Nevada Reports 2005 (121 Nev.) PDF

121 Nev.
1, 1 (2005)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
____________
Volume 121
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121 Nev. 1, 1 (2005) Reno Hilton Resort Corp. v. Verderber
RENO HILTON RESORT CORPORATION, dba RENO HILTON, a Nevada Corporation;
PARK PLACE ENTERTAINMENT CORPORATION, a Delaware Corporation; and
FHR CORPORATION, a Nevada Corporation, Appellants, v. DIANE VERDERBER,
on Behalf of Herself and All Others Similarly Situated, Respondent.
No. 41645
February 24, 2005 106 P.3d 134
Appeal from a district court order denying a new trial with respect to the first phase of a
bifurcated class action. Second Judicial District Court, Washoe County; Steven P. Elliott,
Judge.
Class representative brought class-action lawsuit against hotel, seeking recovery of
compensatory and punitive damages concerning outbreak of Norwalk-like virus at hotel.
Following jury trial in first phase of action, the district court denied hotel's motion for new
trial. Hotel appealed, and class representative filed motion to dismiss. The supreme court held
that: (1) interlocutory order denying motion for new trial was not immediately appealable,
and (2) appellate rule providing that appeal may be taken from trial court order granting or
refusing new trial does not permit appeal from order granting or denying new trial motion
addressed to interlocutory order or judgment.
Dismissed.
........................................
Lionel Sawyer & Collins and Dan C. Bowen, David N. Frederick and Samuel S. Lionel,
Las Vegas, for Appellants.
Arrascada & Arrascada, Ltd., and John L. Arrascada, Reno; Lyle & Murphy and Robert
E. Lyle, Reno; Walkup Molodia Kelly & Echeverria and John P. Echeverria, San Francisco,
California, for Respondent.
1. Appeal and Error.
In class-action lawsuit arising from outbreak of Norwalk-like virus at hotel,
interlocutory order denying hotel's motion for new trial after first phase of bifurcated
proceedings, which divided issues of liability and class-wide punitive damages from
issue of each class member's compensatory damages, was not immediately appealable
under appellate rule providing that appeal may be taken from trial court order granting
or refusing new trial because rule applied to post-judgment orders denying new trial.
NRAP 3A(b)(2).
Appellate rule providing that appeal may be taken from trial court order granting or
refusing a new trial does not permit an appeal from an order granting or denying a new
trial motion addressed to an interlocutory order or judgment. NRAP 3A(b)(2).
General rule requiring finality before an appeal may be taken is not merely technical,
but is a crucial part of an efficient justice system. For the trial court, it inhibits
interference from the appellate court during the course of preliminary and trial
proceedings, and for the appellate court, it prevents an increased caseload and permits
the court to review the matter with the benefit of a complete record.
For purposes of appealability of special orders after final judgment, order granting
new trial is not a special order after final judgment. If new trial were granted, then
judgment would be vacated and order granting new trial would simply be
nonappealable interlocutory order if it were not included in appellate rule providing that
appeal may be taken from trial court order granting or refusing new trial. NRAP
3A(b)(2).
Before Rose, Gibbons and Hardesty, JJ.
OPINION
Per Curiam:
This is an appeal from a district court order denying a new trial as to Phase I of a
bifurcated class action. Respondent has moved to dismiss the appeal for lack of jurisdiction,
contending that an order denying a new trial is not appealable when, as in this case, it is
interlocutory and does not follow the final judgment. Appellants oppose the motion and argue
that the language in the rule permitting an appeal from an order granting or denying a new
trial is unqualified, and so jurisdiction is proper. We conclude that the rule permits an
independent appeal only from a post-judgment order granting or denying a new trial, and
so we dismiss this appeal.
........................................
permits an independent appeal only from a post-judgment order granting or denying a new
trial, and so we dismiss this appeal.
FACTS
The underlying class action arose from an outbreak of a Norwalk-like virus at the Reno
Hilton in May and June of 1996. The district court divided the action into two phases. The
first phase consisted of a jury trial on the issues of liability and class-wide punitive damages.
The jury found that appellants' policy of unpaid sick leave for its employees proximately
caused the outbreak. The jury further imposed over $25 million in punitive damages. Phase II,
which has not yet taken place, will consist of individual hearings for each class member to
assess compensatory damages.
Following the Phase I trial's conclusion, appellants moved for judgment notwithstanding
the verdict, or alternatively, a new trial. The district court denied the motion, and appellants
filed a notice of appeal from the order denying a new trial. Respondent then moved to dismiss
the appeal for lack of jurisdiction.
DISCUSSION
[Headnotes 1, 2]
To resolve the motion to dismiss, we must determine whether NRAP 3A(b)(2), which
provides that an appeal may be taken from a district court order granting or refusing a new
trial, permits this appeal. Respondent argues that the rule applies only to post-judgment
orders denying a new trial, not to an interlocutory order entered in the midst of bifurcated
proceedings. Appellants assert that the plain language of the rule permits this appeal.
Respondent argues that our previous decisions favor looking beyond the label of an order
or motion, and instead, focusing on what the order or motion actually does or seeks.
1
Respondent further emphasizes language in our previous opinions that disfavors piecemeal
review.
2
According to respondent, interpreting NRAP 3A(b)(2) in light of these policies
means that an interlocutory order denying a new partial trial is not independently appealable.
In support of her position, respondent cites an Oklahoma case, LCR, Inc. v. Linwood
Properties.
3
In LCR, the trial court had granted summary judgment as to some, but not all,
issues in the case.
4
The trial court at first denied, but then on reconsideration granted, the
respondent's motion for a new trial, and the appellant appealed.
____________________

1
See, e.g., Lee v. GNLV Corp., 116 Nev. 424, 996 P.2d 416 (2000); Bally's Grand Hotel v. Reeves, 112 Nev.
1487, 929 P.2d 936 (1996).

2
See, e.g., id.; Hallicrafters Co. v. Moore, 102 Nev. 526, 728 P.2d 441 (1986).

3
918 P.2d 1388 (Okla. 1996).

4
Id. at 1392.
........................................
granted, the respondent's motion for a new trial, and the appellant appealed.
5
The Supreme
Court of Oklahoma dismissed the appeal for lack of jurisdiction.
6

The court recognized that the summary judgment was not a final judgment because it
resolved only some of the issues in the case, and accordingly the summary judgment was
simply an intermediate order, not a true judgment.
7
No judgment may arise from a ruling
that disposes of but a portion of an entire claim and leaves unresolved other issues joined by
the pleadings.
8
The court then reasoned that a new trial motion addressed to an intermediate
order could not result in an appealable order.
9

Appellants argue that LCR should be distinguished. They assert that the motion in that
case was not really for a new trial since no trial at all had occurred; rather, the motion was
actually a motion for reconsideration of the summary judgment. In appellants' view, LCR is
not persuasive here because Phase I was in fact a jury trial lasting over two weeks.
Appellants correctly point out the factual differences between this case and the situation
presented in LCR. But as discussed above, the Oklahoma Supreme Court's reasoning was not
based on the fact that there had been no actual trial. Instead, the court concluded that no
appeal could be taken from an order resolving a new trial motion addressed to an intermediate
order.
10
The court recently reaffirmed its holding in Chandler U.S.A., Inc. v. Tyree.
11

Also, other courts have reached the same conclusion on facts more similar to this case. For
example, in Cobb v. University of Southern California,
12
the California Court of Appeal held
that an order granting a new trial is appealable only to the extent that it contemplates a final
judgment. In Cobb, two claims were tried, breach of contract and racial discrimination.
13
The
jury found in the plaintiff's favor on the contract claim and could not reach a verdict on the
discrimination claim.
14
The trial court declared a mistrial as to the discrimination claim, and
it eventually granted a new trial as to the contract claim.
____________________

5
Id. at 1390.

6
Id. at 1394.

7
Id. at 1392.

8
Id.

9
Id. at 1393.

10
Id.

11
87 P.3d 598, 601 n.4 (Okla. 2004) (stating that an adjudication of a motion for new trial addressed to an
interlocutory order is not appealable).

12
53 Cal. Rptr. 2d 71, 73 (Ct. App. 1996).

13
Id. at 72.

14
Id.
........................................
new trial as to the contract claim.
15
The California Court of Appeal dismissed the plaintiff's
appeal from the order granting a new trial, reasoning that the order granting a new trial,
issued prior to final determination of all causes of action and issues in the case, was
premature and is not appealable.
16

Similarly, in Rusin v. Midwest Enamelers, Inc.,
17
the Arkansas Court of Appeals
determined that an order denying a new trial motion is not appealable when the motion
addresses an order resolving only some of the claims presented. In that case, the appellant had
filed a complaint seeking liquidation and distribution of corporate assets, unpaid director's
fees, and unpaid bonuses.
18
The trial court held a hearing on the liquidation claim only and
denied it, expressly reserving all other issues for a jury trial.
19
The appellant filed a motion
for new trial, which was also denied.
20
The Arkansas Court of Appeals dismissed the appeal,
holding that despite the court rule providing that appeals may be taken from orders refusing
a new trial, that rule contemplates an appeal from an order granting or refusing a new trial in
cases in which all issues have been presented and decided. It can have no application to cases
involving multiple issues or claims in which some, but not all, are decided.
21

[Headnote 3]
Although conflicting authority exists,
22
the reasoning of the cases discussed above is
more persuasive. The general rule requiring finality before an appeal may be taken is not
merely technical, but is a crucial part of an efficient justice system. For the trial court, it
inhibits interference from the appellate court during the course of preliminary and trial
proceedings, and for the appellate court, it prevents an increased caseload and permits the
court to review the matter with the benefit of a complete record. If we were to accept
appellants' argument, then many interlocutory orders could become appealable simply if a
party filed a new trial motion and then appealed from the order ruling on the motion.
____________________

15
Id.

16
Id. at 73.

17
731 S.W.2d 226, 227 (Ark. Ct. App. 1987).

