still
sets forth viable predicate acts under NRS 207.360 (e.g. perjury, subornation of perjury, and offering false
evidence). Beckley's instant argument was not the basis of the lower court's decision to dismiss Joanne's claims.
Under these circumstances we decline Beckley's invitation to affirm the dismissal of Joanne's state RICO claims
on this alternate ground.
Gossett Co., 99 Nev. 616, 623, 668 P.2d 1075, 1079 (1983). Only where uncontroverted evidence proves that
the plaintiff discovered or should have discovered the facts giving rise to the claim should such a determination
be made as a matter of law.
18
See Nevada Power Co. v. Monsanto Co., 955 F.2d 1304, 1307 (9th Cir. 1992).
[Headnotes 12, 13]
In Massey v. Litton, 99 Nev. 723, 727, 669 P.2d 248, 251 (1983) we held that the term injury as used in a
medical malpractice statute encompassed legal injurythat is, both the fact of damage suffered and the
realization that the cause was the health care provider's negligence. Likewise, we conclude that the term
injury as used in NRS 207.520 encompasses discovery of both an injury and the cause of that injury, in this
case Brown's alleged racketeering activity. See Penuel v. Titan/Value Equities Group, Inc., 872 P.2d 28, 31 (Or.
Ct. App. 1994) (holding that a state RICO cause of action accrues under Oregon's five year statute of limitations
when the claimants discovered or in the exercise of reasonable diligence should have discovered that they had
been damaged and the cause of their damages and concluding that such determinations were factual). We
conclude that such factual determinations cannot be made as a matter of law. To the extent that the district court
based its decision to dismiss Joanne's Nevada RICO claims on the statute of limitations, it erred.
19

__________

18
Both the federal district and appellate courts concluded that Joanne's federal RICO claims did not accrue
until 1989 at which time she filed an adversary complaint against the medical practice partners. See, Grimmett,
75 F.3d at 512. The Ninth Circuit reached this conclusion employing the injury discovery rule. Id. at 510.
Under this rule (which has been adopted by six of the federal circuits), the federal RICO four-year limitations
period begins to run when a plaintiff knows or should know of the injury that underlies his cause of action.
Pocahontas Supreme Coal Co. v. Bethlehem Steel, 828 F.2d 211, 220 (4th Cir. 1987).
In the instant matter, the federal and state courts each applied the injury discovery rule, yet reached differing
conclusions. The federal courts found that Joanne knew or should have known of her RICO injury in 1989;
however, the state district court found that Joanne's Nevada RICO claims accrued in 1988. As evidenced by
these conflicting results, it is clear that the pleaded facts are subject to varying interpretations.

19
Moreover, there is evidence that the statute of limitations issue as it pertains to these Nevada RICO claims
was waived by Brown and Beckley. In reply to Joanne's opposition to Brown's motion to dismiss, Brown states:
Plaintiffs are absolutely correct, in stating that the statute of limitations for Nevada RICO claims is five years.
The claims based on Nevada's RICO statute are not at issue.
Although Beckley initially argued in its summary judgment motion that the Nevada RICO claims were barred
by the statute of limitations, it subsequently filed a motion pursuant to NRCP 12(b)(5) as to the Nevada RICO
claims. Beckley then stated in its reply in support of its motion for summary judgment that: The fourth, fifth,
and sixth causes of action are Nevada RICO
CONCLUSION
We conclude that the district court erred in dismissing Joanne's state law tort claims as being barred by the
applicable statutes of limitations; such a determination must be made by the trier of fact. We further conclude
that the district court erred in dismissing her Nevada RICO claims as being insufficiently pleaded or barred by
the statute of limitations. Therefore, we reverse the dismissal of all of Joanne's tort and Nevada RICO claims and
remand this case to the district court for further proceedings consistent with this opinion.
Maupin, J., with whom Springer, C.J., agrees, concurring and dissenting:
I would affirm the dismissal of the state RICO claims because the facts pleaded in the complaint below do
not satisfy the predicate acts element of NRS 207.390:
Racketeering activity means engaging in at least two crimes related to racketeering that have the same
or similar pattern, intents, results, accomplices, victims or methods of commission, or are otherwise
interrelated by distinguishing characteristics and are not isolated incidents . . . .
While references are made in Mrs. Siragusa's complaint to a number of separate violations of the Nevada
criminal code, the overall chain of events does not give rise to a pattern as intended by the legislature.
First, the alleged events, taken as a whole, and if found to be true, comprise an isolated incident designed
to defraud Mrs. Siragusa of the proceeds of her marital settlement with Dr. Siragusa. The legislature, in my view,
did not intend to characterize isolated individual intentional misconduct as racketeering, or create remedies over
and above those existing at common law, whenever one person commits two crimes with a single purpose in
mind. Here, as noted, the only purpose of the alleged acts of fraud, if they can be proved, was to deprive Mrs.
Siragusa of the benefits of her marital settlement.
The majority correctly notes authorities from other states construing the phrase Racketeering Activity'
means engaging in at least two related crimes. (Emphasis added.) Those cases interpret this language as
creating a more broadly based civil RICO remedy than provided under federal law. While this interpretation is
certainly reasonable under well recognized principles of statutory construction, the
Nevada legislature's definition of a "pattern" does not compel or require that we adopt
the positions taken by these other jurisdictions.
__________
claims. These actions will be handled in a separate motion to dismiss filed concurrently with this brief. The
motion to dismiss was not based upon statutes of limitations.
is certainly reasonable under well recognized principles of statutory construction, the Nevada legislature's
definition of a pattern does not compel or require that we adopt the positions taken by these other
jurisdictions.
I believe our legislature intended to adopt a more narrow statutory construct, patterned on federal law. Under
the federal cases construing the federal RICO statutory scheme, a mere showing of two criminal acts does not
suffice. Rather, a plaintiff must show both relationship and continuity, to wit: that the racketeering predicate
crimes be related and either constitute or threaten long-term criminal activity. See J.J., Inc. v. Northwestern Bell
Telephone Co., 492 U.S. 229 (1989). This, I respectfully submit, was not demonstrated on this record as a
matter of law.
I would therefore conclude that Mrs. Siragusa has not sufficiently stated a claim for relief under our civil
RICO statute.
____________
114 Nev. 1403, 1403 (1998) Chappell v. State
JAMES MONTELL CHAPPELL, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 29884
December 30, 1998 972 P.2d 838
Appeal from a judgment of conviction pursuant to a jury verdict of one count each of burglary, robbery 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; A. William Maupin, Judge.
The supreme court held that: (1) admission of prior bad acts evidence without holding
Petrocelli hearing was harmless error; (2) evidence was sufficient to support all aggravating
circumstances with exception of aggravator for torture or depravity of mind; (3) aggravating
circumstances outweighed mitigating evidence; and (4) imposition of death penalty was
proper upon mandatory review.
Affirmed.
Morgan D. Harris, Public Defender, Michael L. Miller, Deputy Public Defender, Howard S. Brooks, Deputy
Public Defender, Clark County, for Appellant.
Chief Deputy District Attorney, Abbi Silver, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Automatic reversal is not required for failure to conduct Petrocelli hearing on admission of prior bad acts evidence if (1) record is
sufficient to determine that evidence is admissible under test for bad acts evidence, or (2) where results would have been the same if
trial court had not admitted the evidence.
2. Criminal Law.
Failure to hold Petrocelli hearing before admitting prior bad acts evidence was harmless error where there was overwhelming
evidence of guilt, such that outcome was not affected by admission of evidence.
3. Homicide.
Evidence, including defendant's theft of vehicle and credit card after homicide, was sufficient in first-degree capital murder
prosecution to support aggravating circumstance of robbery of victim in course of crime.
4. Robbery.
Requisite force or violence necessary for robbery conviction need not be committed with specific intent to commit robbery.
5. Robbery.
Evidence, that defendant fled in victim's vehicle and took credit card after homicide, was sufficient to support robbery conviction.
6. Burglary.
Evidence that defendant entered former girlfriend's house trailer and left with car keys and social security card, was sufficient to
support burglary conviction. NRS 205.060(1).
7. Homicide.
Evidence that defendant entered former girlfriend's house trailer and left with her car keys and social security card after murdering
her was sufficient to support burglary aggravator in capital murder prosecution.
8. Homicide.
Evidence, that defendant and former girlfriend had ended their relationship and that defendant was jealous of former girlfriend's
involvement with another man, was sufficient to support sexual assault aggravator in capital murder prosecution for stabbing death of
girlfriend who had sexual encounter shortly before her death.
9. Homicide.
Circumstances of former girlfriend's stabbing death did not rise to level necessary to establish torture or depravity of mind
aggravator; although death was caused by thirteen stab wounds, force of stab wounds suggested that defendant acted only with
intention to end victim's life, not to inflict pain. NRS 200.033(8).
10. Criminal Law.
Invalidating aggravating circumstance does not automatically require reviewing court to vacate death sentence and remand for new
proceedings before jury.
11. Criminal Law.
Where at least one other aggravating circumstance exists in addition to aggravating circumstance found invalid on appeal, supreme
court may either reweigh aggravating circumstances against mitigating evidence in capital murder prosecution or conduct a harmless
error analysis.
12. Homicide.
Aggravators in capital murder prosecution for stabbing death of former girlfriend, that crime was committed in commission of or
attempt to commit robbery, burglary and sexual assault, clearly outweighed mitigating evidence that defendant was under
extreme mental or emotional disturbance and any other mitigating evidence.
gating evidence that defendant was under extreme mental or emotional disturbance and any other mitigating evidence.
13. Homicide.
Imposition of death sentence was proper for defendant's murder conviction for stabbing former girlfriend. Aggravating
circumstances outweighed mitigating evidence, sentence was not imposed under passion, prejudice or any arbitrary fact, and death
sentence was not excessive considering crime and defendant. NRS 177.055(2).
OPINION
Per Curiam:
On the morning of August 31, 1995, James Montell Chappell was mistakenly released from prison in Las Vegas where he had been
serving time since June 1995 for domestic battery. Upon his release, Chappell went to the Ballerina Mobile Home Park in Las Vegas where
his ex-girlfriend, Deborah Panos, lived with their three children. Chappell entered Panos' trailer by climbing through the window. Panos
was home alone, and she and Chappell engaged in sexual intercourse. Sometime later that morning, Chappell repeatedly stabbed Panos with
a kitchen knife, killing her. Chappell then left the trailer park in Panos' car and drove to a nearby housing complex.
The State filed an information on October 11, 1995, charging Chappell with one count of burglary, one count of robbery with the use
of a deadly weapon, and one count of murder with the use of a deadly weapon. On November 8, 1995, the State filed a notice of intent to
seek the death penalty. The notice listed four aggravating circumstances: (1) the murder was committed during the commission of or an
attempt to commit any robbery; (2) the murder was committed during the commission of or an attempt to commit any burglary and/or home
invasion; (3) the murder was committed during the commission of or an attempt to commit any sexual assault; and (4) the murder involved
torture or depravity of mind.
Prior to trial, Chappell offered to stipulate that he (1) entered Panos' trailer home through a window, (2) engaged in sexual intercourse
with Panos, (3) caused Panos' death by stabbing her with a kitchen knife, and (4) was jealous of Panos giving and receiving attention from
other men. The State accepted the stipulations, and the case proceeded to trial on October 7, 1996.
Chappell took the witness stand on his own behalf and testified that he considered the trailer to be his home and that he had entered
through the trailer's window because he had lost his key and did not know that Panos was at home. He testified that Panos greeted him as
he entered the trailer and that they had consensual sexual intercourse.
sexual intercourse. Chappell testified that he left with Panos to pick up their children from day care and
discovered in the car a love letter addressed to Panos. Chappell, enraged, dragged Panos back into the trailer
where he stabbed her to death. Chappell argued that his actions were the result of a jealous rage.
The jury convicted Chappell of all charges. Following a penalty hearing, the jury returned a sentence of death
on the murder charge, finding two mitigating circumstancesmurder committed while Chappell was under the
influence of extreme mental or emotional disturbance and any other mitigating circumstancesand all four
alleged aggravating circumstances. The district court sentenced Chappell to a minimum of forty-eight months
and a maximum of 120 months for the burglary; a minimum of seventy-two months and a maximum of 180
months for robbery, plus an equal and consecutive sentence for the use of a deadly weapon; and death for the
count of murder in the first degree with the use of a deadly weapon. The district court ordered all counts to run
consecutively. Chappell timely appealed his conviction and sentence of death.
DISCUSSION
Admission of evidence of prior bad acts
Chappell contends that the district court abused its discretion by admitting evidence of prior acts of theft
without holding a Petrocelli
1
hearing. During the State's case-in-chief, LaDonna Jackson testified that Chappell
was known as a regulator
2
and that, on one occasion, he sold his children's diapers for drug money.
[Headnote 1]
Ordinarily, in order for this court to review a district court's decision to admit evidence of prior bad acts, a
Petrocelli hearing must have been conducted on the record. Armstrong v. State, 110 Nev. 1322, 1324, 885 P.2d
600, 600-01 (1994). However, where the district court fails to hold a proper hearing on the record, automatic
reversal is not mandated where (1) the record is sufficient for this court to determine that the evidence is
admissible under the test for admissibility of bad acts evidence . . . ; or (2) where the results 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).
__________

1
See Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985).

2
Jackson testified that a regulator is a person who steals items from a store and then resells those items for
money or drugs.
[Headnote 2]
The district court in the instant case did not hold a Petrocelli hearing either on or off the record. Under the
circumstances, we conclude that the record is not sufficient for this court to determine whether the evidence was
admissible under the test for admissibility of prior bad acts evidence. In light of the overwhelming evidence of
guilt in this case, however, we conclude that had the district court not admitted the evidence, the results would
have been the same. See Big Pond v. State, 101 Nev. 1, 3, 692 P.2d 1288, 1289 (1985) (when deciding whether
an error is harmless or prejudicial, the following considerations are relevant: whether the issue of innocence or
guilt is close, the quantity and character of the error, and the gravity of the crime charged); see also Bradley v.
State, 109 Nev. 1090, 1093, 864 P.2d 1272, 1274 (1993). Accordingly, we hold that the district court's failure to
conduct a Petrocelli hearing before admitting this evidence amounted to harmless error, and does not, therefore,
require reversal.
Issues arising out of alleged aggravating circumstances
Chappell argues that insufficient evidence exists to support the jury's finding of the four alleged aggravating
circumstances. The first three aggravating circumstances depend on whether Chappell killed Panos during the
commission of or an attempt to commit robbery, burglary and/or home invasion, and sexual assault. Chappell's
challenge to each of these aggravators comes down to a challenge of the sufficiency of the evidence supporting
each of the aggravating offenses.
On appeal, the standard of review for sufficiency of the evidence is whether the jury, acting reasonably,
could have been convinced of the defendant's guilt beyond a reasonable doubt. Kazalyn v. State, 108 Nev. 67,
71, 825 P.2d 578, 581 (1992). Where there is sufficient evidence in the record to support the verdict, it will not
be overturned on appeal. Id. We conclude that there is sufficient evidence to support the aggravating
circumstances for robbery, burglary and sexual assault. We further conclude that the evidence does not support
the aggravating circumstance of torture or depravity of mind.
Robbery
[Headnotes 3, 4]
Chappell contends that the evidence shows that he took Panos' car as an afterthought and, therefore, cannot
be guilty of robbery. The State argues that a rational trier of fact could find that Chappell took Panos' social
security card and car through the use of actual violence or the threat of violence.
of actual violence or the threat of violence. Under Nevada's criminal law, robbery is defined as
the 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 . . . . A
taking is by means of force or fear if force or fear is used to:
(a) Obtain or retain possession of the property;
(b) Prevent or overcome resistance to the taking; or
(c) Facilitate escape.
The degree of force used is immaterial if it is used to compel acquiescence to the taking of or escaping
with the property. A taking constitutes robbery whenever it appears that, although the taking was fully
completed without the knowledge of the person from whom taken, such knowledge was prevented by the
use of force or fear.
The statute does not require that the force or violence be committed with the specific intent to
commit robbery.
[Headnote 5]
This court has held that in robbery cases it is irrelevant when the intent to steal the property is formed. In
Norman v. Sheriff, 92 Nev. 695, 697, 558 P.2d 541, 542 (1976), this court stated:
[A]lthough the acts of violence and intimidation preceded the actual taking of the property and may have
been primarily intended for another purpose, it is enough, to support the charges in the indictment, that
appellants, taking advantage of the terrifying situation they created, fled with [the victim's] property.
This position was affirmed in Sheriff v. Jefferson, 98 Nev. 392, 394, 649 P.2d 1365, 1366-67 (1982), and
Patterson v. Sheriff, 93 Nev. 238, 239, 562 P.2d 1134, 1135 (1977). See also State v. Myers, 640 P.2d 1245
(Kan. 1982) (holding that where aggravated robbery requires taking by force or threat of force while armed, it is
sufficient that defendant shot victim and then returned three hours later to take victim's wallet, as there was a
continuous chain of events and the prior force made it possible to take the property without resistance); State v.
Mason, 403 So. 2d 701 (La. 1981) (holding that acts of violence need not be for the purpose of taking property
and that it is sufficient that the taking of a purse was accomplished as a result of earlier acts of pushing victim
onto bed and pulling her clothes).
Accordingly, we hold that there is sufficient evidence to support the conviction of robbery and the finding of
robbery as an aggravating circumstance.
Burglary
[Headnotes 6, 7]
Chappell argues that the State adduced insufficient evidence to prove that he committed a burglary. We
disagree. NRS 205.060(1) provides that a person is guilty of burglary when he by day or night, enters any . . .
semitrailer or house trailer . . . with the intent to commit grand or petit larceny, assault or battery on any person
or any felony. At trial, the State introduced evidence that Panos wanted to end her relationship with Chappell,
that Chappell had threatened and abused Panos in the past, and that Panos did not communicate with Chappell
while he was in jail. Moreover, there was testimony that the trailer appeared ransacked, and that Panos' social
security card and car keys were found in Chappell's possession. Accordingly, we conclude that there is sufficient
evidence to support the conviction of burglary and the finding by the jury of burglary as an aggravator.
Sexual assault
[Headnote 8]
Chappell argues that the State failed to prove beyond a reasonable doubt that the sexual encounter between
Chappell and Panos was nonconsensual. We do not agree. The jury was instructed to find sexual assault if
Chappell engaged in sexual intercourse with Panos against [her] will or under conditions in which Chappell
knew or should have known that Panos was mentally and emotionally incapable of resisting. The evidence at
trial and during the penalty hearing showed that Panos and Chappell had an abusive relationship, that Panos had
ended her relationship with Chappell, that Chappell was extremely jealous of Panos' relationships with other
men, and that Panos was involved with another man at the time of the killing. We conclude that a rational trier of
fact could have concluded that either Panos would not have consented to sexual intercourse under these
circumstances or was mentally or emotionally incapable of resisting Chappell's advances, and that Chappell
therefore committed sexual assault. Consequently, the evidence supports the jury's finding of sexual assault as an
aggravating circumstance.
Torture or depravity of mind
[Headnote 9]
Chappell argues that the circumstances of Panos' death do not rise to the level necessary to establish torture
or depravity of mind. We agree. The depravity of mind aggravator applies in capital cases if torture, mutilation
or other serious and depraved physical abuse beyond the act of killing itself is shown. Robins v. State, 106 Nev.
611, 629, 798 P.2d 558, 570 (1990); NRS 200.033{S).3 In the present case, the jury was
instructed that the elements of murder by torture are that
200.033(8).
3
In the present case, the jury was instructed that the elements of murder by torture are that (1) the
act or acts which caused the death must involve a high degree of probability of death, and (2) the defendant must
commit such act or acts with the intent to cause cruel pain and suffering for the purpose of revenge, persuasion
or for any other sadistic purpose.
4
Panos died as a result of multiple stab wounds; thus, the first element is
satisfied. The second element is not as easily met under the facts of this case.
The State argues that evidence of torture may be found in the following: Panos was severely beaten by
Chappell, there were numerous bruises and abrasions on Panos' face, Panos was stabbed in the groin area and
chest, Panos was stabbed thirteen times, and four of the stabs were of such force as to have penetrated the spinal
cord in Panos' neck. We conclude that there is no evidence that Chappell stabbed Panos with any intention other
than to deprive her of life. No evidence exists that Chappell intended to cause Panos cruel suffering for the
purposes of revenge, persuasion, or other sadistic pleasure. Nor does Chappell's act of stabbing Panos thirteen
times rise to the level of torture. Accordingly, we hold that the record does not contain sufficient evidence to
support the aggravating circumstance of depravity of mind and torture.
Invalidating an aggravating circumstance
[Headnotes 1012]
Invalidating an aggravating circumstance does not automatically require this court to vacate a death sentence
and remand for new proceedings before a jury. See Witter v. State, 112 Nev. 908, 929, 921 P.2d 886, 900
(1996); see also Canape v. State, 109 Nev. 864, 881-83, 859 P.2d 1023, 1034-35 (1993). Where at least one
other aggravating circumstance exists, this court may either reweigh the aggravating circumstances against the
mitigating evidence or conduct a harmless error analysis. Witter, 112 Nev. at 929-30, 921 P.2d at 900. In the
present case, the jury designated as mitigating circumstances (1) that the murder was committed while the
defendant was under the influence of extreme mental or emotional disturbance, and (2) any other mitigating
circumstances. We conclude that the remaining three aggravators, robbery, burglary and sexual assault, clearly
outweigh the mitigating evidence presented by Chappell.
__________

3
NRS 200.033(8) was amended in 1995 deleting the language of depravity of mind. 1995 Nev. Stat., ch.
467, 1-3, at 1490-91. In the present case, the murder was committed before October 1, 1995, thus, the
previous version of NRS 200.033(8) applies. Id.

4
These instructions were approved by this court in Deutscher v. State, 95 Nev. 669, 677 n.5, 601 P.2d 407,
413 n.5 (1979); see NRS 200.030(1)(a) (defining first-degree murder by torture as murder [p]erpetrated by
means of . . . torture).
evidence presented by Chappell. We therefore conclude that Chappell's death sentence was proper.
Mandatory review of propriety of death penalty
[Headnote 13]
NRS 177.055(2)
5
requires this court to review every death penalty sentence. Pursuant to the statutory
requirement, and in addition to the contentions raised by Chappell and addressed above, we have determined
that the aggravating circumstances of robbery, burglary and sexual assault, found by the jury, are supported by
sufficient evidence. Moreover, there is no evidence in the record indicating that Chappell's death sentence was
imposed under the influence of passion, prejudice or any arbitrary factor. Lastly, we have concluded that the
death sentence Chappell received was not excessive considering the seriousness of his crimes and Chappell as a
person.
Additional issues raised on appeal
Chappell further contends that: (1) the State's use of peremptory challenges to excuse two African-American
jurors from the jury pool was discriminatory; (2) the district court erred in admitting hearsay statements; (3) the
district court erred by denying Chappell's motion to strike the notice of intent to seek the death penalty; (4) the
State improperly appealed to the jury for vengeance during the penalty phase; (5) cumulative error denied
Chappell a fair hearing; and (6) victim impact testimony denied Chappell a fair penalty hearing. We have
reviewed each of these issues and conclude that they lack merit.
CONCLUSION
For the foregoing reasons, we affirm the judgment of conviction for robbery, burglary and first-degree
murder and the sentence of death.
6, 7

__________

5
2. Whether or not the defendant or his counsel affirmatively waives the appeal, the sentence must be
reviewed on the record by the supreme court, which shall consider, in a single proceeding if an appeal is
taken:
(a) Any error enumerated by way of appeal;
(b) Whether the evidence supports the finding of an aggravating circumstance or circumstances;
(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.

6
The Honorable Charles E. Springer, Chief Justice, voluntarily recused himself from participation in the
decision of this appeal.

7
this appeal.
____________
114 Nev. 1412, 1412 (1998) Stubbs v. State
CLIFFORD STUBBS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 28784
December 30, 1998 972 P.2d 843
Appeal from a judgment of conviction for murder in the first degree with the use of a deadly weapon,
pursuant to a plea of guilty. Second Judicial District Court, Washoe County; Mills Lane, Judge.
Defendant pleaded guilty in the district court to first-degree murder with the use of a
deadly weapon and was sentenced to two consecutive life terms without the possibility of
parole. Defendant appealed, alleging prosecutor breached plea agreement which provided for
possibility of parole. The supreme court, Springer, C. J., held that: (1) prosecutor's
disparaging assessment of case to sentencing court violated plea agreement, and (2)
prosecutor did not violate plea agreement by calling victim's daughter to present impact
statement during sentencing.
Sentence vacated; remanded for new sentencing hearing.
Maupin and Shearing, JJ., dissented.
Michael Specchio, Public Defender, John Reese Petty, Chief Deputy Public Defender, Washoe County, for
Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Richard Gammick, District Attorney, Terrence P.
McCarthy, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
When a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the
inducement or consideration, such promise must be fulfilled.
2. Criminal Law.
When the state enters into a plea agreement, it is held to the most meticulous standards of both promise and performance.
3. Criminal Law.
Violation of either the terms or the spirit of a plea agreement requires reversal.
4. Criminal Law.
State violated the plea agreement with murder defendant by relating a disparaging assessment of the case to the court and, thus,
defendant was entitled to specific performance of plea agreement as negotiated. There was no indication in stipulation that State
intended to reserve right to comment upon circumstances of crime or reason for plea bargain.
5. Criminal Law.
Prosecutor did not violate plea agreement with murder defendant by calling victim's daughter to present impact statement during
sentencing; prosecutor merely complied with statute requiring notification of victims to facilitate their
availability during sentencing process.
prosecutor merely complied with statute requiring notification of victims to facilitate their availability during sentencing process. NRS
176.015.
OPINION
Appellant Clifford Stubbs contends that the State breached a written plea agreement by calling a witness at the sentencing hearing to
give victim impact testimony and by making certain comments to the sentencing judge. We agree that the prosecutor's comments were error
and order a new sentencing hearing.
Pursuant to an agreement between Stubbs and the State, Stubbs pleaded guilty to first-degree murder with the use of a deadly weapon.
The plea agreement merely stated: In exchange for my plea of guilty, the State, my counsel and I have agreed to recommend the following:
The State will stipulate to life with the possibility of parole. The record reflects that, upon entering the negotiated plea, counsel for Stubbs
informed the court of the negotiations as follows:
[W]e've entered into negotiations with the State. In return for Mr. Stubbs' plea to the charge in the information, the State has
agreed to stipulate that he receive life with the possibility of parole, with an additional [term of] life with the possibility of parole
for the enhancement.
Defense counsel acknowledged that the district court would not be bound by the stipulation at the time of sentencing.
In spite of the plea agreement, at sentencing the prosecutor commented at some length upon the State's assessment of the practical
reality of the case if it were to go to a jury and why he felt constrained to enter into the bargain rather than risk a compromised verdict.
1
The State also called the victim's daughter to present a victim impact statement.
__________