18
Id. at 227.

19
Id.

20
Id.

21
Id.

22
See, e.g., Travagliante v. J. W. Wood Realty Company, 425 S.W.2d 208 (Mo. 1968) (holding that order
granting new trial could be appealed even though some claims were still unresolved); C.M. v. K.M., 878 S.W.2d
55, 56 (Mo. Ct. App. 1994) (holding that any order granting a new trial is appealable even though the judgment
to which the motion is directed is not final).
........................................
appealed from the order ruling on the motion. The result could be needless delay in district
court proceedings while new trial orders were individually reviewed, a significantly increased
caseload for this court, and confusion over the district court's jurisdiction and this court's
jurisdiction.
[Headnote 4]
And, we are unconvinced by appellants' assertion that if an interlocutory order granting or
denying a new trial is not appealable, then the rule is meaningless. Appellants incorrectly
assert that if a previous final judgment is required, then an order granting a new trial would be
appealable as a special order after final judgment, and an order denying a new trial could be
challenged in the appeal from the final judgment. Contrary to appellants' assertion, new trial
motions often raise issues that are different from those presented simply by the judgment
itself. While an appeal from a final judgment requires a review of the record, an appeal from
a new trial order often seeks review based on evidence not in the record to that point, e.g.,
juror misconduct or newly discovered evidence.
23
Thus, an appeal from an order resolving a
new trial motion frequently involves issues that are substantially different from those related
to the final judgment, and NRAP 3A(b)(2)'s inclusion of such orders is not rendered
meaningless by disallowing appeals from interlocutory orders resolving new trial motions.
24
We therefore conclude that the order denying appellants' motion for a new trial in this case is
not appealable.
CONCLUSION
We conclude that NRAP 3A(b)(2) does not permit an appeal from an order granting or
denying a new trial motion addressed to an interlocutory order or judgment. Accordingly, we
grant respondent's motion, and we dismiss this appeal.
25

____________________

23
See NRCP 59(a); see also Roscoe Pound, Appellate Procedure in Civil Cases 42 (1941) (noting that a
new trial [is] granted upon things out of [the record], be the record never so right' ) (quoting Witham v. Lewis,
1 Wils. 48, 55-56 (1744)).

24
We further note that an order granting a new trial could not be a special order after final judgment, because
if a new trial is granted, then the judgment is vacated. The order granting a new trial would simply be a
nonappealable interlocutory order if it were not included in NRAP 3A(b)(2).

25
Appellants moved to consolidate this appeal with their related writ petition challenging several other
district court orders entered during the Phase I proceedings. In light of this opinion, we deny the motion to
consolidate. But appellants shall be permitted to supplement their petition in Docket No. 41960 to address the
new trial issues.
____________
........................................
121 Nev. 7, 7 (2005) Valley Elec. Ass'n v. Overfield
VALLEY ELECTRIC ASSOCIATION, a Nevada Non-Profit Cooperative Association,
Appellant, v. AUGUSTA H. OVERFIELD, aka AUGUSTA HARRIET OVERFIELD,
Deceased; ESTATE OF AUGUSTA H. OVERFIELD, aka AUGUSTA HARRIET
OVERFIELD; CHARLES OVERFIELD, an Individual; and ILO N. OVERFIELD, an
Individual, Respondents.
No. 41858
March 10, 2005 106 P.3d 1198
Appeal from a condemnation judgment that awarded respondents attorney fees. Fifth
Judicial District Court, Nye County; John P. Davis, Judge.
Non-profit utility cooperative brought condemnation action to secure an easement over
condemnee's land for the installation and maintenance of electrical power transmission line.
After condemnee rejected cooperative's pre-suit settlement offer of $6,000, the district court
entered judgment on jury's verdict awarding $15,045 to condemnee, and the trial court
awarded statutory attorney fees to condemnee. Cooperative appealed. The supreme court,
Maupin, J., held that as a matter of first impression, the general attorney fee statute allows
recovery of attorney fees by condemnation defendants who recover $20,000 or less in just
compensation for the taken property.
Affirmed.
Jones Vargas and Melvin D. Close Jr., R. Douglas Kurdziel and Tamara Beatty Peterson,
Las Vegas, for Appellant.
Nancy Theresa Lord, Pahrump, for Respondents.
The appellate court generally reviews awards of attorney fees for abuse of discretion.
Questions of law are reviewed de novo.
3. Costs.
In Nevada, a court may provide for an award of attorney fees only if a statute or rule
authorizes such an award.
4. Costs.
A party can be a prevailing party, under the general attorney fee statute, if it
succeeds on any significant issue in litigation that achieves some of the benefit it sought
in bringing suit. NRS 18.010.
5. Costs.
The judgment must be monetary in nature, in order for a party to be a prevailing
party under the general attorney fee statute. NRS 18.010.
........................................
6. Eminent Domain.
The general attorney fee statute, which allows a trial court to award attorney fees to a
prevailing party who has not recovered more than $20,000, allows recovery of attorney
fees by condemnation defendants who recover $20,000 or less in just compensation for
the taken property, when an award of attorney fees is warranted in the trial court's
sound discretion. NRS 18.010(2)(a).
7. Eminent Domain.
Condemnee was prevailing party, as basis for award of attorney fees under general
attorney fee statute, in condemnation action brought by nonprofit utility cooperative to
secure an easement over condemnee's land for the installation and maintenance of
electrical power transmission line, where the money judgment entered pursuant to jury's
verdict exceeded cooperative's pre-suit settlement offer, though condemnee did not
initiate the lawsuit. NRS 18.010.
8. Costs.
Prevailing party, for purposes of general attorney fee statute, is broadly construed
so as to encompass plaintiffs, counterclaimants, and defendants. NRS 18.010.
9. Eminent Domain.
Judgments in eminent domain proceedings are money judgments, as is required for
condemnees to recover attorney fees under general attorney fee statute; such judgments
include determinations of just compensation for condemned property. Const. art. 1, 8,
cl. 6; U.S. Const. amend. 5; NRS 18.010, 37.009(3).
Before Maupin, Douglas and Parraguirre, JJ.
OPINION
By the Court, Maupin, J.:
This case presents an issue of first impression for Nevada, whether district courts in
eminent domain actions may award landowners attorney fees under NRS 18.010. We
conclude that fees are available under the statute.
FACTS AND PROCEDURAL HISTORY
Appellant Valley Electric Association, a non-profit utility cooperative, filed the
condemnation action below to secure an easement over respondents' land for the installation
and maintenance of an electrical power transmission line. Respondents (the Overfields)
rejected Valley Electric's $6,000 pre-suit settlement offer, answered the condemnation
complaint and ultimately proceeded to trial. After obtaining a favorable jury verdict in the
amount of $15,045, the Overfields successfully moved for an award of attorney fees under
NRS 18.010. Valley Electric challenges the inclusion of attorney fees in the condemnation
judgment.
........................................
DISCUSSION
[Headnotes 1, 2]
Although this court generally reviews awards of attorney fees for abuse of discretion,
1
this
matter implicates questions of law, which this court reviews de novo.
2

Both the Nevada and United States Constitutions allow for the taking of private property
for a public purpose, provided that the government pays just compensation.
3
Other entities,
such as public utilities, are authorized by statute to condemn private property.
4

[Headnote 3]
In Lamar v. Urban Renewal Agency, this court reaffirmed the general notion that
defendants in condemnation actions have no constitutional right to attorney fees as part of the
just compensation for taken property.
5
And, in United States v. Bodcaw Co., the United
States Supreme Court stated that compensation to a landowner for indirect costs incurred in a
condemnation action is a matter of legislative grace.
6
In Nevada, a court may provide for
an award of attorney fees only if a statute or rule authorizes such an award.
7

NRS Chapter 37, which contains the statutory scheme governing Nevada eminent domain
proceedings, provides the only explicit legislative authority for grants of attorney fees in the
context of condemnation proceedings. More particularly, NRS 37.140 authorizes attorney fee
awards in actions involving construction of railroad facilities, and NRS 37.180 authorizes fee
awards when the condemnor abandons the proceedings. Nothing in Chapter 37 expressly
limits fee awards to those specific scenarios, and the language of the two provisions does not
prohibit fee awards under other statutory authority.
8
From this, the Overfields reason that
NRS 1S.010, the general attorney fee statute, allows awards of attorney fees in
condemnation actions where recoveries of just compensation are limited in amount.
____________________

1
Parodi v. Budetti, 115 Nev. 236, 240, 984 P.2d 172, 174 (1999).

2
Trustees v. Developers Surety, 120 Nev. 56, 59, 84 P.3d 59, 61 (2004).

3
Las Vegas Downtown Redev. Agency v. Pappas, 119 Nev. 429, 441, 76 P.3d 1, 5 (2003); U.S. Const.
amends. V, XIV; Nev. Const. art. 1, 8, cl. 6.

4
See, e.g., NRS 37.010(8) (authorizing public utilities to exercise right of eminent domain).

5
84 Nev. 580, 581, 445 P.2d 869, 869 (1968).

6
440 U.S. 202, 204 (1979).

7
Parodi, 115 Nev. at 240, 984 P.2d at 174.

8
Valley Electric suggests that we follow the Hawaii Supreme Court's approach in State v. Davis, 499 P.2d
663, 666 (Haw. 1972) (noting that specific statutory authorization of attorney fees when the condemnor
abandons eminent domain proceedings precludes such awards in other instances). Given our conclusion that
NRS 18.010 provides independent grounds for such awards, we decline to follow the Hawaii approach.
........................................
NRS 18.010, the general attorney fee statute, allows awards of attorney fees in condemnation
actions where recoveries of just compensation are limited in amount. We agree.
[Headnotes 4, 5]
In this connection, NRS 18.010(2), in pertinent part, and with emphasis added provides:
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:
(a) When he has not recovered more than $20,000 . . . .
A party can prevail under NRS 18.010 if it succeeds on any significant issue in litigation
which achieves some of the benefit it sought in bringing suit.
9
Further, the judgment must
be monetary in nature.
10

[Headnote 6]
In Lamar, this court expressly declined to address whether NRS 18.010 applied to
condemnation actions, since the compensation award exceeded the then-existing statutory
recovery limit of $10,000 for fee eligibility.
11
Consistent with subsequent amendments to
NRS 18.010,
12
we now hold that NRS 18.010 authorizes attorney fee awards to
condemnation defendants who recover $20,000 or less in just compensation for the taken
property and when warranted in the court's sound discretion.
13
To hold otherwise would
force landowners in smaller value condemnation actions to accept unfair low-ball
settlement offers to avoid exhaustion of additional condemnation proceeds through attorney
fee expenditures.
[Headnotes 7-9]
Valley Electric argues that the Overfields fail to qualify as a prevailing party under the
statute because they did not initiate the lawsuit. We reject this argument because the term
prevailing party is broadly construed so as to encompass plaintiffs, counterclaimants, and
defendants.
14
Valley Electric also argues that the Overfields' award of compensation does
not qualify as a money judgment because condemnation proceedings result in a judgment
in rem, which imposes no direct obligation on the condemnor and operates solely with
regard to the property.
____________________

9
Women's Federal S & L Ass'n v. Nevada Nat. Bank, 623 F. Supp. 469, 470 (D. Nev. 1985).

10
Smith v. Crown Financial Services, 111 Nev. 277, 285, 890 P.2d 769, 774 (1995).

11
Lamar, 84 Nev. at 582, 445 P.2d at 870.

12
See A.B. 185, 63d Leg. (Nev. 1985) (increasing statutory limit of recovery from $10,000 to $20,000).

13
See Farmers Ins. Exchange v. Pickering, 104 Nev. 660, 765 P.2d 181 (1988).

14
Smith, 111 Nev. at 284, 890 P.2d at 773.
........................................
Overfields' award of compensation does not qualify as a money judgment because
condemnation proceedings result in a judgment in rem, which imposes no direct obligation on
the condemnor and operates solely with regard to the property. We reject this argument as
well because judgments in eminent domain proceedings include determinations of just
compensation for condemned property.
15

CONCLUSION
We conclude that the district court properly awarded attorney fees in this instance. First,
the Overfields recovered less than $20,000 in the proceedings below, thus making them
eligible for such an award under NRS 18.010. Second, because they were prevailing parties
and recovered an amount substantially in excess of Valley Electric's settlement offer, no
abuse of the district court's discretion under this attorney fee statute has been shown.
Accordingly, we affirm the district court's inclusion of attorney fees in its condemnation
judgment.
Douglas and Parraguirre, JJ., concur.
____________
121 Nev. 11, 11 (2005) Carver v. El-Sabawi
JERRY D. CARVER, Appellant, v. RASHAD EL-SABAWI,
M.D., Respondent.
No. 41267
March 24, 2005 107 P.3d 1283
Appeal from a district court judgment entered on a jury verdict. Eighth Judicial District
Court, Clark County; Jennifer Togliatti, Judge.
Patient brought negligence action against anesthesiologist and surgeon, alleging that he
had suffered nerve injury to his left arm and hand sometime during or after an appendectomy.
The district court entered judgment upon jury verdict for defendants. Patient appealed. The
supreme court, Gibbons, J., held that mere happening instruction, which included statement
that negligence was never presumed, but had to be established by competent evidence,
coupled with instruction on res ipsa loquitur, conflicted to extent that prejudice to patient
resulted.
Reversed and remanded.
Hardesty, J., dissented in part.
____________________

15
See NRS 37.009(3) (defining judgment as the judgment determining the right to condemn property and
fixing the amount of compensation to be paid by the plaintiff).
........................................
Burris, Thomas & Springberg and Laurence B. Springberg, Las Vegas, for Appellant.
Mandelbaum Gentile and Kim Irene Mandelbaum, Las Vegas, for Respondent.
1. Trial.
Jury instructions that tend to confuse or mislead the jury are erroneous.
A judgment will not be reversed by reason of an erroneous instruction, unless upon
consideration of the entire case, including the evidence, it appears that such error has
resulted in a miscarriage of justice.
Usually, without a trial transcript or a statement of the evidence, the record will
contain no substantial indicia that an error in instructing the jury has had a prejudicial
effect, but an examination of the partial record on appeal is warranted to ascertain
whether the possibility that the error was harmless could be disregarded as improbable
or remote.
Where a party may reasonably contend that, but for the error, a different result might
have been reached, the burden of showing that prejudice resulted is met.
5. Negligence.
The general negligence rule is that a mere happening of an accident or injury will not
give rise to the presumption of negligence. The doctrine of res ipsa loquitur is an
exception to the general negligence rule, and it permits a party to infer negligence, as
opposed to affirmatively proving it, when certain elements are met.
6. Health.
Mere happening instruction, which included statement that negligence was never
presumed, but had to be established by competent evidence, coupled with instruction on
res ipsa loquitur, conflicted to extent that prejudice to patient resulted, in his medical
malpractice case against anesthesiologist and surgeon, alleging that he had suffered
nerve injury to his left arm and hand sometime during or after an appendectomy. To
instruct that negligence is never presumed and then proceed to further instruct of
scenario where negligence might in fact be presumed was prima facie prejudicial
because it raised strong possibility of confusing and misleading the jury. NRS
41A.100(1)(d).
7. Negligence.
In cases in which the trial court instructs the jury under the theory of res ipsa loquitur
and also includes a mere happening instruction, the trial court must omit from the mere
happening instruction the language stating that negligence is never presumed and
present instruction as follows: The mere fact that an unfortunate or bad condition
resulted to the patient involved in this action is not sufficient of itself to predicate
liability. NRS 41A.100(1)(d).
........................................
OPINION
By the Court, Gibbons, J.:
In this appeal, we consider whether a mere happening instruction and a res ipsa loquitur
instruction, given to the jury in a medical malpractice case, were so conflicting that absent
additional evidence, the judgment on the jury verdict should be reversed and this case
remanded for a new trial. We conclude that they were.
FACTS
Appellant Jerry D. Carver suffered a nerve injury to his left arm and hand sometime during
or after an appendectomy. He filed suit against anesthesiologist Rashad El-Sabawi, M.D., the
respondent, and surgeon Ronald Rosen, M.D., alleging negligence.
At trial, the district court gave a mere happening instruction that largely tracked language
found in Gunlock v. New Frontier Hotel.
1
The instruction read:
The mere fact that an unfortunate or bad condition resulted to the patient involved in
this action is not sufficient of itself to predicate liability. Negligence is never presumed,
but must be established by competent evidence.
The district court also gave a res ipsa loquitur instruction, based upon NRS 41A.100(1)(d).
2
The instruction stated:
The law provides for a rebuttable presumption that a personal injury was caused by
negligence where the personal injury was suffered during the course of treatment to a
part of the body not directly involved in the treatment or proximate thereto.
If you find by a preponderance of the evidence that an injury was suffered during the
course of treatment to a part of the body not directly involved in the treatment or
proximate thereto then the rebuttable presumption operates to shift to the defendants the
burden of proving, by a preponderance of the evidence, that the personal injury was not
caused by negligence.
____________________

1
78 Nev. 182, 370 P.2d 682 (1962).

2
NRS 41A.100 codifies and supplies the res ipsa loquitur theory of negligence in medical malpractice cases
where it is factually applicable. See Johnson v. Egtedar, 112 Nev. 428, 433-34, 915 P.2d 271, 274-75 (1996).
........................................
If, on the other hand, you do not find by a preponderance of the evidence that an
injury was suffered during the course of treatment to a part of the body not directly
involved in the treatment or proximate thereto, then the burden of proving by a
preponderance of the evidence consisting of expert medical testimony or material from
recognized medical texts or treatises that the personal injury was caused by negligence
remains with the plaintiff.
Recognizing the potential for conflict between these two instructions, the district court
approved a separate stock instruction for clarification, which stated:
The Court has given you instructions embodying various rules of law to help guide
you to a just and lawful verdict. Whether some of these instructions will apply will
depend upon what you find to be the facts.
The jury returned a verdict for both doctors. Carver appeals.
3

DISCUSSION
Carver argues that the district court erred in giving the mere happening instruction because
it inappropriately raised his burden of proof, negated the res ipsa loquitur instruction, and
contained language that would confuse the jury. In response, Dr. El-Sabawi asserts that
competing instructions alone do not constitute reversible error because each litigant is entitled
to have the jury instructed on all theories of his or her case supported by the evidence and the
court's clarifying instruction reconciled any perceived conflict between the competing
instructions. Even if the mere happening instruction was given in error, Dr. El-Sabawi argues
that Carver failed to demonstrate from the partial record on appeal how that error affected the
jury verdict.
[Headnotes 1-4]
Jury instructions that tend to confuse or mislead the jury are erroneous.
4
However, a
judgment will not be reversed by reason of an erroneous instruction, unless upon
consideration of the entire case, including the evidence, it appears that such error has resulted
in a miscarriage of justice.
5
Usually, without a trial transcript or a statement of the evidence,
the record will contain no substantial indicia that an error in instructing the jury has had a
prejudicial effect.
____________________

3
Dr. Rosen settled and was dismissed from this appeal.

4
See Zelavin v. Tonopah Belmont, 39 Nev. 1, 7-11, 149 P. 188, 189-91 (1915).

5
Pfister v. Shelton, 69 Nev. 309, 310, 250 P.2d 239, 239 (1952); Truckee-Carson Irr. Dist. v. Wyatt, 84 Nev.
662, 666, 448 P.2d 46, 49 (1968).
........................................
dicia that an error in instructing the jury has had a prejudicial effect.
6
Nevertheless, an
examination of the partial record on appeal is warranted to ascertain whether the possibility
that the error was harmless could be disregarded as improbable or remote.
7
Where a party
may reasonably contend that, but for the error, a different result might have been reached, the
burden of showing that prejudice resulted is met.
8
Here, from the totality of the evidence
presented in the record, we conclude that appellant has met his burden.
A number of jurisdictions have addressed the potential conflict in offering both a mere
happening instruction and a res ipsa loquitur instruction. Some jurisdictions have stated that
their variations of a mere happening instruction and a res ipsa loquitur instruction should not
be given together because they may confuse the jury.
9
Other jurisdictions have stated that
their versions of these two instructions do not conflict when offered together.
10

[Headnote 5]
The general negligence rule is that a mere happening of an accident or injury will not give
rise to the presumption of negligence.
11
Res ipsa loquitur is an exception to the general
negligence rule, and it permits a party to infer negligence, as opposed to affirmatively proving
it, when certain elements are met.
12
However, in Gunlock, we stated, The mere fact that
there was an accident or other event and someone was injured is not of itself sufficient to
predicate liability.
____________________

6
Driscoll v. Erreguible, 87 Nev. 97, 101, 482 P.2d 291, 294 (1971); see also Pfister, 69 Nev. at 310-11, 250
P.2d at 239-40.