1
At Stubbs' sentencing hearing, the prosecutor had this exchange with the court:
Mr. Stanton: Well, it's practical reality of what the State assesses as the chances, as you know as a
former prosecutor, in a jury trial, and anything is possible in a jury trial. The State assessed this case as
follows: This was a First Degree Murder case with the use of a deadly weapon. The attendant injuries of
Mr. Stubbs were real and significant. The State was in the mind that a jury seeing the videotape of the
crime scene of which exists and graphically depicts the extent of Mr. Stubbs injuries which is not
reflected in how he appears before the Court even with the scars on his neck. He was virtually
disemboweled. That, coupled with the ingestion and use of narcotics by both parties involved here
renders the possibility of a diminished capacity defense, not a true defense, as the Court knows does not
exist in the State of Nevada, but one where a jury either through a compromised verdict would come up
daughter to present a victim impact statement. The State then rested without further comment. Thereafter, the
district court sentenced Stubbs to consecutive life terms in the Nevada State Prison, without the possibility of
parole.
The day after sentencing, an article appeared in a local newspaper noting that the district court had rejected
the plea bargain and quoting the prosecutor as saying, It was exactly the way I planned it to happen. The
defense filed a Notice of Newspaper Article. Stubbs appeals, arguing that the prosecutor breached the plea
agreement.
[Headnotes 13]
[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be
said to be part of the inducement or consideration, such promise must be fulfilled. Santobello v. New York, 404
U.S. 257, 262 (1971). Thus, this court has repeatedly held that when the state enters into a plea agreement, it is
held to the most meticulous standards of both promise and performance. See, e.g., Statz v. State, 113 Nev.
987, 992, 944 P.2d 813, 816 (1997); Citti v. State, 107 Nev. 89, 91, 807 P.2d 724, 726 (1991); Van Buskirk v.
State, 102 Nev. 241, 243, 720 P.2d 1215, 1216 (1986); Kluttz v. Warden, 99 Nev. 681, 683-684, 669 P.2d 244,
245 (1983). Violation of either the terms or the spirit of the agreement requires reversal. Citti, 107 Nev. at 91,
807 P.2d at 726.
In Statz, this court held that the prosecutor, at the sentencing hearing, violated a plea agreement to stipulate
to a certain sentence by calling the victim's father to testify and commenting on the circumstances of the crime.
We reasoned that if the state intends to retain the right to present facts and argument pertaining to sentencing,
such a limited commitment should be made explicit in the plea agreement. Statz, 113 Nev. at 993, 944 P.2d at
817.
__________
to a less than a First Degree Murder, for example a Second Degree Murder.
The Court: All right.
Mr. Stanton: Secondly, this offense occurred after the adoption of the new crime bill that had this
murder taken place prior in the month of June, the potential sentence on a First Degree Murder would
have been half of what it is now, 20 years before he becomes eligible for parole. It is now doubled to 40
years with the increased sentence. The State weighed after talking with the victim's family, both the two
brothers of Ms. Marshall here in Reno, the brother in Texas who you received a letter from as well as
through Monique's parents in San Diego, discussion with them of the realities of what could happen in
front of a jury, what the potential punishments were. The State felt it was in the State's best interest as
well as the victims' to ensure a First Degree Murder conviction as to risk a compromised verdict in front
of a jury.
[Headnote 4]
In the present case, there is no indication in this stipulation that the State intended to reserve the right to
comment upon the circumstances of the crime or the reason for the plea bargain. Accordingly, following Statz,
we conclude that the State violated the plea agreement by relating a disparaging assessment of the case to the
court.
The violation of a plea bargain by the state requires reversal. Statz, 113 Nev. at 995, 944 P.2d at 818
(citing Van Buskirk, 102 Nev. at 243, 720 P.2d at 1216). This court orders specific performance of a plea
agreement where it will implement the parties' reasonable expectations and there is no new information or
change of circumstances which would bind the sentencing court to an unsuitable disposition. Van Buskirk, 102
Nev. at 244, 720 P.2d at 1216-17. Absent any such new information or change of circumstances, we conclude
that Stubbs is entitled to specific performance of the plea agreement as negotiated.
[Headnote 5]
We do not agree with Stubbs that the calling of a victim by the prosecutor violated the plea agreement or our
holding in Statz. The prosecutor in Statz called upon a victim witness to give substantive testimony at
sentencing. Further, the State is statutorily required to notify victims to facilitate their availability during the
sentencing process. See NRS 176.015. The mere introduction by a prosecutor of a victim witness to the court
and submitting a few neutral preliminary questions to the witness should not have any substantive effect on a
judge's decision. The State calling victims to present impact testimony does nothing more than comply with the
law and facilitate the process of presenting victim impact evidence.
For the reasons stated above, we vacate Stubbs' sentence and remand this case for a new sentencing hearing.
Maupin, J., with whom Shearing, J., agrees, dissenting:
Stubbs argues that he suffered prejudice as a result of the State's failure to specifically reiterate its
recommendation for a sentence of life with the possibility of parole after the conclusion of the victim impact
testimony, or at the conclusion of the district court's remarks in support of its decision not to accept the
sentencing stipulation.
A review of the sentencing hearing transcript fails, in my view, to demonstrate a violation of the plea
agreement. The district court was clearly aware of the State's stipulation, the victim impact testimony was not
precluded by the agreement and was properly permitted by statute, and the State's
representations properly articulated its position on the matter.
properly permitted by statute, and the State's representations properly articulated its position on the matter.
Citing Statz v. State, 113 Nev. 987, 944 P.2d 813 (1997), appellant argues that, by calling a victim impact
witness to testify, the State violated the spirit of the plea agreement. While I stand by my joinder in the dissent in
Statz, I would note that Statz is clearly distinguishable from this case. The prosecutor in Statz called upon a
victim witness to give substantive testimony at sentencing, not victim impact testimony as was the case here. I
would also note in this connection that the State is statutorily required to notify victims to facilitate their
availability during the sentencing process. See NRS 176.015. I cannot agree that the mere introduction by a
prosecutor of a victim witness to the court and submitting a few neutral preliminary questions to the witness
could, of itself, have any substantive effect on a judge's decision. It is the testimony itself, not the State's role as a
facilitator, that creates the substantive effect of victim impact testimony.
The State was under no obligation to remind the district court of the stipulation. Even if the State had done
so, it was within the district court's discretion to disregard the recommendation. See Villalpando v. State, 107
Nev. 465, 814 P.2d 78 (1991) (the district court is free to impose any lawful sentence). Given that the district
court was aware of the State's stipulation regarding sentencing, that the defendant was clearly aware that the
stipulation was not binding, and the fact that Stubbs sought no formal relief from the district court, I do not
believe that the record of the sentencing hearing demonstrates that reversible error has occurred. See Drummond
v. State, 86 Nev. 4, 9, 462 P.2d 1012, 1015 (1970).
Having drawn the above conclusions, I would remand this matter in light of the alleged extra-judicial
comments of the prosecutor that appeared in a news article the day following the sentencing hearing. The
statement of the prosecutor, if accurate, was clearly improper. At the very least, such a statement would tend to
undermine the integrity of the proceedings and public confidence in the judicial process. Further, the statement,
if made, would, in retrospect, give new significance to the comments at sentencing about the problems of proof
that led to the negotiated arrangement. In the light that the prosecutor may have tried to finesse the district
court into violating the agreement, again assuming the extra-judicial statements were made, resentencing would
be appropriate. Thus, I would remand for an evidentiary hearing to determine if these comments were made, or
whether the report quoting the statements was substantially accurate.
Although the record of the hearing itself does not compel the conclusion that the trial court would have
followed the stipulation had it known the prosecuting attorney's true intent, public confidence
in the process would require a new sentencing hearing if the press statement is accurate.
had it known the prosecuting attorney's true intent, public confidence in the process would require a new
sentencing hearing if the press statement is accurate.
____________
114 Nev. 1417, 1417 (1998) Mitchell v. State
JOHNNIE MITCHELL, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 28990
December 30, 1998 971 P.2d 813
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count each of attempted murder
with the use of a deadly weapon, burglary while in the possession of a deadly weapon, conspiracy to commit
robbery, and robbery with the use of a deadly weapon. Eighth Judicial District Court, Clark County; Joseph T.
Bonaventure, Judge.
The supreme court held that: (1) defendant was not in custody for Miranda purposes; (2)
argument that jury instruction and prosecutor's closing comments were improper was waived
on appeal; (3) aiders and abettors may be criminally liable for attempted murder absent a
specific intent to kill if the attempted murder was the natural and probable consequence of the
target offense; and (4) defendant was not vindictively sentenced.
Affirmed.
Robert Lucherini, Las Vegas; Beckley, Singleton, Jemison, Cobeaga & List, Chtd. and Mario D. Valencia
and Daniel F. Polsenberg, Las Vegas, for Appellant.
Laurent, Chief Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Whether a defendant is constitutionally entitled to Miranda warnings is a question of law reviewed de novo. U.S. Const. amend. 5.
2. Criminal Law.
District court's determination as to whether a defendant is in custody for Miranda purposes will not be disturbed where there is
substantial evidence in support of its determination. U.S. Const. amend. 5.
3. Criminal Law.
Court, in determining whether a suspect is in custody for purposes of Miranda, will consider the totality of the circumstances,
including: (1) the site of interrogation; (2) whether the investigation has focused on the suspect;
suspect; (3) whether the objective indicia of arrest are present; and (4) the length and form of questioning. U.S. Const. amend. 5.
4. Criminal Law.
Prison inmates are not automatically deemed to be per se in custody for purposes of Miranda. U.S. Const. amend. 5.
5. Criminal Law.
Defendant who was in prison on charges unrelated to police investigation was not in custody for Miranda purposes at the time he
was interviewed by police officers concerning his involvement in casino robbery. Two hour interview took place in an unlocked room,
defendant was not under arrest for casino robbery, and defendant could leave the interview at any time. U.S. Const. amend. 5.
6. Homicide.
Attempted murder indictment, which alleged that defendant aided and abetted a robbery by acting in concert with others,
taking some money, and acting as a look out, was sufficiently detailed so as to give defendant adequate notice to prepare a defense
to state's theory that the defendant committed attempted murder based on his action as a look out. NRS 173.075.
7. Criminal Law.
Argument that jury instruction along with prosecutor's closing comments were improper by allowing jury to believe that defendant
committed attempted murder merely by aiding and abetting robbery, even though defendant did not intend to kill, was waived on
appeal, where defendant failed to raise argument with the trial court.
8. Criminal Law.
Failure to object to alleged errors at trial generally precludes review of an issue on appeal.
9. Criminal Law.
Natural and probable consequence doctrine is a product of the common law and is based on the rationale that aiders and abettors
are criminally responsible for all harms that are a natural, probable, and foreseeable result of their actions.
10. Homicide.
Conviction for attempted murder will lie even if the defendant did not have the specific intent to kill provided the attempted
murder was the natural and probable consequence of the aider and abettor's target crime.
11. Criminal Law.
Sentencing court may not punish a defendant for exercising his constitutional rights and that vindictiveness must play no part in
the sentencing of a defendant.
12. Criminal Law.
Defendant has the burden to provide evidence that the district court sentenced him vindictively.
13. Criminal Law.
Trial court did not vindictively sentence defendant to 52 years' imprisonment following his conviction for attempted murder and
armed robbery based on defendant's refusal to accept a plea bargain with the prosecutor; comments by judge concerning plea bargain
were made in response to defendant's request for a sentence similar to his co-conspirators.
14. Criminal Law.
Participation of a defendant not actually in possession of the weapon by aiding and abetting the actual user in the unlawful use of
the weapon, makes the former equally subject to the added penalty inflicted upon defendants who commit
crimes through the use of deadly weapons.
makes the former equally subject to the added penalty inflicted upon defendants who commit crimes through the use of deadly
weapons.
15. Criminal Law.
Defendant who participated in armed robbery of casino was in constructive possession of a weapon, whether or not he was in
physical possession of a gun, supporting his sentence enhancement for armed robbery.
OPINION
Per Curiam:
Appellant Johnnie Mitchell was convicted of various charges arising out of a robbery of the San Remo Hotel and Casino (San Remo) in
Las Vegas. On appeal, he asserts that his conviction was obtained in violation of his Fifth Amendment right against self-incrimination. In
the alternative, Mitchell maintains that he was wrongly convicted of attempted murder on a theory of aiding and abetting because the State
failed to prove that he had the requisite intent necessary to commit the crime. Finally, Mitchell asserts that his sentence was improperly
enhanced because he did not possess the weapon used in the crimes, and that the district court vindictively imposed a harsher sentence on
Mitchell because he refused to plea bargain.
FACTS
On August 28, 1993, at approximately 5:30 a.m., four young men entered the San Remo; two of them approached security guard Colin
Keel and inquired as to the location of the restroom. Shortly thereafter, Keel saw the two men who had just approached him speaking with
two other men standing by a slot machine. The four men appeared to be underage, so Keel approached them and requested identification.
Because the men stated that they had no identification, Keel asked them to leave the premises and began walking with them towards the
exit; three of the men were walking in front of Keel and one was at his side.
The man walking beside Keel, later identified as Donathan Smith, suddenly put a gun to Keel's head and said You white mother___,
I'm going to blow your brains out. Keel grabbed at the gun and began struggling with Smith; during the struggle, Keel saw two of the
young men jump into the casino cage and identified Mitchell as one of the two. Keel saw the third of the four men standing by or walking
up to the casino cage. As Keel and Smith continued to struggle, the gun discharged wounding Smith in the leg.
Keel subsequently grabbed the gun, pointed it at Smith's head, cocked the hammer, and pulled the trigger; however, the gun failed to
fire.
failed to fire. Keel kicked Smith and began to run through the casino warning patrons and calling for police;
Keel turned around and Smith, who had regained possession of the gun, fired the gun at Keel. Smith shot at Keel
one more time before all four of the men fled the San Remo.
Cashier Wilma Beck was on duty when the two young men jumped into the casino cage. Beck testified that
she was working inside the cage when one of the men got real close to [her] face . . . stuck a gun up to [her]
head and he said This is a stick up. Get down. Don't move.' Beck saw the other young man jump into the cage
at around the same time. These two men proceeded to empty all of the unlocked cash drawers inside the cage as
Wilma lay on the floor. Prior to Mitchell's trial, Beck identified Mitchell as the man who had jumped into the
cage and threatened her with a gun; at trial, she stated that she was 100 percent sure that Mitchell was the man
who had threatened her on the morning of August 28, 1993.
Several other San Remo employees and guests present at the robbery corroborated Keel's and Beck's
testimony, but none of these other witnesses was able to identify Mitchell. There were discrepancies between
some of the witnesses as to the number of shots fired that morning, although most reported hearing two gunshots.
Before taking cover behind a slot machine, one guest saw a young man holding a gun and standing inside the
casino cage. Later, the guest crawled toward the exit, then she saw the same man standing outside of the cage
checking his gun next to another young man who looked at his watch and stated It's already been one minute,
let's hurry up and get out of here.
A San Remo craps dealer testified that two of the four young men had been armedthe man struggling with
Keel and one of the men who had jumped into the casino cage. The dealer stated that a fourth man was making
the other guys inside . . . hurry up. A San Remo change girl testified that she had seen only one gun, which
had been held by the man struggling with Keel. A Las Vegas Metropolitan Police Department (LVMPD) crime
analyst testified that he had discovered one bullet lodged in a wall south of the casino cage. The crime analyst
also discovered two cartridges and a casing on the floor just outside of the cage.
Sometime after the San Remo robbery, California law enforcement officials arrested Smith in his Los
Angeles neighborhood. It is not clear whether Smith was arrested for the San Remo charges or other charges at
this time. In any event, on September 9, 1993, LVMPD Detectives Donald Tremel and Michael Karstedt
interviewed Smith at the East Lake Juvenile Home in California with regard to the San Remo robbery (Smith
was sixteen years old at the time). During this meeting, Smith confessed to his role in the robbery and
provided Dets. Tremel and Karstedt with the "street" monikers of the other three young
men involved in the crime, including "Baby D." Smith told the detectives that Baby D had
been armed during the San Remo robbery.
robbery and provided Dets. Tremel and Karstedt with the street monikers of the other three young men
involved in the crime, including Baby D. Smith told the detectives that Baby D had been armed during the San
Remo robbery.
Smith was subsequently extradited to Las Vegas where, in a December 7, 1993 statement and photographic
line-up, he identified a photograph of Mitchell as being that of Baby D. Smith signed and dated the back of
Mitchell's photograph at this time. Transcripts and tape recordings of Smith's September and December 1993
interviews with Dets. Tremel and Karstedt were admitted into evidence at Mitchell's trial.
At Mitchell's trial, Smith told the district court outside the presence of the jury that he would not testify
because he had received threats in prison about being a snitch. However, shortly thereafter, Smith did testify in
front of the jury; he denied knowing or having ever seen Mitchell and stated that he could not identify Mitchell
as a participant in the San Remo robbery. Although he admitted that his initials were on the back of Mitchell's
photograph, Smith denied having previously identified Mitchell in the photographic lineup. Smith stated that all
of the people who were with him knew that he was carrying a gun when they entered the San Remo.
Dets. Tremel and Karstedt testified that on January 7, 1994, following Smith's photographic identification of
Mitchell, they met with Mitchell for the first time at Soledad Prison in California where Mitchell was
incarcerated on unrelated charges. Det. Karstedt testified that Mitchell had not allowed this meeting to be
recorded. According to the detectives, they met with Mitchell in an unlocked office inside of the prison library.
The library was closed for the day, and pursuant to standard prison procedure, the library exit doors were
locked; a prison guard stood outside of the office for a short time.
The detectives informed Mitchell that the purpose of their visit was to discuss his possible involvement in the
San Remo robbery; they purportedly told Mitchell that he could end the interview at any time and be returned to
his cell. Mitchell was not handcuffed during the meeting, and he was not under arrest for any crimes arising out
of the San Remo robbery. Det. Tremel described the atmosphere of the interview as very casual. Neither
detective informed Mitchell of his Miranda rights in the course of the two-hour interview during which Mitchell
admitted he had gone to the San Remo with Smith and two others on the morning of the robbery. Mitchell
claimed that he had been unaware that a robbery was to take place and took no part in the criminal activity.
The State ultimately charged Mitchell by way of an amended information with the following: Count
Iattempted murder with use of a deadly weapon;
use of a deadly weapon; Count IIburglary in possession of a deadly weapon; Count IIIconspiracy to commit
a robbery; Count IVrobbery with use of a deadly weapon; and Count Vpossession of firearm by an ex-felon.
At the June 8-9, 1995 jury trial on these charges, Mitchell testified on his own behalf.
Initially, Mitchell testified that on the morning of the robbery, he arrived with Smith at the San Remo.
However, Mitchell claimed that he was at the San Remo waiting for a friend, Wayne Williams, and denied
carrying a weapon or participating in the robbery in any way. When asked why Williams was not testifying on
his behalf, Mitchell stated that he had been unable to find Williams or Williams' girlfriend at whose house he
had previously stayed in Las Vegas.
Although on direct examination Mitchell claimed that he had arrived at the San Remo with Smith, on
cross-examination he stated that he never met Smith and that at the time of the robbery, Mitchell and Williams
were outside of the San Remo in a parking lot. Mitchell acknowledged that he was known as Baby D. With
regard to the Soledad Prison meeting with Dets. Tremel and Karstedt, Mitchell claimed that he never told the
detectives not to record his statement. He also claimed that the detectives were lying about Mitchell having
admitted to going inside the casino with Smith. Mitchell testified that although the detectives had informed him
that he was not a suspect, they had not advised him that he was free to leave at any time during the interview.
Mitchell testified that he had initially thought he was being taken to a meeting with lawyers rather than
detectives.
At the conclusion of Mitchell's trial, the jury returned a verdict of guilty on all counts except Count
Vex-felon in possession of a firearm. On August 14, 1995, the district court sentenced Mitchell to the
following: Count I (attempted murder)twenty years in prison plus a consecutive twenty years for the weapon
enhancement, and $81,053.37 in restitution; Count II (burglary)ten years concurrent with Count I; Count III
(conspiracy to commit robbery) six years concurrent with Counts I and II; and Count IV (robbery)six years
plus a consecutive six years for the weapon enhancement to be served consecutively with Count I. Mitchell
received a total consecutive sentence of fifty-two years.
Mitchell appeals from his conviction and sentence alleging that he lacked the requisite intent for attempted
murder, the jury was improperly instructed, the State's closing arguments exacerbated these deficiencies, and the
charging information was inadequate. He further asserts that evidence of his statements to detectives at Soledad
Prison were admitted in violation of his Fifth Amendment rights. Finally, Mitchell contends that the district court
erred in applying the weapon enhancement to his sentence and maintains that the lower court punished
him with a harsher sentence because he chose to exercise his right to trial.
that the lower court punished him with a harsher sentence because he chose to exercise his right to trial.
DISCUSSION
Appellant's prison statements to detectives were properly admitted
Mitchell contends that he is entitled to a new trial on all charges because Dets. Tremel and Karstedt were
allowed to testify as to Mitchell's incriminating statements at Soledad Prison, in violation of his Fifth
Amendment right against self-incrimination. U.S. Const. amend. V. Mitchell asserts that he was in custody at
the time of the interview with the detectives and, therefore, he should have been given Miranda warnings.
[Headnotes 1, 2]
Whether a defendant is constitutionally entitled to Miranda warnings is a question of law reviewed de novo.
U.S. v. Turner, 28 F.3d 981, 983 (9th Cir. 1994). However, a district court's determination as to whether a
defendant was in custody will not be disturbed where there is substantial evidence in support of its
determination. Alward v. State, 112 Nev. 141, 154, 912 P.2d 243, 252 (1996). In the instant case, the district
court found that Mitchell was not in custody for purposes of admitting the detectives' testimony regarding
Mitchell's statements at Soledad Prison. We agree.
[Headnote 3]
In Alward, 112 Nev. at 154, 912 P.2d at 251, we reiterated that a suspect may not be subjected to an
interrogation in official custody' unless that person has previously been advised of, and has knowingly and
intelligently waived [his or her Miranda rights]. We stated that the test for determining whether a defendant
who has not been arrested is in custody is how a reasonable man in the suspect's position would have
understood his situation.' Id. at 154, 912 P.2d at 252 (quoting Berkemer v. McCarty, 468 U.S. 420, 442
(1984)). The court will consider the totality of the circumstances, including: (1) the site of interrogation; (2)
whether the investigation has focused on the suspect; (3) whether the objective indicia of arrest are present; and
(4) the length and form of questioning. Id. at 154-55, 912 P.2d at 252.
[Headnote 4]
Prison inmates are not automatically deemed to be per se in custody.' Turner, 28 F.3d at 983. The Turner
court explained:
[T]o determine whether Miranda warnings were necessary in a prison setting, we look to some act
which places further limitations on the prisoner. . . . Under this concept, we consider the language used
to summon the individual, the physical surroundings of the interrogation, the extent to
which he is confronted with evidence of his guilt, and the additional pressure
exerted to detain him
physical surroundings of the interrogation, the extent to which he is confronted with evidence of his guilt,
and the additional pressure exerted to detain him . . . to determine whether a reasonable person would
believe there had been a restriction of his freedom over and above that in his normal prisoner setting.
Id. at 983 (quoting Mathis v. United States, 391 U.S. 1 (1968)).
[Headnote 5]
Notwithstanding Mitchell's assertions to the contrary, we conclude that, based on the totality of the
circumstances, Mitchell was not in custody for purposes of Miranda. Cf. Walker v. State, 102 Nev. 290, 720
P.2d 700 (1986) (concluding that inmate interviewed in his cell by prison investigator was in custody). The
two-hour interview at Soledad Prison took place in an unlocked room, Mitchell was not under arrest for the San
Remo robbery at the time, and the detectives testified that they told Mitchell that although he was a suspect in
the robbery, he could leave the interview at any time.
Therefore, even though Mitchell was not given Miranda warnings, the detectives' testimony that during the
prison interview Mitchell had acknowledged being present at the San Remo was properly admitted. We must
now consider Mitchell's remaining contentions as to the validity of his conviction for attempted murder.
Appellant was properly convicted of attempted murder
The State charged Mitchell with attempting to kill Keel by aiding and abetting Smith's attempt to kill Keel.
Mitchell maintains that he is entitled to a reversal of his conviction for attempted murder with a deadly weapon
and its attendant forty-year sentence. We disagree.
The indictment contained sufficient information
[Headnote 6]
Mitchell asserts that the indictment was insufficient because it failed to provide information on Mitchell's
specific acts that constituted aiding and abetting so as to enable him to prepare an adequate defense. Specifically,
Mitchell contends that he was not aware until the prosecutor's closing argument that the State was pursuing the
theory that Mitchell committed attempted murder by aiding and abetting as a look-out. We disagree.
In Barren v. State, 99 Nev. 661, 668, 669 P.2d 725, 729 (1983), we held that where a prosecutor seeks to
prove a defendant's guilt for 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."
ically 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. (Footnote and citations omitted.) We have noted that the rationale underlying this requirement for
specificity in the indictment was to comport with accepted notions of due process by preventing the state from
concealing its basic factual theories underlying the case or vacillating in its theories during trial. Id., see also
Point v. State, 102 Nev. 143, 148-49, 717 P.2d 38, 42 (1986).
In relevant part, Mitchell's indictment provides:
COUNT IATTEMPT MURDER WITH USE OF A DEADLY WEAPON
[Mitchell] did then and there, without authority of law and malice aforethought,
willfully and feloniously attempt to kill COLIN KEEL, a human being, by shooting at
the said COLIN KEEL with a deadly weapon, to-wit: a firearm, by Defendant
DONATHAN SMITH directly committing said act and Defendant JOHNNIE
MITCHELL aiding or abetting its commission through counsel and encouragement in
order to carry out the acts as set forth in Count IV.
. . . .
COUNT IVROBBERY WITH USE OF A DEADLY WEAPON
[Mitchell] did then and there willfully, unlawfully, and feloniously take personal
property, to-wit: lawful money of the United States, from the person of WILMA
BECK, using a deadly weapon, to-wit: a firearm, during the commission of said crime,
Defendant JOHNNIE MITCHELL directly committing said act or aiding or abetting in
its commission by acting in concert with others by taking some money from WILMA
BECK and/or acting as a look-out during the entire incident.
(emphasis added).
In our view, this indictment provides sufficient information concerning the specific acts that constituted
aiding and abetting so as to afford Mitchell adequate notice to prepare his defense. Count IV describes Mitchell's
specific acts of aiding and abetting robbery as acting in concert with others by taking some money and as
acting as a look-out. Moreover, Count I incorporates by reference the specific acts mentioned in Count IV
through incorporation of the language in order to carry out the acts as set forth in Count IV. NRS 173.075
explicitly provides that allegations in one count may be incorporated by reference in another count.
count.
1
Therefore, based on the plain language in Count IV of the indictment, the State put Mitchell on notice
that the State was pursuing the theory that Mitchell was criminally liable for attempted murder based on his
actions as a look-out.
Accordingly, we conclude that Mitchell's contention lacks merit because the indictment was sufficiently
detailed.
Failure to object precludes appellate review
[Headnote 7]
Mitchell next contends that his conviction should be reversed because the jury instruction coupled with the
prosecutor's closing argument led the jury to believe that Mitchell committed attempted murder merely by aiding
and abetting the robbery, even though Mitchell did not have the specific intent to kill. Mitchell raises this
assertion for the first time on appeal. At trial, Mitchell explicitly represented to the district court that he had no
objections to the jury instructions. Similarly, Mitchell failed to object during the prosecutor's allegedly improper
closing argument.
[Headnote 8]
Repeatedly, we have held that failure to object to alleged errors at trial generally precludes review of an issue
on appeal. McCullough v. State, 99 Nev. 72, 74, 657 P.2d 1157, 1158 (1983); see also Etcheverry v. State, 107
Nev. 782, 784, 821 P.2d 350, 351 (1991); Wilkins v. State, 96 Nev. 367, 371, 609 P.2d 309, 312 (1980).
Although we may address plain or constitutional error sua sponte despite an appellant's failure to object, we are
convinced that Mitchell's asserted errors do not rise to the level of plain or constitutional error.
Notwithstanding our conclusion that Mitchell's failure to object precludes our review of this issue, we now
take this opportunity to clarify whether aiding and abetting establishes the requisite specific intent necessary to
sustain an attempted murder conviction.
2
We reject Mitchell's assertion that one may never be convicted of
attempted murder as an aider and abettor in the absence of a specific intent to kill.
__________

1
NRS 173.075(2) provides that:
Allegations made in one count may be incorporated by reference in another count. It may be alleged in a
single count that the means by which the defendant committed the offense are unknown or that he
committed it by one or more specified means.

2
An individual who aids and abets the commission of a felony is treated as a principal in the crime as defined
by NRS 195.020:
Every person concerned in the commission of a felony . . . whether he directly commits the act
constituting the offense, or aids or abets in its commission, and whether present or absent; and every
person who, directly or indirectly, counsels, encourages, hires, commands, induces or otherwise procures
another to commit a felony . . . is a principal, and shall be proceeded against and punished as such. The
fact that the person aided, abetted, counseled, encouraged, hired, commanded,
victed of attempted murder as an aider and abettor in the absence of a specific intent to kill. Rather, we conclude
that a conviction for attempted murder cannot lie absent a finding that the attempted murder was at least a
natural and probable consequence of the crime aided and abetted by the defendant. See People v. Prettyman,
926 P.2d 1013, 1019 (Cal. 1996) (explaining that aider and abettor may be held liable not only for the planned
or target crime, but also for any other offenses committed by the confederate that are the natural and probable
consequence of the target crime).
[Headnote 9]
The natural and probable consequence doctrine is a product of the common law and is based on the rationale
that aiders and abettors are criminally responsible for all harms that are a natural, probable, and foreseeable
result of their actions. Id. (citations omitted). We approve of this rationale and further approve of California's
jury instruction on this issue, which provides in part:
One who aids and abets [another] in the commission of a crime [or crimes] is not only guilty of
[that crime] [those crimes], but is also guilty of any other crime committed by a principal which is a
natural and probable consequence of the crime[s] originally aided and abetted.
In order to find the defendant guilty of the crime[s] of
-----
, [as charged in Count[s]
-----
,] you
must be satisfied beyond a reasonable doubt that:
(1) The crime [or crimes] of
-----
[was] [were] committed,
(2) The defendant aided and abetted such crime[s],
(3) A co-principal in such crime committed the crime[s] of
-----
, and
(4) The crime[s] of
-----
was [were] a natural and probable consequence of the
commission of the crime[s] of
-----
.
Prettyman, 926 P.2d at 1018 n.3.
3

[Headnote 10]
Accordingly, a conviction for attempted murder will lie even if the defendant did not have the specific intent
to kill provided the attempted murder was the natural and probable consequence of the aider and abettor's target
crime.
__________
induced or procured, could not or did not entertain a criminal intent shall not be a defense to any person
aiding, abetting, counseling, encouraging, hiring, commanding, inducing or procuring him.

3
Although we now articulate the appropriate method by which juries should be instructed on aiding and
abetting the crime of attempted murder, we note that the instruction actually given below, which was consistent
with NRS 195.020, adequately communicated the law regarding this issue. Hereafter, however, the instruction
approved herein must be given.
Mitchell was not vindictively sentenced
Mitchell next contends that the district court vindictively sentenced him to a term of fifty-two years in prison
because Mitchell opted to exercise his constitutional right to a jury trial rather than accept a plea bargain. We
disagree.
[Headnotes 11, 12]
It is well established that a sentencing court may not punish a defendant for exercising his constitutional
rights and that vindictiveness must play no part in the sentencing of a defendant. North Carolina v. Pearce, 395
U.S. 711, 724 (1969), overruled in part by Alabama v. Smith, 490 U.S. 794 (1989); U.S. v. Medina-Cervantes,
690 F.2d 715, 176 (9th Cir. 1982). The defendant has the burden to provide evidence that the district court
sentenced him vindictively. Smith, 490 U.S. at 794.
[Headnote 13]
In the case at bar, Mitchell alleges that the district court's sole justification for Mitchell's severe sentence was
Mitchell's refusal to accept the plea. However, we are persuaded that the district court had legitimate reasons for
Mitchell's sentence including to deter others
4
and to punish Mitchell.
5
Moreover, we note that the district
court's reference to Mitchell's refusal to plea bargain was made in response to Mitchell's request for a sentence
similar to his co-conspirators who had negotiated lenient sentences in exchange for guilty pleas. We see no
evidence of vindictive sentencing in the mere fact that the district court explained the justification for
Mitchell's co-conspirators' lenient sentences.
__________

4
The deterrent nature of Mitchell's sentence is evidenced from the following statement made by the district
court:
If a defendant doesn't want to plead, what are we going to do, we have to go to trial. It takes a lot of time
and effort, but everybody is entitled to a fair jury trial. I hope a message goes out to the so-called,
whatever they call them, gang bangers coming into Las Vegas and scaring the hell out of our tourists and
citizens here, shooting them up, robbing. I do not know if the message is going to go out but I certainly
hope the newspaper picks it up and the message goes out that at least this county won't tolerate that.

5
In imposing Mitchell's sentence, the district court considered Mitchell's pre-sentence report that detailed his
past crimes:
[Y]ou're only 24, 25 years old, you have two felony convictions, you got juvenile arrests dating back to
1986, controlled substance charge while a juvenile, 87 armed robbery. You were found guilty. You were
committed to the California Youth Authorities. You were paroled. Then you again get involved in drugs
as a juvenile. Then as an adult in 1991 you commit a robbery. You used a handgun and robbed a store
clerk. You were convicted of second degree robbery with a firearm. You were sentenced to three years
and you were paroled. You were paroled. Your parole was revoked. And then you got involved in this
dastardly crime, a crime that has consequences in this community, attempted murder with the use of a
deadly weapon and robbery.
fication for Mitchell's co-conspirators' lenient sentences. Cf. Smith, 490 U.S. at 802 (and we have upheld the
prosecutorial practice of threatening a defendant with increased charges if he does not plead guilty, and
following through on that threat if the defendant insists on his right to stand trial) (citations omitted).
Accordingly, we conclude the district court did not vindictively sentence Mitchell because he exercised his
constitutional right to a trial.
The robbery weapon enhancement was proper
[Headnote 14]
In Anderson v. State, 95 Nev. 625, 629-30, 600 P.2d 241, 243-44 (1979), we held:
[T]he participation of a defendant not actually in possession of the weapon by aiding and abetting the
actual user in the unlawful use of the weapon, makes the former equally subject to the added penalty
inflicted upon defendants who commit crimes through the use of deadly weapons. . . .
. . . .
. . . When one of two robbers holds a victim at bay with a gun and the other relieves the victim of his
properties, or, as in the instant case, the unarmed assailant has knowledge of the use of the gun and by his
actual presence participates in the robbery, the unarmed offender benefits from the use of the other
robber's weapon, adopting derivatively its lethal potential.
. . . [T]he possession necessary to justify statutory enhancement may be actual or constructive; it may
be exclusive or joint. Constructive or joint possession may occur only where the unarmed participant has
knowledge of the other offender's being armed, and where the unarmed offender has, as here, the ability
to exercise control over the firearm.
(Citations omitted.) (Emphasis added.) Cf. Walters v. State, 106 Nev. 45, 48-49, 786 P.2d 1202, 1204 (1990)
(holding that the defendant's sentence had been improperly enhanced where there was no evidence that the
defendant constructively possessed or exercised control over the weapon), superseded on other grounds by 108
Nev. 186, 825 P.2d 1237 (1992).
6

__________

6
Relying on Walters, Mitchell notes that the jury acquitted him of being an ex-felon in possession of a
firearm (Count V), and concludes that, therefore, the jury must have believed that he merely served as a lookout
during the robbery and could not have been in possession of a weapon for purposes of sentence enhancement.
The jury acquitted Mitchell of being an ex-felon in possession of a firearm, yet convicted him of burglary while
in possession of a deadly weapon. Therefore, the fact that the jury acquitted on the ex-felon charge is not
dispositive as to whether Mitchell had possession of a weapon.
[Headnote 15]
Due to Mitchell's participation in an armed robbery, with or without his physical possession of a gun, the jury
could have found that Mitchell had constructive possession of a weapon under Anderson. Accordingly, we
conclude that Mitchell's sentence enhancement was not erroneous.
CONCLUSION
We conclude that the district court did not err in admitting evidence of Mitchell's statements to detectives
while incarcerated at Soledad Prison. Additionally, we decline to address the issue of whether the jury
instruction coupled with the prosecutor's argument was improper because Mitchell failed to object. Furthermore,
we hereby expressly adopt the natural and probable consequence doctrine and hold that aiders and abettors may
be criminally liable for attempted murder absent a specific intent to kill if the attempted murder was the natural
and probable consequence of the target offense. Finally, with regard to Mitchell's fifty-two year sentence, we
conclude that it was proper.
Accordingly, we affirm Mitchell's attempted murder conviction and its attendant sentence.
Today the court adopts a new doctrine of criminal liability in cases in which an aider and abettor is
charged with attempted murder. The court hold[s] that a conviction for attempted murder will stand even if the
defendant did not have the specific intent to kill, provided the attempted murder was the natural and probable
consequence of the aider and abettor's target crime.
I have no quarrel with the new doctrine; what disturbs me about the majority's affirming Mitchell's attempted
murder conviction is that Mitchell did not know at the time of his trial that this court was going to adopt the new
doctrine; and, even more importantly, the jury did not know about the doctrine either.
The majority holds Mitchell responsible for requesting that the district court give a natural and probable
consequences instruction, even though this was not the law at the time. Because Mitchell did not object to the
instructions as given, the majority refuses to review . . . [the instruction] on appeal. I do not think that it is fair
to require Mitchell to have offered this new doctrine in the form of an instruction before it was the law of this
state.
____________
114 Nev. 1431, 1431 (1998) McGuinness v. McGuinness
TERESA JEAN McGUINNESS, Appellant, v. JAMES JOSEPH EDWARD McGUINNESS,
Respondent.
No. 30836
December 30, 1998 970 P.2d 1074
Appeal from a district court order granting a divorce, awarding the parties joint legal and physical custody of
their only child and denying appellant's motion to relocate. Eighth Judicial District Court, Clark County; Gerald
W. Hardcastle, Judge Family Court Division.
The supreme court, Shearing, J., held that denial of mother's motion to relocate on sole
grounds that relocation would render current joint custody arrangement impossible was error.
Kirby R. Wells & Associates and Allison Herr Kainen, Las Vegas, for Appellant.
Marshal S. Willick, Las Vegas; Philip Beuth, Las Vegas, for Respondent.
1. Divorce.
Statute governing relocation requests of custodial parent or parent with joint custody applies to situations in which temporary
custody has been established in divorce action. NRS 125A.350.
2. Divorce.
Trial court's failure to consider mother's motion to relocate to another state when making initial permanent custody determination
constituted error in divorce action. NRS 125A.350.
3. Divorce.
For purposes of determining whether custodial parent or parent with joint custody should be allowed to relocate to another state
following divorce, reasonable, alternative visitation is visitation that will provide an adequate basis for preserving and fostering a
child's relationship with the noncustodial parent if the relocation is allowed. NRS 125A.350.
4. Divorce.
Trial court's denial of mother's motion to relocate to another state on sole grounds that relocation would render current joint
custody arrangement impossible was error in divorce action. Court failed to seriously consider other factors including possibility of
reasonable, alternative visitation. NRS 125A.350.
OPINION
On November 20, 1996, appellant Teresa McGuinness (Teresa) filed for divorce from her husband, respondent James McGuinness
{James).
McGuinness (James). On November 21, 1996, Teresa filed a motion requesting that the district court designate
her as the primary physical custodian of the parties' only child, Colin, and award her child support. James filed a
countermotion seeking primary physical custody of Colin.
At a February 1997 hearing on these motions, the district court ordered the parties to share joint legal and
physical custody of Colin with each parent having physical custody for one-half of a week pending finalization
of the divorce.
In March 1997, Teresa filed a motion asking to be granted primary physical custody of Colin and for
permission to relocate to West Virginia with him. In the motion to relocate, Teresa maintained that as a result of
her mother's recent death, she desired to return to her childhood home in Wheeling, West Virginia, to be close to
her siblings. Teresa explained that she had inherited a substantial sum of money from her mother, as well as part
ownership of her mother's house. Her siblings agreed to permit her to live in the house, rent free, while she
finished college and earned a teaching license. Teresa explained that her mother's death not only produced closer
contact with her siblings, but also renewed the importance of this contact.
In addition, Teresa explained that she had exhausted her career opportunities as a secretary in Las Vegas.
She stated that teaching offers her a career, rather than a job, and because her hours would mirror Colin's
school schedule, he would no longer need outside day care.
James opposed her motion, arguing that a move to West Virginia offers no actual advantage to Teresa or
Colin and that the move would disturb the current, functioning joint custody arrangement. The district court held
an evidentiary hearing to address the divorce, a permanent custody arrangement, and Teresa's motion to relocate.
During the hearing, the district court heard extensive testimony of Teresa and James regarding their parenting
strengths, weaknesses, abilities, and patterns. Their testimony indicated that both Teresa and James were caring,
responsible parents, each with only minor complaints about the parenting style of the other. The hearing also
revealed that the temporary joint custody arrangement, in place since February 19, 1997, was operating without
significant problems.
On June 24, 1997, the district court issued findings of fact and conclusions of law and granted a decree of
divorce. The district court found that although Teresa filed her request to relocate in good faith, an award of
joint legal and physical custody better served Colin's best interests. The district court held that Teresa's motion
must be denied because a joint physical custody arrangement would be impossible if Teresa were permitted to
relocate to West Virginia.
West Virginia. Further, the district court ordered that if Teresa chose to relocate, James would be granted sole
physical custody of Colin. Teresa filed this timely appeal from the custody orders.
The district court made the following factual finding regarding its determination of custody:
Teresa and James are like most couples with young children. Both love Colin very much. Most of the
daily responsibility for the care of Colin was managed by Teresa. James did participate however, and
appears to have spent most of his time playing with Colin. Either parent in the absence of the other, could
adequately provide for the child. If the Court were required to determine a primary custodian, Teresa
would have a slight edge due to the fact that she performed more of the child care responsibilities. James'
role with the child was more playful. Since the institution of the joint physical arrangement there have
been no difficulties, and both appear capable of caring for Colin.
The district court entered the following conclusions of law regarding the custody award:
4. The recent Supreme Court decision of Mosley v. Figliuzzi, 113 Nev. Adv. Op. 8
(Jan. 3, 1997) notes a preference for joint physical custody.
5. The Mosley decision requires a greater commitment by this Court to joint physical
custody.
6. The fundamental proposition that both parents ought to be allowed to maintain significant and
substantial involvement in the child's life cannot be disputed. This involvement ought to be nearly equal
as required by the Nevada Supreme Court.
NRS 125.480(1) states that:
In determining custody of a minor child in an action brought under this chapter, the sole consideration
of the court is the best interest of the child. If it appears to the court that joint custody would be in the
best interest of the child, the court may grant custody to the parties jointly.
Despite the language of the statute, the best interest of the child can never be determined in a
vacuum without considering the other members of the family. The circumstances and
well-being of the parents are inextricably entwined with the best interest of the child. If the
circumstances and needs of the divorcing parents were given no consideration, in a significant
number of cases, the court would be required to deny the divorce, or at least to require the
parents to continue to live with one another, as that would be in the best interest of the
child.
in the best interest of the child. But, that is neither the law nor public policy.
The district court entered the following findings of fact with respect to Teresa's motion to relocate:
6. Teresa's request to relocate is made in good faith.
7. With the exception of whether the move, if allowed, would allow a realistic
opportunity for the noncustodial parent to maintain a visitation schedule that would
preserve the parental relationship, there is no finding which would impede the move.
8. If the move were allowed, however, the true joint custody arrangement between
Colin and his father would be impaired and a joint custodial relationship virtually
impossible to maintain.
9. James is not the noncustodial parent specified in Nevada Supreme Court
relocation decisions.
10. It is not in Colin's best interest to allow the relocation. In the State of Nevada, the
child can maintain a relationship with both parents.
11. There is nothing in Teresa's request to relocate which creates a compelling reason to move. While
her request is made in good faith, it is not compelling such that the true joint physical custody
arrangement should be destroyed.
The district court entered the following conclusions of law with respect to Teresa's motion to relocate:
7. The Court disagrees with Teresa's assertion that the request to relocate should be granted since she has
met the required showing under NRS 125A.350. See, e.g., Gandee v. Gandee, 111 Nev. 754, 895 P.2d
1285 (1995).
8. In relocation cases reviewed by the Court in which the Schwartz v. Schwartz analysis
was successfully applied, the trial court had previously determined the applicant was
the primary physical custodian. No case was found where a joint physical custodian was
required to relocate simply upon demonstrating a parent's good faith motive for the
move.
9. The appropriate analysis in this case is whether relocation is in the best interest of
the child.
10. It is inconsistent that both parties are capable of sharing joint physical custody and that one party
should be able to defeat the Order by requesting to move under NRS 125A.350.
The district court's conclusions of law suggest that the Schwartz factors need not be considered when a
motion to relocate is made before permanent custody is granted.
[Headnote 1]
NRS 125A.350 states:
If custody has been established and the custodial parent or a parent having joint custody 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 other parent to move
the child from the state. If the noncustodial parent or other parent having joint custody refuses to give that
consent, the parent planning the move shall, before he leaves the state with the child, petition the court for
permission to move the child. . . .
(Emphasis added.) Clearly, NRS 125A.350 applies to a parent who shares joint custody and seeks to move to a
state other than Nevada. Further, we hold that NRS 125A.350 also applies to situations in which temporary
custody has been established.
Several cases interpret NRS 125A.350 and should guide the district courts in such determination of whether
to grant Teresa's motion to relocate pursuant to NRS 125A.350. See, e.g., Gandee v. Gandee, 111 Nev. 754, 895
P.2d 1285 (1995); Trent v. Trent, 111 Nev. 309, 890 P.2d 1309 (1995); Jones v. Jones, 110 Nev. 1253, 885
P.2d 563 (1994); Schwartz v. Schwartz, 107 Nev. 378, 812 P.2d 1268 (1991). Although the underlying facts in
these cases concern a custodial parent seeking to leave Nevada, these cases do not explicitly or impliedly limit
their applicability to parents with primary physical custody. These cases apply to all motions to relocate filed
pursuant to NRS 125A.350 and should guide district courts in such determination.
[Headnote 2]
Thus, Teresa's desire to relocate should have been considered in the initial permanent custody determination,
just as it would be if the motion to relocate were made after the divorce decree in which permanent custody is
determined. The district court should have considered the factors outlined in Schwartz, 107 Nev. at 383, 812
P.2d at 1271, in determining the appropriate custody arrangements.
1

__________

1
These factors are:
(1) the extent to which the move is likely to improve the quality of life for both the children and the
custodial parent; (2) whether the custodial parent's motives are honorable, and not designed to frustrate or
defeat visitation rights accorded to the noncustodial parent; (3) whether, if permission to remove is
granted, the custodial parent will comply with any substitute visitation orders issued by the court; (4)
whether the noncustodian's motives are honorable in resisting the motion for permission to
In addition, the district court appears to misunderstand the holding of Schwartz and the subsequent cases
applying the Schwartz factors. Good faith is not the only requirement for granting relocation. It is also not true,
as Teresa apparently contends, that simply alleging the same factors that appear in one case in which relocation
is granted automatically requires that relocation be granted in a case with similar factors. Each case must be
decided on the basis of its own facts by applying the applicable principles of law.
The district court's conclusions of law suggest that this court's opinion in Mosley v. Figliuzzi, 113 Nev. 51,
930 P.2d 1110 (1997), virtually mandates that the joint physical custody arrangement which the McGuinesses
have enjoyed must be maintained. There is no dispute that Nevada's public policy favors frequent associations
and a continuing relationship with both parents after divorce. NRS 125.460(1). There is also no question that
if one parent moves away, the opportunities for daily or weekly physical contact are lessened. However, even
though there may be a preference for joint physical custody in our law, other factors must also be considered.
Physical separation does not preclude each parent from maintaining significant and substantial involvement in a
child's life, which is clearly desirable. There are alternate methods of maintaining a meaningful relationship,
including telephone calls, e-mail messages, letters, and frequent visitation. Also, the well-being of a parent,
which could be heightened by relocation, may have a substantial effect on the best interest of the child.
In Schwartz, this court first articulated the standard for evaluating motions to relocate pursuant to NRS
125A.350. [I]n determining the issue of removal, the court must first find whether the custodial parent has
demonstrated that an actual advantage will be realized by both the children and the custodial parent in moving to
a location so far removed from the current residence that weekly visitation by the noncustodial parent is virtually
precluded. Schwartz, 107 Nev. at 382, 812 P.2d at 1271. According to Schwartz, if the moving parent
satisfies this threshold requirement, the court must weigh a series of factors, including their impact on the family
and the extent to which the compelling interests of each member of the family are accommodated. Id. at 383,
812 P.2d at 1271. In weighing and balancing the factors, this court set forth a nonexhaustive list of
sub-factors that "may assist the court in reaching an appropriate decision.
__________
remove, or to what extent, if any, the opposition is intended to secure a financial advantage in the form of
ongoing support obligations or otherwise; (5) whether, if removal is allowed, there will be a realistic
opportunity for the noncustodial parent to maintain a visitation schedule that will adequately foster and
preserve the parental relationship with the noncustodial parent.
Schwartz v. Schwartz, 107 Nev. 378, 383, 812 P.2d 1268, 1271 (1991).
court set forth a nonexhaustive list of sub-factors that may assist the court in reaching an appropriate decision.
2
Id.
[Headnote 3]
In Jones, this court refined the actual advantage standard enunciated in Schwartz and directed district
courts to focus on the availability of reasonable alternative visitation. Jones, 110 Nev. 1266, 885 P.2d at 572.
This court stated:
[A] custodial parent seeking removal does not need to show a significant economic or other tangible
benefit to meet the threshold actual advantage showing. If the custodial parent shows a sensible, good
faith reason for the move, the district court should evaluate the other factors enumerated in Schwartz,
focusing on whether reasonable, alternative visitation is possible. If reasonable, alternative visitation is
possible, the burden shifts to the noncustodial parent to show that the move is not in the best interests of
the children. Such a showing must consist of concrete, material reasons why the move is inimical to the
children's best interests.
Id. Reasonable, alternative visitation is visitation that will provide an adequate basis for preserving and
fostering a child's relationship with the noncustodial parent if the removal is allowed.' Id. at 1263, 885 P.2d at
570 (quoting Schwartz, 107 Nev. at 385 n.5, 812 P.2d at 1272 n.5). In citing opinions from other jurisdictions,
this court emphasized that the district court may not deny a motion to relocate solely to maintain the existing
visitation pattern, even if relocation entails a shift away from consistent day-to-day contact. Jones, 110 Nev. at
1266, 885 P.2d at 570.
[Headnote 4]
In denying Teresa's motion, the district court failed to seriously consider the possibility of reasonable,
alternative visitation and focused on the fact that a move would render the current joint custody arrangement
impossible. In so doing, the district court disregarded Schwartz and its progeny, which hold that the district court
may not deny a parent's motion to relocate simply because the proposed move will disturb the existing custody
or visitation arrangement. This court has explicitly cautioned district courts against placing improper
emphasis on the fact that a move might prevent weekly visitation for one parent, labeling
such practice "problematic."
__________