7
Driscoll, 87 Nev. at 101, 482 P.2d at 294.

8
Id. at 102, 482 P.2d at 294; see also Peterson v. Silver Peak, 37 Nev. 117, 138, 140 P. 519, 527 (1914).

9
See, e.g., Rasmus v. Southern Pacific Company, 301 P.2d 23, 26-28 (Cal. Dist. Ct. App. 1956) (railroad
employee struck by pipe thrown by shipper's employee); Kitto v. Gilbert, 570 P.2d 544, 551 (Colo. Ct. App.
1977) (medical malpractice); Nielsen v. Pioneer Valley Hosp., 830 P.2d 270, 274 (Utah 1992) (medical
malpractice).

10
See, e.g., Bazzoli v. Nance's Sanitarium, 240 P.2d 672, 677-78 (Cal. Dist. Ct. App. 1952); Middleton v.
Post Transp. Co., 235 P.2d 855, 856 (Cal. Dist. Ct. App. 1951) (The fact that the doctrine of res ipsa loquitur is
applicable in an action for personal injury does not deprive a defendant of his right to an instruction that the
mere fact of injury is no evidence of his negligence or liability.); Jones v. Porretta, 405 N.W.2d 863, 874-76
(Mich. 1987) (medical malpractice); Stearns v. Plucinski, 482 N.W.2d 496, 498-99 (Minn. Ct. App. 1992)
(medical malpractice); Miller v. Kennedy, 588 P.2d 734, 737 (Wash. 1978) (medical malpractice); see also
Schnear v. Boldrey, 99 Cal. Rptr. 404, 408-09 (Ct. App. 1971) (medical malpractice).

11
Hilton v. Hymers, 57 Nev. 391, 395, 65 P.2d 679, 680 (1937).

12
Woosley v. State Farm Ins. Co., 117 Nev. 182, 188, 18 P.3d 317, 321 (2001).
........................................
ficient to predicate liability. Negligence is never presumed but must be established by
substantial evidence.
13

[Headnote 6]
Here, the mere happening instruction follows Gunlock in stating that negligence is never
presumed. The use of the word never in the mere happening instruction suggests an
absolute proposition that clashes with the subsequent res ipsa loquitur instruction. To instruct
the jury that negligence is never presumed and then proceed to further instruct the jury of a
scenario where negligence may in fact be presumed is prima facie prejudicial because it raises
the strong possibility of confusing and misleading the jury. Consequently, Carver reasonably
contended that, but for the facially conflicting instructions, a different result might have been
reached at trial.
[Headnote 7]
Therefore, we hereby distinguish Gunlock in cases in which the district court instructs the
jury under the theory of res ipsa loquitur and also includes a mere happening instruction. In
such cases, the district court must omit from the mere happening instruction the Gunlock
language stating that negligence is never presumed. Here, the instruction must be presented to
the jury as follows: The mere fact that an unfortunate or bad condition resulted to the patient
involved in this action is not sufficient of itself to predicate liability.
CONCLUSION
Because a mere happening instruction that states that negligence is never presumed
conflicts with the res ipsa loquitur instruction, is a misleading and imprecise statement of the
law, and very likely confused and misled the jury, we conclude that Carver was prejudiced.
Accordingly, we reverse the district court's judgment and remand this matter for a new trial.
Rose, J., concurs.
Hardesty, J., concurring in part and dissenting in part:
The res ipsa instruction and the mere happening instruction given at trial were in conflict.
In medical malpractice cases, in which both of these instructions are given, the mere
happening instruction must be tailored to omit language stating that negligence is never
presumed. I concur in the instruction suggested by the majority.
____________________

13
78 Nev. at 185, 370 P.2d at 684; see also Eggers v. Harrah's Club, Inc., 86 Nev. 782, 784, 476 P.2d 948,
949-50 (1970).
........................................
However, I dissent regarding the appropriate remedy for this jury instruction error. The
standard for reversal requires that [p]rejudice is not presumed,
1
and that [t]he burden is
upon the appellant to show the probability of a different result.
2
Establishing that a jury
instruction error had a prejudicial effect on a party usually requires presenting the trial
transcript or a statement of the evidence.
3
However, the majority simply presumes that
prejudice occurred given the conflicting instructions.
Carver had the affirmative duty to present evidence to establish that, but for the error, a
different result might have been reached. The record before us consists of the jury
instructions; a transcript of the argument settling instructions; and a transcript of the defense
expert's testimony who opined that: (1) Dr. El-Sabawi met the standard of care, (2) there was
no evidence that there was improper positioning or inadequate padding during surgery, and
(3) the medical records are not consistent with the claim that the ulnar nerve injury occurred
during anesthesia and surgery. This limited record does not contain sufficient evidence to
establish prejudice; therefore, I conclude that Carver failed to meet this burden, and
respectfully dissent as to the majority's reversal and grant of a new trial.
____________
121 Nev. 17, 17 (2005) Rhymes v. State
MICHAEL L. RHYMES, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 42010
March 24, 2005 107 P.3d 1278
Michael Rhymes appeals from a judgment of conviction, pursuant to a jury verdict, on
charges of lewdness with a minor under the age of fourteen. Eighth Judicial District Court,
Clark County; Michael A. Cherry, Judge.
The supreme court held that: (1) admission of evidence of defendant's prior bad acts was
proper, (2) failure to give limiting instruction prior to admission of prior bad acts evidence
was erroneous, but (3) error in failing to give limiting instruction before admission of prior
bad acts evidence was harmless.
Affirmed.
____________________

1
Truckee-Carson Irr. Dist. v. Wyatt, 84 Nev. 662, 666, 448 P.2d 46, 49 (1968).

2
Id. at 667, 448 P.2d at 50.

3
Driscoll v. Erreguible, 87 Nev. 97, 101, 482 P.2d 291, 294 (1971).
........................................
Stanley A. Walton, Las Vegas, for Appellant.
Brian Sandoval, Attorney General, Carson City; David J. Roger, District Attorney, and
James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Evidence of other crimes, wrongs, or acts is presumed to be inadmissible, and the
State bears the burden of requesting the admission of the evidence and establishing its
admissibility. NRS 48.045(2).
2. Criminal Law.
To establish admissibility of evidence of other crimes, wrongs, or acts, the State
must demonstrate, at a hearing outside the presence of the jury, that (1) the incident is
relevant to the crime charged, (2) the act is proven by clear and convincing evidence,
and (3) the probative value of the evidence is not substantially outweighed by the
danger of unfair prejudice. NRS 48.045(2).
3. Criminal Law.
Trial court, during hearing to determine admissibility of evidence of other crimes,
wrongs, or acts, erred in failing to make determination that prior bad acts at issue had
been proved by clear and convincing evidence, in prosecution for lewdness with a
minor under the age of 14. NRS 48.045(2).
4. Criminal Law.
Admission of evidence of defendant's prior bad acts, which involved situations in
which defendant had used his skills as a masseur to gain sexual access to victims, was
proper, despite trial court's error in failing to determine that defendant's alleged prior
bad acts had been proved by clear and convincing evidence, as such finding could be
implied from trial court's findings, in prosecution for lewdness with a minor under the
age of 14; when victim in incident at issue awoke to find her pajamas pulled down and
defendant lying beside her, he began to discuss his employment as a masseur and began
massaging victim's leg, which demonstrated a strong similarity between prior acts and
those involved in present case, and prior acts had occurred very close in time to acts
charged in the instant case. NRS 48.045(2).
5. Criminal Law.
Trial court's failure to give limiting instruction prior to testimony of two witnesses
concerning defendant's alleged prior bad acts was erroneous, in prosecution for
lewdness with a minor under the age of 14, as such instruction was required both at
time of admission of bad acts evidence, and at time of final charge to jury. NRS
48.045(2).
6. Criminal Law.
For purposes of requirement that, when trial court admits uncharged bad acts into
evidence, a limiting instruction should be given both at time evidence of uncharged acts
is admitted and in final charge to jury, the term uncharged bad acts refers to any acts
uncharged in case at bar, not to acts that were never charged in any case; fact that prior
acts have been charged in another matter does not negate requirement that State must
request a limiting instruction prior to admission of bad acts evidence, nor does it
alleviate trial court of its burden to give such instruction sua sponte if prosecutor fails
to request one. NRS 48.045(2).
........................................
7. Criminal Law.
Trial court's error in failing to give limiting instruction prior to testimony of two
witnesses concerning defendant's alleged prior bad acts did not substantially affect
defendant's rights, and thus error was harmless, in prosecution for lewdness with a
minor under the age of 14; trial court gave limiting instruction prior to jury being
charged, and thus jury had been properly informed that prior bad acts evidence could be
considered only for limited purpose of proving intent. NRS 48.045(2).
OPINION
Per Curiam:
SUMMARY
Appellant Michael Rhymes appeals from his judgment of conviction. Rhymes contends
that the district court erred in allowing the State to introduce evidence of prior bad acts and
by failing to give a proper limiting instruction to the jury when the district court admitted the
evidence in accord with this court's holding in Tavares v. State.
1

We conclude that the district court properly admitted the prior bad acts evidence. We also
conclude that the district court erred by failing to give an appropriate limiting instruction at
the time the district court admitted the uncharged bad acts evidence. We hold that when
evidence of prior bad acts concerns acts uncharged in the instant proceeding, instructions
must be given both at the time the evidence is admitted and again when the jury is charged.
We reiterate that the State bears the burden of requesting such an instruction. Nevertheless,
under the circumstances of this case, we conclude that the failure to give such an instruction
constituted harmless error.
FACTS
Appellant, Michael Rhymes, lived with Irene Vela, her daughter and her three sons. On the
evening of December 7, 2001, Vela's daughter invited a friend, the victim, age 12, over to
spend the night. After watching movies, the two girls fell asleep on the living room floor
while one of Vela's sons slept on the couch next to the two girls.
Later that evening, the victim was awakened when she felt her pajama bottoms being
pulled down. Rhymes was lying on the floor next to her, propped up on one elbow.
____________________

1
117 Nev. 725, 30 P.3d 1128 (2001).
........................................
floor next to her, propped up on one elbow. Rhymes immediately threw the covers back onto
the victim. Rhymes continued to massage the victim's leg, around her knee and thigh, and told
her that he had taken massage classes and was going to get a job as a masseur. The victim
told Rhymes to stop and told him that she had to return to her apartment to get some
medicine. After waking her friend, the two girls went to the victim's apartment and tried to
get inside but were unsuccessful. The victim told her friend what had occurred between
herself and Rhymes, and the two girls returned to Vela's home but did not go back to sleep
until Rhymes and Vela left for work the next morning.
After returning home, the victim told her mother about the incident, and her mother called
the police. The police interviewed the two girls, who corroborated each other's stories. The
police administered a sexual assault exam on the victim, the results of which were negative.
The police also interviewed Rhymes, who denied touching the victim.
As a result of these events, Rhymes was charged on February 14, 2002, with one count of
lewdness with a child under the age of fourteen. Prior to trial the State filed a motion to admit
evidence of other bad acts uncharged in the present indictment. The State averred that these
acts were admissible to show intent and the absence of mistake.
To establish Rhyme's prior bad acts, the State called two witnesses who had previously
filed complaints against Rhymes for sexual misconduct. Both women received massages from
Rhymes in 2000 while he was a student at the Dahan Institute of Massage. Both women
alleged that Rhymes engaged in sexual misconduct during the course of their massages. One
of the women testified that during her massage Rhymes exposed her breast and partially
inserted one finger into her vagina after slipping his finger through the side of her panties.
The second witness testified that during her massage Rhymes uncovered her breast multiple
times, whispered things in her ear, touched her pubic hairs, and reached under her underwear
and started rubbing her clitoris. In a separate case, the State charged Rhymes with sexual
misconduct for his conduct involving these two women.
The district court admitted this evidence. The district court agreed with the State's
argument that it was relevant to establish Rhymes' intent and that there was a similarity
between the prior bad acts and the acts alleged in the instant case. Additionally, the district
court agreed that the evidence was more probative than prejudicial. The district court failed,
however, to determine whether the case had been proved by clear and convincing evidence.
Importantly, the district court also failed to give the required limiting instruction when this
evidence was admitted at trial.
........................................
quired limiting instruction when this evidence was admitted at trial. The district court did,
however, provide such an instruction when the jury was charged.
The jury ultimately convicted Rhymes of lewdness with a minor under the age of fourteen,
and he was sentenced to life imprisonment with parole eligibility after a minimum of ten
years. Rhymes appeals, claiming that the district court erred by: (1) failing to conduct a
hearing, pursuant to the requirements of Petrocelli v. State,
2
to determine the admissibility of
the prior bad acts evidence; and (2) failing to give a limiting instruction regarding the limited
use of prior bad acts testimony at the time the evidence was admitted at trial.
DISCUSSION
The failure to hold a Petrocelli hearing
Rhymes contends that the district court never conducted a hearing to determine the
admissibility of the prior bad acts evidence and that in any event the prior bad acts were
insufficient to show motive, intent, or similarity evidencing a common scheme or plan.
[Headnotes 1, 2]
NRS 48.045(2) prohibits the introduction of evidence of other crimes, wrongs, or acts as
proof of a person's character, but allows such evidence to prove motive, opportunity, intent,
preparation, plan, knowledge, identity or absence of mistake or accident. While such evidence
may be admitted for these limited purposes, this court has often looked upon the admission of
prior bad acts evidence with disfavor because the evidence is often irrelevant and prejudicial,
and forces a defendant to defend against vague and unsubstantiated charges.
3
For these
reasons, such evidence is presumed to be inadmissible, and the State bears the burden of
requesting the admission of the evidence and establishing its admissibility.
4
To accomplish
this task, the State must demonstrate, at a hearing outside the presence of the jury, that: (1)
the incident is relevant to the crime charged; (2) the act is proven by clear and convincing
evidence; and (3) the probative value of the evidence is not substantially outweighed by the
danger of unfair prejudice.
5

We have consistently held that the decision to admit or exclude such evidence is within the
discretion of the trial court and will not be overturned absent a showing that the decision is
manifestly incorrect.
____________________

2
101 Nev. 46, 692 P.2d 503 (1985).

3
Richmond v. State, 118 Nev. 924, 932, 59 P.3d 1249, 1255 (2002) (quoting Tavares v. State, 117 Nev. 725,
730, 30 P.3d 1128, 1131 (2001)).

4
Tavares, 117 Nev. at 731, 30 P.3d at 1131.

5
Tinch v. State, 113 Nev. 1170, 1176, 946 P.2d 1061, 1064-65 (1997).
........................................
be overturned absent a showing that the decision is manifestly incorrect.
6
Moreover, we have
determined that when the district court fails to conduct a hearing establishing the
aforementioned requirements, that failure is reversible error 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.
7

[Headnotes 3, 4]
In the instant case, we conclude that the trial court did conduct a hearing to determine the
admissibility of the evidence. During the course of the hearing, the district court found the
prior bad acts testimony to be relevant as to both intent and similarity and found the evidence
to be more probative than prejudicial. However, we conclude that the district court erred in
failing to make a determination that the prior bad acts were proven by clear and convincing
evidence. Despite this omission, we conclude that such a finding can be implied from the
district court's findings, and the trial court properly admitted the prior bad acts evidence in
this instance. The record sufficiently establishes the occurrence of the collateral acts by clear
and convincing evidence.
In this case, the prior bad acts involved situations wherein Rhymes used his skills as a
masseur to gain sexual access to his victims. When the victim in this case awoke to find her
pajamas pulled down and Rhymes lying beside her, he began to discuss his employment as a
masseur and began massaging the victim's leg. This demonstrates a strong similarity between
the prior acts and those involved in the present case. It is notable that the prior bad acts
occurred very close in time to the acts charged in the instant case, further demonstrating
Rhymes' intent to use his skills as a masseur to facilitate sexual contact with his potential
victims.
As a result, the district court determined that the evidence was relevant and allowed it to
be admitted. Moreover, after listening to the arguments made by the State and by Rhymes, the
court acknowledged that while ordinarily such evidence would not be admitted, in this
particular instance the State's arguments were compelling and, therefore, the evidence was
admissible. Because this decision was not manifestly erroneous, this court concludes that the
evidence of uncharged prior bad acts was properly admitted in this case.
____________________

6
Braunstein v. State, 118 Nev. 68, 72, 40 P.3d 413, 416 (2002).

7
Qualls v. State, 114 Nev. 900, 903-04, 961 P.2d 765, 767 (1998).
........................................
The district court's failure to give a limiting instruction at the time the evidence was admitted
[Headnote 5]
Rhymes contends that the district court erred by failing to provide a limiting instruction
prior to the testimony of the two witnesses who testified concerning Rhymes' alleged prior
bad acts. In contrast, the State contends that it was unnecessary to provide an instruction at
the time the evidence was admitted because here the prior bad acts evidence involved acts
that were not uncharged bad acts in that Rhymes had been previously charged with crimes
based on his actions. We disagree with the State, and today we clarify the meaning of the
term uncharged bad acts as set forth in Tavares.
In Tavares, we determined that when a district court admits uncharged bad acts into
evidence, a limiting instruction should be given both at the time evidence of the uncharged
bad acts is admitted and in the trial court's final charge to the jury.
8
We considered the
provision of the instruction upon the admission of the evidence particularly important
because it permits the instruction to take effect before the jury has been accustomed to
thinking of it in terms of the inadmissible purpose.
9

In Tavares, the district court failed to provide a limiting instruction on prior bad acts that
occurred six years prior to the crime charged.
10
The State never brought charges against
Tavares for the commission of those prior bad acts. The State contends that as a result the
instant case is distinguishable because the testimony admitted here concerned acts for which
Rhymes was charged in another case. Therefore, the State contends that Tavares is
inapplicable.
[Headnote 6]
We disagree. We note that the term uncharged bad acts refers to any acts uncharged in
the case at bar. It does not refer to acts that were never charged in any case. The fact that the
prior bad acts have been charged in another matter does not negate the requirement that the
State must request a limiting instruction prior to the admission of bad acts evidence, nor does
it alleviate the district court of its burden to give such an instruction sua sponte if the
prosecutor fails to request one.
____________________

8
Tavares, 117 Nev. at 733, 30 P.3d at 1133.

9
Id. (quoting 21 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure 5066
(1977 & Supp. 2001)).

10
Id. at 728-29, 30 P.3d at 1130.
........................................
[Headnote 7]
However, under Tavares we consider the failure to give such a limiting instruction to be
harmless if the error did not have a substantial and injurious effect or influence the jury's
verdict.
11
Here, the district court gave an instruction prior to the jury being charged.
Therefore, the jury was properly informed that the prior bad acts evidence could be
considered only for the limited purpose of proving intent and similarity between the acts.
Inasmuch as the jury was provided with this critical information prior to its deliberation and
there was uncertainty whether the prior bad acts were uncharged bad acts, we conclude that
the absence of such an instruction at the time the evidence was admitted did not substantially
affect Rhymes' rights. Accordingly, we conclude that the failure to give the limiting
instruction upon admission of the evidence in this case was harmless error under the facts of
this case.
CONCLUSION
We conclude that the district court erred by failing to expressly determine if the prior bad
acts were proven by clear and convincing evidence. However, we conclude that such a failure
does not constitute reversible error because the record sufficiently demonstrates, by clear and
convincing evidence, that the prior bad acts occurred. Moreover, we conclude that the district
court erred when it failed to give the jury a limiting instruction at the time the testimony on
the prior bad acts was admitted. Nevertheless, we conclude that such an error was harmless
because the jury received a limiting instruction prior to being charged and therefore the
district court's failure did not impact Rhymes' substantial rights in such a manner as to
warrant reversal. There is no evidence to suggest that Rhymes requested such an instruction at
the time the evidence was admitted, which would have required that the instruction be given.
Accordingly, we affirm the judgment of conviction.
____________________