2
For example, in determining whether, and the extent to which the move will likely improve the quality of
life for the children and the custodial parent, the court may require evidence concerning such matters as: (1)
whether positive family care and support, including that of the extended family, will be enhanced; (2) whether
housing and environmental living conditions will be improved; (3) whether educational advantages for the
children will result; (4) whether the custodial parent's employment and income will improve; (5) whether special
needs of a child, medical or otherwise, will be better served; and (6) whether, in the child's opinion,
circumstances and relationships will be improved. Schwartz, 107 Nev. at 383, 812 P.2d at 1271.
against placing improper emphasis on the fact that a move might prevent weekly visitation for one parent,
labeling such practice problematic. Gandee, 111 Nev. at 762, 895 P.2d at 1291. Moreover, in Trent we stated:
We find it disturbing that despite our decision in Schwartz, many district courts are using NRS 125A.350
as a means to chain custodial parents, most often women, to the state of Nevada. NRS 125A.350 is
primarily a notice statute intended to prevent one parent from in effect stealing the children away from
the other parent by moving them away to another state and attempting to sever contact. Given the
legislative purpose behind NRS 125A.350, it should not be used to prevent the custodial parent from
freely pursuing a life outside of Nevada when reasonable alternative visitation is possible.
Id. at 315, 890 P.2d at 1313 (footnote omitted).
The district court below, and numerous other judicial officers in this state have taken an approach to
relocation motions brought under NRS 125A.350 that ignores the needs of the parents, even though these
needs are vital to, and an integral part of, the considerations in determining the best interest of the children. If the
parents' needs are not considered, motions to relocate would almost never be granted, because close physical
proximity to good parents is almost always in the child's best interest. When one parent seeks to relocate, it is
inevitable that one of the parents, as well as the child, will be deprived to a degree, especially if there has been
joint physical custody. The premise of the interpretations in Schwartz and its progeny is that, unless the parents'
interests are considered as part of the calculus of these decisions, a parent properly seeking a motion to move
would be irrevocably chained to this state by our child custody laws. If that premise is not considered by the
district courts, NRS 125A.350 is rendered meaningless.
The California Supreme Court stated the relevant public policy in In Re Marriage of Burgess, 913 P.2d 473,
480-81 (Cal. 1996):
As this case demonstrates, ours is an increasingly mobile society. Amici curiae point out that
approximately one American in five changes residences each year. Economic necessity and remarriage
account for the bulk of relocations. Because of the ordinary needs for both parents after a marital
dissolution to secure or retain employment, pursue educational or career opportunities, or reside in the
same location as a new spouse or other family or friends, it is unrealistic to assume that divorced parents
will permanently remain in the same location after dissolution or to exert pressure on them to do so. It
would also undermine the interest in minimizing costly litigation over custody and require
the trial courts to "micromanage" family decisionmaking by second-guessing
reasons for everyday decisions about career and family.
in minimizing costly litigation over custody and require the trial courts to micromanage family
decisionmaking by second-guessing reasons for everyday decisions about career and family.
The footnote to this statement reads:
In this matter, the parties continue to dispute whether the mother's change of employment was merely
a lateral move or was career enhancing. The point is immaterial. Once the trial court determined that
the mother did not relocate in order to frustrate the father's contact with the minor children, but did so for
sound good faith reasons, it was not required to inquire further into the wisdom of her inherently
subjective decisionmaking.
Id. at 481 n.5.
Accordingly, we reverse the custody order of the district court and remand this matter to the district court for
re-evaluation of the custody decision and the motion to relocate by the standards expressed in this opinion.
This is a divorce case in which the mother and father are engaging in a custody battle over the custody of
their only child, Colin. Each parent sought primary custody in a contested custody proceeding. After considering
the best interest of the child and the expressed desire of the mother to take the child with her to West Virginia,
the district court awarded joint legal and physical custody to the parents. This court now reverses the judgment
of the district court and remands for re-evaluation of the custody decision and the motion to relocate. The
stated ground for reversal is that the mother's desire to [re]locate should have been considered in the initial
permanent custody determination, but was not. I dissent because the district court did consider the mother's
desire to relocate and did not abuse its discretion in awarding joint custody, based on the best interest of the
child. As the majority points out, the district court held an evidentiary hearing to address the divorce, a
permanent custody arrangement and Teresa's motion to relocate. I see no reason why the district court should
be required to reconsider these matters.
As stated in the majority opinion, both parents were seeking primary custody. Based on a February 1997
hearing, the district court denied the primary custody and awarded temporary joint and equal custody to the two
parents. In the following month, March 1997, the mother moved for an order that would permit her to take
the child away with her to West Virginia.
her to take the child away with her to West Virginia. Asking the court if she could take the child to West
Virginia is, of course, the same as asking the court, again, to award her full custody.
As mentioned, at the divorce trial, the district court addressed the issues of permanent custody arrangement
and the mother's motion to relocate. I do not see how this court can fail to see that the mother's motion to take
the child to Virginia is the same as her previously denied plea for primary custody. The district court saw it. The
district court observed that [i]f the move were allowed, the joint custodial arrangement that had been
previously adjudicated and which was ultimately decided upon by the district court would be virtually
impossible. Another way of putting the district judge's approach to the custody and relocation decisions before
the court is this: I decided some months ago to award joint custody. The arrangement is working out well. On
the basis of NRS 125.480, which requires that the sole consideration' of the court be the best interest of the
child, I am going to award permanent joint custody. The mother's motion to relocate is the same as a motion for
primary custody; therefore, I must deny her motion. Once, after having conducted two custody hearings, the
district court made its final joint custody decision, it was correct in ruling that it would be inconsistent with the
joint custody award to permit one joint custodian to defeat the [joint custody] order by requesting to move
under NRS 125A.350. That is exactly the point: When one joint custodian makes a distant move away from
the home of the other joint custodian, this necessarily defeats the joint custody. This being the case, a move of
this kind triggers a custody decision under the best interest test rather than a permission to relocate test under
NRS 125A.350.
1

__________

1
See, e.g., In Re Marriage of Burgess, 913 P.2d 473, 483 n.12 (Cal. 1996) (when parents have shared joint
physical custody, relocation of one of them justifies modification of custody under a best interests test); Ayers v.
Ayers, 508 N.W.2d 515, 519 (Minn. 1993) (in shared custody cases, relocation amounts to a modification of the
custody award, and, thus, must be justified by the relocating parent); Jaramillo v. Jaramillo, 823 P.2d 299, 309
(N.M. 1991) (where parties share custody equally, neither has the burden of proof in removal matter). Thus,
when a parent who shares equal physical custody with the other parent decides to move, it is no longer a
question of permission to move; the question becomes the greater question of who should, under the
circumstances, receive primary custody of the child. [I]f neither parent has been exercising a significant
majority of custodial responsibility for the child, the court should reallocate custodial responsibility based on the
best interests of the child, taking into account all relevant factors including the effects of the relocation on the
child. The American Law Institute, Principles of the Law of Family Dissolution: Analysis and
Recommendations, Part I 2.20(4)(b) (Tentative Draft No. 3, 1998) (hereinafter ALI Draft) When relocation
in such cases makes it necessary to choose one parent to be the primary custodial parent, there is little choice but
to reassess the cus
I am concerned about the effect of the majority opinion on NRS 125.480, which requires that the best
interest of the child be the sole consideration in child custody disputes. The majority opinion declares that
[d]espite the language of the statute, the best interest of the child can never be determined in a vacuum
without considering the other members of the family. I am not sure what this means. It might mean that from
now on district courts must consider, in addition to the best interest of the child, the best interest of other family
members. If the language is intended to mean that, despite the statute, the court need not use the child's
interest as the sole consideration, then the majority opinion is in direct conflict with the stated, statutory
intention of the legislature. It is not clear to me how the district court will go about applying the best interest of
the family standard. In any event, as I maintain in this dissenting opinion, a distant move by a joint custodian is
such a change of circumstances that the issue of custody and the child's best interest must prevail.
The child's interest must prevail in custody determinations; and it certainly would have been within the scope
of the district court's discretion to have concluded that it was in the best interest of this child to grant the motion
for relocation and thus change custody from joint custody to primary custody in the mother. The court might also
have decided to grant primary custody to the father. What the court did do is to decide that continued joint
custody was in the best interest of the child and that the mother could either remain at home or become,
effectively, a visiting parent living in West Virginia. It is not necessary or proper to interfere with the district
court's custody decree. Of course, if the mother does move away, the district court might, in the future, decide to
re-examine the custody arrangement based on change of circumstances. For the present, however, I believe that
the custody issue and the relocation issue were correctly decided by the district court.
This is the first time that we have considered a relocation motion by a joint custodian. In cases of joint
custody (and in cases in which the noncustodial parent is sharing a large part of the residential responsibility for
raising the children), there is inherent in any substantial relocation by one of the joint custodians a radical
change in circumstances that not only warrants, but requires, a re-examination of the entire custodial situation.
Under such circumstances, the district court cannot naively decide the custody controversy simply as a relocation
case, but must, of necessity, first reconsider the entire case purely as a custody matter, decided on the basis
of what is found to be in the best interest of the child.
__________
todial arrangements under the best-interest-of-the-child test. In applying this test, the court should consider all
relevant factors, including the potential disruptive effects of the relocation itself and its potential benefits. ALI
Draft, Part I 2.20 cmt. e.
on the basis of what is found to be in the best interest of the child. Under Murphy v. Murphy, 84 Nev. 710, 711,
447 P.2d 664, 665 (1968), where the circumstances of the parents have been materially altered, custody may
be changed, but only when the child's welfare would be substantially enhanced by the change. It appears to be
rather clear, at this juncture, that the child's welfare would not in any way be enhanced by a dissolution of the
joint custody and the virtual removal of one of this child's parents from his life.
The district court was able to see the point: When a joint custodian tells the court that he wants to go to
Katmandu and take the children with him, that is the same as saying that he wants a change in custody. The
district court properly saw this as a custody case and not merely a case involving one of the parent's desire to
move away. The district court correctly surveyed the entire custodial landscape with reference to the best interest
of the child. After doing this, the court decided that the best interest of the child would be served by maintaining
the parents' joint custody of the child. In a case like this one, where the child is spending substantially equal time
with each parent, the question is not whether one parent is entitled to move from the state, the question is what is
the optimal custody arrangement, that is to say, the custody that is in the best interest of the child. There is no
dearth of authority for the proposition that a joint custodian's making a distant move from the joint custody
jurisdiction is, of itself, a change of circumstances, a change that mandates consideration of the entire custody
arrangement, to be decided on the basis of the best interest of the child. The easy-to-satisfy Schwartz factors
(Schwartz v. Schwartz, 107 Nev. 378, 812 P.2d 1268 (1991)) cannot be blindly and exclusively applied in
cases in which an ongoing joint custody relationship is subject to being defeated by a proposed relocation. The
district court must (as was done in the present case) reevaluate all custodial factors in these kinds of cases and
cannot proceed blithely to dispose of what is essentially a custody matter merely by telling one parent that it is
all right to move and take the children away with him and away from the other parent.
I cannot, of course, disagree with the majority's assertion that the relocation statute, NRS 125A.350,
applies, by its terms, to joint custody cases. I must note, however, that by including joint custody in the
relocation statute, the legislature could not have intended that in the type of joint custody cases in which a
substantial relocation disrupts and alters the basic custodial arrangement, the court should be enabled to
terminate effectively a pre-existing joint custody, merely by permitting one parent to remove the child from the
custody of the other joint custodian. I am sure that the legislature did not intend that the district
court should be blind to the best interest standard or that it need not make basic custodial
decisions on these kinds of cases before it gets to the relocation considerations dictated
by Schwartz.
that the legislature did not intend that the district court should be blind to the best interest standard or that it need
not make basic custodial decisions on these kinds of cases before it gets to the relocation considerations dictated
by Schwartz. The district court acted reasonably and properly in this case when it decided that continued joint
custody was in the best interest of this child and then, based on this ruling, necessarily ruled that the mother
could not disrupt the joint custody arrangement by taking the child away from his father and becoming the
primary custodian.
In the Schwartz line of cases, we dealt with requests to relocate by parents with primary, not joint, physical
custody of the children. Except for two cases in which a parent had obtained primary physical custody by
agreement (Cook v. Cook, 111 Nev. 822, 898 P.2d 702 (1995); Trent v. Trent, 111 Nev. 309, 890 P.2d
1309 (1995)), it appeared that the parents in Schwartz-like cases had been awarded primary physical custody of
their children by the district court. See Gandee v. Gandee, 111 Nev. 754, 895 P.2d 1285 (1995); Jones v.
Jones, 110 Nev. 1253, 885 P.2d 563 (1994); Schwartz v. Schwartz, 107 Nev. 378, 812 P.2d 1268 (1991).
Implicit in these custody awards was a finding by the district court that awarding these parents primary physical
custody was in the best interest of the children. See NRS 125.480(1) (In determining custody of a minor
child . . . the sole consideration of the court is the best interest of the child.). We must, then, begin our analysis
of the Schwartz line of cases with the premise that it was adjudged to be in the best interest of the child to remain
with the parent seeking relocation. See Schwartz, 107 Nev. at 382, 812 P.2d at 1271 (In removing a child
from the jurisdiction where the child currently lives, the best interests of the child should . . . be the paramount
judicial concern.). Only after giving paramount judicial concern to the best interest of the child can we
properly proceed to consider the other factors articulated in the Schwartz line of cases in order to balance the
custodial parent's interest in freedom of movement as qualified by his or her custodial obligation, the State's
interest in protecting the best interests of the child, and the competing interests of the noncustodial parent.' Id.
at 382, 812 P.2d at 1270 (quoting Holder v. Polanski, 544 A.2d 852, 855 (N.J. 1988)). In the case at bar, the
district court determined, twice, that it was in the best interest of the child to remain in a joint physical custody
arrangement. Once that determination was made, it, of course, follows that any other custody arrangement would
not be in the child's best interest. Once the district court came to the conclusion that the best interest of the child
was served by the continuation of joint custody, it was no longer necessary or appropriate to consider the
Schwartz factors because relocation would require a change detrimental to the best interest of the child,
i.e., a modification of the joint custody arrangement.
the best interest of the child, i.e., a modification of the joint custody arrangement. This mother's moving to West
Virginia may be in her best interest, but it did not appear to the district court that it was in the best interest of the
child; and the district court so adjudged.
The Schwartz line of cases is not controlling in the present case for another reason. Although on its face
NRS 125A.350 addresses joint physical custody arrangements, our treatment of the statute and our analysis in
the Schwartz line of cases do not say or imply that a motion to relocate may be granted in joint custody cases
without revisiting the whole custody arrangement. See Schwartz, 107 Nev. at 381-82, 812 P.2d at 1270 (The
overall purpose of the statute is to preserve the rights and familial relationship of the noncustodial parent with
respect to his or her child.). There is no noncustodial parent here.
Our analysis in the relocation cases has thus far been predicated on the relocating parent already having
primary physical custody. For this reason, the Schwartz line of cases requires us to consider, for example,
whether the custodial parent's motives are . . . not designed to frustrate or defeat visitation rights accorded to
the noncustodial parent and whether . . . there will be a realistic opportunity for the noncustodial parent to
maintain a visitation schedule that will adequately foster and preserve the parental relationship with the
noncustodial parent. Schwartz, 107 Nev. at 383, 812 P.2d at 1271. Such an analysis is appropriate only in
cases in which a court is endeavoring to insure that the parent remaining in Nevada is not deprived of what he or
she had before, namely, visitation rights. Neither parent, in the case before us, had visitation rights. Each parent
had full and equal custodial rights; so it is idle to speak of either parent's suffering in the quality and quantity of
such visitation. By effectively modifying the joint custody arrangement by permitting the mother to relocate and
take the child away with her, the father is being deprived of his right of custody. The Schwartz line of cases
cannot be relied upon, and was not relied upon by the district court, in deciding this matter.
2

As in Mosley v. Figliuzzi, 113 Nev. 51, 930 P.2d 1110 (1997), the McGuinnesses were sharing physical
custody of the child equally under a joint legal and physical custody decree.
__________

2
In the Schwartz line of cases, we were able to decide the issue of relocation without disturbing the existing
custody arrangement. In the case at bar, granting the mother's request to relocate requires modifying the custody
arrangement, even though the district court found the joint custody arrangement to be in the child's best interest.
Thus, by requesting to relocate, the mother has managed to obtain a change of custody by doing an end run
around our rule that [w]here custody is shared, the best interest of the child is the single dispositive factor
governing modification. Hopper v. Hopper, 113 Nev. 1138, 1142 n.2, 946 P.2d 171, 174 n.2 (1997). This
opens up NRS 125A.350 to abuse, and I can see the majority's result discouraging joint cus-
equally under a joint legal and physical custody decree. The district court quite correctly concluded that the
father was not a noncustodial' parent. The father was not (as in the Schwartz-like cases) a secondary
custodian or visiting parent trying to protect his visitation rights by resisting a primary custodian's request to
move from the jurisdiction and take the child away. The father here is the custodian, the primary custodian (or
should I say the co-primary custodian?). Once the father's joint custody status was reaffirmed and
readjudicated, removal proceedings, for the time, anyway, became moot.
Although NRS 125A.350 requires that a parent having joint custody must, like a primary custodian,
petition for permission to leave the state with the child, where a district court reexamines the whole issue of
custody and decides that joint custody still is in the best interest of the child, such a custody decree should be
sustained. See Primm v. Lopes, 109 Nev. 502, 504, 853 P.2d 103, 104 (1993) (holding that in a custody
matter, a trial court is presumed to have properly exercised its discretion in deciding what constitutes a child's
best interest). It would not make any sense for the court, after making the best interest, joint custody judgment,
to consider whether the child should then be removed from the state and so demolish the joint custody status just
decided to have been in the child's best interest.
I note that in this case the district court held that as to the original institution of the joint physical
arrangement[,] there have been no difficulties, that the custody arrangement between Colin and his father
would be impaired by the prospective move, and, most importantly, that [I]t is not in Colin's best interest to
allow the mother to take the child away in a way that would defeat the joint custody arrangement.
In concluding, I would note that in addition to finding, twice, that maintaining the joint custody arrangement
was in the child's best interest, the district court also found that there was nothing in the mother's request to
relocate which creates a compelling reason to move, and that, although her request to relocate may have been
made in good faith, her request was not so compelling that a true joint physical custody arrangement should
be destroyed. We should pay attention to these findings.
3
We should leave the district court's
decision alone and, whenever feasible, permit the child to grow up with two parents
instead of one.
__________
tody arrangements in the future because parents with no plans to leave Nevada will fear the same fate befalling
them as has befallen the hapless father here.

3
We have previously noted our concern that NRS 125A.350 was being used as a means to chain custodial
parents, most often women, to the state of Nevada. Trent, 111 Nev. at 315, 890 P.2d at 1313. By preserving the
joint custody arrangement in the case at bar, we will not be attempting to chain the mother to this state. Rather
we will be acknowledging that the child's best interest comes first and that the calculus of relocation cases
obliges us to consider the mother's interest in freedom of movement as qualified by . . . her custodial
obligation.' Schwartz, 107 Nev. at 382, 812 P.2d at 1270 (quoting Holder, 544 A.2d at 855).
should leave the district court's decision alone and, whenever feasible, permit the child to grow up with two
parents instead of one. I would affirm the district court's orders.
4

____________
114 Nev. 1446, 1446 (1998) Blaich v. Blaich
CHRISTINE BLAICH, Appellant, v. STEPHEN BLAICH, Respondent.
No. 30434
December 31, 1998 971 P.2d 822
Appeal from an order denying appellant's motion for permission of the court to relocate
minor child to Dallas, Texas; granting respondent's oral motion to strike appellant's reply
brief, filed February 7, 1997; and modifying the joint custody arrangement in the divorce
decree by granting respondent's motion to designate plaintiff/counterdefendant as primary
custodian of the minor child. Eighth Judicial District Court, Clark County; Cynthia Steel,
Judge Family Court Division.
Following divorce, mother who shared joint legal and physical custody of child, filed
motion to relocate with child out-of-state. The district court denied mother's motion and
granted father's motion for primary custody, and mother appealed. The supreme court,
Shearing, J., held that: (1) mother's reply brief was timely filed, and (2) district court's failure
to apply child removal statute required remand.
Raleigh, Hunt & McGarry, and Bert Wuester, Jr., Las Vegas, for Appellant.
D. Bruce Anderson, Las Vegas, for Respondent.
Supreme court conducts de novo review of district court's conclusions of law.
__________

4
I wish to include in the margin some comments on the majority's treatment of Mosley. The majority believes
that the district court overstated the significance of Mosley. I do not see how. There is nothing in the record
that suggests to me that the district court incorrectly saw Mosley as standing for the proposition that this court
always prefers equal split, joint custody arrangements. The district court cited Mosley largely because Mosley,
like this case, was a joint physical custody case and the question was whether a joint physical custody decree
should stand or fall, based upon the best interest of the child. Mosley does not hold that the court always prefers
equal split, nor did the district court cite it for such a holding.
2. Divorce.
Following divorce, mother's reply brief to father's motion for primary custody was timely filed, where brief was filed more than
five days before scheduled hearing date. EDCR 5.25(d).
Child removal statute applies to a parent sharing joint custody who seeks to move with a child to another state as well as a parent
with primary physical custody. NRS 125A.350.
4. Divorce.
District court was not required, under child removal statute, to first determine whether to award mother primary physical custody
of child following divorce, before evaluating her request to relocate with child out of state against wishes of father. NRS 125A.350.
5. Divorce.
District court's failure to apply child removal statute to mother, who shared joint legal and physical custody of child following
divorce and sought to move with child out of state required remand, where mother showed that move provided her a higher standard of
living and career advancement, child could take advantage of nearby neighbors, friends, family, schools, and parks, was not designed
to frustrate father's visitation rights, and father could continue to visit with child less frequently but for longer periods of time. NRS
125A.350.
OPINION
Christine and Stephen Blaich divorced on December 5, 1995. The divorce agreement provided that the couple would share joint legal
and physical custody of their only child, McKenzie. In September 1996, Christine unexpectedly received a job offer in Dallas, Texas.
Believing that this Dallas job would enhance her career and that life in a small suburb of Dallas would offer better opportunities for her and
for McKenzie, she asked Stephen for permission to move to Dallas with McKenzie; Stephen denied this request. On October 22, Christine
filed a motion to relocate with the district court, and Stephen filed an opposition motion in which he requested that the court grant him
primary custody of McKenzie. Christine filed a reply motion on February 7, 1997.
An order of May 2, 1997, denied Christine's motion to relocate and granted Stephen's motion for primary physical custody. Christine
appeals this order.
In its May 2, 1997 order, the district court stated: [I]t is the finding of this Court that Defendant/Counterclaimant's reply brief is a
fugitive document and was untimely filed, and that it should be stricken. Christine argues that the district court erred in striking this
document.
[Headnote 1]
This court conducts a de novo review of the district court's conclusions of law.
clusions of law. SIIS v. United Exposition Services Co., 109 Nev. 28, 30, 846 P.2d 294, 295
(1993). EDCR 5.25(d) states:
[A] moving party may file a reply memorandum of points and authorities not later than
5 days before the matter is set for hearing. A reply memorandum must not be filed
within 5 days of the hearing or in open court unless court approval is first obtained.
[Headnote 2]
Christine filed her reply to Stephen's motion on February 7, 1997. The district court scheduled a hearing on
these motions for April 3, 1997. Clearly, Christine's motion was filed more than five days before the scheduled
hearing date. Thus, we conclude that Christine's motion was not untimely and that the district court erred in
refusing to consider it.
Christine also argues that the district court misinterpreted NRS 125A.350 and failed to properly apply it to
her motion to relocate. She argues that NRS 125A.350 applies not only to parents with primary physical custody,
but also to parents with joint custody who seek to move out of Nevada.
In its May 2, 1997 order, the district court stated, in relevant part:
[T]his Court further finds that currently there is no case law on point in the state of Nevada where parties
have joint physical custody and one parent desires to move out of state with the minor child. There is case
law relative to a party having primary custody desiring to move out of state, and there is case law where a
party having joint custody desires to change the custody relationship and seek primary custody. In
viewing the statutes and case law regarding change of custody, and also regarding moving out of state
with the minor child, it is the finding of this Court that the Court must first look at the facts and law
surrounding the change of custody prior to addressing the issue of the move out of state. . . .
On the basis of the foregoing Findings, the Court CONCLUDES:
1. That the Defendant/Counterclaimant, CHRISTINE BLAICH, must first show, prior to addressing
the issues of the out-of-state move, that it is in the best interests of the child that she receive primary
custody. . . .
NRS 125A.350, entitled Consent required from noncustodial parent or parent having joint custody to
remove child from state; permission from court; change of custody, states:
If custody has been established and the custodial parent or a parent having joint custody 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 other parent to move the
child from the state.
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 other parent
to move the child from the state. If the noncustodial parent or other parent having joint
custody refuses to give that consent, the parent planning the move shall, before he
leaves the state with the child, petition the court for permission to move the child. . . .
(Emphasis added.)
[Headnotes 3, 4]
Clearly, NRS 125A.350 applies to a parent sharing joint custody who seeks to move to another state. The
district court's conclusion that it could not address Christine's motion to relocate without first awarding her
primary physical custody is at odds with the language of NRS 125A.350 and therefore is erroneous.
In addition, several cases interpreting NRS 125A.350 should have guided the district court in its evaluation
of Christine's motion to relocate to Texas. See Gandee v. Gandee, 111 Nev. 754, 895 P.2d 1285 (1995); Trent v.
Trent, 111 Nev. 309, 890 P.2d 1309 (1995); Jones v. Jones, 110 Nev. 1253, 885 P.2d 563 (1994); Schwartz v.
Schwartz, 107 Nev. 378, 812 P.2d 1268 (1991). Although these cases specifically discuss NRS 125A.350
motions filed by parents with primary physical custody, the analysis in these cases should guide the district court
in evaluating all motions to relocate filed pursuant to 125A.350 regardless of the custodial status of the moving
parent.
Christine further argues that the district court erred in denying her motion to relocate and in granting
Stephen's motion for primary custody because the district court misinterpreted and misapplied NRS 125A.350
and its accompanying cases. The district court's May 2, 1997 order states:
This Court finds that a move would frustrate the relationship between father and daughter. The Court
witnessed Mr. BLAICH's testimony and believes the father's motives to be sincere. The Court finds that
the argument by Ms. BLAICH that one of the reasons for the move was to be closer to family was not
genuine. There would still be substantial distance between her and her family, and it is the belief of the
Court that frequent visits would probably not be made. Additionally, by Ms. BLAICH's mother's own
admission, she planned to retire to the state of Idaho. The Court did not find family to be Ms. BLAICH's
draw to the state of Texas. Further, the Court finds that Ms. BLAICH did not look anywhere else in
Nevada for employment options for herself, nor did she look at educational options for the child in the
state of Nevada, by her own admission she only investigated options in Texas.
of Nevada, by her own admission she only investigated options in Texas. The Court
finds that Ms. BLAICH's decision to only investigate options in Texas, sign a lease
agreement even before filing a motion with this court, evidences a lack of good faith on
her part.
It is further the finding of this Court that, in light of the joint physical custody
arrangement that the parties have pursuant to the Decree of Divorce, Mr. BLAICH
would not be able to have a reasonable alternative visitation schedule and that the
visitation schedule proposed by Ms. BLAICH was self-serving and not a reasonable
alternative plan of visitation. That Mr. BLAICH, with joint physical custody, had
substantial rights. To take these rights away, there needed to be more evidence
presented relative to a change of custody. Ms. BLAICH failed to do that, but simply
assumed that she had primary physical custody. Apparently, Ms. BLAICH desired to
obtain primary physical custody by virtue of simply moving out of the state. . . .
It is the finding of this Court that it is in the best interests of the minor child that Mr.
BLAICH be designated as the primary custodian of the child, unless and until Ms.
BLAICH decides to relocate to the state of Nevada.
On the basis of the foregoing Findings, the Court CONCLUDES:
1. That the Defendant/Counterclaimant, CHRISTINE BLAICH, must first show,
prior to addressing the issues of the out-of-state move, that it is in the best interests of
the child that she receive primary custody. She has failed to do so, and therefore her
request to move out of the state with the minor child must be denied, and
Plaintiff/Counterdefendant STEPHEN BLAICH's motion to be designated as primary
physical custodian should be granted.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that
Plaintiff/Counterclaimant's Motion to Designate Plaintiff/Counterdefendant As Primary
Custodian Of The Minor Child be, and the same is hereby, granted.
The district court evaluated Christine's motion to relocate under the false assumption that
it must first determine whether to grant Christine primary physical custody. Thus, the district
court evaluated the facts using a combination of the best interest of the child standard, which
guides a district court's decision to change custody pursuant to 125.510(2),
1
and not the
factors set forth by this court for evaluating a motion to relocate pursuant to NRS
125A.350.
__________

1
NRS 125.510(2) states, that [a]ny order for joint custody may be modified or terminated by the court upon
the petition of one or both parents or on the court's own motion if it is shown that the best interest of the child
requires the modification or termination. . . .
court for evaluating a motion to relocate pursuant to NRS 125A.350. The district court's
analysis misapplies and even contradicts the case law which should have guided its analysis
of whether to grant Christine's motion to relocate.
It has become apparent that the district court has, along with many of her colleagues
statewide, been reluctant to apply Schwartz and its progeny to relocation applications where
the parties enjoy a joint custody arrangement. Thus, in McGuinness v. McGuiness, 114 Nev.
1431, 970 P.2d 1074 (1998), we unequivocally determined that all motions to relocate must
be analyzed pursuant to Schwartz, regardless of the nature of the custody arrangement.
In Schwartz, this court first articulated the standard for evaluating motions pursuant to
125A.350. [In] determining the issue of removal, the court must first find whether the
custodial parent has demonstrated that an actual advantage will be realized by both the
children and the custodial parent in moving to a location so far removed from the current
residence that weekly visitation by the noncustodial parent is virtually precluded. Schwartz,
107 Nev. at 382, 812 P.2d at 1270. According to Schwartz, if the moving parent satisfies this
threshold requirement, the court must weigh a series of factors, including their impact on the
family and the extent to which the compelling interests of each member of the family are
accommodated.
2
Id. at 383, 812 P.2d at 1270. In weighing and balancing the factors, this
court set forth a nonexhaustive list of sub-factors that may assist the court in reaching an
appropriate decision.
3
Id.
__________

2
These factors are: (1) the extent to which the move is likely to improve the quality of life for both the
children and the custodial parent; (2) whether the custodial parent's motives are honorable, and not designed to
frustrate or defeat visitation rights accorded to the noncustodial parent; (3) whether, if permission to remove is
granted, the custodial parent will comply with any substitute visitation orders issued by the court; (4) whether the
noncustodian's motives are honorable in resisting the motion for permission to remove, or to what extent, if any,
the opposition is intended to secure a financial advantage in the form of ongoing support obligations or
otherwise; (5) whether, if removal is allowed, there will be a realistic opportunity for the noncustodial parent to
noncustodial parent. Schwartz v. Schwartz, 107 Nev. 378, 383, 812 P.2d 1268, 1271 (1991).

3
For example, in determining whether, and the extent to which the move will likely improve the quality of
life for the children and the custodial parent, the court may require evidence concerning such matters as: (1)
whether positive family care and support, including that of the extended family, will be enhanced; (2) whether
housing and environmental living conditions will be improved; (3) whether educational advantages for the
children will result; (4) whether the custodial parent's employment and income will improve; (5) whether special
needs of a child, medical or otherwise, will be better served; and (6) whether, in the child's opinion,
circumstances and relationships will be improved. Schwartz, 107 Nev. at 383, 812 P.2d at 1271.
In Jones, this court refined the actual advantage standard and directed the district court
to focus upon the availability of reasonable alternative visitation. This court stated:
[A] custodial parent seeking removal does not need to show a significant economic or
other tangible benefit to meet the threshold actual advantage showing. If the custodial
parent shows a sensible, good faith reason for the move, the district court should
evaluate the other factors enumerated in Schwartz, focusing on whether reasonable,
alternative, visitation is possible. If reasonable alternative visitation is possible, the
burden shifts to the noncustodial parent to show that the move is not in the best
interests of the children. Such a showing must consist of concrete, material reasons why
the move is inimical to the children's best interests. . . .
Jones v. Jones, 110 Nev. 1253, 1266, 885 P.2d 563, 572 (1994). Reasonable, alternative
visitation is visitation that will provide an adequate basis for preserving and fostering a
child's relationship with the noncustodial parent if the removal is allowed.' Id. at 1263, 885
P.2d at 570 (quoting Schwartz v. Schwartz, 107 Nev. 378, 385 n.5, 812 P.2d 1268, 1272 n.5
(1991)). Citing opinions from other jurisdictions, this court emphasized the notion that the
district court may not disallow removal solely to maintain the existing visitation pattern, even
if removal means a shift away from consistent day-to-day contact. Id.
[Headnote 5]
Based on the factors set forth in Schwartz and its progeny, we conclude that Christine made the threshold
showing of an actual advantage required by the first factor in Schwartz, namely, that a move to Carrollton
provides a small town atmosphere, safety, a higher standard of living and career advancement. Christine testified
as to the proximity of neighbors, friends, family, schools, parks and a flexible work environment that will allow
her to enjoy these benefits with McKenzie. Regarding the second and third Schwartz factors, Christine's motives
appear to be honorable and not designed to frustrate or defeat Stephen's visitation rights; she has demonstrated
her commitment to complying with court visitation orders. In fact, Christine testified that she seeks to encourage
visitation and believes that Stephen is a good father. Regarding the last Schwartz factor, Christine states that
while weekly visitation will be impractical given that the parties cannot afford weekly airline tickets, McKenzie
and Stephen can visit each other regularly with less frequent but longer visits, instead of more frequent shorter
visits.
In denying Christine's motion, the district court heavily weighed the fact that Stephen would no longer have
weekly contact with his daughter.
tact with his daughter. This court has explicitly cautioned the district court against placing
improper emphasis upon this fact, labeling such practice problematic. Gandee v. Gandee,
111 Nev. 754, 761, 895 P.2d 1285, 1289 (1995).
We find it disturbing that despite our decision in Schwartz, many district courts are
using NRS 125A.350 as a means to chain custodial parents, most often women, to the
state of Nevada. NRS 125A.350 is primarily a notice statute intended to prevent one
parent from in effect stealing the children away from the other parent by moving
them away to another state and attempting to sever contact. Given the legislative
purpose behind NRS 125A.350, it should not be used to prevent the custodial parent
from freely pursuing a life outside of Nevada when reasonable alternative visitation is
possible. . . .
Trent v. Trent, 111 Nev. 309, 315, 890 P.2d 1309, 1312 (1995) (footnote omitted).
Here, the district court dismissed Christine's proposed parenting plan as self-serving
despite its similarity to plans previously accepted by the district court. Id. at 316-17, 890 P.2d
at 1314. Schwartz, 107 Nev. at 385, 812 P.2d 1272. It appears that Christine made the
showings required by the cases interpreting NRS 125A.350. The district court did not,
therefore, reach its result by following the method of analysis set forth by this court. We
conclude that in failing to evaluate Christine's motion to relocate in accordance with the
standards set forth by this court in Schwartz and its progeny, the district court failed to apply
the correct law. Accordingly, we reverse the order of the district court and remand this matter
to the district court for reevaluation of Christine's two motions and Stephen's motion for
primary custody by the standards set forth in this opinion.
I write separately to comment on the position taken by our dissenting colleague.
The dissent asserts that the district court did not have to address NRS 125A.350 because
the court was simply refusing to allow a parent with neither joint nor primary custody to
move outside this state with her child. On the contrary, the proceedings now being considered
on appeal were initiated via motion to relocate, brought by a parent with joint physical
custody. The motion by the father to change the custody arrangement was made in response
to the motion to relocate. Thus, the district court, as noted by the majority, was required to
address the issues raised under NRS 125A.350.
majority, was required to address the issues raised under NRS 125A.350.
I also write separately to note that, while I agree with the majority analysis, the district
judge in this case was trying to grapple with a body of doctrine that has been the subject of
confusion among members of our judiciary on both the appellate and trial court levels. This is
reflected by a fairly substantial collection of cases involving the scope and meaning of NRS
125A.350 that are just now being resolved contemporaneously with this decision.
This is an appeal from a custody decision granting Stephen Blaich's motion to change
custody of his child from joint custody to primary custody. Upon the court's granting Blaich's
motion, Blaich, the father, became the primary custodian of the child. As I see it, the district
court's refusal to permit the mother to take the child away from the primary custodian to be
with her in Texas is merely an incident of the custody decision. NRS 125A.350 relates only to
primary and joint custodians. Since the mother does not have primary custody, she does not
have standing to proceed under NRS 125A.350. Consequently, the district court did not err in
denying the mother's motion to remove the child.
The majority opinion is wrong when it asserts that the district court evaluated the mother's
motion to relocate under the false assumption that it must first determine whether to grant
Christine primary physical custody. The district court made no false assumption. As I
explain in McGuinness v. McGuinness, 114 Nev. 1431, 970 P.2d 1074 (1998) (Springer, C.
J., dissenting), a joint custodian who seeks to remove a child to another state is seeking a
change in custody to primary custodian status. Thus, the district court in this case was
deciding the issue that was truly before it in this caseif joint custody was no longer an
option, who was to be the primary custodian? I see nothing in the record that would prevent
the court from granting the father's motion for primary custody. The majority opinion holds
that the district court failed to apply the correct law. I think that it is this court that has
failed to apply the correct law; therefore, I dissent.
____________
114 Nev. 1455, 1455 (1998) Halbrook v. Halbrook
VALERIE J. HALBROOK, Appellant, v. GREGORY D. HALBROOK, Respondent.
No. 30880
VALERIE J. HALBROOK, Appellant, v. GREGORY D. HALBROOK, Respondent.
No. 31441
December 31, 1998 971 P.2d 1262
Appeals from district court orders denying appellant's motion to relocate with minor child and granting
respondent attorney fees. Eighth Judicial District Court, Clark County; Frances-Ann Fine, Judge Family Court
Division.
Former wife filed motion seeking permission to move to Texas with parties' child. The
district court denied motion and awarded former husband attorney fees. Former wife
appealed. The supreme court, Shearing, J., held that: (1) former wife's increased career
opportunities constituted sensible, good faith reason for proposed move; (2) alternate
visitation plan proposed by former wife was reasonable and realistic; and (3) power to award
attorney fees in divorce actions remains part of the continuing jurisdiction of the court in
appropriate postjudgment motions relating to support and child custody; overruling Duff v.
Foster, 110 Nev. 1306, 885 P.2d 589 (1994).
Law Offices of Patricia L. Vaccarino, Las Vegas, for Appellant.
Stephen R. Minagil, Las Vegas, for Respondent.
In determining whether to permit a custodial parent to move out of state with the parties' children, the district court must first find
whether the custodial parent has demonstrated that an actual advantage will be realized by both the children and the custodial parent to
a location so far removed from the current residence that weekly visitation by the noncustodial parent is virtually precluded. NRS
125A.350.
Custodial parent seeking to move out of state with the parties' children does not need to show a significant economic or other
tangible benefit to meet the threshold actual advantage showing. NRS 125A.350.
Good faith reason for a custodial parent's proposed out of state move with the parties' children means one that is not designed to
frustrate the visitation rights of the noncustodial parent. NRS 125A.350.
Custodial parent's opportunity for career advancement constitutes a good faith reason for the parent to relocate with
the parties' children out of state.
good faith reason for the parent to relocate with the parties' children out of state. NRS 125A.350.
5. Divorce.
Former wife's opportunity for increased income and future promotions if she transferred to employer's Texas office constituted
sensible, good faith reason for former wife's proposed move with parties' daughter. NRS 125A.350.
District court may not deny a custodial parent's removal petition solely to maintain the existing visitation pattern, even if removal
means a shift away from consistent day-to-day contact. NRS 125A.350.
In determining whether a custodial parent's proposed out of state move with the parties' children will permit noncustodial parent
reasonable and realistic visitation, such visitation is that which will provide an adequate basis for preserving and fostering a child's
relationship with the noncustodial parent if the removal is allowed. NRS 125A.350.
8. Divorce.
Alternate visitation plan proposed by former wife, under which, if former wife's proposed move to Texas were approved, parties'
child would spend summers, Christmas holidays, spring and Thanksgiving vacations, and three-day weekends every other month with
former husband was reasonable and realistic, even if former husband's day-to-day contact with child was eliminated. NRS 125A.350.
9. Divorce.
Power of the court to award attorney fees in divorce actions remains part of the continuing jurisdiction of the court in appropriate
postjudgment motions relating to support and child custody; overruling Duff v. Foster, 110 Nev. 1306, 885 P.2d 589 (1994).
OPINION
On January 3, 1996, appellant, Valerie Halbrook, and respondent, Greg Halbrook, were divorced. The divorce decree awarded Valerie
and Greg joint legal and physical custody of their only child, Erica, born February 7, 1987. The custody arrangement provided that Erica
spend half of each week with each parent. According to this arrangement, although Erica spent 4.25 more days per month with Valerie than
with Greg, neither party was designated primary physical custodian. The divorce decree also provided that the parties equally share
expenses relating to Erica.
In February 1997, Valerie, a sales representative for Sprint, learned of a sales position with Sprint that would advance her career, but
require her to move to Plano, Texas. Valerie requested Greg's permission to relocate to Texas with Erica; Greg denied her request. On
March 19, 1997, Valerie filed a motion with the district court to relocate with Erica to Plano, Texas. The district court held a preliminary
hearing on this motion on April 2, 1997, and evidentiary hearings on April 25 and May 12, 1997.
On July 2, 1997, the district court entered its findings of fact, conclusions of law and order. In its order, the
district court denied Valerie's motion to relocate and awarded physical custody of Erica to Greg in the event
Valerie relocated. On July 5, 1997, Greg filed a motion for attorney fees and costs. On October 15, 1997, the
district court entered an order granting Greg's motion for attorney fees and costs. Valerie filed a timely notice of
appeal challenging both of these orders.
Valerie argues that the district court erred in evaluating whether she filed her NRS 125A.350 motion to
relocate in good faith. The district court included the following factual findings in its July 2, 1997 order denying
Valerie's motion to relocate:
11. It does not appear to the Court that Valerie's proposed relocation of the child is in good faith when:
(a) the shared custody arrangement resulting from litigation one year ago worked so
well in furtherance of the best interest of the child;
(b) no effort has been made by Valerie to improve her earnings in Las Vegas after
only a one year reduction of income; and
(c) the child was involved in this issue by having an expectation of moving created
prior to Valerie's Motion being filed.
[Headnotes 1, 2]
In Schwartz v. Schwartz, 107 Nev. 378, 382, 812 P.2d 1268, 1270 (1991), this court first articulated the
standard for evaluating motions pursuant to 125A.350:
[I]n determining the issue of removal, the court must first find whether the custodial parent has
demonstrated that an actual advantage will be realized by both the children and the custodial parent in
moving to a location so far removed from the current residence that weekly visitation by the noncustodial
parent is virtually precluded.
In Jones v. Jones, 110 Nev. 1253, 1266, 885 P.2d 563, 572 (1994), this court refined the actual advantage
standard:
[A] custodial parent seeking removal does not need to show a significant economic or other tangible
benefit to meet the threshold actual advantage showing. If the custodial parent shows a sensible, good
faith reason for the move, the district court should evaluate the other factors enumerated in Schwartz. . . .
Id. at 1266, 885 P.2d at 572.
[Headnotes 3, 4]
In Gandee v. Gandee, 111 Nev. 754, 757, 895 P.2d 1285, 1286 {1995){quoting Jones, 110 Nev. at
1261, SS5 P.2d at 569), this court held that
(1995) (quoting Jones, 110 Nev. at 1261, 885 P.2d at 569), this court held that [a] good faith' reason means
one that is not designed to frustrate the visitation rights of the noncustodial parent. In the past, this court has
found that the opportunity for career advancement constitutes a good faith reason for a parent to relocate
outside Nevada. See, e.g., Gandee, 111 Nev. at 757, 895 P.2d at 1287 (holding that a promotion from a position
as sales associate at Reno's Montgomery Ward & Co. to general manager of its Medford, Oregon, store was a
sensible, good faith reason for father's move); Trent v. Trent, 111 Nev. 309, 315-16, 890 P.2d 1309, 1313
(1995), (holding that a mother's desire to pursue a romantic relationship outside Nevada accompanied by the
potential for improved financial stability constituted a good faith reason to relocate with her daughter); Jones,
110 Nev. at 1260-61, 885 P.2d at 568-69 (holding that a mother seeking to relocate in order to enhance her
employment opportunities and pursue a romantic relationship constituted sensible, good faith reasons for her
move).
[Headnote 5]
Valerie testified that her annual income as a sales representative for Sprint in Las Vegas decreased
significantly in 1996, due to changes in the Las Vegas telephone and related services market. Valerie explained
that increased competition in the marketplace ensured additional future decreases in her once high salary. The
Plano (Dallas) market, which is less competitive, is guided by different business practices and offers a higher
margin for profit.
In addition, the Plano branch office of Sprint has targeted Valerie for future managerial positions unavailable
to her in Las Vegas. Furthermore, Sprint offered Valerie a generous financial package to compensate her for her
move and living expenses in Plano until she builds a stable client base. Larry Daldin, Valerie's Plano supervisor,
confirmed these facts in his testimony at the evidentiary hearing.
Based on this evidence, we conclude that the district court erred in finding that Valerie failed to present a
sensible, good faith reason for her move to Plano, Texas. Furthermore, the district court's finding that Valerie
did not file her motion in good faith is at odds with the prior holdings of this court and is clearly erroneous.
In addition, the district court's order renders it apparent that the district court improperly weighted the fact
that Greg would no longer have weekly contact with his daughter and failed to seriously consider the possibility
of alternative visitation. In its July 2, 1997 order, the district court did not even mention the possibility of
alternative visitation but merely found that a move to Texas would disrupt the existing
visitation pattern:
bility of alternative visitation but merely found that a move to Texas would disrupt the existing visitation pattern:
2. The physical custody arrangement in effect since . . . October 16, 1995 . . . is working in the best
interest of this minor child.
. . . .
6. The assistance that Gregory provides on an almost daily basis to the child is
invaluable, is in the best interest of the child that it continue, and guarantees that the
child's needs are always care [sic] for by a parent.
. . . .
10. Relocation of the child to Texas would result in absence of family, most importantly the absence of
her father and his performing critical parent roles and responsibilities such as sharing and obtaining
health care for the child and being able to care for the child from 3:00 p.m. on. . . .
The district court offered the following conclusions of law:
2. This case differs from Trent and Jones in that Valerie is not someone who is going to be imprisoned in
Las Vegas when she is seriously able to make a better life for herself somewhere else.
3. The best interest of the child is the overriding consideration and focus of the Court, especially where
the party requesting the relocation of the child shared physical custody on an [sic] nearly equal basis that
is undisputed to be in the child's best interest.
[Headnote 6]
The district court may not deny a removal petition solely to maintain the existing visitation pattern, even if
removal means a shift away from consistent day-to-day contact. Jones, 110 Nev. at 1266, 885 P.2d at 572. In
fact, this court has explicitly cautioned the district court against placing improper emphasis on the shift away
from weekly contact in evaluating an NRS 125A.350 motion, labeling such practice problematic. Gandee, 111
Nev. at 761, 895 P.2d at 1289.
We find it disturbing that despite our decision in Schwartz, many district courts are using NRS
125A.350 as a means to chain custodial parents, most often women, to the state of Nevada. NRS
125A.350 is primarily a notice statute intended to prevent one parent from in effect stealing the
children away from the other parent by moving them away to another state and attempting to sever
contact. Given the legislative purpose behind NRS 125A.350, it should not be used to prevent the
custodial parent from freely pursuing a life outside of Nevada when reasonable
alternative visitation is possible. . . .
vent the custodial parent from freely pursuing a life outside of Nevada when reasonable alternative
visitation is possible. . . .
Trent, 111 Nev. at 315, 890 P.2d at 1312 (footnote omitted).
[Headnote 7]
This court has stated that, [r]easonable and realistic visitation is visitation that will provide an adequate
basis for preserving and fostering a child's relationship with the noncustodial parent if the removal is allowed.'
Id. at 316, 890 P.2d at 1313 (quoting Schwartz, 107 Nev. at 385 n.5, 812 P.2d at 1272 n.5 (1991). The district
court erroneously assumed that the sole issue in these relocation motions is the best interests of the child. See
McGuinness v. McGuinness, 114 Nev. 1431, 970 P.2d 1074 (1998), which sets forth the standard.
[Headnote 8]
Under the current custody arrangement, Greg spends one hundred and thirty days per year with Erica, many
of which she spends at school. Valerie's proposed visitation plan offers Greg non-school days of visitation with
Erica, including: (1) eight weeks each summer, (2) one or two weeks at Christmas (even and odd years
respectively), (3) both spring breaks, (4) Thanksgiving break on even years, (5) all three-day weekends (one
every other month), and any other visitation which Greg requests, so long as it does not interfere with Erica's
schooling, and can be arranged in advance. In the affidavit accompanying her motion, Valerie stated, I want
this court to understand that I am more than open to discussing any further reasonable visitation that Greg seeks
to have or that this Court would think that he should receive.
We conclude that Valerie's proposed visitation plan is more generous and financially feasible than other
plans previously accepted by this court. See, e.g., Trent, 111 Nev. at 316-17, 890 P.2d at 1314 (holding that
frequent visits by plane were adequate substitute for more regular local contact); Schwartz, 107 Nev. at 385, 812
P.2d at 1272 (holding that extended summer visitation adequately replaced weekend visitation). The district
court's failure to consider Valerie's proposed visitation plan in accordance with Schwartz and its progeny is
clearly erroneous.
[Headnote 9]
Valerie also argues that the district court erred in awarding attorney fees to Greg. In view of this court's
decision on other issues, the award of attorney fees must also be reversed. However, an award of attorney fees
may be appropriate upon reevaluation of Valerie's motion to relocate. Duff v. Foster, 110 Nev. 1306, 885 P.2d
589 (1994) is cited for the proposition that attorney fees are not allowable in post-divorce
proceedings.
not allowable in post-divorce proceedings. The award of attorney fees in Duff was considered on the basis of
NRS 18.010(2)(b) which allows for an award of attorney fees to the prevailing party when the court finds that
the claim . . . of the opposing party was brought without reasonable ground or to harass the prevailing party. To
the extent that Duff does not recognize that attorney fees may be awarded in post-divorce proceedings under
NRS 125.150(3), that decision is overruled. In Leeming v. Leeming, 87 Nev. 530, 532, 490 P.2d 342, 343
(1971), this court held that the power of the court to award attorney fees in divorce actions remains part of the
continuing jurisdiction of the court in appropriate post-judgment motions relating to support and child custody.
Leeming was recently cited with approval in Love v. Love, 114 Nev. 572, 581, 959 P.2d 523, 529 (1998).
Accordingly, we reverse the order of the district court and remand the case for re-evaluation of Valerie's
motion to relocate in keeping with this opinion.
I dissent for the reasons stated in McGuinness v. McGuinness, 114 Nev. 1431, 970 P.2d 1074 (1998)
(Springer, C. J., dissenting).
____________
114 Nev. 1461, 1461 (1998) Davis v. Davis
COURTNEY DAVIS, Appellant, v. MICHAEL DAVIS, Respondent.
No. 31003
December 31, 1998 970 P.2d 1084
Appeal from an order of the district court, family division, denying appellant's motion to relocate with minor
children. Eighth Judicial District Court, Clark County; Gloria S. Sanchez, Judge Family Court Division.
Former wife moved for permission to move with parties' children to Florida. The district
court denied former wife's motion, and former wife appealed. The supreme court, Shearing,
J., held that: (1) former wife had sensible good faith reason for proposed move, and (2)
proposed move would not permit former husband to maintain reasonable visitation schedule.
Affirmed.
Leavitt Law Firm, Las Vegas, for Appellant.
114 Nev. 1461, 1462 (1998) Davis v. Davis
Patricia L. Vaccarino, Las Vegas, for Respondent.
Custodial parent who wishes to move with a child to a location out of state must attempt to obtain the other parent's written
consent, and if the other parent refuses to consent to the move, the parent planning to move must petition the district court for
permission to move with the child. NRS 125A.350.
2. Infants.
Decisions as to child custody rest within the sound discretion of the district court and will not be disturbed absent a clear abuse of
that discretion.
Overall purpose of the statute requiring the consent of the noncustodial parent or the permission of the district court before a
custodial parent may move out of state with the parties' children is to preserve the rights and familial relationship of the noncustodial
parent. NRS 125A.350.
In evaluating a custodial parent's request to move out of state with the parties' children, the proper calculus involves a balancing
between the custodial parent's interest in freedom of movement as qualified by his or her custodial obligation, the state's interest in
protecting the best interests of the child, and the competing interests of the noncustodial parent. NRS 125A.350.
In considering a custodial parent's request for permission to move out of state with the parties' children, the district court must first
determine whether the custodial parent has demonstrated that an actual advantage will be realized by both the children and the
custodial parent in moving to a location so far removed from the current residence that weekly visitation by the noncustodial parent is
virtually precluded. NRS 125A.350.
Good faith reason for a custodial parent to move out of state with the parties' children is one not designed to frustrate the
visitation rights of the noncustodial parent. NRS 125A.350.
If the custodial parent makes the threshold showing that a sensible, good faith reason exists for the proposed out of state move with
the parties' children, the district court must then consider: (1) the extent to which the move is likely to improve the quality of life for
both the children and the custodial parent; (2) whether the custodial parent's motives are honorable, and not designed to frustrate or
defeat visitation rights accorded to the noncustodial parent; (3) whether, if permission to remove is granted, the custodial parent will
comply with any substitute visitation orders issued by the court; (4) whether the noncustodian's motives are honorable in resisting the
motion for permission to move; and (5) whether, if removal is allowed, there will be a realistic opportunity for the noncustodial parent
to maintain a visitation schedule that will adequately foster and preserve the parental relationship.
8. Divorce.
Former wife's desire to move to Florida with parties' children so that she could obtain better employment, be near her parents, and
find better living arrangements for herself and children constituted sensible goodfaith reason for proposed
move.
114 Nev. 1461, 1463 (1998) Davis v. Davis
better living arrangements for herself and children constituted sensible good faith reason for proposed move. NRS 125A.350.
In considering whether custodial parent's proposed out of state move with parties' children will afford noncustodial parent
opportunity to maintain reasonable visitation schedule, reasonable visitation is visitation that will provide an adequate basis for
preserving and fostering a child's relationship with the noncustodial parent if removal is allowed. NRS 125A.350.
10. Divorce.
Former wife's proposed move with parties' children to Florida would not permit former husband to maintain reasonable visitation
schedule, where current visitation schedule allowed father four days per week with children, distance between Nevada and Florida and
children's young ages would make frequent, brief visits unmanageable, and former husband's work schedule of four 24-days on call
and four 24-days off would make lengthy visitation impractical. NRS 125A.350.
OPINION
In 1989, appellant Courtney Davis and respondent Michael Davis were married in Fort Walton Beach, Florida. While still living in
Florida, Courtney gave birth to the couple's first child, Shauna. In 1991, Courtney, Michael and Shauna moved to Las Vegas when the Air
Force transferred Michael to Nellis Air Force Base. In March 1992, Courtney gave birth to the couple's second child, Sydney.
In December, 1995, Courtney filed a complaint for divorce with the district court. In January of 1996, Michael filed an answer and
counterclaim for divorce. Following a January 1996 hearing, the district court awarded the parties joint legal and physical custody of the
children. The district court temporarily designated Courtney as the primary physical custodian; Michael received four days of visitation per
week with the children.
Following a somewhat acrimonious dispute over property division and child custody, the parties entered into a handwritten agreement
(the agreement), prepared by Michael's attorney. This agreement settled all matters pertaining to the divorce, including division of the
couple's assets and debts. The agreement additionally provided that Michael and Courtney would maintain the custodial arrangement
established by the district court in 1996.
Shortly after signing the agreement, Courtney decided that because she could no longer sustain herself financially in Las Vegas, she
would return to Fort Walton Beach, Florida. Without first seeking Michael's permission to relocate, Courtney filed a petition with the
district court to move with the children pursuant to NRS 125A.350.
114 Nev. 1461, 1464 (1998) Davis v. Davis
petition with the district court to move with the children pursuant to NRS 125A.350.
At the hearing on Courtney's petition to relocate, Courtney told the court that she intended to finalize the
custody dispute by entering into the agreement but that she had changed her mind about living in Las Vegas
since signing it. Courtney also testified about the financial hardship she suffered by remaining in Las Vegas.
Additionally, Courtney testified about the benefits of relocating to Florida. She noted that Fort Walton has been
rated among the best small towns in which to live and its schools consistently receive high ratings. Courtney
further testified that she and the children could live with her parents in their large home until she could support
herself and the children financially. Courtney told the court that this would be an obvious improvement from the
converted garage where she and the children were living at the time of the hearing. Moreover, Courtney testified
that this living arrangement would allow the children to spend more time with their grandparents with whom the
children have a close relationship. She testified as well that her parents had offered to watch the children while
she worked and attended college classes. Courtney also represented that she had an outstanding job offer at a
credit union in Fort Walton.
Courtney admitted on cross-examination, however, that she works only part-time and had not attempted to
find full-time work in Las Vegas, even though the district court advised her to seek a position that would allow
her to work twenty to thirty hours per week. Additionally, Courtney admitted that she would earn less per hour at
the job in Florida than she does at her current job in Las Vegas. Courtney's testimony further revealed that she
only planned to live with her parents for three to six months and did not know where she would go thereafter.
Moreover, while Courtney could not assure the court that the children would have medical insurance or other
benefits through her prospective Florida employer, the children were covered under Michael's medical insurance
at the time of the hearing.
Through an affidavit, Michael submitted his belief that Courtney deceptively entered into the handwritten
agreement in order to receive the financial settlement it offered Courtney. Michael pointed out that in the
agreement, Courtney agreed to have custody of the children on a four/five day rotating schedule and shortly
thereafter reneged on that arrangement.
At the hearing, Michael testified that Courtney refused to communicate and co-parent with him. According to
Michael, Courtney never discussed with him her intention to relocate with the children. In fact, Michael testified
that he learned of Courtney's plan only after he received her motion. Michael also testified that Courtney
contacted Child Protective Services {"CPS") and reported that Michael strangled one of
the children.
114 Nev. 1461, 1465 (1998) Davis v. Davis
testified that Courtney contacted Child Protective Services (CPS) and reported that Michael strangled one of
the children. CPS later dismissed these charges against Michael, stating that Courtney's claims were
unsubstantiated.
At a March hearing, the district court explained that it believed, with some hesitance, that Courtney's reasons
for the move were legitimate and that her decision to relocate was made in good faith. Despite these conclusions,
the court denied Courtney's petition to relocate because it could not fashion a feasible alternative visitation
schedule for Michael.
The district court went on to explain that Michael's work schedule made it impossible to compensate him for
the time he would lose with the children should they move to Florida. At the time of the hearing, Michael
worked as a firefighter, a job which required him to work four consecutive twenty-four hour shifts every eight
days. The court stated that summer and alternative Christmas visitation would force Michael to arrange for
twenty-four hour childcare thereby depriving him of a significant amount of contact with the children. Therefore,
the district court denied Courtney's request to relocate. This timely appeal followed.
DISCUSSION
[Headnotes 1, 2]
Pursuant to NRS 125A.350, a custodial parent who wishes to move with a child to a location outside of
Nevada must attempt to obtain the other parent's written consent. If the other parent refuses to consent to the
move, the parent planning to move must petition the district court for permission to move with the child. In
Culbertson v. Culbertson, 91 Nev. 230, 233, 533 P.2d 678, 699 (1975), this court stated that decisions as to
child custody rest within the sound discretion of the district court and will not be disturbed absent a clear abuse
of that discretion.
[Headnotes 3, 4]
This court first analyzed NRS 125A.350 in Schwartz v. Schwartz, 107 Nev. 378, 382, 812 P.2d 1268, 1270
(1991), where it explained that the statute's overall purpose . . . is to preserve the rights and familial relationship
of the noncustodial parent. In describing the district court's role in evaluating a parent's request to move, this
court explained that [t]he proper calculus involves a balancing between the custodial parent's interest in
freedom of movement as qualified by his or her custodial obligation, the State's interest in protecting the best
interests of the child, and the competing interests of the noncustodial parent.' Id. (quoting Holder v. Polanski,
544 A.2d 852, 855 (N.J.1988)).
114 Nev. 1461, 1466 (1998) Davis v. Davis
[Headnotes 5, 6]
In considering a request for permission to move, the district court must first determine whether the custodial
parent has demonstrated that an actual advantage will be realized by both the children and the custodial parent in
moving to a location so far removed from the current residence that weekly visitation by the noncustodial parent
is virtually precluded. Schwartz, 107 Nev. at 382, 812 P.2d at 1271. Schwartz and subsequent cases have also
established that the custodial parent wishing to remove a child from Nevada must make a threshold showing of a
sensible, good-faith reason to move. Trent v. Trent, 111 Nev. 309, 315, 890 P.2d 1309, 1313 (1995). A good
faith reason has been defined by this court as one not designed to frustrate the visitation rights of the
noncustodial parent. Jones v. Jones, 110 Nev. 1253, 1261, 885 P.2d 563, 569 (1994).
[Headnote 7]
If the custodial parent makes this threshold showing, the district court must then consider several other
factors enumerated by this court in Schwartz. These factors are:
(1) the extent to which the move is likely to improve the quality of life for both the children and the
custodial parent; (2) whether the custodial parent's motives are honorable, and not designed to frustrate or
defeat visitation rights accorded to the noncustodial parent; (3) whether, if permission to remove is
granted, the custodial parent will comply with any substitute visitation orders issued by the court; (4)
whether the noncustodian's motives are honorable in resisting the motion for permission to move; and (5)
whether, if removal is allowed, there will be a realistic opportunity for the noncustodial parent to
noncustodial parent.
Schwartz, 107 Nev. at 383, 812 P.2d at 1271. In particular, the district court should focus on the availability of
adequate, alternate visitation. Trent, 111 Nev. at 316, 890 P.2d at 1313.
1

[Headnote 8]
With respect to the initial threshold showing, the district court concluded that Courtney had good
faith reasons to move.
__________

1
In McGuinness v. McGuinness, 114 Nev. 1431, 970 P.2d 1074 (1998), we have clarified the apparent
confusion over applying Schwartz and its progeny to relocation cases where the parties enjoy a joint custody
arrangement. In McGuinness, we hold that relocation motions in the context of joint custody must be determined
according to Schwartz, et al.
114 Nev. 1461, 1467 (1998) Davis v. Davis
concluded that Courtney had good faith reasons to move.
2
Our review of the record leads us to agree. With
respect to the first four Schwartz factors, the district court determined that Courtney propounded legitimate
justifications for her desire to move but also found that Michael had compelling reasons for opposing the move.
The district court found that the fifth Schwartz factor was troubling and ultimately proved dispositive of
Courtney's petition.
[Headnote 9]
With respect to the fifth Schwartz factor, this court has held that [r]easonable visitation is visitation that
will provide an adequate basis for preserving and fostering a child's relationship with the noncustodial parent if
removal is allowed.' Gandee v. Gandee, 111 Nev. 754, 758, 895 P.2d 1285, 1288 (quoting Schwartz, 107 Nev.
at 385 n.5, 812 P.2d at 1272 n.5). Courtney proposed that the children spend a good chunk, or eight weeks of
the summer with Michael as well as alternating Christmases.
[Headnote 10]
After reviewing the record, we conclude that the district court could well conclude from the evidence that the
visitation proposed was not adequate to preserve and foster the type of relationship Michael has with his
children. Although Courtney was designated primary custodian, Michael was a hands-on parent, having the
children four days per week. While Courtney agreed to share the children's travel expenses, it appeared to the
district court that short, frequent visits would be unmanageable. Given the children's ages and the approximately
six-hour travel time between Nevada and Florida, the district court concluded that frequent, brief trips would be
almost impossible. Courtney presents no reason for us to question this determination on appeal.
The district court also concluded that because of Michael's job, extended visits would, likewise, not be
practicable. Michael's job as a firefighter requires that he work four consecutive twenty-four hour shifts every
eight days. If the district court had granted Michael eight weeks per summer, he would not see the children for
four days at a time and would have to arrange for twenty-four hour childcare for the days he is on duty. Thus, his
time with his children would be considerably less than the eight weeks that would theoretically be
granted.
__________

2
Although the district court justifiably found that Courtney had a good faith reason to move, there was also
some evidence that might lead a court to conclude that she would not be willing to maximize the opportunity to
foster Michael's relationship with the children. For instance, the motion for permission to move was made within
a month of her agreement to allow Michael four days of visitation per week. She made unsubstantiated charges
of child abuse against Michael. Evidence was also presented that she had refused to communicate and co-parent
with Michael, and, as discussed above, she never even discussed the proposed move with him.
114 Nev. 1461, 1468 (1998) Davis v. Davis
would theoretically be granted. We conclude that the district court properly found that such an arrangement
would not allow Michael to adequately sustain and nourish his relationship with his children.
For these reasons, we conclude that the district court did not abuse its discretion in denying Courtney's
petition. Therefore, we affirm the district court's order.
3

____________
114 Nev. 1468, 1468 (1998) Dow Chemical Co. v. Mahlum
THE DOW CHEMICAL COMPANY, Appellant/Cross-Respondent, v. CHARLOTTE
MAHLUM and MARVIN S. MAHLUM, Respondents/Cross-Appellants.
No. 28600
December 31, 1998 970 P.2d 98
Appeal and cross-appeal from a judgment of the district court in an action for fraud and negligence, and
appeal from an order of the district court denying a motion for a new trial. Second Judicial District Court,
Washoe County; Connie J. Steinheimer, Judge.
Recipient of silicone breast implants sued manufacturer of implants, and parent chemical
corporation which owned one-half of shares in manufacturer. After manufacturer filed
bankruptcy petition, and claims against parent were severed, the district court entered
judgment on jury verdict finding in favor of recipient on claims of fraudulent concealment,
aiding and abetting manufacturer's fraudulent misrepresentation, acting in concert, and
negligent performance of an undertaking, and denied motion for new trial. Parent appealed,
and the supreme court, Rose, J., held that: (1) evidence supported finding that defective
implants had proximately caused recipient's myriad injuries, including autoimmune disorder;
(2) parent had no duty to disclose risks of silicone products, as would allow its silence to
constitute fraudulent concealment; (3) no showing was made that parent acted in concert with
manufacturer; and (4) recipient could not recover under theory of aiding and abetting; but (5)
findings that parent had undertaken to perform safety testing on silicone liquids for
manufacturer, and that its negligence in doing so had caused injury to recipient, were
supported by evidence; and (6) new trial was not warranted.
Affirmed in part; reversed in part.
__________

3
The Honorable Charles E. Springer, Chief Justice, did not participate in the decision of this matter.
Rehearing denied. Dow Chemical Co. v. Mahlum, 115 Nev. 13, 973 P.2d 842 (1999)
Springer, C. J., and Maupin and Shearing, JJ., dissented in part.
Rawlings Olson Cannon Gormley & Desruisseaux, Las Vegas; McDonald, Carano, Wilson, McCune,
Bergin, Frankovich & Hicks, Reno; Mayer, Brown & Platt and Michele Louise Odorizzi, Chicago, Illinois, for
Appellant/Cross-Respondent.
White & Meany, Reno; Ellis & Rapacki, Boston, Massachusetts; Farmer, Price, Hornsby & Weatherford,
Dothan, Alabama, for Respondents/Cross-Appellants.
Thomas J. Hall, Reno; Robin S. Conrad, Washington, D.C., for Amicus Curiae Chamber of Commerce of
the United States.
Perry & Spann, Reno; Hugh F. Young, Jr., Reston, Virginia; Armstrong, Teasdale, Schlafly & Davis and
Jordan B. Cherrick and Jennifer S. Lohman, St. Louis, Missouri, for Amicus Curiae Product Liability Advisory
Council, Inc.
Lionel Sawyer & Collins and Richard Horton, Reno; Covington & Burling and Bruce N. Kulik, Washington,
D.C., for Amicus Curiae Pharmaceutical Research and Manufacturers of America.
Woodburn and Wedge and Casey W. Vlautin, Reno, for Amicus Curiae American Tort Reform Association.
Lemons, Grundy & Eisenberg, Reno, for Amicus Curiae Washington Legal Foundation.
Lynn G. Pierce, Reno, for Amicus Curiae Public Citizens.
Galatz, Earl & Bulla, Las Vegas, for Amicus Curiae Nevada Trial Lawyers Association.
No appeal may be taken from order denying post-judgment motion for judgment notwithstanding the verdict (JNOV).
In general, jury's findings will be affirmed on appeal if they are based upon substantial evidence in record.
Products liability plaintiff is obligated to demonstrate causation whether proceeding under theory of negligence or strict liability.
4. Negligence.
Causation consists of two components: actual cause and proximate cause.
To demonstrate actual cause with respect to product, products liability plaintiff must prove that, but for allegedly defective
product, injury would not have occurred.
6. Negligence.
Proximate cause is essentially a policy consideration that limits defendant's liability to foreseeable consequences that have
reasonably close connection with both defendant's conduct, and harm which that conduct created.
Finding that silicone breast implants, one of which had ruptured, were actual cause of implant recipient's injuries was supported by
evidence that recipient developed myriad illnesses, including atypical autoimmune disease, after undergoing implant surgery, that
explanation surgeon was unable to remove all silicone gel from chest and left approximately 10 percent of silicone in recipient's body,
and that recipient's health continued to deteriorate after explanation, and by expert testimony of physicians that recipient's injuries were
caused by her implants.
Demonstrating causation in cases involving medical products often requires expert medical testimony.
9. Evidence.
Once district court certifies expert as qualified, expert may testify to all matters within expert's experience or training. NRS
50.275.
10. Evidence.
District court properly exercised its discretion by qualifying several physicians as expert witnesses to testify on subject of injuries
sustained by recipient of breast implants, and whether implants caused those injuries, in products liability action against implant
manufacturer. NRS 50.275.
11. Courts.
Interpretation of federal counterpart to Nevada rule of evidence may be persuasive, but is not controlling.
Finding that injuries sustained by recipient of silicone breast implants were foreseeable, so that sale of implants was proximate
cause of recipient's injuries, was supported by evidence that prior testing by manufacturer of silicone compound chemically equivalent
to that used in implants had indicated that silicone will migrate throughout person's body, and that manufacturer was aware that
envelope containing silicone gel had tendency to bleed silicone into patient's breast area.
When there is conflict in evidence, verdict or decision will not be disturbed on appeal.
Jury's verdict will not be overturned if it is supported by substantial evidence, unless verdict was clearly erroneous when viewed in
light of all the evidence presented.
15. Fraud.
To establish prima facie case of fraudulent concealment, plaintiff must offer proof that (1) defendant concealed or suppressed a
material fact, (2) defendant was under duty to disclose fact to plaintiff, (3) defendant intentionally concealed or suppressed fact with
intent to defraud plaintiff, or in other words, for purpose of inducing plaintiff to act differently than she would have if she
had known the fact,
ferently than she would have if she had known the fact, (4) plaintiff was unaware of fact and would have acted differently if she had
known of concealed or suppressed fact, and (5) as result of concealment or suppression of the fact, plaintiff sustained damages.
16. Fraud.
Generally, an action in deceit will not lie for nondisclosure.
17. Fraud.
For a mere omission to constitute actionable fraud, plaintiff must first demonstrate that defendant had duty to disclose fact at issue.
18. Fraud.
With respect to fraudulent concealment, duty to disclose arises from relationship of parties.
19. Fraud.
Fiduciary relationship gives rise to a duty of disclosure, breach of which will support claim of fraudulent concealment.
20. Fraud.
Duty to disclose, breach of which will support claim for fraudulent concealment, may arise where parties enjoy special
relationship, in which plaintiff reasonably imparts special confidence in defendant, and defendant would reasonably know of this
confidence.
21. Fraud.
One party's superior knowledge imposes duty to speak in certain transactions, depending on the parties' relationship.
22. Fraud.
Nondisclosure will become the equivalent of fraudulent concealment when it becomes duty of a person to speak in order that party
with whom he is dealing may be placed on an equal footing with him.
23. Fraud.
Even when parties are dealing at arm's length, duty to disclose, breach of which may support claim for fraudulent concealment,
may arise from existence of material facts peculiarly within knowledge of party sought to be charged, and not within fair and
reasonable reach of the other party.
24. Fraud.
Duty to disclose requires, at a minimum, some form of relationship between the parties, and absent such a relationship, no liability
for fraudulent concealment attaches to nondisclosing party.
Chemical company which owned one-half of shares in subsidiary which manufactured silicone breast implants owed no duty to
implant recipient to disclose risks of use of silicone in human body, breach of which would support claim for fraudulent concealment,
where chemical company had no fiduciary relationship, special relationship, or relationship of any other kind with recipient, and was
not directly involved in transaction from which lawsuit arose or any other transaction with recipient.
Fact that supreme court has not previously recognized cause of action will not warrant reversal where cause of action in question is
well grounded in the common law.
27. Torts.
Under Restatement (Second) of Torts, liability for concert of action attaches if two persons commit a tort while acting in concert
with one another, or pursuant to a common design.
28. Conspiracy; Torts.
While concert of action resembles tort of civil conspiracy, theories of recovery differ in that civil conspiracy requires that
defendants have an intent to accomplish an unlawful objective for purpose of harming another, while concert of action merely requires
that defendants commit a tort while acting in concert.
29. Conspiracy.
Actionable civil conspiracy consists of a combination of two or more persons who, by some concerted action, intend to accomplish
an unlawful objective for the purpose of harming another, with damage resulting from the act or acts.
30. Conspiracy; Torts.
Causes of action for both civil conspiracy, and concert of action, require an agreement.
31. Conspiracy.
To prevail in civil conspiracy action, plaintiff must prove an agreement between tortfeasors, whether explicit or tacit.
32. Torts.
Provision of Restatement (Second) of Torts allowing recovery under theory of acting in concert with another tortfeasor or pursuant
to a common design refers to concept of agreement. Proof of an agreement alone is not sufficient, because it is essential that conduct of
each tortfeasor be in itself tortious.
Recipient of silicone breast implants failed to show that chemical corporation, which owned one-half of shares in subsidiary which
manufactured implants, acted in concert with subsidiary to make allegedly fraudulent misrepresentations regarding risks of such
implants, as required to allow recovery by recipient under concert of action theory. No showing was made of agreement, tacit or
otherwise, in which corporation and subsidiary agreed to commit fraud.
34. Torts.
Under Restatement (Second) of Torts, liability attaches for civil aiding and abetting if defendant substantially assists or encourages
another's conduct in breaching a duty to a third person.
Recipient of silicone breast implants failed to show that chemical corporation, which owned one-half of shares in subsidiary which
manufactured implants, had knowingly and substantially assisted subsidiary in making fraudulent misrepresentations regarding risks of
implants, as would allow recovery by recipient under theory of aiding and abetting; no showing was made of direct communication
between corporation and subsidiary, or close conduct, that could have promoted a fraud.
36. Torts.
For defendant's actions in encouraging tortfeasor to amount to substantial assistance in committing tort, as will support recovery
for aiding and abetting, such encouragement must take form of a direct communication, or conduct in close proximity, to tortfeasor.
No showing that chemical corporation, which performed safety testing on silicone compounds for subsidiary of which it was
one-half owner, had undertaken duty with respect to specific product of silicone breast implants subsequently manufactured by
subsidiary, was required in order for implant recipient to recover against corporation for negligent performance of an undertaking.
38. Negligence.
Although precise nature and extent of duty allegedly assumed by party who undertakes to render services to another which he
should recognize as necessary for protection of third person is a question of law, it depends on nature and extent of act undertaken,
which is a question of fact.
Type and extent of undertaking assumed by chemical corporation when it agreed to perform safety tests on silicone compounds for
subsidiary was properly and necessarily submitted to jury, which was required to consider nature and scope of undertaking so that
corporation's concomitant duty, if any, could be determined, in action in which recipient of silicone breast implants manufactured by
subsidiary sued corporation for negligent performance of an undertaking.
Evidence supported finding that chemical corporation undertook to perform safety testing on liquid silicone used in breast
implants made by subsidiary, and should have recognized that services were necessary for protection of third persons, so that
corporation owed duty to implant recipients to exercise reasonable care in performance of undertaking. Corporation exercised
substantial control over subsidiary's development of silicone products and knew testing was being relied on to develop silicone
implants, and subsidiary and corporation exchanged important personnel and information.
Finding that chemical corporation, which had undertaken to perform testing on silicone liquids used by its subsidiary in
manufacture of silicone breast implants, had negligently performed undertaking, thus breaching duty owed to implant recipients, was
supported by evidence that corporation failed to either conduct tests to determine long-term effects of silicone on human body, or at
least advise subsidiary on need for such studies, and had failed to intervene in marketing of implants by subsidiary until products were
determined to be safe.
42. Negligence.
Consequences of defendant's negligent performance of undertaking which come to fruition many years after undertaking has ended
may still provide basis for recovery.
Finding that physical harm sustained by recipient of silicone breast implants was caused by failure of chemical corporation to
exercise reasonable care in its undertaking to perform safety tests on silicone liquids for its subsidiary, which manufactured implants,
was supported by evidence that implants had caused recipient's autoimmune and other illnesses, and that corporation had failed to act
to prevent subsidiary from marketing implants before complete safety testing was performed on silicone compounds.
Evidence was sufficient to establish either that chemical corporation, which undertook to perform safety tests on silicone liquids
used in breast implants for subsidiary which manufactured such implants, had undertaken duty owed by subsidiary to implant
recipients, or that subsidiary had relied on undertaking, and thus to support recovery against corporation by implant recipient for
negligent performance of undertaking.
Standard of review for granting or denying motion for new trial is abuse of discretion. NRCP 59(a).
46. New Trial.
Admission of jury verdict in prior action, which found manufacturer of silicone breast implants to have committed fraud, did not
warrant new trial in action in which implant recipient asserted fraudulent concealment against manufacturer's parent corporation,
where mention of prior verdict was brief, and verdict was offered to prove notice on part of parent, rather than to convince jury that it
should render similar verdict.
47. Evidence.
Admission of prior verdict as evidence is practice that is condemned as generally highly prejudicial, and district judge who admits
such evidence risks reversal. NRS 48.035.
Trial court acted within its discretion by excluding deposition designations regarding safe uses of silicones as untimely under its
pretrial orders in action by recipient of silicone breast implants against parent corporation of implant manufacturer. NRCP 16(b),
37(b)(2)(B).
49. Appeal and Error; Evidence.
Decision to admit or exclude relevant evidence, after balancing prejudicial effect against probative value, is within sound
discretion of trial judge, whose determination will not be overturned absent manifest error or abuse of discretion. NRS 48.035.
50. Evidence.
Trial court did not abuse its discretion in determining that evidence of tests regarding toxicity of silicone compounds other than
those used in silicone breast implants was material to claims of accessory liability on part of implant manufacturer's parent corporation,
and thus was admissible in action brought against parent by implant recipient. NRS 48.035.
51. Trial.
Statement by attorney for chemical corporation that attorney for its subsidiary, which manufactured silicone breast implants, had
conducted witness's deposition, did not open door to introduction of evidence of joint defense agreement between corporation and
subsidiary in action brought by implant recipient against corporation.
Admission of evidence of joint defense agreement with respect to silicone breast implant litigation which was entered between
chemical corporation, and its wholly owned subsidiary which manufactured implants, was harmless error in action brought by implant
recipient against parent, where it was apparent at trial that subsidiary had participated in earlier stages of litigation, and that its
interests were related to those of corporation. NRCP 61.
53. Attorney and Client.
District court has inherent power to enjoin attorney from representing conflicting interests.
When district court must decide whether attorney's conflicts of interest should preclude representation, any doubt should be
resolved in favor of disqualification.
Trial court did not abuse its discretion by refusing to allow two nonresident attorneys, who represented manufacturer of silicone
breast implants, to represent manufacturer's parent pro hac vice in action by implant recipient, on basis that attorneys would have
conflict of interest, where attorneys failed to timely present letter from manufacturer waiving conflict of
interest with respect to one attorney, and presented no evidence of waiver with respect to other attorney.
where attorneys failed to timely present letter from manufacturer waiving conflict of interest with respect to one attorney, and presented
no evidence of waiver with respect to other attorney.
OPINION
[Headnote 1]
This is an appeal and cross-appeal from a judgment against the Dow Chemical Company (Dow Chemical)
for fraud and negligence in connection with alleged defects in silicone gel breast implants manufactured by Dow
Corning Corporation (Dow Corning).
1