11
Id at 732, 30 P.3d at 1132.
____________
........................................
121 Nev. 25, 25 (2005) McConnell v. State
ROBERT LEE McCONNELL, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 42101
March 24, 2005 107 P.3d 1287
Petition for rehearing of McConnell v. State, 120 Nev. 1043, 102 P.3d 606 (2004),
affirming a judgment of conviction of first-degree murder and sentence of death. Second
Judicial District Court, Washoe County; Steven R. Kosach, Judge.
State petitioned for rehearing, challenging the holding that a felony may not be used both
to establish first-degree murder and to aggravate the murder to capital status. The supreme
court held that State failed to demonstrate that supreme court had overlooked or
misapprehended any material points of law or fact, and thus State was not entitled to
rehearing.
Petition denied.
Michael R. Specchio, Public Defender, and Cheryl D. Bond, Deputy Public Defender,
Washoe County, for Appellant.
Brian Sandoval, Attorney General, Carson City; Richard A. Gammick, District Attorney,
and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for Respondent.
David J. Roger, District Attorney, and Steven S. Owens, Chief Deputy District Attorney,
Clark County, for Amicus Curiae State of Nevada.
Philip J. Kohn, Public Defender, Clark County; Franny A. Forsman, Federal Public
Defender, and Michael L. Pescetta, Assistant Federal Public Defender, Las Vegas; and JoNell
Thomas, Las Vegas, for Amicus Curiae Nevada Attorneys for Criminal Justice.
1. Sentencing and Punishment.
State failed to demonstrate that supreme court overlooked or misapprehended any
material points of law or fact, with regard to substance of court's decision on direct
appeal affirming murder defendant's conviction and death sentence, and thus State was
not entitled to rehearing on issue of whether felony could be used both to establish
first-degree murder and to aggravate the murder to capital status. NRAP 40(c)(2).
2. Criminal Law.
New rules of criminal law or procedure apply to convictions that are not final.
3. Homicide.
The commission of a felony and premeditation are merely alternative means of
establishing the single mens rea element of first-degree murder; thus, they are different
ways of satisfying a single element.
........................................
If one or more jurors decide to convict of first-degree murder based only on a finding
of felony murder, then prosecutors cannot use the underlying felony as an aggravator in
the capital penalty phase.
A defendant becomes death eligible only after two steps: a finding that at least one
aggravator exists, and a finding that the mitigating evidence does not outweigh any
aggravator or aggravators. NRS 175.554(3).
Before the Court En Banc.
1

OPINION
Per Curiam:
Late last year in McConnell v. State,
2
this court affirmed appellant Robert Lee
McConnell's judgment of conviction of first-degree murder and sentence of death. The State,
however, seeks rehearing, challenging our holding that a felony may not be used both to
establish first-degree murder and to aggravate the murder to capital status.
3
The Clark
County District Attorney (amicus) has filed an amicus brief in support of the State's
position. At our direction, McConnell filed an answer to the rehearing petition, and the
Nevada Attorneys for Criminal Justice also filed an amicus brief, opposing rehearing. We
conclude that the State fails to demonstrate that this court overlooked or misapprehended any
material points of law or fact, so we deny the petition.
[Headnote 1]
NRAP 40(a)(1) requires a petition for rehearing to state briefly and with particularity the
points of law or fact which in the opinion of the petitioner the court has overlooked or
misapprehended. NRAP 40(c)(1) provides: 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. Under NRAP 40(c)(2), this court may consider rehearing [w]hen
the court has overlooked or misapprehended a material fact in the record or a material
question of law or has overlooked, misapplied or failed to consider a statute, procedural
rule, regulation or decision directly controlling a dispositive issue in the case.
Counsel for the State in this matter asserts that McConnell never raised the issue of the
propriety of using an underlying felony as an aggravating circumstance in a felony murder
and that this court acted unfairly in deciding the issue without notice to the State.
____________________

1
This appeal was submitted for decision before January 1, 2005. Only those justices remaining on the court
who participated in the original decision participated in the decision on rehearing.

2
120 Nev. 1043, 102 P.3d 606 (2004).

3
Id. at 1073, 102 P.3d at 627.
........................................
this court acted unfairly in deciding the issue without notice to the State. He also complains
that this court's opinion falsely besmirched his reputation, particularly by indicating that his
failure to respond to the non-existent argument somehow contributed to the court's disposal
of this appeal without oral argument.
4
Counsel, however, is wrong.
First, as page 3 of the State's own petition for rehearing reflects, the table of contents to
McConnell's opening brief expressly lists as argument VIII(A): Burglary aggravator was
improper because it alleged entry with intent to murder, based upon the underlying murder
and the single act should not be allowed to count as the underlying offense and as an
enhancing offense. Second, McConnell's opening brief at pages 48 and 49 specifically urges
that the penalty was improperly enhanced to death based upon improper use of the felony
murder aggravator and relies in large part upon the concurring opinion in our 2002 decision
in Leslie v. Warden,
5
quoting it as follows:
To meet constitutional muster, a capital sentencing scheme must genuinely narrow
the class of persons eligible for the death penalty and must reasonably justify the
imposition of a more severe sentence on the defendant compared to others found guilty
of murder. In upholding the use of underlying felonies to aggravate felony murders,
this court has never addressed Lowenfield v. Phelps, [484 U.S. 231 (1988),] a United
States Supreme Court case that has important implications for this issue. Under
Lowenfield, an aggravating circumstance can be identical to an element of the capital
murder itself as long as the state statute defines capital murder narrowly enough to
begin with. However, when a state broadly defines capital offenses, the narrowing must
occur through the jury's finding of aggravating circumstances at the penalty phase.
Nevada broadly defines capital offenses, particularly felony murder. Thus, the required
narrowing must occur through the jury's finding of aggravating circumstances.
The question is, does the felony aggravator set forth in NRS 200.033(4) genuinely
narrow the death eligibility of felony murderers? First, compared to the felony basis for
felony murder, NRS 200.033(4) limits somewhat the felonies that serve to aggravate a
murder. But the felonies it includes are those most likely to underlie felony murder in
the first place. Second, the aggravator applies only if the defendant [k]illed or
attempted to kill" the victim or "[k]new or had reason to know that life would be
taken or lethal force used."
____________________

4
See id. at 1062 n.36, 102 P.3d at 620 n.36 (The State's failure to address this issue contributed to our
decision not to conduct oral argument in this case.).

5
118 Nev. 773, 784-86, 59 P.3d 440, 448-49 (2002) (Maupin, J., concurring).
........................................
or attempted to kill the victim or [k]new or had reason to know that life would be
taken or lethal force used. This is narrower than felony murder, which in Nevada
requires only the intent to commit the underlying felony. This notwithstanding, it is
quite arguable that Nevada's felony murder aggravator, standing alone as a basis for
seeking the death penalty, fails to genuinely narrow the death eligibility of felony
murderers in Nevada.
6

Counsel for the State also claims that he was wrongly criticized for not responding to the
Supreme Court decision in Lowenfield when McConnell never made a single mention of
that case. Counsel is again mistaken. The above quotation from Leslie in McConnell's brief
clearly mentions and argues Lowenfield. In point of fact, the concurrence in Leslie, relied
upon at length by McConnell, encouraged the parties to litigate the issue of narrowing on
remand of that case and, by implication, invited the bench and bar generally to reconsider the
issue. That McConnell chose to do so and the State did not does not mean that the issue was
not framed in this appeal. It was, and we properly undertook to reach it.
7

Furthermore, we observe that this court's examination of this state's death penalty scheme
does not stand alone. The United States Supreme Court itself has in recent years reexamined
its own precedent and redirected the national debate over the death penalty, placing this field
of jurisprudence in transition in many respects.
8

Counsel further incorrectly asserts that our opinion made no mention of the State
Constitution and is based only on federal law. McConnell explicitly relied on the Nevada
Constitution in addition to federal law: We therefore deem it impermissible under the United
States and Nevada Constitutions to base an aggravating circumstance in a capital prosecution
on the felony upon which a felony murder is predicated."
____________________

6
Id. at 784-85, 59 P.3d at 448-49 (Maupin, J., concurring) (footnotes omitted).

7
We have not in any respect attempted to besmirch counsel's reputation. We recognize his long service to
his community and the Washoe County District Attorney's Office and his most distinguished record as an
advocate before this court.

8
E.g., Roper v. Simmons, 543 U.S. 551 (2005) (holding that the Eighth Amendment's prohibition of cruel and
unusual punishment precludes the execution of offenders who were under 18 years of age when their crimes
were committed); Ring v. Arizona, 536 U.S. 584 (2002) (holding that a capital sentencing scheme under which a
judge determines aggravating circumstances violates the Sixth Amendment right to a jury trial); Atkins v.
Virginia, 536 U.S. 304 (2002) (holding that the Eighth Amendment precludes the execution of the mentally
retarded).
........................................
felony murder is predicated.
9
And we specifically identified the provisions of the Nevada
Constitution that independently require aggravating circumstances to narrow death eligibility:
Nevada's own constitutional bans against the infliction of cruel or unusual punishments' and
the deprivation of life without due process of law.'
10

The rehearing petition and the brief by amicus also fail to show that we overlooked or
misapprehended any material points of law or fact in regard to the substance of our decision
in McConnell.
[Headnote 2]
Amicus first points out accurately that McConnell did not address whether the ruling
regarding felony aggravators is retroactive, but we did not overlook this issue. Before
deciding retroactivity, we prefer to await the appropriate post-conviction case that presents
and briefs the issue. Amicus also informs us that it is currently prosecuting several cases that
were remanded for new penalty hearings and claims that it is impossible to know at this
point whether the application of the felony aggravator at the new penalty hearing is
permissible under the Court's ruling. This question, which is distinct from retroactivity in
post-conviction collateral proceedings, is hardly impossible to answer. Our caselaw makes
clear that new rules of criminal law or procedure apply to convictions which are not final.
11

[Headnote 3]
The State and amicus claim that McConnell conflicts with Schad v. Arizona,
12
where a
majority of the Supreme Court agreed that Arizona's defining first-degree murder as either
premeditated or felony murder without requiring a jury to agree unanimously on either theory
in order to convict did not violate due process. But our opinion does not require jurors to
agree on one theory to convict a defendant of first-degree murder. We simply advised the
State that if it charges alternative theories of first-degree murder and seeks a death sentence,
jurors should receive a special verdict form that allows them to indicate what theory they base
any murder conviction on.
____________________

9
McConnell, 120 Nev. at 1069, 102 P.3d at 624.

10
Id. at 1063 & n.46, 102 P.3d at 621 & n.46.

11
See Clem v. State, 119 Nev. 615, 627-28, 81 P.3d 521, 530-31 (2003); see also Griffith v. Kentucky, 479
U.S. 314, 321 n.6 (1987) (stating that a conviction becomes final when judgment has been entered, the
availability of appeal has been exhausted, and a petition for certiorari to the Supreme Court has been denied or
the time for such a petition has expired).

12
501 U.S. 624, 630-45 (1991) (plurality opinion); id. at 648-52 (Scalia, J., concurring).
........................................
der conviction on. Without the return of such a form showing that the jury did not rely on
felony murder to find first-degree murder, the State cannot use aggravators based on felonies
which could support the felony murder.
13
Amicus further argues: If premeditation and
felony murder have been held to constitute the same mens rea element, then it is contrary to
reason that the felony aggravator narrows one theory of first-degree murder and not the
other. Amicus implies, inaccurately, that premeditation and felony murder are identical. As
this court has explained, the commission of a felony and premeditation are merely
alternative means of establishing the single mens rea element of first degree murder.
14
Thus, they are different ways of satisfying a single element. It is therefore not contrary to
reason to recognize that when felony murder is used both to satisfy that element and to
establish an aggravating circumstance, the required narrowing process may not be
accomplished.
[Headnote 4]
Citing Schad, the State also inquires what should be done if all of the charged theories
have been proved, or if the jury is split regarding the theory of liability. McConnell makes
clear that if one or more jurors decide to convict based only on a finding of felony murder,
then prosecutors cannot use the underlying felony as an aggravator in the penalty phase.
15
The opinion does not expressly address whether use of a felony aggravator is precluded if the
jurors find unanimously that a murder was deliberate and premeditated but also find that it
was felony murder. It is not a ground for rehearing that this issue remains for resolution in a
case which squarely presents it.
Amicus next claims that this court misconstrued the narrowing requirement of Zant v.
Stephens
16
and applied an incorrect standard. However, amicus quotes Supreme Court
caselaw dealing with vagueness and overbreadth issues and disregards the specific question
decided by McConnell and the Supreme Court decision germane to that question, Lowenfield
v. Phelps.
17
Amicus suggests that we should have decided this case based on consideration
of Nevada's capital sentencing scheme in its entirety. We disagree. The pertinent issue in this
case is whether felony aggravators constitutionally narrow death eligibility in a felony
murder, not whether the statutory scheme in the abstract can withstand a general
constitutional challenge.
____________________

13

14
Holmes v. State, 114 Nev. 1357, 1363-64, 972 P.2d 337, 341 (1998) (citing Schad, 501 U.S. at 637, for the
same proposition under Arizona law).

15

16
462 U.S. 862, 877 (1983).

17
484 U.S. 231, 241-46 (1988).
........................................
whether the statutory scheme in the abstract can withstand a general constitutional challenge.
18

Amicus argues next that this court misconstrued the authority relied on in McConnell.
First, amicus distinguishes two decisions from other jurisdictions which we cited, State v.
Middlebrooks
19
and Engberg v. Meyer,
20
both of which deemed the use of the felony in a
felony murder as an aggravator to be improper. Amicus fails, however, to point out any
misapprehension by this court. Our opinion did not rely on the two decisions; it simply cited
them and others as examples of the varied decisions by other courts on this issue.
21
Amicus
nevertheless argues that the aggravators at issue in Middlebrooks and Engberg were identical
with felony murder, whereas in Nevada the felony aggravator is narrower than felony murder.
This still reveals no misapprehension; our opinion recognized and discussed the narrowing
effect of Nevada's felony aggravator but concluded that the effect was too slight to satisfy
either the United States or the Nevada Constitution.
22

Amicus also asserts that we misconstrued and misapplied Lowenfield because in that case
the Supreme Court concluded that a felony may be used as both an element of felony murder
and a felony aggravator while we reached the opposite conclusion. This simplistic analysis
is of no value. McConnell expressly recognized that under Lowenfield it is possible for an
element of capital murder to serve also as an aggravatorif the definition of capital murder is
sufficiently narrow to begin with.
23
Thus, we asked, is Nevada's definition of capital felony
murder narrow enough that no further narrowing of death eligibility is needed once the
defendant is convicted?
24
The answer is no, as we concluded.
25

But amicus also takes issue with this conclusion and accuses this court of stating, in
conclusory fashion, that Nevada's definition of felony murder does not provide
constitutional narrowing. According to amicus, [i]t remains unknown why the Court has
decided to simply count the number of felonies contained within the first-degree felony
murder statute and conclude that it is too broad."
____________________

18
Cf. McConnell, 120 Nev. at 1070, 102 P.3d at 625 (We hold to our precedent rejecting . . . general
challenges to Nevada's capital sentencing scheme.).

19
840 S.W.2d 317, 341-47 (Tenn. 1992), superseded by statute as stated in State v. Stout, 46 S.W.3d 689,
705-06 (Tenn. 2001).

20
820 P.2d 70, 86-92 (Wyo. 1991).

21
McConnell, 120 Nev. at 1063 n.42, 102 P.3d at 620 n.42.

22
Id. at 1066-69, 102 P.3d at 622-24.

23
Id. at 1064-65, 102 P.3d at 621.

24
Id. at 1065, 102 P.3d at 621.

25
Id. at 1065, 102 P.3d at 622.
........................................
first-degree felony murder statute and conclude that it is too broad. Our opinion, however,
explained why felony murder in Nevada requires further narrowing, and we did not simply
count the number of felonies in the statute. We noted that under Lowenfield there are two
ways a regime of capital punishment can constitutionally narrow death eligibility: a
legislature may provide a sufficiently narrow definition of capital offenses, or a legislature
may more broadly define such offenses and provide for narrowing at the penalty phase by a
jury's finding of aggravating circumstances.
26
We then made clear why Nevada's regime falls
in the latter category. We pointed out that Nevada defines first-degree felony murder more
broadly than does the Louisiana statute discussed in Lowenfield; most important, the offense
in Nevada requires no specific intent to kill or to inflict great bodily harm, as does the
Louisiana offense.
27
We further pointed out that Nevada's definition of felony murder is
broader than that set forth in the death penalty statute extant in 1972 when the Supreme Court
temporarily ended executions in the United States.
28
Consequently, felony murder in Nevada
is so broadly defined that further narrowing of death eligibility by the finding of aggravating
circumstances is necessary.
29
Amicus fails to address this analysis, let alone show that it is in
error.
Amicus also claims that
without any citations for support the Court concluded that the narrowing capacity of the
felony aggravators is theoretical and in practical terms, the aggravators cover the vast
majority of first-degree felony murders. Further, the Court stated that the second half of
the felony aggravator statute can be overlooked and may not receive consideration by
the jury. Such statements by the Court are conclusory, speculative and without support.
Although implying disagreement with our conclusion in McConnell that the felony and
sexual-penetration aggravators encompass the vast majority of felony murders,
30
amicus
does not identify any weakness in our reasoning or provide any data to contradict it. And we
unassailably supported our concern that juries may overlook the second half of the felony
aggravator,that is, the intent elementby pointing out that in the penalty phase of this
very case the jury was not instructed on the required intent and therefore gave it no
consideration.
31

____________________

26
Id. at 1064, 102 P.3d at 621.

27
Id. at 1065-66, 102 P.3d at 622.

28
Id. at 1066, 102 P.3d at 622.

29
Id.

30
Id. at 1067, 102 P.3d at 623.

31
Id. at 1068, 102 P.3d at 624.
........................................
[Headnote 5]
Amicus is correct that a defendant in Nevada becomes death eligible only after two steps:
a finding that at least one aggravator exists and a finding that the mitigating evidence does not
outweigh any aggravator or aggravators.
32
McConnell did not discuss the second step, and
therefore amicus says this court failed to discern that the capital sentencing scheme as a
whole sufficiently narrows death eligibility. The potential effect of mitigating evidence does
not provide the required narrowing. In effect, amicus advances the novel and unsound
argument that an aggravator that fails to constitutionally narrow death eligibility is of no
concern because of the possibility that a jury may not return a death sentence due to
mitigating circumstances.
Finally, amicus asserts that the weight of authority is against this court's application of
Lowenfield and cites four decisions from other jurisdictions.
33
Amicus does not indicate how
the decisionswhich considered Arkansas, Delaware, and Florida statutesreveal any
material misapprehension by this court in this case. We actually cited three of these decisions
in McConnell and noted that they deemed the use of the felony in a felony murder as an
aggravator to be proper.
34
The essential point that amicus overlooks is that the analysis and
result in this case are dependent on the pertinent Nevada statutes.
Because no grounds for rehearing have been presented, we deny the State's petition.
____________________

32
NRS 175.554(3); Hollaway v. State, 116 Nev. 732, 745, 6 P.3d 987, 996 (2000).

33
Deputy v. Taylor, 19 F.3d 1485, 1500-02 (3d Cir. 1994); Johnson v. Dugger, 932 F.2d 1360, 1368-70
(11th Cir. 1991); Perry v. Lockhart, 871 F.2d 1384, 1392-93 (8th Cir. 1989); Ferguson v. State, 642 A.2d 772,
780-81 (Del. 1994).