The issues before this court are whether substantial evidence in the record supports the
jury verdict and whether a new trial was warranted based on numerous alleged trial errors. We conclude
that the verdict in this case cannot stand as to the fraud and accessory liability claims. We also conclude,
however, that the verdict as to the negligence claim is supported by substantial evidence. Accordingly, we
reverse the district court's judgment in part and affirm it in part. In addition, we conclude that the district court
did not abuse its discretion in denying Dow Chemical's new trial motion.
I. Background
In 1943, Dow Chemical and Corning Incorporated formed Dow Corning for the express purpose of
developing commercial and industrial uses for silicone technology. Dow Chemical and Corning Incorporated
were, and continue to be, Dow Corning's only stockholders, each owning fifty percent of Dow Corning's stock.
Dow Chemical and Corning Incorporated each also initially occupied four of ten seats on Dow Corning's board
of directors; later, each parent held five seats out of fifteen.
In 1948, Dr. V. K. Rowe, a toxicologist at Dow Chemical, co-authored an article entitled Toxicological
Studies on Certain Commercial Silicone, which was published in the Journal of Industrial Hygiene and
Toxicology. The article, while addressing the hazards surrounding the workplace handling of silicone, concluded
that commercial silicone as a group were physically inert and were very low in toxicity.
__________

1
Although Dow Chemical also purports to appeal from the district court's order denying its alternative
post-judgment motion for judgment notwithstanding the verdict, we have previously explained that no appeal
may be taken from an order denying a post-judgment motion for judgment notwithstanding the verdict. See, e.g.,
Uniroyal Goodrich Tire v. Mercer, 111 Nev. 318, 320 n.1., 890 P.2d 785, 787 n.1. (1995).
From the 1940s until the 1970s, every organosilicon compound made by Dow Corning was sent to Dow
Chemical for toxicological testing. While the majority of these tests concerned industrial handling hazards
associated with the tested substances, Dow Chemical reports periodically advised Dow Corning on adequate
product warnings or on the need for further testing before marketing a particular product. The products
containing such silicone ingredients included cosmetics, bathroom caulk, hair conditioner, and foot ointment.
In 1956, Dow Corning commissioned a study co-authored by Dow Chemical employee M. B. Chenoweth
entitled The Physiological Assimilation of Dow Corning 200 Fluid (the Chenoweth study). This study, in its
introductory paragraph, noted that prior Dow Chemical experiments had shown that many silicone were inert,
and that the increasing use of silicone for medicinal purposes had triggered a need for information on their
biological ramifications. The study further revealed that Dow Corning 200 fluid (DC 200), when injected
intramuscularly in rats and administered orally in dogs, had migrated to all major organs of the body, including
the brain. (DC 200 fluid is chemically equivalent to the Dow Corning 360 fluid (DC 360) used in the breast
implants at issue in this case.) This study was not published to the medical or scientific community.
In 1957, Dow Corning requested Dr. Rowe to set up a study on six silicone materials submitted by Dow
Corning. Dr. Rowe arranged for the study (the Miami study) to be performed by a professor of pharmacology
at the University of Miami School of Medicine, Dr. William Deichmann. Although Dr. Deichmann performed
the testing, Dr. Rowe designed the testing protocol for the research (i.e., the number and type of test animals, the
duration of the test, and the test methods).
Two versions of the Miami study were prepared by Professor Deichmann for Dow Corning on the same date.
The first, entitled Six Silicone Materials, reported that six silicone compounds (the first five of which were
different concentrations of DC 200 and the sixth, a substance identified as Z-4141) that were fed to male and
female rats resulted in no deleterious effects, with the following exceptions: (1) all six compounds reduced the
number of granulocytic (white blood) cells in the peripheral blood of female rats, (2) the livers of all the rats fed
the sixth compound (Z-4141) were significantly heavier than those of the control rats, and (3) the sixth
compound induced a fatty infiltration or degeneration in the liver. The second version of the study, entitled Five
Silicone Materials, omitted all references to the sixth compound and its effects. The second version also
explained that initial testing had suggested a depression in the number of leukocytes {white blood cells) in
all female rats over a period of 90 days, but that subsequent work on control animals
showed that silicone was not the cause of the decrease.
cytes (white blood cells) in all female rats over a period of 90 days, but that subsequent work on control animals
showed that silicone was not the cause of the decrease.
In 1959, Dow Corning established the non-profit Center for Aid to Medical Research, which provided the
medical community with medical products and research regarding the uses of silicone for medical applications.
In the early 1960s, Dr. Thomas Cronin, a plastic surgeon and researcher from Baylor University, approached
Dow Corning about the possibility of using silicone in breast implants. In 1962, Dow Corning commenced
clinical trials on silicone breast implants. Dow Corning sold $93,000.00 worth of breast implants in 1962.
2

In 1964, Dow Corning formed its Medical Products Division. Also in 1964, Dow Chemical acquired a
substantial interest in Gruppo Lepetit, an Italian pharmaceutical company that had, in some foreign countries, an
exclusive distribution agreement with Dow Corning to market Dow Corning's medical line, including its breast
implants. Lepetit sold Dow Corning breast implants outside the United States throughout Europe, South
America, and Australia.
From its inception, Dow Corning has enjoyed physical proximity with Dow Chemical, being located just
across the road and down the way in Midland, Michigan. In 1965, Dow Corning created a Bioscience
Research Department to explore the potential biological activities of organosilicon compounds. The department
was housed in the same building as Dow Chemical's toxicology and research laboratories until 1970. Until 1968,
Dow Corning lacked its own toxicology laboratory and staff and relied on outside contract laboratories, such as
Dow Chemical, for toxicological testing and information. Dow Corning scientists often sought input from Dr.
Rowe and other Dow Chemical scientists regarding silicone technology and toxicological effects. In 1968, Dow
Corning established its own toxicology laboratory, but for the first two years, it shared the same building as Dow
Chemical's toxicology laboratory. Dow Corning continued thereafter to share laboratory facilities and animals
with Dow Chemical, and its scientists continued to consult with Dow Chemical personnel regarding
toxicological research. From 1968 until 1973, Dow Corning's new toxicology laboratory and staff were headed
by a former Dow Chemical toxicologist, Kenneth Olson. In 1973, Olson returned to work for Dow Chemical;
Olson testified that in his capacity as the chief toxicologist for Dow Corning, he likely knew that Dow
Corning's breast implants contained silicone fluid as a component.
__________

2
There is conflicting evidence in the record regarding when Dow Corning began marketing its breast
implants. While Dow Chemical maintains that initial sales began in 1964, testimony at trial suggested that Dow
Corning began profiting from breast implants in 1962.
Corning's breast implants contained silicone fluid as a component.
Dow Chemical was not the sole testing facility doing research for Dow Corning. Between 1964 and 1976,
Dow Corning commissioned outside laboratories, often those recommended by Dow Chemical, to conduct
animal testing and long-term studies on breast implants and other silicone products. In 1967, Dow Corning
entered into a joint research and development agreement with Dow Chemical relating to the physiological
effects resulting from ingestion or injection into the systems of animals or men of particular physiologically
active silicone. The two companies also agreed to jointly share the costs and . . . share the profits and losses of
any commercialization.
Also in 1967, Dow Corning implemented a two-year study on miniature Silastic breast implants in dogs,
conducted by an outside laboratory, the Food and Drug Research Laboratories, Incorporated (FDRL). An
internal Dow Corning memorandum in 1967 referenced that Dr. Rowe was one of the consultants who
recommended this study. Although the study appears to have been principally designed by FDRL, part of the
testing protocol may have involved Dr. Rowe.
In 1970, Dow Corning enlisted Dow Chemical to conduct a pathology test on the biological effects of DC
360 fluid. Gary Sparschu, a Dow Chemical research pathologist, reported to Dow Corning that the tests showed
the liquid silicone had migrated to major organs of the test animals, including the bone marrow, and that the
fluid had decreased the brain weights of female rats in two test groups. This information was not shared with the
scientific or medical community.
In 1975, Dow Chemical and Dow Corning entered into a trademark agreement wherein Dow Chemical
granted Dow Corning the right to use its trade name Dow and trademark. In return, Dow Chemical obtained
the right to inspect Dow Corning's manufacturing processes to assure the quality of its products and to approve
or disapprove any products manufactured, distributed or sold under the Dow Chemical trademark. This
agreement also stated that Dow Company and Corning Company formed [Dow Corning] in 1943 and since then
have continuously owned or controlled equally all of the issued share capital of [Dow Corning], and have
controlled its operations, including the quality of its goods and services.
Although Dow Corning began selling breast implants in 1962, the record is unclear as to the identity of the
silicone fluid used in this early prototype. Dow Corning introduced the Silastic I breast implant, containing DC
360 fluid, in 1975 and the Silastic II breast implant, at issue in this case, in 1982. The Silastic II breast
implant was marketed solely under Dow Corning's trademark and trade name, not Dow
Chemical's.
breast implant was marketed solely under Dow Corning's trademark and trade name, not Dow Chemical's.
In 1991, the United States Food and Drug Administration (FDA) conducted a premarket approval program
for all manufacturers who wished to continue marketing and distributing silicone gel implants. Dow Corning
submitted its premarket approval application to the FDA. Subsequently, the FDA suspended the use of silicone
gel implants for cosmetic or augmentation purposes because of concerns about their safety, and limited their use
to urgent medical situations or limited clinical trials.
II. Facts and Procedural History
The matter at bar is one of many cases pending across the country wherein breast implant recipients have
sued Dow Chemical alleging that it is legally responsible for defects in Dow Corning's silicone breast implants.
In August 1985, as part of reconstructive surgery following a bilateral subcutaneous mastectomy, Charlotte
Mahlum elected to receive silicone gel breast prostheses (hereinafter breast implants). Dow Corning
manufactured the two Silastic II breast implants that Mahlum's surgeon implanted. The Silastic II implant is
made up of several components. A clear outer shell of silicone rubber called an elastomer contains the silicone
gel and is the protective barrier between the gel and the implant host. The silicone gel itself is comprised of
eighty to eighty-five percent DC 360 silicone fluid.
In 1990, Mahlum's health began to deteriorate. In July 1993, one of Mahlum's breast implants ruptured,
requiring the surgical removal of both implants. The surgeon was unable to remove all of the silicone gel from
Mahlum's body, leaving approximately ten percent of the silicone materials embedded in muscle, tissue, and
blood vessels under her arms and ribs. Mahlum's health continued to deteriorate after the explantation surgery.
In September 1993, Mahlum and her husband, Marvin Mahlum, filed suit against Dow Corning, Dow
Chemical, and a number of other defendants, alleging that she had contracted an atypical autoimmune disease as
a result of the rupture of one of her Silastic II breast implants. On May 15, 1995, Dow Corning petitioned for
bankruptcy protection. In July 1995, the district court granted the Mahlums' motion to sever their claims against
Dow Corning. (All defendants other than Dow Corning and Dow Chemical were dismissed prior to Dow
Corning's bankruptcy.) In October 1995, the Mahlums proceeded to trial solely against Dow Chemical.
At trial, the Mahlums sought to prove that Dow Chemical, by contributing technology and expertise at the
time of Dow Corning's formation and by subsequently conducting or participating in testing
of silicone products and materials, should be subject to direct causes of action with
respect to products manufactured and distributed by Dow Corning.
Corning's formation and by subsequently conducting or participating in testing of silicone products and
materials, should be subject to direct causes of action with respect to products manufactured and distributed by
Dow Corning. Specifically, the Mahlums alleged that Dow Chemical could be found directly liable for
fraudulently concealing information about the dangers of silicone, conspiring with Dow Corning to effectuate
such fraudulent concealment, aiding and abetting Dow Corning's fraudulent misrepresentations about silicone
safety, acting in concert with Dow Corning to effectuate such fraudulent misrepresentation, and negligently
performing an undertakingtesting the toxicity of liquid siliconefor Dow Corning. All of the Mahlums' tort
claims were based, ultimately, on the assumption that Mahlum's injuries were proximately caused by defective
silicone breast implants.
After a four-week trial, the jury returned a verdict against Dow Chemical on the claims of (1) fraudulent
concealment, (2) aiding and abetting Dow Corning's fraudulent misrepresentation, (3) acting in concert with
Dow Corning to commit fraudulent misrepresentation, and (4) negligent performance of an undertaking. The
jury found in favor of Dow Chemical on the claim of conspiracy to commit fraudulent misrepresentation. The
jury awarded Charlotte Mahlum $38,654.00 in past damages and $3,915,000.00 in future damages, and awarded
Marvin Mahlum $200,000.00 in future damages. The jury also awarded the Mahlums $10,000,000.00 in punitive
damages.
After judgment was entered on November 7, 1995, Dow Chemical filed a timely motion for judgment
notwithstanding the verdict or, in the alternative, a new trial. On February 21, 1996, the district court denied
these alternative motions.
Dow Chemical timely appealed to this court, challenging the judgment of the district court, and the district
court's denial of its motion for a new trial. Specifically, Dow Chemical argues that (1) it is entitled to reversal of
the Mahlums' judgment against it for fraudulent concealment, aiding and abetting Dow Corning, acting in
concert with Dow Corning, and negligent performance of an undertaking, or, in the alternative, (2) a new trial is
warranted as a result of numerous trial errors, including allegedly erroneous evidentiary rulings, improper jury
instructions, and attorney misconduct. As an additional ground for new trial, Dow Chemical also argues that the
compensatory damages award is excessive, and that the punitive damages award is constitutionally excessive.
Having considered the parties' appellate briefs, the amicus briefs, and the voluminous record, and having
heard oral argument, we conclude that the judgment against Dow Chemical is infirm as to the intentional tort
claims. Accordingly, we reverse the judgment against Dow Chemical on those claims. However, we also
conclude that substantial evidence in the record supports the judgment against Dow
Chemical on the claim of negligent performance of an undertaking.
we also conclude that substantial evidence in the record supports the judgment against Dow Chemical on the
claim of negligent performance of an undertaking. Finally, we conclude that the district court did not err in
denying Dow Chemical's motion for a new trial.
III. Discussion
[Headnote 2]
In general, the jury's findings will be affirmed on appeal if they are based upon substantial evidence in the
record. Prabhu v. Levine, 112 Nev. 1538, 1543, 930 P.2d 103, 107 (1996). Substantial evidence has been
defined as that which a reasonable mind might accept as adequate to support a conclusion.' Id. (quoting State,
Emp. Security v. Hilton Hotels, 102 Nev. 606, 608, 729 P.2d 497, 498 (1986)).
B. Causation
[Headnotes 36]
The Mahlums had to show that Dow Corning was negligent or manufactured unsafe, defective breast
implants before showing that Dow Chemical was liable in conjunction with Dow Corning. The Mahlums pleaded
both negligence and strict liability against Dow Corning, and under either theory they were obligated to
demonstrate causation. See Price v. Blaine Kern Artista, Inc., 111 Nev. 515, 518, 893 P.2d 367, 369 (1995)
(causation is germane to both negligence and strict tort liability). Causation consists of two components: actual
cause and proximate cause. See Sims v. General Telephone & Electric, 107 Nev. 516, 815 P.2d 151 (1991). To
demonstrate actual cause with respect to Dow Corning's product, the Mahlums had to prove that, but for the
breast implants, Charlotte Mahlum's illnesses would not have occurred. Id. at 524, 815 P.2d at 156. The second
component, proximate cause, is essentially a policy consideration that limits a defendant's liability to foreseeable
consequences that have a reasonably close connection with both the defendant's conduct and the harm which that
conduct created. Id.
[Headnote 7]
We conclude that the Mahlums introduced substantial evidence that Dow Corning's defective breast implants
caused her illnesses. The evidence demonstrated that Mahlum developed myriad illnesses following breast
implant surgery. Silicone gel probably bled from the breast implants shortly after implantation, and Mahlum's
left breast implant later ruptured and spilled silicone gel into her body. The explantation surgeon was unable to
remove all of the silicone gel from Mahlum's chest, and left approximately ten percent of
the silicone imbedded in muscle, tissue and blood vessels under her arms and ribs.
all of the silicone gel from Mahlum's chest, and left approximately ten percent of the silicone imbedded in
muscle, tissue and blood vessels under her arms and ribs. Mahlum's health continued to deteriorate after the
explantation surgery. By 1995, Mahlum experienced shaking spells, itching, tingling in her hands and feet,
slurring of her speech, seizures, discoloration in her hands and legs, headaches, dry eyes, loss of hair, memory
loss, sleeplessness, pain in her joints, armpits and chest, and loss of coordination. Later, she increasingly lost
control of her muscles.
[Headnotes 811]
The Mahlums provided causation evidence in the form of expert testimony. Expert testimony is admissible if
scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or
determine a fact in issue. NRS 50.275. Demonstrating causation in cases involving medical products often
requires expert medical testimony. See Prabhu, 112 Nev. at 1544, 930 P.2d at 108 (proof of causation in
medical malpractice cases may be proved by expert testimony). Once the district court certifies an expert as
qualified, the expert may testify to all matters within the expert's experience or training. See Fernandez v.
Admirand, 108 Nev. 963, 969, 843 P.2d 354, 358 (1992). Here, the district court properly exercised its
discretion to qualify several physicians as the Mahlums' expert witnesses to testify on the subject of her injuries
and whether Dow Corning's implants caused those injuries.
3

The Mahlums adduced sufficient evidence at trial for a jury to decide that Dow Corning's breast implants
actually caused Mahlum's injuries. The trial evidence was substantial in showing that Mahlum's current health
problems manifested themselves around the time the left breast implant ruptured and released its silicone gel into
her body. Three expert witnesses, all board-certified medical doctors, including Mahlum's treating
rheumatologist, testified that Mahlum's injuries were caused by her implants.
For example, Dr. Eric Gershwin, an immunologist from the University of California, Davis, and author of a
number of articles about silicone and the immune system, testified that liquid silicone impairs the body's
immune system.
__________

3
We have considered Dow Chemical's argument that this court should adopt the decision of the United States
Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), regarding the
admissibility of scientific evidence. The interpretation of a federal counterpart to a Nevada rule of evidence may
be persuasive, but is not controlling. See Dougan v. Gustaveson, 108 Nev. 517, 835 P.2d 795 (1992). We
believe that the Daubert doctrine is a work in progress, and that we should observe the doctrine's further
development in the federal courts before concluding that Daubert should be adopted as the law of this state.
Above all, we do not presently perceive a need to adopt Daubert, based on our perception of developments in
Nevada law, and we therefore decline to do so.
silicone impairs the body's immune system. Liquid silicone, he testified, causes the body to create autoantibodies
that attack the body's own organs and tissues. In essence, autoantibodies cause the human body to turn on itself.
When silicone bleeds from the breast implant, it can enter the lymph nodes and from there travel to other organs,
including the heart, the lungs, the nerves, and the brain. The lymph nodes try to cleanse the body of silicone oil,
but cannot. Dr. Gershwin examined Charlotte Mahlum and testified that in her case, silicone had reached and
reacted with her brain, demonstrated by an MRI (magnetic resonance imaging) of her brain that shows certain
punched-out lesions. He also opined that silicone has damaged Mahlum's nerves and nerve sheaths
(demyelinization), resulting in nerve disfunction. Mahlum also had increased levels of anti-GM-1 antibody,
which Dr. Gershwin had seen in other women with silicone gel breast implants. In Dr. Gershwin's opinion,
Mahlum suffered from a multiple-sclerosis-like disease and progressive dysfunction of the nerves, resulting from
exposure to silicone. Mahlum also displayed many symptoms that other women with autoimmune diseases and
silicone breast implants experience, including livedo reticularis (blotching of the skin), sicca symptoms (dryness
of the eyes and mouth), aching muscles and joints, fatigue, loss of hair, memory problems, numbness, tremors,
and seizures.
Dr. John Monroe Eaton, Charlotte Mahlum's treating neurologist, echoed many of Dr. Gershwin's
conclusions, although he did not provide specific testimony that silicone caused Malhum's illnesses. Dr. Eaton
testified that Mahlum's symptoms corresponded to multiple-sclerosis-like autoimmune disease, axonal
neuropathy, and demyelinization, all of which are caused by antibodies attacking her nervous system. He
testified that the axon is like a wire that connects the brain to other parts of the body, and the myelin is the sheath
around the nerve itself, like insulation around a wire. When the axon or the myelin is disturbed, many problems
can occur, including loss of sensation/numbness, livedo reticularis, loss of muscle control, dryness of the eyes
and mouth, shrinking muscles, and chorea (twitching). As previously noted, Charlotte Mahlum displayed these
symptoms. Dr. Eaton further testified to Mahlum's raised antibody count, in addition to a crawling sensation
under the skin that appears to be related to the nerve damage she had experienced. A majority of other silicone
breast implant patients Eaton has treated experienced similar nervous system disorders and autoimmune
diseases.
Dr. Steven Atcheson, a rheumatologist, observed Mahlum's symptoms and, based on his training and
experience in treating over one hundred women who had silicone gel breast implants, concluded that the
symptoms were caused in large part by exposure to silicone.
sure to silicone. Atcheson testified that women with breast implants displayed symptoms of fatigue, joint and
muscle pain, sleep disturbances, hair loss, skin rashes, dryness of the eyes and mouth, and numbness or tingling
in their hands and feet. These symptoms are part of what he terms atypical autoimmune disease, which he
believes can be caused by silicone gel breast implants. He has treated Charlotte Mahlum, and he noted that she
shares many of the same symptoms as other women who have silicone gel breast implants.
Based upon the evidence discussed above, a reasonable jury could conclude that but for the breast implants,
Mahlum would not have suffered from myriad illnesses.
[Headnote 12]
Next, the Mahlums adequately demonstrated that Charlotte Mahlum's injuries were a foreseeable result of
Dow Corning's sale of these products. Prior tests of DC 200 (chemically equivalent to DC 360 as used in Dow
Corning's Silastic II breast implants) illustrated that silicone will migrate throughout a person's body, ultimately
residing in various major organs and tissues, including the brain. Subcutaneous injections of DC 200 in rabbits
showed inflammation at the injection sites after twenty-four hours. Tests of DC 200 on calf hides indicated
damage to the calf hide after ten days. A test on DC 360 suggested that it decreased the white blood cell counts
and changed liver and brain weights in rats. Evidence showed that Dow Corning was aware that the envelope
containing the silicone gel had a tendency to bleed silicone into the patient's breast area. In light of the foregoing
knowledge, it was foreseeable that the silicone used in breast implants was probably harmful to women.
[Headnotes 13, 14]
Although Dow Chemical disputes the conclusions of the Mahlums' experts, the jury was entitled to rely on
their testimony. This court has long adhered to the rule that when there is a conflict in the evidence, the verdict
or decision will not be disturbed on appeal. See, e.g., Frances v. Plaza Pacific Equities, 109 Nev. 91, 94, 847
P.2d 722, 724 (1993). Stated differently, a jury's verdict will not be overturned if it is supported by substantial
evidence unless the verdict was clearly erroneous when viewed in light of all the evidence presented. Bally's
Employees' Credit Union v. Wallen, 105 Nev. 553, 779 P.2d 956 (1989). This verdict was not clearly erroneous
and is supported by substantial evidence that Dow Corning breast implants caused Mahlum's illnesses.
We are aware that causation is a scientifically controversial component of the plaintiff's case in breast
implant litigation. The Mahlums, however, did not need to wait until the scientific community
developed a consensus that breast implants caused her diseases.
Mahlums, however, did not need to wait until the scientific community developed a consensus that breast
implants caused her diseases. If she had, it might have been too late to recover, in light of the doctrine of laches
and statutes of limitation and repose. The Mahlums' complaint was not tried in the court of scientific opinion, but
before a jury of her peers who considered the evidence and concluded that Dow Corning silicone gel breast
implants caused her injuries. The jury in this case was properly instructed to consider the proof by a
preponderance of the evidence. There is no evidence that the jury did otherwise. Science may properly require a
higher standard of proof before declaring the truth, but that standard did not guide the jury, nor do we use that
standard to evaluate the judgment on appeal.
4
For the foregoing reasons, we therefore conclude that the
Mahlums provided substantial evidence on the issue of causation.
C. Fraudulent Concealment
[Headnote 15]
The jury found that Dow Chemical had fraudulently concealed the dangers of liquid silicone from Mahlum.
To establish a prima facie case of fraudulent concealment, a plaintiff must offer proof that satisfies five
elements: (1) the defendant concealed or suppressed a material fact; (2) the defendant was under a duty to
disclose the fact to the plaintiff; (3) the defendant intentionally concealed or suppressed the fact with the intent
to defraud the plaintiff; that is, the defendant concealed or suppressed the fact for the purpose of inducing the
plaintiff to act differently than she would have if she had known the fact; (4) the plaintiff was unaware of the fact
and would have acted differently if she had known of the concealed or suppressed fact; (5) and, as a result of the
concealment or suppression of the fact, the plaintiff sustained damages. See Nevada Power Co. v. Monsanto Co.,
891 F. Supp. 1406, 1415 (D. Nev. 1995).
The Mahlums alleged that Dow Chemical fraudulently and intentionally concealed the hazards of liquid
silicone after it had partially assumed Dow Corning's duty to perform toxicological testing on liquid silicone.
As a result, the Mahlums charged Dow Chemical with a duty to disclose publicly the alleged dangers of silicone
implants because: it asserted long ago in published articles (e.g., Dr. Rowe's 1948 study, the 1956 Chenoweth
study) that silicone as a class were inert; after performing toxicological testing on silicone
for Dow Corning, Dow Chemical subsequently learned that certain silicone polymers were
not inert; and Dow Chemical possessed superior knowledge about silicone safety yet,
according to the Mahlums, it actively and intentionally suppressed this knowledge.
__________

4
We have no way of knowing what the outcome would have been had Dow Corning been present at trial.
Neither the judgment in this case nor this decision should foreclose Dow Corning from a full and fair trial on the
merits if the Mahlums continue to press their claims after Dow Corning emerges from bankruptcy.
that silicone as a class were inert; after performing toxicological testing on silicone for Dow Corning, Dow
Chemical subsequently learned that certain silicone polymers were not inert; and Dow Chemical possessed
superior knowledge about silicone safety yet, according to the Mahlums, it actively and intentionally suppressed
this knowledge. The Mahlums also asserted that had Charlotte Mahlum been aware of the fraudulently concealed
information, she would not have chosen to undergo the breast implantation surgery that caused her injuries.
[Headnotes 16, 17]
Generally, an action in deceit will not lie for nondisclosure. Epperson v. Roloff, 102 Nev. 206, 213, 719 P.2d
799, 803 (1986). For a mere omission to constitute actionable fraud, a plaintiff must first demonstrate that the
defendant had a duty to disclose the fact at issue. See Monsanto, 891 F. Supp. at 1417. Here, absent such a duty,
Dow Chemical's failure to disclose any information it may have had about the adverse effects of liquid silicone
and/or silicone breast implants would not constitute actionable fraud.
[Headnotes 1823]
With respect to fraudulent concealment, a duty to disclose arises from the relationship of the parties. A
fiduciary relationship, for instance, gives rise to a duty of disclosure. See, e.g., Foley v. Morse & Mowbray, 109
Nev. 116, 125-26, 848 P.2d 519, 525 (1993). A duty to disclose may also arise where the parties enjoy a
special relationship, that is, where a party reasonably imparts special confidence in the defendant and the
defendant would reasonably know of this confidence. See Mackintosh v. Jack Matthews & Co., 109 Nev. 628,
634-35, 855 P.2d 549, 553 (1993) (citing Mancini v. Gorick, 536 N.E.2d 8, 10 (Ohio Ct. App. 1987)). A party's
superior knowledge thus imposes a duty to speak in certain transactions, depending on the parties' relationship.
Nondisclosure will become the equivalent of fraudulent concealment when it becomes the duty of a person to
speak in order that the party with whom he is dealing may be placed on an equal footing with him. Mackintosh,
109 Nev. at 634-35, 855 P.2d at 553 (quoting Mancini, 536 N.E.2d at 9-10). Even when the parties are dealing
at arm's length, a duty to disclose may arise from the existence of material facts peculiarly within the knowledge
of the party sought to be charged and not within the fair and reasonable reach of the other party. Villalon v.
Bowen, 70 Nev. 456, 467-68, 273 P.2d 409, 415 (1954) (failure of purported widow to tell the executor of her
purported husband's estate that her prior marriage had not been terminated).
[Headnote 24]
The duty to disclose requires, at a minimum, some form of relationship between the parties. See Mackintosh,
109 Nev. at 634-35, 855 P.2d at 553 (disclosure mandated in context of dealings between parties); Villalon, 70
Nev. at 467-68, 273 P.2d at 415 (same); see also In re Temporomandibular Joint (TMJ) Implants Prods. Liab.
Litig., 113 F.3d 1484, 1497 (8th Cir. 1997) [hereinafter TMJ Implants] (without some kind of relationship, there
can be no duty to disclose). Absent such a relationship, no duty to disclose arises, and as a result, no liability for
fraudulent concealment attaches to the nondisclosing party.
[Headnote 25]
It is undisputed that Dow Chemical did not have a fiduciary relationship, a special relationship, or a
relationship of any kind with the Mahlums. Instead, the Mahlums claim that Dow Chemical's duty to disclose
arose because it possessed superior knowledge about the dangers of using silicone within the human body. Dow
Chemical had no duty to disclose to the Mahlums any superior knowledge it may have had regarding the safety
of silicone products, however, because it was not directly involved in the transaction from which this lawsuit
arose, or any other transaction with the Mahlums. Accordingly, we conclude that the portion of the judgment
holding Dow Chemical liable for fraudulent misrepresentation was not supported by evidence of any relationship
between the parties and must be reversed.
D. Accessory Liability
[Headnote 26]
The jury also found that Dow Chemical (1) aided and abetted Dow Corning to engage in fraudulent
misrepresentation and (2) acted in concert with Dow Corning to commit fraudulent misrepresentation.
5

The trial court's jury instruction followed section 876 of the Restatement (Second) of Torts. The Restatement
provides:
__________

5
Dow Chemical contends that reversal is warranted because this court has never recognized a civil cause of
action for aiding and abetting or concert of action. We disagree. The fact that this court has not previously
recognized a cause of action will not warrant reversal where that claim is well grounded in the common law. See
NRS 1.030 (providing that common law shall be the rule of decision in Nevada courts unless repugnant to or in
conflict with . . . the constitution and laws of this state). Our review suggests that the two theories under
consideration here, while limited in scope, are well grounded in common law. See, e.g., Halberstam v. Welch,
705 F.2d 472 (D.C. Cir. 1983); W. Page Keeton et al., Prosser and Keeton on Torts 322-24 (5th ed. 1984).
For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he
(a) does a tortious act in concert with the other or pursuant to a common design with
him, or
(b) knows that the other's conduct constitutes a breach of duty and gives substantial
assistance or encouragement to the other so to conduct himself, or
(c) gives substantial assistance to the other in accomplishing a tortious result and his
own conduct, separately considered, constitutes a breach of duty to the third person.
Restatement (Second) of Torts, 876 (1979) [hereinafter section 876]. Halberstam v. Welch,
705 F.2d 472 (D.C. Cir. 1983), explains that subpart (a) of section 876 corresponds to civil
conspiracy, and subpart (b) of section 876 corresponds to civil aiding and abetting. Id. at 477.
We will review these theories separately.
6

1. Concert of Action
[Headnote 27]
Under the Restatement, liability attaches for concert of action if two persons commit a tort while acting in
concert with one another or pursuant to a common design. Section 876(a). The tort of concert of action has
traditionally been quite narrow in the scope of its application. The classic application of concert of action is drag
racing, where one driver is the cause-in-fact of plaintiff's injury and the fellow racer is also held liable for the
injury. Santiago v. Sherwin-Williams Co., 794 F. Supp. 29, 31 (D. Mass. 1992), aff'd, 3 F.3d 546 (1st Cir.
1993). Similarly, one court remarked that application of the doctrine of concert of action is largely confined to
isolated acts of adolescents in rural society, Halberstam, 705 F.2d at 489, and another court observed that this
theory is meant to deter antisocial or dangerous behavior. Juhl v. Airington, 936 S.W.2d 640, 644 (Tex. 1996).
[Headnotes 28, 29]
Concert of action resembles the tort of civil conspiracy. Halberstam, 705 F.2d at 477. An actionable [civil]
conspiracy consists of a combination of two or more persons who, by some concerted action, intend to
accomplish an unlawful objective for the purpose of harming another, and damage results from
the act or acts."
__________

6
Although the jury was instructed consistently with Restatement section 876(c), the verdict form did not refer
to a separate claim under 876(c), but asked whether Dow Chemical was liable for concert of action and/or aiding
and abetting. Even though the jury received instruction on section 876(c), we reject liability under that section
because, as discussed infra, we conclude that there was no substantial assistance.
the purpose of harming another, and damage results from the act or acts. Sutherland v. Gross, 105 Nev. 192,
196, 772 P.2d 1287, 1290 (1989). Civil conspiracy in Nevada differs from concert of action as defined in section
876 in that civil conspiracy requires that the defendants have an intent to accomplish an unlawful objective for
the purpose of harming another, while concert of action merely requires that the defendants commit a tort while
acting in concert.
[Headnotes 3032]
Both causes of action require an agreement. To prevail in a civil conspiracy action, a plaintiff must prove an
agreement between the tortfeasors, whether explicit or tacit. See Eikelberger v. Tolotti, 96 Nev. 525, 528 n.1,
611 P.2d 1086, 1088 n.1 (1980). Similarly, when section 876 refers to acting in concert with another tortfeasor
or pursuant to a common design, it refers to this concept of agreement. See section 876(a), cmt. a; Halberstam,
705 F.2d at 477. Proof of an agreement alone is not sufficient, however, because it is essential that the conduct
of each tortfeasor be in itself tortious. Section 876(a), cmts. b & c.
The Mahlums argue that the evidence shows that Dow Chemical had a tacit understanding with Dow
Corning to engage in tortious conduct, namely, misrepresenting the safety of the silicone used in breast implants,
withholding information regarding the adverse consequences of such silicone from physicians and patients, and
providing Dow Corning with a global market for its silicone gel breast implants.
[Headnote 33]
Assuming only for purposes of this discussion that Dow Corning did make fraudulent misrepresentations
about silicone breast implants, we conclude that the Mahlums did not prove at trial that Dow Chemical acted in
concert with Dow Corning by agreeing to commit fraudulent misrepresentation regarding silicone breast
implants. The Mahlums failed to prove the existence of an agreement, tacit or otherwise, between Dow Chemical
and Dow Corning in which they agreed to commit fraud regarding silicone breast implants, specifically, to make
misrepresentations to physicians and patients about the safety of silicone breast implants. Dow Chemical's few
public statements about the potential safety of silicone cannot support an inference that Dow Chemical and Dow
Corning had an agreement to misrepresent the safety of silicone breast implants. Accordingly, we conclude that
the record lacks substantial evidence of Dow Chemical's liability for concerted action to commit fraudulent
misrepresentation, and the judgment must therefore be reversed on this cause of action.
2. Aiding and abetting
[Headnote 34]
Under the Restatement, liability attaches for civil aiding and abetting if the defendant substantially assists or
encourages another's conduct in breaching a duty to a third person. Section 876(b). The Mahlums had to prove
three elements: (1) that Dow Corning committed fraudulent misrepresentation that injured Mahlum; (2) that Dow
Chemical was aware of its role in promoting the fraudulent misrepresentation at the time it provided assistance;
and (3) that Dow Chemical knowingly and substantially assisted Dow Corning in committing fraudulent
misrepresentation. See TMJ Implants, 113 F.3d at 1495; Halberstam, 705 F.2d at 477. The second and third
elements should be weighed together, that is, greater evidence supporting the second element requires less
evidence of the third element, and vice versa. TMJ Implants, 113 F.3d at 1495.
The Mahlums contend that certain evidence supports the verdict on their aiding and abetting claim. First,
they assert that Dow Corning was aware of potential hazards regarding, or at least harbored doubts about, the
safety of silicone gel breast implants, and allegedly made misrepresentations about those implants to Charlotte
Mahlum. Second, they assert that the jury could infer that Dow Chemical was aware of Dow Corning's alleged
misrepresentations because (a) Dow Chemical representatives held four (of ten) seatsand later five (of fifteen)
seatson Dow Corning's Board of Directors; (b) Dow Chemical conducted or supervised some tests on silicone
substances for Dow Corning as late as 1970; (c) Dow Chemical's chief toxicologist, Dr. V. K. Rowe, maintained
a consulting relationship with Dow Corning from the late fifties until the early seventies regarding Dow
Corning's design, conduct, or interpretation of studies regarding silicone substances; (d) Dow Chemical and Dow
Corning agreed to test the silicone later used in breast implants for use as pharmaceuticals and pesticides; and (e)
Dow Chemical, through its subsidiary, Lepetit, marketed Dow Corning breast implants outside the United States.
Finally, the Mahlums assert that Dow Chemical's research of the pharmaceutical and pesticidal uses of liquid
silicone, and its marketing of breast implants through its subsidiary outside the United States, emboldened
Dow Corning's alleged fraudulent misrepresentations regarding the safety of silicone gel breast implants.
[Headnote 35]
We conclude that the verdict on the aiding and abetting claim cannot stand. The evidence does not establish
that Dow Chemical knowingly and substantially assisted Dow Corning in committing a fraud.
a fraud. Even though, as discussed below in section E, the Mahlums established that Dow Chemical negligently
performed its undertaking to test liquid silicone, the evidence that the Mahlums advance falls short of proving
that Dow Chemical's actions amounted to knowing support or encouragement of Dow Corning's alleged
fraudulent conduct. The difference between the failure of proof regarding aiding and abetting and the adequacy
of proof regarding negligent undertaking lies in Dow Chemical's failures to act, rather than its deeds. Here, the
proof fails to show the necessary actions that would demonstrate Dow Chemical's knowing participation in Dow
Corning's alleged fraud. By contrast, the evidence regarding negligent undertaking is present in the tests and
cooperation regarding research that Dow Chemical undertook. In other words, the proof regarding Dow
Chemical's research activities does not support knowing participation in a fraud. The Mahlums thus failed to
show that Dow Chemical rendered substantial assistance to allegedly fraudulent misstatements that Dow Corning
may have made to Charlotte Mahlum.
[Headnote 36]
The Mahlums argue that if Lepetit had refused to market breast implants without warnings, then Dow
Corning would not have been emboldened to continue its supposedly false and misleading representations in the
United States. The Mahlums' assertion that Lepetit's lack of protest somehow emboldened Dow Corning, thus
providing it with substantial assistance, lacks support in the law. To amount to substantial assistance, such
encouragement must take the form of a direct communication, or conduct in close proximity, to the tortfeasor.
See Halberstam, 705 F.2d at 481-82 (suggestive words may be enough to create joint liability when they plant
the seeds of action and are spoken by a person in an apparent position of authority). The Mahlums failed to
prove the existence of direct communication from Dow Chemical to Dow Corning, or close conduct, that could
have promoted a fraud. Accordingly, we reverse that portion of the judgment imposing liability on Dow
Chemical for aiding and abetting fraudulent misrepresentations. In light of our reversal of the intentional tort
claims, we also vacate the district court's award of punitive damages.
7

E. Negligent Performance of an Undertaking
In contrast to the fraud claims, substantial evidence in the record supports the verdict against Dow Chemical
with respect to the claim of negligent performance of an undertaking.
__________

7
Accordingly, the Mahlums' cross-appeal with respect to post-judgment interest on punitive damages is moot.
See NRS 42.005; Wichinsky v. Mosa, 109 Nev. 84, 847 P.2d 727 (1993).
the claim of negligent performance of an undertaking. We therefore conclude that the judgment with respect to
this claim must be affirmed. The trial court's jury instruction was consistent with Restatement (Second) of Torts
section 324A, which provides as follows:
One who undertakes, gratuitously or for consideration, to render services to another
which he should recognize as necessary for the protection of a third person or his
things, is subject to liability to the third person for physical harm resulting from his
failure to exercise reasonable care to perform his undertaking if
(a) his failure to exercise reasonable care increases the risk of such harm or
(b) he has undertaken to perform a duty owed by the other to the third person or
(c) the harm is suffered because of reliance of the other or the third person upon the
undertaking.
Restatement (Second) of Torts section 324A (1979) [hereinafter section 324A]. This section
reflects the Good Samaritan doctrine.
The Mahlums contend that Dow Chemical effectively undertook to test completely and adequately the safety
of the liquid silicone used in Dow Corning's breast implants and negligently performed that undertaking. Dow
Chemical asserts that it did not undertake to test the safety of Dow Corning's silicone gel breast implants or the
liquid silicone used therein. Dow Chemical maintains that the tests it performed for Dow Corning over a
thirty-year period were unrelated to breast implants and that the other evidence relied on by the Mahlums to
establish liability, such as the services rendered by Dr. Rowe, equally failed to demonstrate an undertaking. We
disagree.
[Headnote 37]
As an initial matter, Dow Chemical contends that the Mahlums must demonstrate that Dow Chemical
undertook a duty with respect to the specific product (Silastic II breast implants) that caused Charlotte Mahlum's
harm. Section 324A, however, includes no such requirement. As the federal district court concluded in In re
Silicone Gel Products Liability Litigation, 887 F. Supp. 1455, 1460 (N.D. Ala. 1995),
Dow Chemical's reading of [section] 324A is too restrictive. That section provides that one who
undertakes services on behalf of another assumes a duty to use due care. The proper focus of the inquiry
is whether Dow Chemical undertook to perform services to Dow Corning that Dow Chemical should
have recognized were necessary for the protection of third persons.
should have recognized were necessary for the protection of third persons. The undertaking creates a duty
that would not otherwise exist. Dow Chemical's argument that liability for negligent undertaking can arise
only as to a specific final product takes too narrow a view of negligent undertaking analysis. Liability can
arise when it is reasonably foreseeable that another will be harmed by the failure to exercise reasonable
care in performing such an undertaking.
[Headnotes 38, 39]
In addition, Dow Chemical argues that the issue of whether it owed a duty to the Mahlums was improperly
submitted to the jury by the district court. According to Dow Chemical, the issue of whether a duty existed in
this case was a legal question that should have been resolved by the district court. Although [t]he precise
nature and extent' of [an alleged section 324A] duty is a question of law . . . it depends on the nature and extent
of the act undertaken, a question of fact.' Artiglio v. Corning Inc., 957 P.2d 1313, 1318 (Cal. 1998) (quoting
Smith v. State, 921 P.2d 632, 634 (Alaska 1996)); accord Pratt v. Liberty Mut. Ins. Co., 952 F.2d 667, 671 (2d
Cir. 1992). At trial, the following evidence pertained to the nature and extent of Dow Chemical's undertaking:
(1) Dow Chemical's creation of and fifty percent ownership of Dow Corning, (2) Dow Chemical's control of
one-third of Dow Corning's board of directors, (3) Dow Chemical's undisputed expertise in toxicology, (4) Dow
Corning's lack of a toxicology laboratory until 1968 and reliance on Dow Chemical's toxicological expertise,
8
(5) the housing of Dow Chemical's and Dow Corning's toxicology laboratories in a Dow Chemical building from
1968 until 1971, (6) the myriad tests performed by Dow Chemical on silicone compounds and the specific tests
relating to silicone fluids, (7) the continuing assistance rendered to Dow Corning by Dow Chemical personnel,
and (8) Dow Chemical's 1966 joint development agreement, 1969 information development agreement, and
1975 trademark agreement with Dow Corning. Accordingly, we conclude that the type and extent of Dow
Chemical's undertaking was properly and necessarily submitted to the jury. In other words, the jury was required
to consider the nature and scope of Dow Chemical's undertaking so that its concomitant duty, if any, could be
determined. See Smith, 921 P.2d at 635.
__________

8
A Dow Corning scientist testified that Dow Corning relied on outside consultants, such as Dow Chemical, to
interpret toxicology results. Thus, although Dow Chemical argues that it did not perform any tests negligently,
the jury could have determined that Dow Chemical was negligent for not fully advising Dow Corning on the
meaning of certain test results.
[Headnote 40]
The record before us reveals substantial evidence from which the jury could determine that Dow Chemical
undertook to render services to test the safety of the liquid silicone later used in Dow Corning's breast implants
and that Dow Chemical should have recognized those services as necessary for the protection of third persons.
Dow Chemical's head toxicologist, Dr. V. K. Rowe, acted as a consultant to Dow Corning on matters concerning
silicone toxicology from the late 1940s into the mid 1970s. Documents introduced at trial revealed that Dr.
Rowe not only designed the testing protocol for some independent outside laboratories, but also acted as a
consultant to Dow Corning's Product Safety Committee in the late 1960s, after Dow Corning introduced its
breast implants. Dr. Rowe testified that, in his capacity as an unpaid consultant to Dow Corning, he would render
advice on the type of tests Dow Corning should conduct on its silicone substances, interpret the conclusions of
such tests, and recommend any additional tests he deemed advisable. Dr. Rowe also attended, on Dow Corning's
behalf, meetings regarding product safety with personnel from outside laboratories that contracted with Dow
Corning. In 1967, Dr. Rowe was one of the toxicology consultants who advised Dow Corning's Product Safety
Committee on breast implant studies performed on dogs. The evidence also suggested that Dr. Rowe indirectly
played a role in setting up part of the test protocol for the 1967 dog study.
The evidence also revealed that Dow Chemical and Dow Corning exchanged important personnel between
themselves as well as with Lepetit. For example, in 1968, Kenneth Olson transferred from Dow Chemical's
toxicology department to Dow Corning to head its new toxicology laboratory. Olson then returned to Dow
Chemical in 1973 with the likely knowledge that silicone fluid was used in Dow Corning's silicone gel breast
implants. From 1964 to 1966, Charles Hinman, a scientist from the Pitman-Moore division of Dow Chemical,
worked for Lepetit as its scientific advisor. While ostensibly a Lepetit employee, Hinman remained on Dow
Chemical's payroll. Lastly, R. William Caldwell, a Dow Corning employee, transferred in 1967 to Dow
Chemical as its assistant general manager of bioproducts department. Shortly thereafter in 1968, Dow Chemical
sent Caldwell to Lepetit, gave him the title of administratore delegato, and authorized him to buy, sell, and
trade Lepetit without prior approval of Lepetit's board. Caldwell testified that he viewed himself a Dow
Chemical employee, despite the changes he underwent in employment.
Additionally, various documents chronicle Dow Chemical's testing of Dow Corning's silicone materials from
the late 1940s into the mid-1970s.9
into the mid-1970s.
9
Based on the Chenoweth study, Dow Chemical knew as early as 1956 that the silicone
fluid DC 200 (the chemical equivalent of DC 360 fluid used in Dow Corning's breast implants), when injected
intramuscularly into rats, migrated throughout the body into major organs, including the brain. The Chenoweth
study also specifically recognized that silicone fluids were being studied for medicinal purposes and sought to
explore their biological activities. In 1957, Dow Chemical's Dr. Rowe knew that the Miami study involving DC
200 fluid showed that the fluid lowered the granulocytic (immune) elements of the female test subjects' blood.
During the 1950s and 1960s, Dow Chemical knew that Dow Corning was marketing medical products containing
silicone: catheters, brain shunts, heart valves, and drainage valves.
10
Also, in its annual report to stockholders
in 1959, Dow Chemical noted that [b]ecause of their chemical inertness and lack of toxicity, silicone are rapidly
finding use in medical research. Thus, Dow Chemical was aware that many of the silicone substances being
tested were destined for use in medical devices, including implants.
In 1970, after Dow Chemical began marketing Dow Corning breast implants outside of the United States
through its subsidiary Lepetit, Dow Chemical's pathologist Gary Sparschu found that experiments performed on
rats injected with DC 360 fluid showed that the fluid had migrated to different parts of the body, including the
bone marrow. The female test animals also showed decreased brain weights. Because Dow Chemical knew prior
to the 1970s that other silicone materials developed for medical purposes were being used as implants, knew that
liquid silicone was being developed for medicinal uses, and knew at the time of Sparschu's tests that Dow
Corning was using liquid silicone in its breast implants,11 the jury could reasonably infer that
Dow Chemical should have known that the services it rendered {e.g., its professional
advice and protocol design by Dr. Rowe), the exchange of key personnel to and from Dow
Corning, and its toxicological testing of Dow Corning's liquid silicone, were a necessary
step in the protection of third persons who would purchase liquid silicone in the form of
breast implants.
__________

9
Dow Chemical correctly points out that most of the toxicological tests it performed for Dow Corning fell
under the heading of industrial handling tests. The evidence, however, also showed that Dow Chemical freely
offered Dow Corning advice on the safety of the products containing the tested materials. For example, Dow
Chemical counseled Dow Corning to include a safety warning on a hair conditioner and to conduct further tests
on a silicone material used in foot ointment before marketing it. Further, even though the majority of Dow
Chemical's tests related to industrial handling, it is undisputed that Dow Chemical was involved with testing
liquid silicones for purposes other than industrial handling. That Dow Corning relied on Dow Chemical's
toxicological expertise was testified to at trial by former Dow Corning employees, who believed, in the 1950s
and the 1960s, that Dow Chemical scientists were the experts on silicone toxicology.

10
This information is partially contained in Dow Chemical's 1959 annual report to its stockholders. A Dow
Chemical physician also wrote several articles in the early 1960s on various silicone catheters and tubes made by
Dow Corning.
breast implants,
11
the jury could reasonably infer that Dow Chemical should have known that the services it
rendered (e.g., its professional advice and protocol design by Dr. Rowe), the exchange of key personnel to and
from Dow Corning, and its toxicological testing of Dow Corning's liquid silicone, were a necessary step in the
protection of third persons who would purchase liquid silicone in the form of breast implants. As Justice Mosk
of the California Supreme Court explained in Artiglio,
[t]hat Dow Chemical acted without a focus on silicone breast implants does not negate the fact that it
acted with a focus on silicone implants. Further, that it acted without awareness of plaintiffs as recipients
of silicone breast implants does not negate the fact that it acted with awareness of the general class of
persons to which plaintiffs belong, that is, recipients of silicone implants.
Artiglio, 957 P.2d at 1323 (Mosk, J., dissenting). Put another way, [i]f Dow Chemical knew
that its testing was being relied upon to develop products that would be implanted in humans,
Dow Chemical had a duty to use due care in providing reasonably accurate and complete
information even if it did not specifically know in which part of the body the products would
be implanted. In re Silicone Gel, 887 F. Supp. at 1461.
Further, based on the evidence before it, the jury could have reasonably determined that Dow Chemical's
undertaking went beyond the mere occasional testing of organosilicon compounds for Dow Corning. When Dow
Chemical and Corning Incorporated created Dow Corning, they contributed technology and licenses that they
held with respect to organosilicon materials. The evidence established that from its inception until the late
1960s, Dow Corning lacked a toxicology laboratory and relied, to a considerable extent, on Dow Chemical to
perform necessary testing on the safety of its silicone substances and products. Dr. Rowe testified that in the
1950s, Dow Chemical's toxicology laboratory had a well-respected ranking in the world. Dow Chemical knew
that Dow Corning owed a duty to its customers to manufacture and market reasonably safe products. Dow
Chemical also knew that Dow Corning lacked a toxicology laboratory until years after Dow Corning began to
market breast implants. Additionally, Dow Chemical was aware that Dow Corning heavily relied on the expertise
of Dow Chemical's toxicologists, not only to conduct tests on the toxicology of silicone materials from Dow
Corning, but also to interpret the test results and to design the testing protocol for outside laboratories
with whom Dow Corning contracted.
__________

11
The jury heard evidence from Dr. Rowe that he was aware Dow Corning was using liquid silicone in its
breast implants; this information can also be inferred from his involvement in the 1967 miniature implants study
in dogs.
tocol for outside laboratories with whom Dow Corning contracted.
12

Moreover, Dow Chemical entered into several noteworthy agreements with Dow Corning, which further
support the conclusion that Dow Chemical undertook to evaluate and test the safety of Dow Corning's liquid
silicone. The first was a 1966 joint development agreement relating to the physiological effects from ingestion
or injection into the systems of animals or men of particular physiologically active silicone. By this agreement,
Dow Chemical and Dow Corning agreed to jointly share the costs and . . . the profits and losses of any
commercialization. The second was a 1969 agreement between Dow Chemical, Dow Corning, and Lepetit
pursuant to which the three companies agreed to develop a body of technical information concerning the
biological activity of certain organosilicon compounds.
13
The agreement further noted that it will be
necessary for Dow [Chemical], [Dow Corning], and Lepetit to disclose to one another information in [this area]
which is considered to be proprietary and confidential. Neither agreement specifically mentions liquid silicone;
nevertheless, as liquid silicone appears to fall within the class of physiologically active silicone and Dow
Chemical did amass technical information on liquid silicone compounds, the jury could have reasonably inferred
that such compounds fell within the scope of the agreements.
Finally, in 1975, Dow Chemical entered into a trademark and trade name licensing agreement with Dow
Corning. Pursuant to this agreement, Dow Chemical agreed to allow Dow Corning to continue using, among
other things, the trademark Dow. This agreement stated that Dow Company and Corning Company formed
[Dow Corning] in 1943 and since then have continuously owned or controlled equally all of the issued share
capital of [Dow Corning], and have controlled its operations, including the quality of its goods and services.
This language is consistent with licensing requirements under the Lanham Trademark Act of 1946, 15 U.S.C.
1051, to protect the mark's integrity. If a licensor fails to exercise control over the licensed mark, it
may forfeit the mark as abandoned.
__________

12
Dr. Rowe's testimony and other evidence in the record confirmed that he rendered these services for Dow
Corning from the 1940s into the 1970s. Dr. Rowe designed the testing protocol for the 1957 Miami study
conducted by Professor Deichmann. He also was consulted on the 1967 dog implant study conducted by an
independent laboratory. On the topic of reliance, evidence in the record showed that even in the 1980s, Dow
Corning was relying on the 1948 article written by Dr. Rowe for the proposition that silicones were generally
inert.

13
Although William Caldwell, a Dow Chemical and Lepetit employee at various times, testified that this
agreement pertained to pharmaceutical research, the jury could conclude that this agreement was broad enough
to encompass liquid silicone.
fails to exercise control over the licensed mark, it may forfeit the mark as abandoned. See generally J. Thomas
McCarthy, McCarthy on Trademarks and Unfair Competition, 17:6, at 17-6 (4th ed. 1998). Additionally,
courts have concluded that although a trademark licensor has a duty to inspect and maintain the quality of goods
sold under a trademark license, this duty cannot result in tort liability. See, e.g., TMJ Implants, 113 F.3d at 1494;
Mini Maid Servs. Co. v. Maid Brigade Sys., Inc., 967 F.2d 1516, 1520 (11th Cir. 1992). Nevertheless, even
though this language in the trademark agreement, by itself, is not sufficient to create tort liability on Dow
Chemical's part, we agree with the federal district court that the agreement's existence is one factor in assessing
Dow Chemical's knowledge and involvement in Dow Corning's breast implant activities. In re Silicone Gel, 887
F. Supp. at 1461.
Based upon the aforementioned evidence, the jury could have found that Dow Chemical undertook to render
testing, advisory, laboratory and personnel services for the purpose of promoting the safety of Dow Corning's
silicone fluid in order to benefit third persons and had significant control over the development of this fluid.
Because the jury could reasonably conclude that Dow Chemical undertook to completely test the safety of
the liquid later used in Dow Corning's silicone breast implants, Dow Chemical had a duty to exercise reasonable
care in the performance of this undertaking. See section 324A. Comment b to section 324A explains that the
section applies to any undertaking to render services to another, where the actor's negligent conduct in the
manner of performance of his undertaking, or his failure to exercise reasonable care to complete it, or to protect
the third person when he discontinues it, results in physical harm to the third person. Thus, under section 324A,
once Dow Chemical undertook to test and advise Dow Corning on the safety of liquid silicone, it was obligated
to fully complete this course of conduct. Alternatively, if Dow Chemical discontinued its undertaking at some
point, it was required to protect Dow Corning's consumers.
[Headnote 41]
Based upon the evidence adduced at trial, the jury was free to conclude that Dow Chemical failed to perform
its undertaking with reasonable care, resulting in physical harm to Charlotte Mahlum. See Pratt, 952 F.2d at 671.
The Mahlums assert that Dow Chemical negligently performed its undertaking by failing to either conduct
further tests to determine the long-term effects of silicone in the human body or at least advise Dow Corning on
the need for such studies. We agree and additionally conclude that Dow Chemical was negligent by failing to
intervene in the marketing of Dow Corning's breast implants.
keting of Dow Corning's breast implants. Thus, we conclude that the evidence supports the jury's finding of
negligence.
Under the circumstances, once Dow Chemical undertook to test the safety of Dow Corning's liquid silicone,
it was required to fully complete this testing until a reliable safety determination was made. Charlotte Mahlum's
expert witness, Dr. Lapp, testified that Dow Chemical did not use reasonable care in designing and conducting
follow up studies to confirm or reject results that suggested dangers. The record suggests that Dow Chemical did
very little with respect to follow up, long-term testing. Dr. Lapp testified as follows:
My opinion is a very clear and forceful one that whatever long term testing they did do was inadequate.
The results were misreported. The findings were suggestive of problems rather than safety. And in the
aggregate, there was absolutely no basis for assuming long term safety based on the animal testing.
Given its knowledge about silicone in general and silicone gels in particular through its testing and advising
on silicone fluids research over a thirty-year period, its involvement in and knowledge of breast implants through
its controlled subsidiary Lepetit, its parent/subsidiary relationship with Dow Corning, including some control
over Dow Corning's products and significant control of testing and protocol, one-third control of Dow Corning's
board of directors, fifty percent control of Dow Corning's shares, and the control inferred from its various
agreements with Dow Corning, Dow Chemical should have used its influence to halt the marketing of Dow
Corning's silicone breast implants until the long-term effect of silicone breast implants on humans was
understood and these products were determined to be safe.
14

__________

14
Dow Chemical obtained a majority interest in its Italian subsidiary Lepetit in 1967 and eventually owned
more than ninety-nine percent of the company. Through this company, Dow Chemical marketed Dow Corning
breast implants outside the United States. As mentioned above, R. William Caldwell, who was Assistant Director
of Dow Chemical's Bioproducts Division, testified that he became the Administore Delegato of Lepetit. This
title gave him the right to buy, sell or trade Lepetit. Additionally, Caldwell testified that even during his tenure at
Lepetit, he considered himself a Dow Chemical employee.
Although Dow Chemical's heavy involvement in Lepetit and its breast implant marketing activities does not
affect our analysis of the scope of Dow Chemical's undertaking, this evidence does suggest that Dow Chemical
had significant knowledge about Dow Corning's breast implants and additional problems associated with them.
For instance, in 1971, Lepetit prepared a laboratory report evaluating the pharmacological effects of some
silicone components due to reports that some silicone compounds have potential depressant activity on the
central nervous system of mammals. This report was
Furthermore, Dow Chemical could have acted directly under its 1975 trademark and trade name licensing
agreement with Dow Corning. The agreement required that products using Dow Chemical's name be of a nature
and quality that is acceptable to Dow Company and shall not damage or reflect adversely on the reputation or
goodwill associated with the name and mark Dow' and that Dow Corning, if requested, submit specimens of
its products to Dow Chemical and permit inspection of its premises to examine the quality of Dow Corning's
products. Additionally, pursuant to this agreement, Dow Chemical preserved the right to withdraw its consent to
Dow Corning's use of its name.
Aside from any actual control reflected by this agreement, the agreement gave Dow Chemical authority to
revoke Dow Corning's license to use the corporate name Dow on any questionable products. As Dow
Chemical knew of the risks associated with DC 360, and was aware of specific problems that implant recipients
had experienced through its subsidiary Lepetit, Dow Chemical should have exercised its power to revoke Dow
Corning's trademark and tradename license with respect to breast implants, if Dow Corning had refused to stop
marketing these products.
Finally, given that Dow Chemical knew that much of the extensive and specific information it had of DC
200, DC 360, and other liquid silicone' potential danger was not widely disseminated, it could have also
published its knowledge of the potentially hazardous biological effects of liquid silicone. Such publication would
have put the medical community on notice of the potentially significant dangers that could result from
implantation. Unfortunately, Dow Chemical failed to take any of these actions. Instead, it continued to market
Dow Corning breast implants outside of the United States and to reap the financial benefits of Dow Corning's
domestic sales. The jury could therefore reasonably conclude from these facts that Dow Chemical negligently
performed its undertaking with regard to the safety of the liquid silicone subsequently used in breast implants, as
it failed to completely test the silicone liquid for safety and failed to protect the third-party
implant recipients.
__________
copied to Charles Hinman, then assistant director of Dow Chemical's corporate research and development
department as well as the director of Dow Chemical's chemical biology research laboratory responsible, in part,
for pharmaceutical research. Additionally, the record shows that during 1973 and 1974, Lepetit received
numerous reports from physicians complaining about ruptures and other problems of Dow Corning's Silastic
breast implants. Given that Lepetit was virtually a wholly-owned subsidiary of Dow Chemical, and the evidence
suggesting a high degree of control by an individual who reported directly to Dow Chemical, Lepetit's
knowledge of consumer complaints regarding Dow Corning's breast implants can be imputed to its parent
corporation. This evidence further supports a finding that Dow Chemical was aware that it needed to act to
protect implant recipients.
pletely test the silicone liquid for safety and failed to protect the third-party implant recipients.
[Headnotes 42, 43]
The jury also had sufficient evidence to conclude that Charlotte Mahlum's physical harm resulted from Dow
Chemical's failure to exercise reasonable care.
15
See section 324A (One who undertakes to render services that
should be recognized as necessary for a third person's protection is subject to liability to the third person for
physical harm resulting from his failure to exercise reasonable care to perform his undertaking.). As discussed
above, the Mahlums introduced expert testimony which tended to prove that Dow Corning's breast implants
caused Charlotte Mahlum's illnesses.
Obviously, had Dow Chemical acted to prevent Dow Corning from marketing its breast implants, either
through direct influence or its trademark agreement, Charlotte Mahlum would not have suffered injuries from
these implants. In addition, testimony at trial included the opinion of Charlotte Mahlum's expert witness, Dr.
Lapp, that had Dow Chemical publicized its knowledge of the dangers of liquid silicone to the scientific or
medical community, efforts would have been made to stop the use of medical products containing liquid silicone
until further tests established the safety of such products. Charlotte Mahlum also testified that had she known of
the significant health hazard posed by liquid silicone, she would have refused Dow Corning's breast implants.
It was foreseeable that proceeding with the marketing of silicone breast implants and failing to present any
information regarding the potential dangers of silicone fluids would result in women electing to receive the
implants without a full appreciation of the risks involved. Based upon the evidence adduced at trial, the jury
could have found that Dow Chemical had a significant level of control over Dow Corning and its products. Dow
Chemical certainly had the authority to influence Dow Corning and to assert direct pressure on Dow Corning
through its trademark agreement. Dow Chemical, however, did nothing.
__________

15
Dow Chemical is not immune from liability based on the mere fact that Dow Corning did not introduce its
silicone gel breast implants until 1962, several years after the Chenoweth and the Miami studies were done.
Neither is Dow Chemical absolved from liability because the injuries to Mahlum occurred in the 1990s, when
Dow Chemical had ceased performing any tests for Dow Corning's silicone materials. The consequences of a
negligent defendant's act under section 324A may come to fruition many years after its undertaking has ended,
and still the courts have found that liability may exist. See, e.g., Deines v. Vermeer Mfg. Co., 752 F. Supp. 989
(D. Kan. 1990), aff'd, 969 F.2d 977 (10th Cir. 1992) (holding that defendant insurance company that no longer
insured the manufacturer could be held liable for injuries caused by a hay baler machine built in 1978 based on a
1974 design safety-inspected by defendant).
We previously discussed the nature of duty and potential section 324A liability in Wright v. Schum, 105
Nev. 611, 781 P.2d 1142 (1989). Wright recognized that a landlord could be liable, under section 324A, for
injuries caused by a dog known to be vicious that escaped from the leased premises through an obviously broken
gate. The Wright opinion recognized that the mere advice or warning by one person to another that care should
be taken to avoid a certain risk does not in itself create an undertaking and consequent liability on the part of one
giving such advice.
16
Id. at 616, 781 P.2d at 1145. We also emphasized in Wright that the landlord was not
liable simply because he was the landlord; instead, the landlord had intended to and did influence the conduct of
his tenants by threatening to evict them unless they kept the dog in the house or on a chain. Id. at 616-17, 781
P.2d at 1145. Nevertheless, this court noted that the landlord's status as a landlord created the general liability
under section 324A. Id. at 616 n.2, 781 P.2d at 1145 n.2. Specifically, since the landlord had the power to
enforce his demand that the tenant take care of the dog, and used this power, he undertook a duty to exercise due
care and could be found liable for his breach of this duty. Id. at 617, 781 P.2d at 1145-46.
Here, as in Wright, Dow Chemical's duty and resulting liability is not based solely on its status as a parent
corporation. By virtue of its status as a creator parent, however, Dow Chemical had a degree of power over Dow
Corning. As has been previously mentioned, Dow Chemical maintained fifty percent ownership of Dow
Corning's stock and one-third control of Dow Corning's board of directors. Dow Chemical also tested and
advised Dow Corning on its silicone products for several decades. During most of this time, Dow Corning
lacked its own toxicology lab, and Dow Corning's Bioscience Research Department was located within the same
building as Dow Chemical's toxicology and research laboratories from 1965 until 1970. Dow Chemical designed
testing protocol and exercised influence in the area of toxicology, and, over the years, Dow Chemical freely
transferred its employees to and from Dow Corning. Further, Dow Chemical entered into a 1966 joint
development agreement, a 1969 information development agreement, and a 1975 trademark agreement with
Dow Corning. These agreements could support a finding by the jury that Dow Chemical was
exercising actual control over the development of information and silicone products.
__________

16
The justices dissenting to this opinion's conclusion on negligent undertaking posit that this language from
Wright cuts against any emphasis we place on Dr. Rowe's status as a consultant. By making this assertion, they
misconstrue our analysis and conclusion. Wright explains that mere advice, in and of itself, cannot create section
324A liability. We do not even remotely propose that Dr. Rowe's actions, considered alone, would implicate
section 324A. Dr. Rowe's role as a consultant is one of many factors that the jury assessed in determining the
scope of Dow Chemical's undertaking.
the jury that Dow Chemical was exercising actual control over the development of information and silicone
products. The record is also replete with examples of Dow Corning following Dow Chemical's lead; in fact, our
review of the record discloses no instance when Dow Corning failed to act in accordance with Dow Chemical's
instruction. Consequently, we conclude that substantial evidence of Dow Chemical's control over Dow Corning,
as required by Wright, was presented to the jury.
17

[Headnote 44]
As a last requirement under section 324A, the Mahlums needed to show one of three things: (a) that Dow
Chemical's negligence increased the harm to them, (b) that Dow Chemical undertook a duty owed by Dow
Corning to them, or (c) that either Dow Corning or they relied on Dow Chemical's undertaking.
18
We
conclude that, based upon the evidence discussed above, the jury could conclude that Dow
Chemical undertook at least part of the duty, owed to the Mahlums by Dow Corning, to
reasonably ensure the safety of breast implants.
__________

17
As stated above, we do not suggest that negligent undertaking liability could be imposed on Dow Chemical
merely because of its parental relationship with Dow Corning. We also do not imply that liability for negligent
undertaking could be imposed on Dow Chemical merely because, at various times, it tested precursor
components and the main component of the gel in Dow Corning's Silastic breast implants. A consultant
performing tests on components for a customer has a duty only to reasonably fulfill such duties as contemplated
by the parties under their agreement. Here, however, we must emphasize that Dow Chemical's involvement with
and control over Dow Corning and its development of breast implants far exceeded that of a mere consultant.
We disagree with our colleagues' characterization of this opinion as working mischief and having far reaching
implications on Nevada jurisprudence. Our analysis of section 324A does not create an everlasting duty and
infinite liability for consultants who perform limited testing or merely provide expertise and advice. As we
have explained, the Mahlums' proffer of evidence indicated and suggested that Dow Chemical had significant
control of Dow Corning. This evidence of control has led us to conclude that Dow Chemical's undertaking, and
correlative duty, transcended that which would normally be attributed to an independent consultant.
Additionally, we wish to point out that Dow Chemical's duty as a good samaritan is not unlimited. We are
well aware of the troubling issues regarding the scope of Dow Chemical's duty. See, e.g., Matter of New York
State Silicone Breast Implant Litig., 632 N.Y.S.2d 953, 956-57 (Sup. Ct. 1995) (noting that if it were to hold
that Dow Chemical assumed a duty of care to all potential consumers of silicone products, the duty imposed on
Dow Chemical would be indeterminate and infinite), aff'd, 642 N.Y.S.2d 681, appeal dismissed, 676 N.E.2d
493 (N.Y. 1996). We need not view the scope of Dow Chemical's duty as reaching all potential consumers of
silicone products. We conclude only that Dow Chemical undertook to completely and accurately test the safety
of the silicone liquid that was subsequently used in breast implants. In light of this undertaking, Dow Chemical
owed a duty of care to breast implant recipients.

18
Dow Chemical asserts that in order for reliance to be proven, Dow Corning needed to forego all other
remedies related to the safety of liquid silicones, such as testing by other laboratories on liquid silicones or the
breast implant product itself. Dow Chemical's approach is too restrictive. In Canipe v. National Loss Control
Service Corp., 736 F.2d 1055 (5th Cir.
clude that, based upon the evidence discussed above, the jury could conclude that Dow Chemical undertook at
least part of the duty, owed to the Mahlums by Dow Corning, to reasonably ensure the safety of breast implants.
Additionally, substantial evidence supports a determination that Dow Corning relied on Dow Chemical to inform
it not only of the significance of findings such as silicone migration, but also to inform it of what additional tests
or studies were required based upon such findings. Because Dow Corning lacked a toxicology department until
1968, six years after Dow Corning began to sell breast implants, the jury reasonably could have found that Dow
Chemical undertook part of Dow Corning's duty to its customers, and that Dow Corning relied on Dow
Chemical's tests and expertise in developing its silicone breast implants. Thus, we conclude that liability under
subsections (b) and (c) of section 324A is supported by substantial evidence in the record.
In sum, the record includes substantial evidence on which a reasonable jury could find that Dow Chemical
was liable under section 324A for negligently undertaking its duty to completely test the safety of liquid silicone
later used in breast implants and/or to warn recipients of the risks involved with these implants. Consequently,
the judgment is affirmed on this cause of action.
F. New Trial Issues
[Headnote 45]
Dow Chemical also appeals from a number of rulings that purportedly require us to remand this case to the
district court for a new trial. A new trial may be granted for: (1) irregularity in the proceedings of the court, jury,
master, or adverse party, or any order of the court, or master, or abuse of discretion by which either party was
prevented from having a fair trial; (2) misconduct of the jury or prevailing party; (3) accident or surprise which
ordinary prudence could not have guarded against; (4) newly discovered evidence material for the party making
the motion which he could not, with reasonable diligence, have discovered and produced at
the trial;
__________
1984), an injured machine operator brought an action for personal injuries against a corporation which had
contracted with the injured operator's employer to provide safety inspections and other accident-prevention
services in the injured operator's workplace. In addressing a similar argument by the defendant corporation that a
prerequisite of liability was that the employer had foregone any other safety precautions other than those
provided by the defendant, the Fifth Circuit Court of Appeals rejected the defendant's argument and held that an
employer's partial reliance on the defendant's undertaking will suffice to trigger subsection (c) [of Restatement
section 324A]. Id. at 1063. In short, the Mahlums need not have shown that Dow Corning completely
abandoned all other safety tests or inspections in reliance on Dow Chemical's undertaking.
he could not, with reasonable diligence, have discovered and produced at the trial; (5) manifest disregard by the
jury of the instructions of the court; (6) excessive damages appearing to have been given under the influence of
passion or prejudice; or, (7) error in law occurring at the trial and objected to by the party making the motion.
NRCP 59(a). The standard of review for granting or denying a motion for a new trial is abuse of discretion. See
Hazelwood v. Harrah's, 109 Nev. 1005, 1010, 862 P.2d 1189, 1192 (1993).
Dow Chemical cites numerous issues for which it argues it deserves a new trial: (1) whether the district court
erred in allowing Dr. Lapp to testify concerning Dow Chemical's legal duties; (2) whether the district court
erred in admitting evidence concerning silicone that are not contained in breast implants and in excluding
evidence of the safe uses of silicone; (3) whether admission of a memorandum concerning the fatal effect of
silicone on cockroaches constituted reversible error; (4) whether the district court erred in admitting the joint
defense agreement between Dow Chemical and Dow Corning; (5) whether the district court erred in admitting
evidence of a 1984 jury verdict against Dow Corning; (6) whether the district court erred in admitting internal
Dow Corning documents that Dow Chemical had never seen; (7) whether evidence regarding Dow Chemical's
subsidiary, Lepetit, should have been excluded; (8) whether it was reversible error for the court to exclude
evidence concerning Dow Chemical's profits or lack thereof from the sale of breast implants; (9) whether the
district court erred in striking Dow Chemical's deposition designations; (10) whether the Mahlums' trial counsel
engaged in misconduct; (11) whether the district court improperly deprived Dow Chemical of its right to the
counsel of its choice; and (12) whether the district court erred in instructing the jury. Dow Chemical also
contends that the compensatory damages were excessive. Five issues are more troubling than the others and
merit discussion below. The balance of the issues not discussed here are rejected as moot or lacking merit.
[Headnotes 46, 47]
Dow Chemical maintains that the district court erred by introducing into evidence a 1984 jury verdict of
fraud against Dow Corning in a breast implant case (the Stern verdict). The Mahlums argue that this evidence
was relevant for notice because in 1984, one year before Mahlum received her breast implants, Dow Chemical,
through its representation on the Dow Corning Board of Directors, received notice of the harmful effects of
silicone breast implants and did nothing. Although Dow Chemical argues that the Mahlums' notice theory is
inconsistent with its fraudulent concealment claim (because fraud is an intentional act), we conclude that
mere inconsistency should not render mention of the Stern verdict inadmissible.
act), we conclude that mere inconsistency should not render mention of the Stern verdict inadmissible. Mention
of the Stern verdict was fairly brief, and was offered to prove notice rather than to convince the jury that it
should render a similar verdict. Admitting a prior verdict as evidence, however, is a practice that we condemn as
generally highly prejudicial. A district judge who admits such evidence risks reversal under NRS 48.035. But in
this particular instance, we are not convinced that unfair prejudice outweighed the probative value of a few brief
references to the Stern verdict at this trial. We therefore conclude that mention of the Stern verdict is not a
sufficient basis for remanding this case for a new trial.
[Headnote 48]
In addition, Dow Chemical sought unsuccessfully to introduce evidence of the safe uses of
polydimethylsiloxane silicone used in such devices as hydrocephalic brain shunts and heart valves. Dow
Chemical maintains that the jury was thus prevented from hearing deposition evidence concerning the safe and
beneficial uses of silicone in medical applications. The district court excluded Dow Chemical's deposition
designations as untimely under the court's pretrial orders. At trial, the district court permitted Dow Chemical the
opportunity to admit some of the previously excluded evidence where Dow Chemical could show that such
evidence was critical to its defense. We conclude that the district court acted within its discretion in excluding
the designations as untimely. See NRCP 16(b); NRCP 37(b)(2)(B); Kelly Broadcasting v. Sovereign Broadcast,
96 Nev. 188, 192, 606 P.2d 1089, 1092 (1980).
[Headnotes 49, 50]
Further, Dow Chemical attempted to exclude evidence of tests purporting to show the toxicity of silicone
compounds other than those used in Dow Corning's breast implants. The district court admitted this evidence on
the ground that it was relevant to the Mahlums' aiding and abetting and conspiracy claims. According to the
Mahlums, this evidence is relevant because the two companies' cooperation in testing silicone compounds shows
the close relationship between them. The decision to admit or exclude relevant evidence, after balancing the
prejudicial effect against the probative value, is within the sound discretion of the trial judge, and the trial court's
determination will not be overturned absent manifest error or abuse of discretion. See NRS 48.035; K-Mart
Corporation v. Washington, 109 Nev. 1180, 1186, 866 P.2d 274, 278 (1993). Evidence of such silicone
compounds was material to the elements of the claims of accessory liability. Admission of the evidence
regarding silicone compounds was therefore properly within the discretion of the district court.
[Headnotes 51, 52]
Dow Chemical also assigns as error the district court's decision to admit a joint defense agreement between
Dow Corning and Dow Chemical. Dow Chemical sought a motion in limine to exclude any reference to a 1992
joint defense agreement between Dow Corning and Dow Chemical concerning any silicone breast implant
litigation. One of Dow Chemical's attorneys, during the cross-examination of the Mahlums' witnesses, stated that
it was a Dow Corning attorney who had conducted the witness' deposition. Because this remark by Dow
Chemical opened the door, the district court admitted the joint defense agreement into evidence. Dow
Chemical argues that the jury could easily misconstrue the significance of the joint defense agreement and
conclude that it was jointly responsible for any breast implant injuries. Dow Chemical also contends that the
district court erred in not offering a limiting instruction that would have informed the jurors that they were not to
draw any negative inferences from the joint defense agreement. We conclude that the district court erred in
admitting the joint defense agreement based on a passing reference to Dow Corning's participation in the earlier
stages of this case. Although the admission of the joint defense agreement was unjustified, we conclude that its
admission was harmless error, see NRCP 61, and not a sufficient basis for remanding this case for a new trial,
because it was apparent at trial that Dow Corning had participated in earlier stages of the litigation and that Dow
Corning's and Dow Chemical's interests were related.
[Headnotes 5355]
Dow Chemical contends that the district court erred in refusing to allow two Dow Corning attorneys, who
were not members of the Nevada bar, to represent Dow Chemical at trial pro hac vice. The district court refused
to permit them to represent Dow Chemical because their proposed representation of Dow Chemical would
conflict with their duties to Dow Corning. A district court has inherent power to enjoin an attorney from
representing conflicting interests. Boyd v. Second Judicial District Court, 51 Nev. 264, 268, 274 P. 7, 8 (1929).
When a district court must decide whether an attorney's conflicts of interest should preclude representation, any
doubt should be resolved in favor of disqualification. See Cronin v. District Court, 105 Nev. 635, 640, 781 P.2d
1150, 1153 (1989).
Dow Chemical had filed a cross-claim against Dow Corning; hence, the interests of the two companies were
plainly adverse. Shortly before trial, citing the conflict of interest with Dow Corning, the district court denied
Dow Chemical's request to designate two attorneys, Nancy Lawson and John Donley, who had formerly
represented Dow Corning in breast implant litigation.
Dow Chemical failed to inform the court in timely fashion that Dow Corning had granted permission to permit
Ms. Lawson to represent Dow Chemical, in a letter dated May 24, 1995.
19
(It appears that Dow Corning did
not specifically consent to have Mr. Donley represent Dow Chemical at trial.) Dow Chemical apparently did not
submit the letter waiving the conflict to the court until September 29, 1995, the same day that the court ruled that
Nancy Lawson could not serve as Dow Chemical's counsel because of the conflict of interest.
Dow Chemical maintains the district court abused its discretion in denying Dow Chemical its counsel of
choice. According to Dow Chemical, it was severely prejudiced at trial by relying on counsel that were
substantially less well prepared for certain critical tasks than its attorneys of record. The Mahlums argue that
both attorneys had conflicts of interest and that neither of them produced timely proper evidence of Dow
Corning's consent to dual representation.
While Dow Chemical had a letter from Dow Corning waiving any conflict that might arise from Ms.
Lawson's representation of Dow Chemical at trial, Dow Chemical did not present that waiver to the court in a
timely fashion, and apparently presented no waiver regarding Mr. Donley. Under these circumstances, the
district court did not abuse its discretion in refusing to permit the Dow Corning attorneys to represent Dow
Chemical at trial.
IV. Conclusion
In conclusion, we reverse the district court's judgment on the claims of fraudulent concealment, concert of
action, and aiding and abetting. Consequently, we also vacate the award of punitive damages. We affirm the
judgment on the claim of negligent undertaking, and we affirm the district court's order denying Dow Chemical's
motion for a new trial.
Ames, D. J., concurring:
I concur in the opinion's analysis and result except that I do not believe the trademark agreement has much, if
any, probative value in determining Dow Chemical's negligent undertaking liability.
1

__________

19
Dow Chemical had submitted affidavits from the attorneys stating that Dow Corning had given its
permission, but had not submitted evidence of direct permission from Dow Corning. The district court properly
insisted on a letter from Dow Corning before it would consider permitting the representation.

1
The Governor appointed the Honorable Jack Ames, District Judge, to sit in the place of The Honorable Cliff
Young, Justice, who voluntarily recused himself from participation in the decision of this appeal. Nev. Const.
art. 6, 4.
I concur in the court's opinion affirming the trial court's judgment on the negligent undertaking claim; but I
dissent to the court's reversal of the punitive damage awards.
1

Unlike my colleagues, I see this case as a case in which there is sufficient proof of implied malice for the jury
to award punitive damages.
Punitive damages may be awarded where a defendant is guilty of malice. See NRS 42.005(1). Malice may
be express or implied. Id. Express malice is present when a defendant intended to injure a person. NRS
42.001(3); see also Clark v. Lubritz, 113 Nev. 1089, 1099, 944 P.2d 861, 867 (1997). Implied malice is
present where a defendant is guilty of despicable conduct which is engaged in with a conscious disregard of the
rights or safety of others. NRS 42.001(3); Lubritz, 113 Nev. at 1099, 944 P.2d at 867. The jury rendered
a special verdict that Dow Chemical had acted with conscious disregard of the safety of others. I see no reason
for interfering with the jury's special verdict and would, on the basis of that verdict, affirm the punitive damage
judgment.
NRS 42.001 (1) defines conscious disregard as having knowledge of the probable harmful consequences
of a wrongful act and a willful and deliberate failure to act to avoid those consequences. The special verdict
finding that Dow Chemical was guilty of consciously disregarding the safety of Mrs. Mahlum, and others like
her, in my view, is all that is necessary to support the punitive damage award in this case. In addition to finding
the requisite conscious disregard, the jury filled out its special verdict with findings that Dow Chemical was
actually aware of the danger posed by the breast implant (the danger, I would propose, that was created
when Dow Chemical "work[ed] together in a joint development program" with Dow
Corning, under the agreement in which Dow Chemical and Dow Corning "developed . . . a
body of technical information concerning the biological activity of certain organosilicon
compounds."
__________

1
I join the majority in affirming the negligent undertaking judgment; still, Dow Chemical has presented some
very persuasive arguments on the question of causation. The plaintiffs have, of course, the burden of proving
that the chemical compounds which make up the implant were a substantial factor contributing to the harm
suffered by Mrs. Mahlum. I have no trouble with the causation issue as it relates to the severe local reaction
caused by the implants. I am aware, however, that proof of causation as to autoimmune and systemic disease is
problematical, principally because these disorders frequently occur in the absence of implants and because a
very large body of investigators does not accept the correlation between implants and systemic disease. Although
recognized connective tissue disorders are regularly encountered by breast implant recipients, it would appear
that there is a paucity of epidemiological evidence to indicate that women with implants are more likely to
develop these disorders than women without implants. In my view, under the circumstances of this case, Mrs.
Mahlum should not have to wait for a general acceptance or other indicia of biomedical consensus that
implants cause systemic harm as a condition to her proceeding with her claim against Dow Chemical. In
agreeing with the majority, I take the position that there is nothing in this record that prevents us from accepting
case-specific causal analysis upon which the Mahlum claim is based.
was created when Dow Chemical work[ed] together in a joint development program with Dow Corning, under
the agreement in which Dow Chemical and Dow Corning developed . . . a body of technical information
concerning the biological activity of certain organosilicon compounds.)
2
In addition to finding that Dow
Chemical was aware of the probable dangerous consequences of its conduct, the jury also specifically
concluded that Dow Chemical willfully and deliberately failed to avoid the dangerous consequences of
silicone breast implantation. Put another way, the jury believed that Dow Chemical and Dow Corning, joint
developers of the breast implant marketed by Dow Corning, were aware of what they were doing and acted in
conscious disregard of the dangerous consequences inherent in placing silicone in the human body in the Dow
Corning Silastic II.
In its brief, Dow Chemical's first response to the damning consequences of the special verdict is that there is
no evidence that Dow Chemical knew that breast implants were likely to be dangerous. (Emphasis in Dow
Chemical's brief.) Dow Chemical's second argument is that there is not any basis for the plaintiff's claim that it
willfully and deliberately breached a duty to stop Dow Corning from selling breast implants.
With regard to the first argument, it appears to me that there is quite a bit of evidence from which the jury
could have concluded that Dow Chemical knew that breast implants were likely to be dangerous. The
overriding answer to Dow Chemical's contention is that by virtue of such Dow Chemical-Dow Corning
arrangements as their joint development program, their joint research agreement, their mutual obligation of
confidence and nonuse (relating to the biological activity of silicone) and, especially, the joint testing of
miniature breast implants in dogs, whatever Dow Corning knew about the dangers of biological uses of silicone,
Dow Chemical probably knew of the dangers, as did Dow Corning. It is plain that the two Dow companies had
been working together for years on the use of silicone for medical purposes and that in later years they worked
together on the development of breast implants.
__________

2
Subsequent to the Dow Chemical and Dow Corning joint development program, came an additional
agreement on August 14, 1969, in which Dow Corning and Dow Chemical with Dow Chemical's subsidiary,
LePetit SpA, the international distributor of the breast implant, agreed to carry out further work in the area of
biological activity of silicones. The August 14 obligation of confidence and nonuse undertaken by the three
companies required technical information concerning biological activity of silicones to be held in confidence;
and each company agreed that it would not use the biological information developed in their joint development
program for commercial purposes other than as joint developers of the biological products contemplated by
the agreement.
I give special significance to Dow Chemical's declaration of its control over Dow Corning in its agreement
with Dow Corning, dated May 5, 1975. In this written document, Dow Chemical and Dow Corning concur in the
understanding that from the time Dow Corning was formed in 1943, Dow Chemical and Corning Corporation
had controlled equally the share capital of what Dow Chemical calls its Associate Company namely, Dow
Corning, and that, since that time, Dow Chemical and Corning Corporation have controlled its [Dow
Corning's] operations, including the quality of its goods and services. (Emphasis added.) Although Dow
Chemical may argue in its brief that there was no evidence that Dow Chemical knew that Dow Corning was
misrepresenting the safety of its products, it seems to me that if Dow Chemical had been controlling Dow
Corning's operations, as it says it was, and was controlling the quality of its goods and services, it is hard for
Dow Chemical to argue that it did not know that Dow Corning was misrepresenting the safety of the Silastic II.
There is other evidence (other than Dow Chemical's declaration that it had control over the operation of Dow
Corning and the quality of its products) that Dow Chemical knew that silicone breast implants were potentially
dangerous and that Dow Corning was misrepresenting the safety of this product.
3
Actually, given the state of
this record, it is a very difficult task for Dow Chemical to deny that it did not know about the dangerous
potential inherent in placing the Silastic II silicone gel into the human body. Dr. Marc Alan Lapp, toxicologist,
medical ethician and expert in the field of silicone chemistry, testified that Dow Chemical possessed the key
findings of adverse effects of the components of Dow Corning's silicone based breast implants. Dr. Lapp
pointed out that although Dow Chemical had knowledge about such things as the migration of silicone
throughout the body and silicone's ability to bleed out of its elastomer shell, Dow Chemical did not report the
studies that would demonstrate what the toxicologic properties were of the known components of silicone gel.
Dr. Lapp went so far as to testify that if Dow Chemical had disclosed the details of the Dow Chemical research
program into . . . how polydimethylsiloxanes used in implants had effects on the immune and central nervous
system, . . . the implants would have been taken off the market long before 1992."
__________

3
Dow Chemical stated that it controlled (past tense) Dow Corning's operations and the quality of its goods.
Now it claims that the statement was untrue and that it was merely meaningless boilerplate that was necessary
to preserve its right to use of the Dow' mark. Dow Chemical argues that there was no evidence that Dow
Chemical actually controlled the quality of Dow Corning products. Whether Dow Chemical actually
controlled Dow Corning or was deceiving the Patent and Trademark Office is a matter for the jury to decide.
. . . the implants would have been taken off the market long before 1992.
As further evidence of Dow Chemical's knowledge and its joint role in a number of experiments relating to
the principal component of breast implants, the DC 360 silicone fluid, Dow Chemical admits, as put in its
opening brief, that Dow Chemical tested or participated in tests involving DC 360 fluid, which was later used . .
. to make the gel in Silastic II implants. Dow Chemical also admits in its brief that it conducted or participated
in approximately ten tests on DC 200 fluid, which is an industrial silicone fluid that is chemically similar to the
DC 360 fluid that was used in Mrs. Mahlum's implants. Dow Chemical appears to be arguing that even though
it tested the silicone fluids that were later used in the implants, it did not do so for the specific purpose of
determining whether it was safe for use in a medical implant. It is hard for Dow Chemical to maintain such a
position given its admission that it tested or participated in tests involving DC 360 fluid. Dr. Lapp testified
that DC 360 was used as the major component in the 1970 miniature breast implants test in dogs and that the
implant experimenters were following an outline that had been laid out by Dow Chemical and sent to FDRL, to
Dr. Carson. (See page 8.) The record belies Dow Chemical's assertion that it did not test components of Silastic
II (namely, DC 360 and similar organosilicon compounds) for the purpose of determining the safety of these
components for use as medical implants. As I see it, whatever responsibility that Dow Corning might have for
employing DC 360 in medical implants must be shared with Dow Chemical, there is evidence to support a jury
finding that Dow Chemical should share that responsibility, perhaps equally, with Dow Corning.
From the tests that Dow Chemical conducted or participated in, Dow Chemical was likely to have known,
at the very least, that the mentioned silicone liquids, when introduced into the bodies of mammals, migrated
throughout the bodies of the test animals. (See, e.g., 1956 study by Dr. M. B. Chenoweth of Dow Chemical's
biochemistry department.)
As I have said, Dow Chemical's position seems to be that although it safety-tested the principal component of
breast implants, it did not test silicone implants as such. To this contention I say that, even without considering
the Dow Chemical-designed experiment with miniature breast implants, the evidence seems to show that Dow
Chemical and Dow Corning jointly participated in the development and safety-testing of a substance designed
to be placed within the human body and that the two companies should share in responsibility for the adverse
consequences associated with placing the substance within the human body.
I see as the gist of the Mahlums' claim against Dow Chemical the two Dow companies' having participated
and worked together
4
in developing and testing a form of silicone that was intended by both companies to be
placed inside the human body. Whether one wants to say that the two companies are jointly liable for carrying
out this activity or to say that Dow Chemical undertook the task of assisting Dow Corning in doing so, the
facts support a conclusion that both Dow Corning and Dow Chemical had a duty to Mrs. Mahlum and other
intended users of DC 360 to insure that the substance could be used safely for its intended internal-implantation
purpose or, at least, a duty to warn of the dangers which were known to both Dow Chemical and Dow Corning.
In its opening brief, Dow Chemical argues: Dow Chemical never specifically undertook to render any
advice with respect to the safety or suitability of silicone for use in breast implants and therefore cannot be liable
for its alleged failure to recommend long-term testing. The record, and particularly the testimony of Dr. Lapp,
repels this assertion. The miniature breast implant study alone tells us that Dow Chemical not only rendered
advice in this testing, Dow Chemical people designed and supervised these medical tests, tests that can only be
described as breast implant tests.
From at least the time of the Chenoweth Study in 1956, we know from Dr. Lapp that Dow Chemical and
Dow Corning were investigating together the biological reactivity of certain kinds of silicone and were working
toward the increasing use of siloxanes for medicinal application. (Emphasis added.) From the time of the
Chenoweth Study, both companies were aware that when these silicone compounds were injected into a
mammalian body they migrated throughout the body, with injury being done to a number of organic systems.
The jury knew, then, that the two companies were involved in more than just basic research, that they were
jointly testing chemicals for a particular purpose, that purpose most likely being to determine whether DC 360
could be safely used medically within the human body. The issue here, then, is not the Mahlums' seeking to hold
Dow Chemical liable for faulty, basic research on silicone products. The Mahlums, on the state of this
record, can credibly charge Dow Chemical with actively collaborating with Dow Corning
and participating with Dow Corning in the research and development of DC 360, not only
for general, internal medical uses, but for the specific use in breast implants, as evidenced
by the miniature breast implants which were the subject of the Dow Chemical-Dow
Corning, four-dog study.
__________

4
A particularly poignant indication of the collaborative arrangement between the two Dow companies is the
reference in a February 1, 1967, board meeting to a
joint research agreement with Dow Chemical Company pertaining to certain silicone products . . . and [a]
joint development agreement relating to the physiological effects resulting from ingestion or injection
into the systems of animals or men of particular physiologically active silicones, wherein in principle, the
parties shall jointly share the costs and shall share the profits and losses of any commercialization.
the state of this record, can credibly charge Dow Chemical with actively collaborating with Dow Corning and
participating with Dow Corning in the research and development of DC 360, not only for general, internal
medical uses, but for the specific use in breast implants, as evidenced by the miniature breast implants which
were the subject of the Dow Chemical-Dow Corning, four-dog study. This study was completed in 1970, using
miniature silicone gel breast implants. Four dogs were examined after six months and twenty-four months from
the time of implantation. One of the dogs died after eleven months, from causes not related to the experiment.
This dog, on autopsy, exhibited evidence of liver and kidney congestion and some fibrous tissue reaction at all of
the sites of implantation. With reference to the three surviving dogs, after twenty-four months, almost all of the
implantation sites had severe or moderate chronic inflammation. A report of the study, co-authored by Silas
Braley of Dow Corning, was published in 1973. According to Dr. Lapp, the report falsely told the scientific
community there were no differences at six months and two years and provide[d] only six month's data. Dr.
Lapp testified that the Braley Report does not give the scientific community a chance to perform an
independent evaluation of the two-year data and falsely represents that the results were the same at six months
and twenty-four months. Further, the report failed to say that one of the dogs had died (stating that all four had
survived) and did not report the adverse reactions appearing in the autopsy report of the dog that had died.
According to Dr. Lapp, there was another study done by Dow Chemical Company on DC 360 fluid in 1970.
This study contains a pathology report of what happens when DC 360 fluid is injected into rats. Dr. Lapp was
asked: What [did] Dow Chemical find out about silicone and where it goes in bone marrow in 1970, sir? His
answer:
[T]he test animals developed vacuolizations which were evidence to them of the presence of silicone in
the bone marrow. That is where blood products are produced, the cells of blood are produced primarily in
the bone marrow. They also found evidence of lung congestion and evidence of involvement of the liver.
The experiment also found a statistical difference in brain weight in the experimental
animals. Dr. Lapp considered it to be significant that this was a Dow Chemical Company
internal company report and that, according to Dr. Lapp, it was not filed with the FDA or
shared with the scientific community. Dr. Lapp also testified that Dow Corning published a
report in its own name that reads word for word identical to the Dow Chemical report
referred to.
referred to. All reference to Dow Chemical was deleted in the second, identically-worded
Dow Corning report.
Dr. Lapp further testified about two 1973 pathology studies conducted by Dow Chemical on various
silicone implant specimens [involving] tissue specimens taken from rabbits that have been either control or were
treated with Dow Corning materials. Experimenters, according to Dr. Lapp, all [found] evidence of chronic
inflammatory reaction characterized by what are called multinucleated giant cells in this particular study.
All of Dr. Lapp's testimony is very much in line with a joint development agreement made by Dow
Chemical and Dow Corning in 1967. This agreement, both a joint research agreement and a joint
development agreement, pertained to DC 555 and compounds derived from and related thereto. The subject
of the Dow Chemical-Dow Corning agreement was the physiological effects resulting from the ingestion or
injection into the systems of animals or men of particular physiologically active silicone, wherein in principle,
the parties shall jointly share the costs and shall share the profits and losses of any commercialization. Minutes
of a Dow Chemical board of directors' meeting referred to an October 1, 1966, agreement between Dow Corning
and Dow Chemical for the research and commercial development in the field of physiological effects of certain
organosilicon compounds, which Dr. Lapp takes to be referring to the determination by these two companies
of whether or not the compounds, like DC 360 or 200 or 555, would have an effect that would perturb or upset
or enhance the human body's basic physiological or metabolic life sustaining activities.
Also put into evidence were the March 1977 minutes of the annual meeting of stockholders of Dow Corning.
The minutes contain a document entitled Dow Chemical Company Evaluation of Bioactive Organosilicon
Compounds. There can be no denying of Dow Chemical's ongoing interest in silicone research for medical
purposes. In 1969, the two Dow companies signed an agreement to work together in a joint development
program relating to the biological activity of certain organosilicon compounds, in which the two companies
agreed to maintain such information in confidence and neither would use the results for its own commercial
purposes. All in all, there would seem to be an abundance of evidence to support a jury finding that Dow
Chemical knew that breast implants were likely to be dangerous.
Dow Chemical's second argument is that there is no evidence that it willfully and deliberately breached a
duty to stop Dow Corning from selling breast implants.
I find this to be a very interesting and revealing contention.
Dow Chemical seems to be saying that even if it did know that the breast implants were likely to be dangerous,
it would not be liable to users of the device because it was under no duty to stop Dow Corning from selling
breast implants. The way Dow Chemical puts this argument goes to the very heart of its defense, which is: We
are merely a stockholder in Dow Corning; and, if Dow Corning decided to develop and market a dangerous
product, we had no duty to stop them and, for that matter, did not have the power to stop Dow Corning if we so
chose. If Dow Chemical had neither the duty nor the right to stop Dow Corning from selling implants, Dow
Chemical could not be guilty for any misconduct engaged in by Dow Corning. The problem with Dow
Chemical's argument, however, is that it fails to recognize that the jury could have found what might be said to
be the real relationship between Dow Chemical and Dow Corning, which is that Dow Chemical operated,
controlled, assisted and otherwise jointly worked with Dow Corning in the development and probably the
marketing of this potentially dangerous product. Once this is recognized, the jury could have concluded that it
makes just as much sense to say that Dow Corning failed to stop Dow Chemical as it does to say that Dow
Chemical failed to stop Dow Corning. Again, Dow Chemical cannot rely on its We-are-just-a-stockholder
defense. There is much more to it. Sure, if Dow Chemical were only a stockholder, it would have no duty, no
right to stop Dow Corning from doing the things that it did; but the jury could, from this evidence, have found
that Dow Chemical acted in a role that went far beyond just being a stockholder.
If the jury believed the evidence bearing on Dow Chemical's control over the quality of [Dow Corning's]
goods and services and Dow Chemical's operation of Dow Corning, then it is not too large a step for the jury to
have found that both companies had act[ed] with conscious disregard of the safety of Mrs. Mahlum.
Witness Dr. Marc Lapp gave powerful affirmation to the Mahlums' punitive damage case
when he testified with a strong and decisive yes that Dow Chemical had demonstrated conscious
disregard for the safety and welfare of the ultimate users of products that it had direct or indirect control over.
Dr. Lapp testified that
for a protracted period extending up to the time of Miss Mahlum's implant, Dow Chemical by its own
actions initiated control over toxicology testing in the '50s and '60s that would be done on components of
Dow Corning breast implants. Thereafter, . . . they [Dow Chemical] participated in selecting for the
test labs, they knew and referred Dow Corning to the proper testing individuals in
their view.
in selecting for the test labs, they knew and referred Dow Corning to the proper testing individuals in
their view.
Most persuasive to me is Dr. Lapp's testimony that Dow Chemical had and did exercise
control over what went into these external tests by actually designing the test for Dow
Corning of what a toxicological assay would look like. (Citing the specific test that moved
[Dr. Lapp] the most, namely, a test laid out by Dow Chemical, in which the analog of a
breast implant, miniature breast implants were placed experimentally in dogs.)
Dr. Lapp's testimony is very much in harmony with the previously quoted language in the Dow
Chemical-Dow Corning agreement of May 5, 1975, stating that Dow Chemical had control of Dow Corning's
operations, including the quality of its [Dow Corning's] goods and services. It seems to me that the jury had
sufficient evidence to conclude that Dow Chemical and Dow Corning have been in the silicone research business
together for many years and that one of the products of their joint research was the Silastic II. It is difficult,
then, to give much credence to the argument in Dow Chemical's brief that it had no knowledge of any dangers
associated with silicone gel breast implants. With regard to Dow Chemical's argument that it did not willfully
and deliberately breach[] a duty to stop Dow Corning from selling breast implants, the argument is misplaced.
It continues to assume that Dow Chemical is only a stockholder and that it, therefore, has no duty to stop Dow
Corning's illicit activities. The jury, as I have pointed out, could very well have found that Dow Chemical and
Dow Corning shared a general duty to stop selling breast implants or, rather, not to sell them at all until proper
testing had been done.
As I see Dr. Lapp's testimony, it has the value of being both opinion evidence and percipient evidence. Dr.
Lapp gave his opinion, based on all the evidence available to me,
5
that Dow Chemical was guilty of a
conscious disregard of Mrs. Mahlum's safety and welfare. The Dow Chemical brief is devoted to the
inadmissibility of Dr. Lapp's testimony as to due care but says little or nothing about his conscious
disregard testimony. Dr. Lapp qualified as an expert in the field of medical ethics, and I find nothing in Dow
Chemical's arguments that would lead me to disregard Dr. Lapp's testimony or to say that it had not been
properly considered by the jury.
Dr. Lapp gave testimony, based on his understanding and knowledge of the standards for animal testing,
to the effect that Dow Chemical did not conduct the studies that it did do "with an end in mind
of protecting the public or use reasonable care in the design and conduct of follow-up
studies to assure that results that suggested adverse finding could be confirmed or
rejected."
__________

5
Dr. Lapp testified that he had reviewed approximately 10,000 documents and that he had screened 205
CDROM disks, each of which had 20,000 or more pages that pertain to the documents involved in breast
implant litigation.
Dow Chemical did not conduct the studies that it did do with an end in mind of protecting the public or use
reasonable care in the design and conduct of follow-up studies to assure that results that suggested adverse
finding could be confirmed or rejected. Even if the opinion portion of Dr. Lapp's testimony were to be
rejected, Dr. Lapp provided supporting factual testimony for his opinion, testifying, without objection, that
Dow Chemical had concealed the hazards of the silicone fluids that went into silicone gel breast implants.
There is no reason why the jury could not have properly concluded from this evidence that Dow Chemical did,
in fact, conceal known dangers of silicone breast implants from persons whom Dow Chemical knew were going
to be using the dangerous product. From the conclusion that Dow Chemical was concealing known dangers, the
jury could reasonably have concluded from the facts of this case that Dow Chemical did so willfully and
deliberately and, hence, in conscious disregard of the safety of others.
The only remaining subject that calls for discussion is identification of the legal rubric that should be applied
to cases in which a jury makes a specific finding that implied malice is present by reason of proof of a conscious
disregard of the safety of others. A number of theories of liability may be properly applied to this case. The
majority has affirmed the trial court's judgment that Dow Chemical negligently performed its undertaking to
assist Dow Chemical in researching the safety of breast implants and advising Dow Corning with respect to the
safety of its product. When we consider this tort liability in connection with the jury's having concluded, by clear
and convincing evidence, that Dow Chemical is guilty of implied malice, conscious disregard of Mrs. Mahlum's
safety, we need go no further. We have tortious conduct on the part of Dow Chemical coupled with the requisites
of implied malice. As I see it, this, by itself, supports a jury finding that Mrs. Mahlum is entitled to recover
punitive and exemplary damages.
I would also note that plaintiffs have judgment in this case on the basis of Dow Chemical's having
fraudulently concealed from Mrs. Mahlum and other breast implant recipients the dangerousness of this product.
Judgment was entered on two bases: Dow Chemical's having aided and abetted Dow Corning's fraudulent
misrepresentations and Dow Chemical's having acted in concert with Dow Corning in concealing the dangers.
I recognize, as maintained by Dow Chemical in its briefs, that Nevada has not recognized either concert of
action or aiding and abetting as tort actions. This should not prevent this court from recognizing these torts in a
case like this, where Dow Chemical controlled Dow Corning and worked hand-in-hand with Dow Corning in
developing and marketing the Silastic II.
Corning in developing and marketing the Silastic II. Acting in concert is, to me, the clearer of the two actions
because the jury could have believed that Dow Chemical was more of a principal than it was an aider and
abettor. My own view is that the jury would have been entitled from the evidence submitted to it to decide that
Dow Chemical was more culpable than Dow Corning, that Dow Corning was actually a relatively innocent agent
of Dow Chemical, which directed and controlled the whole breast implant operation. One does not have to go
that far, however, to justify the jury's verdict and the punitive damage award against Dow Chemical. All persons
who received these implants were owed the duty to be informed that they were subject to the dangers that were
inherent in the product that was designed, produced and marketed at the very least through the collaboration of
the two Dow companies. Dow Chemical and Dow Corning shared a duty and responsibility to Mrs. Mahlum not
to allow a dangerous product to be put into her body or, at the very least, to warn Mrs. Mahlum of the
dangerousness of the product. Both Dow Chemical and Dow Corning are liable to Mrs. Mahlum for fraudulent
concealment.
Although the jury's finding that Dow Chemical aided and abetted Dow Corning is not so substantial a case as
its finding that the two companies acted in concert, I do not believe that the aiding and abetting judgment should
be set aside. I see no reason why the jury in this case could not have found that Dow Chemical aided
and abetted Dow Corning (although it is more likely that Dow Corning aided and abetted
Dow Chemical in Dow Chemical's rush to corner the market in breast implants without
conducting the proper human and animal epidemiological studies).
6
Dow Chemical
argues in its brief that the aiding and abetting and the concert of action instructions
"effectively allowed the jury to find Dow Chemical liable for fraud for failing to supervise
Dow Corning's breast implant business."
__________

6
It can be inferred from Dr. Lapp's testimony that Dow Chemical was motivated by haste in its decision to
conceal information and thereby get the product on the market before it was ready, so to speak. Dr. Lapp
testified that he had studied the history of tests done by the two companies and that, up to the time that Mrs.
Mahlum received her implant, Dow Chemical had never suggested to Dow Corning that Dow Corning or Dow
Chemical do a long-term study on the material used in the implant. Dow Chemical did not advise Dow Corning
that it was seeing some inflammation . . . seeing some toxic effect, it's not inert. Instead, testified Dr. Lapp,
Dow [Chemical] did not report key findings of adverse effects of components of Dow Corning's silicone based
breast implants. They didn't report the studies on the composition of bleed. They did not report the studies that
would demonstrate the toxicologic properties were of the known components of silicone gel. According to Dr.
Lapp, Dow Chemical had and did exercise control over what went into those external tests by actually
designing the test for Dow Corning of what a toxicological assay would look like. Notwithstanding, according
to Dr. Lapp, Dow Corning directly concealed some of the most
Dow Chemical argues in its brief that the aiding and abetting and the concert of action instructions
effectively allowed the jury to find Dow Chemical liable for fraud for failing to supervise Dow Corning's breast
implant business. This to me is a very hollow argument and is based, again, on Dow Chemical's trying to
convince this court that its only connection to Dow Corning's breast implant business was that it was just a
stockholder. That Dow Chemical had a much larger role in the breast implant story than just as a stockholder in
Dow Corning should be apparent to any reader of this record.
I understand that the jury denied liability on the civil conspiracy claim; but this does not mean that the two
companies were not acting with one another to bring about a preconceived result, namely, to gain by marketing a
product that was known to be dangerous or by marketing a product without adequately apprising its prospective
users of the dangers inherent in the product's use.
I would have no hesitancy in affirming all of the trial court's judgments.
Maupin, J., with whom Shearing, J., joins, concurring in part and dissenting in part:
I join that part of the court's opinion reversing the Mahlums' intentional tort claims, but I would reverse the
judgment in its entirety. I therefore dissent from the majority's decision to affirm the Mahlums' negligent
undertaking claim.
As the majority notes, Dow Chemical and Corning Incorporated formed Dow Corning in 1943 to explore,
develop, and undoubtedly, profit from silicone technology. From its inception, Dow Corning has maintained an
impenetrable, separate corporate identity from its two parent corporations, such that the Mahlums abandoned
any attempt to pierce the corporate veil dividing Dow Corning from Dow Chemical (at least as that term is
used in the traditional sense).
Precluded from pursuing claims against Dow Chemical based on derivative liability, the Mahlums sought to
establish that Dow Chemical, by its own actions, was responsible for the injuries to Mrs. Mahlum allegedly
caused by Dow Corning's silicone breast implants.
__________
relevant information that would have been useful for physicians implanting devices and the scientific community
studying the effects of silicone and, particularly, the information that silicone gel had profound immunologic
activities, and that those immunologic activities could adversely affect the human body . . . . The conclusion
that can be drawn from the Lapp testimony is that this device was marketed at a time when far too little was
known to enable patients to make an informed choice. Whether premature release of these devices was prompted
by a desire to be first in the marketplace, I cannot say; but I do think that the jury would have been justified in so
concluding and could have taken this as evidence of implied malice.
Mrs. Mahlum allegedly caused by Dow Corning's silicone breast implants.
1
At trial, the Mahlums succeeded in
convincing the jury that Dow Chemical was liable for several intentional torts, as well as the tort of negligent
performance of an undertaking.
The jury found Dow Chemical liable for the negligent performance of an undertaking pursuant to
Restatement (Second) of Torts 324A. The definition of this tort, often referred to as the Good Samaritan rule,
is as follows:
One who undertakes, gratuitously or for consideration, to render services to another
which he should recognize as necessary for the protection of a third person or his
things, is subject to liability to the third person for physical harm resulting from his
failure to exercise reasonable care to perform his undertaking if
(a) his failure to exercise reasonable care increases the risk of such harm or
(b) he has undertaken to perform a duty owed by the other to the third person or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
Restatement (Second) of Torts 324A (1979) [hereinafter section 324A].
I find the majority's analysis of the section 324A claim against Dow Chemical troubling for several reasons.
First, the majority appears to ignore a basic and, by any standards, a reasonable precept regarding duty in a
negligent undertaking action: that a plaintiff asserting a section 324A claim must show that the defendant
specifically undertook to perform the task that he is charged to have performed negligently. See In re
Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig., 113 F.3d 1484, 1493 (8th Cir. 1997) (TMJ
Implants) (The scope of th[e] undertaking defines and limits an actor's duty under section 324A.). Further, a
close examination of the tests of liquid silicone does not show that Dow Chemical undertook a duty to ensure the
safety of the final product, silicone gel breast implants.
Second, even assuming that Dow Chemical did undertake to perform safety-testing of the silicone fluid that
five to ten years later came to be used in Dow Corning's breast implants, the majority fails to cite any
evidence in the record demonstrating that Dow Chemical negligently performed that
undertaking.
__________

1
I wish to emphasize that any conclusions I have drawn regarding Dow Chemical's liability have no
implications as to the Mahlums' action against Dow Corning. It has not escaped my attention that Dow Corning
sought bankruptcy protection on the eve of trial, thus neutralizing the traditional direct products liability claims
the Mahlums may have had against it and leaving them to proceed to trial solely against Dow Chemical.
majority fails to cite any evidence in the record demonstrating that Dow Chemical negligently performed that
undertaking.
Third, the majority fails plausibly to show the proximate nexus between this alleged breach and the harm that
Charlotte Mahlum suffered.
Fourth, the result of the majority's decision is that a research facility that tests some component, with or
without knowledge of its purpose, may now be deemed to have undertaken an everlasting duty to supervise,
monitor, and control a manufacturer's use of the component in any and all future products, or face infinite
liability.
DOW CHEMICAL'S ALLEGED UNDERTAKING AND DUTY
Like any other claim of negligence, a threshold element of a negligent undertaking claim is the existence of a
duty to use due care towards another's legally protected interest. See Perez v. Las Vegas Medical Center, 107
Nev. 1, 4, 805 P.2d 589, 590-91 (1991) (observing that to prevail on a negligence theory, the plaintiff
generally must show five elements, the first of which is that the defendant had a duty to exercise due care
towards the plaintiff). In determining whether such a duty exists, this court has held that it is the courts and not
juries that have the ultimate responsibility to define the scope of duty in relation to particular circumstances and
to define the legal standard of reasonable conduct in light of the apparent risk. See Ashwood v. Clark County,
113 Nev. 80, 84, 930 P.2d 740, 742 (1997). Consequently, whether evidence presented by the plaintiffs is
sufficient to create a legally cognizable duty is a question for the courts. See Artiglio v. Corning Inc., 957 P.2d
1313, 1318 (Cal. 1998) (Whether this essential prerequisite to a negligence cause of action has been satisfied in
a particular case is a question of law to be resolved by the court.); Smith v. Allendale Mut. Ins. Co., 303
N.W.2d 702, 710 (Mich. 1981) (rejecting argument that the extent and nature of an undertaking under section
324A are questions of fact for the jury; rather, it is for the court to determine what evidence is minimally
necessary to establish the elements of a relationship on which tort liability may be premised); Matter of New
York State Silicone Breast Implant Litig., 632 N.Y.S.2d 953 (Sup. Ct. 1995) (Matter of N.Y. State Silicone)
(addressing a similar claim of negligent undertaking against Dow Chemical by breast implant recipients, holding
that the question of whether a duty is owed in the first instance is a legal issue to be resolved by the court),
aff'd, 642 N.Y.S.2d 681, appeal dismissed, 676 N.E.2d 493 (N.Y. 1996). There is insufficient evidence in the
record to support a conclusion that Dow Chemical owed a duty towards Dow Corning's
breast implant recipients.
port a conclusion that Dow Chemical owed a duty towards Dow Corning's breast implant recipients.
2

Other courts confronted with similar facts have found no duty under section 324A. A New York court
concluded that Dow Chemical lacked a duty to the ultimate purchasers of breast implants because: (1) there was
only a tenuous connection between Dow Chemical and those ultimate purchasers, (2) Dow Chemical never
provided or undertook to provide the plaintiffs with any services, any information, or any product, (3) there was
no evidence that the ultimate purchasers of the breast implants ever relied on Dow Chemical or on any
information that Dow Chemical provided to Dow Corning in making a decision to purchase breast implants, and
(4) there is no evidence that Dow Chemical had any contact with the plaintiffs or knew their identity. Matter of
N.Y. State Silicone, 632 N.Y.S.2d at 956. Thus, plaintiffs cannot establish a sufficient relationship between
themselves and Dow Chemical to justify imposing a duty on Dow Chemical. Id. The court made further
observations that are important to note:
While moral and logical judgments are significant components of the analysis, we are
also bound to consider the larger social consequences of our decisions and to tailor our
notion of duty so that the legal consequences of wrongs [are limited] to a controllable
degree.'
. . . .
[The New York Court of Appeals] has limited the universe of permissible plaintiffs
because a failure to do so would impose a duty of reasonable care enforceable by any
member of an indeterminate class of persons, present and prospective, known and
unknown, directly or indirectly injured by any negligence. The court noted that [t]he
hazards of a business conducted on these terms are so extreme as to enkindle doubt
whether a flaw may not exist in the implication of a duty that exposes to these
consequences.
. . . .
Although Dow Chemical may have had a duty to the actual users of its research such
as Dow Corning, that liability does not extend ad infinitum to any potential ultimate
user of a product which contains a silicone component.
__________

2
I would also decline to follow, as the Mahlums urge, the federal district court decision in In re Silicone Gel
Breast Implants Prods. Liab. Litig., 887 F. Supp. 1455 (N.D. Ala. 1995) (In re Silicone Gel) (holding that the
foreseeability of harm to third persons alone may be sufficient to create a duty to the third persons). A basic
tenet of tort negligence law is that foreseeability, while a predicate of negligence liability, is insufficient by itself
to establish duty. Ashwood, 113 Nev. at 85, 930 P.2d at 743; see also In re New York State Silicone Breast
Implant Litig., 642 N.Y.S.2d 681 (App. Div. 1996) (In re N.Y. State Silicone) (refusing to follow In re
Silicone Gel); TMJ Implants, 113 F.3d 1484 (8th Cir. 1997) (same).
not extend ad infinitum to any potential ultimate user of a product which contains a
silicone component. Dow Corning has over the years been in the business of
manufacturing silicone related products for thousands of applications. If this court were
to hold that Dow Chemical assumed a duty of care based on its silicone related testing
and consulting to every potential ultimate consumer of a product which contained
silicone, the duty imposed on Dow Chemical would be indeterminate and infinite.
Id. at 955, 956-57 (quoting Waters v. New York City Housing Authority, 505 N.E.2d 922
(N.Y. 1987), and Eiseman v. State of New York, 511 N.E.2d 1128 (N.Y. 1987)). The
Appellate Division affirmed the court's decision, concluding that [a] party who gives advice
to a manufacturer of consumer goods does not owe a duty to then-unknown individual
purchasers of the manufacturer's goods[.] In re N.Y. State Silicone, 642 N.Y.S.2d at 682. I
believe, as the New York court did, that to impose liability on Dow Chemical under these
facts would be to endorse a duty that is indeterminate and infinite.
Likewise, the Eighth Circuit Court of Appeals noted that [a]n actor's specific undertaking of the services
allegedly performed without reasonable care is a threshold requirement to section 324A liability. . . .
Accordingly, courts have refused to impose liability under section 324A without a showing that the defendant
undertook a duty with respect to the specific product that caused the injury. TMJ Implants, 113 F.3d at 1493
(citations omitted). The TMJ Implants court concluded that, to establish liability under section 324A, plaintiffs
had to prove that Dow Chemical undertook a duty with respect to TMJ implants. Id. Like the plaintiffs in our
case, the TMJ plaintiffs argued that Dow Chemical assumed such a duty by undertaking to render services to
Dow Corning through its trademark agreements with Dow Corning and through its silicone research and testing
performed for Dow Corning and that Dow Chemical should have recognized that these services were necessary
for the protection of plaintiffs. Id.
3
The TMJ court concluded that Dow Chemical did not undertake a duty,
either under the trademark agreement, or through silicone testing, or because Dow Corning lacked an adequate
laboratory.
The silicone research allegedly performed by Dow Chemical at the request of Dow Corning also does
not demonstrate an undertaking sufficient to impose liability on Dow Chemical under section 324A. For
section 324A liability to attach, Dow Chemical must have specifically undertaken the
task of ensuring the safety of Dow Corning's TMJ implants or of ensuring the safety
of Dow Corning's entire array of silicone products.
__________

3
The trademark agreement is addressed below.
ity to attach, Dow Chemical must have specifically undertaken the task of ensuring the safety of Dow
Corning's TMJ implants or of ensuring the safety of Dow Corning's entire array of silicone products.
Plaintiffs contend that Dow Chemical undertook a duty with respect to all of Dow Corning's silicone
products, but the record shows that Dow Chemical never tested the use of silicone in any medical
implants and that Dow Chemical never was informed that any of the silicone it tested would be used in
medical implants. . . . [] Plaintiffs can point only to Dow Chemical's performance of approximately a
dozen tests involving silicone (but not its use in medical implants) performed over four decades at the
request of Dow Corning, . . . a 1948 and a 1950 article published by three Dow Chemical scientists [i.e.,
the articles by Dr. Rowe] discussing toxicological research on various silicone, and a trademark
agreement allowing Dow Chemical to inspect the quality of Dow Corning's products. However, these
Dow Chemical actions and Dow Corning's purportedly inadequate laboratory facilities are insufficient to
establish an undertaking of such breadth and magnitude as to create a duty on the part [of] Dow Chemical
to ensure the safety of all of Dow Corning's silicone products.
TMJ Implants, 113 F.3d at 1495 (citations and footnote omitted).
In addition, the California Supreme Court held that silicone breast implant plaintiffs failed to make a case
under section 324A based on much of the same evidence that is now before this court. See Artiglio, 957 P.2d at
1318-21. The Artiglio court noted:
The foundational requirement of [section 324A] is that in order for liability to be imposed upon the
actor, he must specifically have undertaken to perform the task that he is charged with having performed
negligently, for without the actual assumption of the undertaking there can be no correlative duty to
perform that undertaking carefully.
Id. at 1318 (quoting Blessing v. United States, 447 F. Supp. 1160, 1188-89 (E.D. Pa. 1978)).
After reviewing the evidence the court stated:
In sum, the record before the trial court on summary judgment would not support a finding that Dow
Chemical's was an undertaking of such breadth and magnitude as to create a duty on the part of Dow
Chemical to ensure the safety of all of Dow Corning's silicone products. Moreover, many years elapsed
between Dow Chemical's seminal toxicology research activities on behalf of Dow Corning and plaintiffs'
alleged injuries.
alleged injuries. When that research was done, any possible consequence for plaintiffswho years later
allegedly received medical treatments traceable to its influencewas exceedingly attenuated and remote.
We conclude that, at the times Dow Chemical allegedly conducted or reported for Dow Corning the
toxicology research services on which plaintiffs premise their section 324A claim, it cannot reasonably be
concluded that Dow Chemical should [have] recognize[d] those services were necessary for the
protection of ( 324A) plaintiffs. Accordingly, under the theory articulated in section 324A, no duty of
care running to plaintiffs arose from Dow Chemical's undertaking.
Artiglio, 957 P.2d at 1320 (alteration in original) (quoting TMJ Implants, 113 F.3d at 1495,
and section 324A).
The Mahlums cite Wright v. Schum, 105 Nev. 611, 781 P.2d 1142 (1989), for the proposition that a duty
arises when a defendant asserts control over a person for whom that defendant undertakes a task. In Wright, our
only prior case specifically dealing with a section 324A claim, a tenant's dog escaped the premises, and attacked
and severely injured a child. Prior to the incident, the landlord had voluntarily implemented safety measures to
have the dog secured within the tenant's yard, for the protection of the general public. The evidence showed that
the landlord had exercised his control over the tenant's behavior by threatening eviction if the tenant did not
comply with the request to secure the dog. Because the landlord had assumed to some degree the duty of
securing the dogoriginally only the tenant's dutyand then negligently performed that duty, the negligent
undertaking claim against the landlord was allowed to go before a jury. Id.
The case at bar bears little resemblance to the facts in Wright. That Dow Corning lacked a toxicology
laboratory until 1968 and commissioned Dow Chemical to perform various toxicology tests provides no
reasonable basis for concluding that Dow Chemical controlled Dow Corning's development or testing of breast
implants. The other evidence in support of this contention, including the trademark agreement, also fails to
establish such an inference. Accordingly, the evidence was legally insufficient to show that Dow Chemical
controlled Dow Corning regarding the creation and safety of its breast implants.
4

__________

4
I note that Wright also undercuts the emphasis that the majority places on Dr. Rowe's role as a consultant to
Dow Corning. This court specifically noted in that case that the mere advice or warning by one person to
another that care should be taken to avoid a certain risk does not in itself create an undertaking and consequent
liability on the part of one giving such advice. Wright, 105 Nev. at 614, 781 P.2d at 1145.
The Mahlums argue that the trademark agreement between Dow Chemical and Dow Corning is indicative of
an undertaking and of control. The trademark agreement, however, does not, in my view, support the liability
claims brought by the Mahlums. In 1975, Dow Corning and Dow Chemical memorialized an agreement in which
Dow Chemical licensed the Dow trademark to Dow Corning. The agreement recited that Dow Chemical had
established a valuable reputation under its corporate name Dow. The agreement confirmed and ratified Dow
Corning's use of the Dow mark, so that the valuable reputation established in the name Dow would be passed on
to Dow Corning. The agreement also provided as follows:
The products manufactured, distributed and sold or any services rendered under The Corporate Title
[Dow Corning Corporation], The Trade Name [Dow Corning], The Design Trademark [double
rectangle], or other trademarks containing, consisting of or comprising DOW CORNING shall be of a
nature and quality that is acceptable to Dow [Chemical] Company and shall not damage or reflect
adversely on the reputation or goodwill associated with the name and mark DOW. When requested,
[Dow Corning] shall at reasonable times and places submit specimens of its products to Dow [Chemical]
Company and shall permit inspection of [Dow Corning's] premises at reasonable times . . . to examine the
quality of such products.
The agreement stated that Dow Chemical and Corning had controlled the operations and
the quality of goods and services of Dow Corning since that company's inception in 1943. Id.
Dow Chemical thus maintained the authority to approve products using the Dow Corning
mark. Dow Chemical could also require that Dow Corning terminate all use of the name Dow
or any product not approved by Dow Chemical.
The Mahlums argued at trial and on appeal that the agreement demonstrated that Dow Chemical controlled
the operations of Dow Corning and that Dow Chemical had the right to inspect and approve Dow Corning's
breast implants. Dow Chemical argued that the agreement has little significance and that the language regarding
control was required under the Lanham Trademark Act of 1946, 15 U.S.C. 1051. According to Dow Chemical,
there is no evidence that Dow Chemical exercised any control under this agreement regarding Dow Corning's
breast implants. The head of Dow Corning's breast implant business testified that Dow Chemical never exercised
any control over Dow Corning's breast implant business, and that he never knew of the agreement's existence.
One of the leading authorities on trademarks states that [l]icensing a mark without adequate control over the
quality of goods or services sold under the mark by the licensee may cause the mark to lose its significance as a
symbol of equal qualityhence, abandonment. J. Thomas McCarthy, McCarthy on Trademarks and Unfair
Competition, 17:6, at 17-6 (4th ed. 1998) (McCarthy). Today, trademark licensing is permitted so long as the
licensor maintains adequate control over the nature and quality of goods and services sold under the mark by the
licensee. Id., 18:42, at 18-66. The licensor thus has a duty to control the quality of the goods and services sold
under the mark; if it fails to do so, it may forfeit its right to the mark. See id., 18:66-68; Dawn Donut Co. v.
Hart's Food Stores, Inc., 267 F.2d 358 (2d Cir. 1959).
In this case, no significance should attach to the agreement as evidence of Dow Chemical's control of Dow
Corning, or evidence of conspiracy or concert of action to make misrepresentations to consumers of Dow
Corning's breast implants. The control language was almost certainly placed in the agreement to protect Dow's
right to the name Dow when associated with the Dow Corning mark. There is no evidence that Dow
Chemical exercised any control or even inspected Dow Corning's breast implants under this agreement. Indeed,
the evidence is that it did not.
In another silicone breast implant case, Artiglio, the California Supreme Court stated, [w]hile the trademark
and tradename agreements may have conferred upon Dow Chemical certain inspection rights, there is no
suggestion that the agreements imposed a duty to perform tests, let alone that they constituted a general
undertaking by Dow Chemical to guarantee the safety of Dow Corning's silicone product lines. Artiglio, 957
P.2d at 1320. The court found no evidence that Dow Chemical inspected any Dow Corning product or provided
any service to Dow Corning pursuant to such agreements. Id. As noted above, the Artiglio court ultimately
rejected the claim that Dow Chemical was liable under section 324A.
The Eighth Circuit Court of Appeals reached a similar decision in TMJ Implants. In that case, the Eighth
Circuit considered the trademark agreement at hand pursuant to an argument that Dow Chemical was liable
under a theory of negligent undertaking for damages caused by Dow Corning TMJ products. Plaintiffs argued
that Dow Chemical assumed a duty with respect to TMJ implants by undertaking to render services to Dow
Corning through trademark agreements. The Eighth Circuit rejected the argument:
The record . . . contains no evidence to show that Dow Chemical undertook to render services to Dow
Corning through its trademark agreements.
through its trademark agreements. A standard trademark agreement, in and of itself, does not establish an
affirmative duty to inspect that could result in tort liability to third parties, and nothing in the record
suggests that these are other than standard trademark agreements. Plaintiffs can point to no evidence that
Dow Chemical in fact inspected any Dow Corning product or provided any services to Dow Corning
pursuant to these agreements. These agreements can only be viewed, then, as a vehicle for Dow Chemical
to protect its intellectual property rights, and thus they do not represent an undertaking on the part of
Dow Chemical to render services to another. Accordingly, these agreements do not trigger section 324A.
TMJ Implants, 113 F.3d at 1494 (citations omitted).
In other product liability cases, plaintiffs have argued that the existence of control language in a trademark
agreement can make a defendant licensor liable for failure to inspect a product bearing its trademark but made
by another company. But existence of language of control in such an agreement does not make the licensor liable
for defects in the licensee's products.
Under this body of law, the sole consequence of a trademark owner's failure to exercise control over its
licensees is the potential loss of the rights associated with the trademark. None of these cases suggests, in
any way, that a trademark owner's failure to exercise control subjects the owner to affirmative liability in
tort for damages caused by a defective product bearing its trademark.
Burkert v. Petrol Plus of Naugatuck, Inc., 579 A.2d 26, 32 (Conn. 1990) (citing S. Sandrock,
Tort Liability of a Non-Manufacturing Franchisor for Acts of Its Franchisee, 48 U. Cinn. L.
Rev. 699, 706 (1979)).
Like the plaintiffs in Artiglio and TMJ Implants, the Mahlums argue that Dow Chemical assumed a duty of
care towards them by performing certain toxicological tests on liquid silicone for Dow Corning and by
maintaining a relationship of control over Dow Corning. They rely on Dow Chemical toxicologist Dr. V. K.
Rowe's various connections to Dow Corning's silicone testing as a basis for Dow Chemical's undertaking of this
duty. My review of the record compels me to disagree.
The Mahlums and the majority emphasize, without fully describing their nature, the multitude of
toxicological tests Dow Chemical performed for Dow Corning from the 1940s into the 1960s.
5
Given their
obvious importance, a closer review of what these tests revealed appears warranted.
__________

5
The Mahlums and the majority observe that one Dow Corning employee testified that every new
organosilicon from Dow Corning was sent to Dow
these tests revealed appears warranted. There are over a hundred tests in the record comprising the so-called
component testing Dow Chemical performed for Dow Corning. Nearly all of these tests are what are termed
toxicological industrial handling tests: i.e., the purpose of these tests is to discover what safety measures
should be undertaken by the employees who handle the tested material in the manufacturing process. The
following is an excerpt from a typical test report Dow Chemical submitted to Dow Corning from the 1940s into
the 1960s:
Subject: THE RESULTS OF RANGE FINDING TOXICOLOGICAL TESTS ON METHYL
HYDROGEN MIXED CYCLICS
PROBLEM
The sample of methyl hydrogen mixed cyclics which were [sic] submitted to us on September 4, 1956
is being handled for the preparation of foam resins. What precautions must be taken to handle this
material safely?
CONCLUSIONS
This material has a low acute oral toxicity, the LD50 for rats being greater than 2 gm./kgm. of body
weight. It is essentially without effect on contact with the eyes and with the skin, and apparently is not
absorbed through the skin in acutely toxic amounts. Vapor concentration attainable at room temperature
should not present a problem upon single vapor exposure. However, when the material is heated to 100C
very slight irritation to the eyes may be expected.
This material does not appear to present any unusual health hazards. The practice of ordinary care
and cleanliness should be sufficient to avoid difficulties in handling.
These conclusions are based upon range finding toxicological tests and are limited to precautions for
industrial handling of the material. The development of specific uses for this material will make it
necessary to give careful consideration to the health problems presented and to the need for further
toxicological studies.
(Emphasis added.)
This report exemplifies the type of testing Dow Chemical performed for Dow Corning prior to the invention
of silicone breast implants in 1962; over a hundred other Dow Chemical toxicological reports in the record on
Dow Corning's silicone compounds mirror its format and language.
__________
Chemical for testing. The same testimony went on to qualify, however, that the procedure was to evaluate the
silicones for [their] potential hazards just in material handling. That was simply a safety procedure.
mirror its format and language. Further, from time to time, Dow Corning would inform Dow Chemical of the
potential use of the tested material. In such an instance, Dow Chemical often would include an opinion on the
suitability of the substance for the contemplated use based on the available information provided by the range
finding test; however, even these reports ended by specifically noting that the conclusions were ultimately
reliable only as to industrial handling purposes and that any specific uses in products should undergo further,
extensive toxicological testing. At most, these tests may support the hypothesis that Dow Chemical undertook a
duty towards Dow Corning's employees to competently test for potential handling hazards of Dow Corning's
chemical substances. Cf. Miller v. Bristol-Myers Co., 485 N.W.2d 31 (Wis. 1992) (holding that a parent
corporation may be liable for unsafe conditions at a subsidiary where it assumed a duty to act by affirmatively
undertaking to provide a safe working environment at the subsidiary).
6
These tests do not create, however, a
reasonable inference that Dow Chemical undertook a duty to ensure the safety of Silastic breast implants, or any
Dow Corning product for that matter, by testing Dow Corning's silicone compounds for a limited purpose.
7

Other tests the majority relies upon include the 1948 article cowritten by Dr. Rowe, the 1956 Chenoweth
study showing silicone migration, the 1957 Miami study showing that DC 200 fluid decreased the number of
white blood cells in female rat tails, the 1967 dog miniature implant study, and the 1970 Sparschu pathology
report showing migration of silicone to bone marrow.
The 1948 article, entitled Toxicological Studies on Certain Commercial Silicone and co-authored by Dow
Chemical's toxicologist, Dr. Rowe, was printed in the Journal of Industrial Hygiene and Toxicology, Vol. 30,
No. 6, pp. 332-52. According to the Mahlums, this article misrepresented to the scientific community that
silicone were harmless and posed no threat to human health.
__________

6
The Mahlums argue that, according to Restatement section 324A, any undertaking to render services to
another can impose liability on a defendant. See section 324A, cmt. b. Comment b, however, is entirely
consistent with the clarification of section 324A given by the courts, namely that the scope of the undertaking
logically limits the scope of liability to follow. Thus, the scope of the undertaking regarding toxicological tests
for industrial handling purposes limits Dow Chemical's potential liability exposure to industrial injuries. Dow
Chemical's possible liability based on other testing is discussed in the text above.

7
It is undisputed that there exist thousands of different organosilicon compounds and that different
formulations of these compounds possess different properties, i.e., organosilicons are not fungible chemicals.
Further, silicones (a shorthand way of referring to organosilicons) come in various forms: compounds, resins,
fluids, and hard, rubber-like substances. The particular form silicone may take matters, and the testing results of
one type of form, such as the rubber form, do not automatically apply to another form, such as the fluid.
munity that silicone were harmless and posed no threat to human health. However, the purported
misrepresentation that all silicone are inert was included in a section entitled Discussion of Practical Handling
Problems, where it states that [t]oxicological studies conducted with representative silicone materials show
that the silicone as a group have a very low order of toxicity. When these materials are considered from a
practical viewpoint, the hazards they present are exceedingly minor. Once again, the article was specifically
addressing industrial hazards. Further, the article does not represent that silicone have no toxicity whatsoever.
8
Rather, it reports skin and eye irritations observed in the test subjects, but concludes that industrial exposure to
the substances presents no significant danger. The final sentence of the article concludes as follows:
Toxicological studies with laboratory animals have shown that the silicone (methyl and mixed methyl and
phenylpolysiloxanes) as a class are very low in toxicity and that they present no significant handling problems.
Next, the 1956 Chenoweth study is an internal Dow Corning study conducted by two Dow Corning scientists
and one Dow Chemical scientist, Dr. M. B. Chenoweth. It examined the physiological assimilation of the DC
200 fluid, which was a silicone fluid used for industrial purposes. DC 200 was mixed with an antifoam emulsion
and orally administered to three animals: one albino rat and two dogs. No evidence of assimilation was found in
the rat, but traces of siloxane were found throughout the bodies of both dogs. Another rat was given an
intramuscular injection of the fluid, and siloxane was also found throughout its body in very low concentrations.
This study did not address whether the trace amounts of siloxane found in the various organs of the animals
harmed the animals or not. I also note that Dr. Chenoweth's role in the study was comprised of preoperative
care, administering of the labeled fluid, sacrificing, and dissecting of the animals.
9
The Dow Chemical
radiochemical laboratory also cooperat[ed] in the analysis of the tissue samples from the animals along with, it
appears, Dow Corning's analytical laboratory. Thus, this study was a Dow Corning study with some cooperation
from Dow Chemical.
__________

8
For example, immediately after stating that silicones as a group pose minor hazards, the article states that
[t]he volatile hexamethyldisiloxane is a good solvent, and as with any good organic solvent, repeated and
prolonged skin contact should be avoided. The material is immediately painful to the eyes but causes no corneal
damage. Dr. Rowe testified in this case that at the time he did not know that silicones were to be used in
medical devices. He also observed that the article merely states that the materials studied under the specific set
of circumstances described in the article showed no adverse toxicological effects; he believed that such results
would hold true even today.

9
Dr. Chenoweth's signature is missing from the copy of the report signed by the other two authors, Dow
Corning scientists.
Dow Chemical. There is nothing in Dow Chemical's participation that would serve as a clear warning signal to
Dow Chemical that the medical use of silicone should be abandoned.
The 1957 Miami study, the results of which showed that DC 200 fluid depressed the granulocytic elements of
the tail blood of female rats, was not conducted by Dow Chemical. However, Dr. Rowe was approached by Dow
Corning to set up the study, and he designed the test protocol for Professor Deichmann from the University of
Miami. Two versions of this study were prepared by Professor Deichmann, one reporting on the effects of six
silicone materials, and the other reporting only on five. The Mahlums argued at trial that the two Dow companies
were in cohorts in either preparing or publishing the five materials report to conceal the harmful effects of the
sixth silicone material. This assertion is not supported by the record. First, the sixth material that was omitted in
the report on five silicone materials is a substance identified only as Z-4141, and the Mahlums do not contend
that Z-4141 is contained in Dow Corning's breast implants. Thus, its effects, whether harmful or not, have no
bearing on the Mahlums' claims. Second, there is no evidence to suggest that Dow Chemical (via Dr. Rowe or
otherwise) played any part in creating the second report. The evidence thus indicates that Dow Chemical had no
role in attempting to hide the effects of Z-4141.
10

The Mahlums also cite the 1970 pathology report prepared by a Dow Chemical scientist, Dr. Gary L.
Sparschu, as another link establishing Dow Chemical's undertaking to ensure the safety of silicone gel breast
implants. This study injected rats, male and female, with different doses of DC 360, intraperitoneally and
subcutaneously. The pathological results showed traces of the silicone fluid throughout the animals' bodies,
including the bone marrow. The male rats in one group showed decreased liver weights, and the female rats in
another group had decreased brain weights. The report concluded, however, that [t]hese findings do not appear
to be associated with treatment because the effect is not dose related. An inflammatory reaction was not
associated with the deposition of DC 360 in the organs. Again, given that the Mahlums do not assert that Dow
Chemical performed any of its tests negligently, and that this report found no significant dangers of DC 360, we
are left only to speculate as to how this report also should have raised an alarm for Dow Chemical to publish this
information.
__________

10
The 1957 Miami study tested DC 200, an industrial grade of the DC 360 medical grade fluid used in
Silastic II breast implants. DC 360 was not utilized in Dow Corning's breast implants until 1975when Silastic
I was first marketed. Prior to 1975, it appears that another Dow Corning silicone fluid, DC 330, was used in its
breast implants.
In a letter from the independent laboratory, Food and Drug Research Laboratories, Inc. (FDRL), to Dow
Corning in 1964, FDRL submitted a revised proposal on certain polysiloxane studies pursuant to Dow Corning's
modifications as well as [its] conversations with Dr. V. K. Rowe at the Gordon Research Conference recently.
This is the only link connecting Dr. Rowe, and therefore Dow Chemical, to the 1964 polysiloxane dog studies
performed by FDRL for Dow Corning. In 1964, FDRL began conducting a long-term (2 years) study of silicone
migration (including that of DC 360 when injected) in animals and the extent to which the compounds remain in
animal tissues. FDRL reported its results to Dow Corning in 1968.
In 1967, a second two-year study of miniature implants in dogs was performed by the same independent
testing laboratory for Dow Corning. The evidence linking Dow Chemical to this study was that Dr. Rowe was
one consultant among several who recommended that the study be done. These FDRL studies show that Dow
Corning was not relying on Dow Chemical's alleged undertaking as having established the safety of silicone gel
breast implants.
The Mahlums conceded that Dow Chemical properly executed the tests that it performed for Dow Corning.
Instead, the Mahlums alleged that Dow Chemical was negligent in failing to recommend further studies to ensure
that silicone fluids could safely be used in its breast implants. The record, however, shows that Dow Chemical
did make such a recommendation regarding Silastic implants. In 1967, Dr. Rowe recommended, presumably in
his role as an advisor, to Dow Corning's product safety committee that long-term testing of miniature implants in
dogs be conducted to establish the safety of Silastic implants. In response to this recommendation, Dow Corning
commissioned the 1967 FDRL long-term study.
In summary, proof at trial identified a series of tests that Dow Chemical performed for Dow Corning at Dow
Corning's request. Dow Chemical performed these studies and reported them to Dow Corning. There is no proof
suggesting that Dow Chemical manipulated the results or failed to report them accurately to Dow Corning. It was
then Dow Corning's responsibility to interpret these tests and make decisions regarding the information
contained therein regarding its product line. Dow Corning was a creature of state corporate law, a
deliberately-created separate and economically independent entity that was specifically spun-off from Dow
Chemical and Corning Incorporated in order to develop silicone for the marketplace. Dow Corning was not
undercapitalized, not created as a vehicle for fraud or abuse, and was subject to proper corporate formalities; it
was not, in other words, an alter ego of Dow Chemical andJor Corning Incorporated.
alter ego of Dow Chemical and/or Corning Incorporated. Dow Chemical did not undertake to perform tasks for
Dow Corning that Dow Corning was specifically created to perform, namely, to design, manufacture, and market
silicone products.
DOW CHEMICAL'S ALLEGED BREACH
As I stated earlier, the majority fails to cite any convincing evidence in the record demonstrating that Dow
Chemical negligently performed the alleged undertaking. Dow Chemical's breach, according to the majority, was
that it failed to prevent Dow Corning from marketing silicone breast implants, given its relationship to the
subsidiary as a parent corporation and as a consultant, and it failed to warn the public about the dangers of
silicone breast implants. This analysis applies only if one concludes that Dow Chemical had a duty to control
Dow Corning's product decisions. There is no evidence in the record that Dow Chemical had any such duty.
The California Supreme Court in Artiglio stated that [t]he duty of a good Samaritan is limited. Once he
has performed his voluntary act he is not required to continue to render aid indefinitely.' 957 P.2d at 1319
(quoting Baker v. City of Los Angeles, 233 Cal. Rptr. 760 (Ct. App. 1986)). Thus, a Good Samaritan who has
performed a series of voluntary acts in the past is not thereafter required indefinitely to continue performing such
acts into the future.' Id. (quoting City of Santee v. County of San Diego, 259 Cal. Rptr. 757 (Ct. App. 1989)). It
is undisputed that Dow Chemical performed what testing it did non-negligently. Legally, Dow Chemical was not
obligated to do more. Dow Chemical was not under a permanent duty to keep track of Dow Corning's silicone
fluid products, ascertain whether such products were harmful, and manipulate Dow Corning into stopping
production. Accordingly, it cannot be said that Dow Chemical breached any duty.
LACK OF PROXIMATE CAUSE
The majority concludes that Dow Chemical was negligent for failing to oversee and prevent Dow Corning
from designing and marketing the breast implants when it had the power to do so. Even assuming negligence,
Dow Chemical's actions in the 1950s and 1960s cannot be the proximate cause of any harm to Mahlum after she
received her breast implants in 1985.
Several reasons support my conclusion. First, when Dow Chemical performed silicone tests on DC 200 or
DC 360 for Dow Corning prior to the invention of silicone gel breast implants, Dow Chemical could not have
foreseen the uses to which Dow Corning would put these silicone fluids. In Artiglio, the California Supreme
Court noted that "many years elapsed between Dow Chemical's seminal toxicology
research activities on behalf of Dow Corning and plaintiffs' alleged injuries.
Supreme Court noted that many years elapsed between Dow Chemical's seminal toxicology research activities
on behalf of Dow Corning and plaintiffs' alleged injuries. When that research was done, any possible
consequence for plaintiffswho years later allegedly received medical treatments traceable to its
influencewas exceedingly attenuated and remote. Artiglio, 957 P.2d at 1320. Second, Dow Corning also
performed its own product safety testing, specifically on breast implants, from the early 1960s onward. By
contrast, Dow Chemical never tested silicone gel breast implants. In addition, Dow Corning relied upon safety
testing by Dr. Cronin in the early 1960s before marketing its breast implants. Third, the Mahlums contend that
Dow Corning was aware of possible biological effects and migration of silicone fluids from late 1960s onwards;
if true, then Dow Corning could not have been relying upon Dow Chemical to ensure the safety of silicone gel
breast implants.
CONCLUSION
Finally, the majority holding with regard to the claim of negligent undertaking will have far-reaching
implications on our jurisprudence. As mentioned above, Dow Chemical and Corning Incorporated created Dow
Corning as a separate entity under corporate legal principles. There is no suggestion that Dow Corning is or was
underfunded or a product of fraud or abuse. Indeed, the Mahlums explicitly abandoned their alter ego theories in
this case. Yet the Mahlums and this court seek to make Dow Chemical responsible for Dow Corning's alleged
product failures.
11

Additionally, in performing tests and advising on how other tests should be performed, Dow Chemical often
served in the role of consultant. It is also in that role of consultant that the Mahlums and this court seek to render
Dow Chemical liable in tort for allegedly undertaking responsibilities that were properly Dow Corning's. The
majority now states, in effect, that it will hereafter require companies (i.e. consultants) to publish unfavorable
test results that they have done for their clients. This duty will also require an attendant duty of consultants to
monitor their client's new products, to determine whether their research is implicated in those products. Neither
the law nor public policy justifies such a result.
The Mahlums thus lacked evidence to establish that Dow Chemical ever undertook a duty to test the safety of
the silicone fluid used in Dow Corning's breast implants or undertook a duty to test and guarantee the
safety of the breast implants themselves.
__________

11
I do not mean to criticize the Mahlums for their attempts to adapt tort liability concepts to this problem.
The untimely departure of Dow Corning from this litigation made the Mahlums' task in establishing liability
most difficult indeed.
to test and guarantee the safety of the breast implants themselves. The jury's verdict on the Mahlums' claim of
negligent performance of an undertaking should not stand. I therefore dissent from the affirmance of the claim of
negligent undertaking, and would reverse the judgment in its entirety.
____________

Nevada Reports 1998 (114 Nev.) PDF

Transféré par

Informations du document

Titre original

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

Nevada Reports 1998 (114 Nev.) PDF

Transféré par

Droits d'auteur :

Formats disponibles

114 Nev.

Vous aimerez peut-être aussi