34
McConnell, 120 Nev. at 1063 n.42, 102 P.3d at 620 n.42.
____________
........................................
121 Nev. 34, 34 (2005) RTTC Communications v. Saratoga Flier
RTTC COMMUNICATIONS, LLC, a Nevada Limited Liability Company, Appellant, v.
THE SARATOGA FLIER, INC., a California Corporation, dba PINSKER AND
COMPANY, Respondent.
No. 41005
April 14, 2005 110 P.3d 24
Appeal from a final judgment of the district court in a contract dispute and an order
awarding attorney fees. Second Judicial District Court, Washoe County; Brent T. Adams,
Judge.
California executive recruiting agency brought breach-of-contract action against client and
others, alleging that client failed to pay amount due after agency located candidate who was
hired by client. Client filed counterclaim, seeking return of fee for locating a candidate who
became client's chief executive officer (CEO). Following a bench trial, the district court
entered judgment in favor of agency on agency's claim, dismissed counterclaim, and awarded
attorney fees. Client appealed. The supreme court, Douglas, J., held that: (1) agency met
statutory definition of employment agency; (2) as a matter of first impression, for purposes of
statute prohibiting employment agencies from doing business in state without a license,
agency was not doing business in state; (3) agency was not required to qualify and file
under foreign corporation statutes to be eligible to bring collection action; and (4) agency's
joint, unapportioned offer of judgment was sufficient to support award of attorney fees
against client.
Affirmed.
[Rehearing denied June 2, 2005]
Law Offices of Richard McKnight, P.C., and Richard McKnight, Las Vegas, for Appellant.
Lemons Grundy & Eisenberg and Alice G. Campos Mercado and David R. Grundy, Reno,
for Respondent.
Brian Sandoval, Attorney General, and Dianna Hegeduis, Senior Deputy Attorney
General, Carson City, for Amicus Curiae.
1. Labor and Employment.
Executive recruiting agency met statutory definition of employment agency, as
would support claim that agency was required to be licensed; agency furnished
information to its client, which was seeking employees. NRS 611.020(2)(b), 611.030.
........................................
For purposes of statute prohibiting employment agencies from doing business in
state without a license, California executive recruiting agency was not doing business
in state when it was working for Nevada client, although agreement between agency
and client was signed in Nevada, and although hiring of employees identified by agency
occurred in Nevada; agency conducted most, if not all, of actual search in California,
and employees who were hired were California natives. NRS 611.030(2).
3. Corporations.
Since it was transacting business in interstate commerce, California corporation, an
executive recruiting agency, was not required to qualify and file under Nevada's foreign
corporation statutes to be eligible to bring collection action against client in Nevada;
corporation sought and identified eventual employees hired by client in California,
maintained no offices in Nevada, and did not solicit Nevada employers. NRS
80.055(1)(m).
4. Corporations.
When determining whether foreign corporation is doing business in Nevada for
purposes of foreign-corporation statute, which imposed certain filing requirements,
court first looks to the nature of the company's business functions in the state and then
to the quantity of business it conducts in the state. NRS 80.015(1)(m).
5. Costs.
Executive recruiting agency's joint, unapportioned offer of judgment against client,
client's manager, and alleged successor corporation of client was sufficient to support
award of attorney fees against client in breach-of-contract action; defendants had unity
of interest, client was solely authorized to make decision whether to settle, action and
offer of judgment were brought in good faith, and requested fees were reasonable and
justified. NRS 17.115; NRCP 68.
6. Costs.
Award of attorney fees lies within the trial court's discretion.
7. Costs.
Trial court may not award attorney fees absent authority under a specific rule or
statute.
8. Costs.
Offer of judgment must specify the statute or rule that provides for the costs or fees
sought by the offeror. NRS 17.115; NRCP 68.
9. Costs.
When exercising discretion to award attorney fees based on offer of judgment, court
must consider: (1) whether plaintiff's claim was brought in good faith, (2) whether
defendants' offer of judgment was reasonable and in good faith in both its timing and
amount, (3) whether plaintiff's decision to reject offer and proceed to trial was grossly
unreasonable or in bad faith, and (4) whether fees sought by offeror are reasonable and
justified in amount. NRS 17.115; NRCP 68.
10. Costs.
Purpose of statute and rule governing offers of judgment is to encourage settlement.
NRS 17.115; NRCP 68.
........................................
OPINION
By the Court, Douglas, J.:
In this appeal we consider whether NRS 611.030, which requires that employment
agencies operating in Nevada be licensed by the Labor Commissioner, applies to out-of-state
executive recruiters. We conclude that NRS 611.030 does not require an executive recruiting
agency operating in another state to obtain a Nevada license when that agency is hired for a
single transaction by a Nevada employer.
In the fall of 2001, appellant Reno Tahoe Tech Center Communications, LLC (RTTC)
solicited the services of Saratoga Flier, Inc., d/b/a Pinsker and Company (Pinsker), in
California for the purpose of recruiting and selecting a chief executive officer (CEO) for
RTTC. Pinsker was a California corporation, but it was not required to be licensed as an
employment agency under California law.
1

A recruitment agreement was signed in Nevada by RTTC manager Kreg Rowe and
Pinsker, providing for a $50,000 consulting fee to hire a CEO. The agreement additionally
provided that if any other employee was hired as a direct result of Pinsker's services, RTTC
would pay Pinsker an amount equal to one-third of that employee's actual first year cash
compensation.
Pinsker met with RTTC executives to develop a profile for the CEO position and was
invited to an RTTC management meeting a few weeks later to gain a better understanding of
the organization. Subsequently, Pinsker recommended Madison Laird, a California resident,
for the CEO position. Pinsker checked Laird's references and scheduled an interview for
RTTC with Laird. RTTC hired Laird as President/CEO, with Pinsker assisting in the
negotiations of the compensation package. Pinsker was paid its $50,000 fee according to the
agreement.
While searching for CEO candidates, Pinsker also interviewed California resident Janice
Fetzer. Pinsker communicated to RTTC that Fetzer, while not an appropriate CEO candidate,
would be a good candidate for a Vice-President position. Pinsker eventually recommended
Fetzer to Laird. Laird asked Pinsker how any fee due Pinsker for hiring Fetzer would affect
RTTC's bottom line.
____________________

1
See Cal. Civil Code 1812.501(a)(1) (West 1998) (defining employment agencies, in pertinent part, as
[a]ny person who, for a fee or other valuable consideration to be paid, directly or indirectly by a jobseeker,
performs, offers to perform or represents it can or will perform any of the following services (emphasis added)).
........................................
due Pinsker for hiring Fetzer would affect RTTC's bottom line. Pinsker advised Laird that the
fee was governed by the recruitment agreement with RTTC. Laird interviewed Fetzer and
subsequently hired her for an annual salary of $160,000. Pinsker billed RTTC $53,333 under
the agreement.
Pinsker was never paid and sued RTTC and Rowe in March 2002 to collect the fee due for
hiring Fetzer. RTTC counterclaimed for the return of the fee paid to Pinsker for hiring Laird,
alleging that Pinsker was not licensed in Nevada as an employment agency.
Originally, Pinsker had named as defendants RTTC, Rowe as agent for RTTC, and
Redundant Networks, Inc. (Redundant), as successor-in-interest to RTTC. In May 2002,
Pinsker made an offer to take judgment against all three defendants in the amount of $45,000.
That offer was rejected. Rowe and Redundant were voluntarily dismissed in September 2002.
After a two-day trial, the district court ruled in favor of Pinsker, awarding it $53,333, plus
interest. The court found that the recruiting agreement was valid and enforceable, that Pinsker
deserved to be compensated for its work under the agreement, and that NRS Chapter 611 did
not apply to Pinsker. The court also dismissed RTTC's counterclaim. Subsequently, the court
granted Pinsker's motion for attorney fees under NRCP 68. RTTC filed a timely appeal. We
affirm.
DISCUSSION
RTTC first argues that Pinsker meets the statutory definition of employment agency.
Pinsker, on the other hand, urges this court to conclude that executive recruiting agencies that
only charge fees to employers, not prospective employees, do not fall under the licensing
requirement of Nevada's employment agency statutes, since those statutes are intended to
protect employees, not employers, from unlicensed agencies.
Statutory definition of employment agency
[Headnote 1]
As recognized by the United States Supreme Court, a fundamental canon of statutory
construction is that a court must first presume that a legislature says in a statute what it
means and means in a statute what it says there.
2
This court has stated that when the
language of a statute is plain, its intention must be deduced from such language, and the
Court has no right to go beyond it,
3
and [w]here the language of a statute is susceptible of
a sensible interpretation, it is not to be controlled by any extraneous considerations."
____________________

2
Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-54 (1992).

3
Hess v. The County Commissioners of Washoe County, 6 Nev. 104, 107 (1870) (republished as 5-6-7 Nev.
444, 446).
........................................
sible interpretation, it is not to be controlled by any extraneous considerations.
4

NRS 611.020(2)(b) defines employment agency, in part, as follows:
2. Employment agency means any person who, for a fee, commission or charge:
. . .
(b) Furnishes information to a person seeking employees enabling or tending to
enable him to obtain employees . . . .
The plain language of NRS 611.020(2)(b) makes it clear that even an executive
recruitment firm such as Pinsker, which charges fees only to employers, falls within the
definition provided in the statute. Regardless of the fee arrangements, or any other
considerations, the firm at issue did indeed [furnish] information to a person seeking
employees, as specifically delineated in the statute. Thus, Pinsker meets the statutory
definition of employment agency. Next, we consider whether the statutes require licensing of
an out-of-state employment agency for a single transaction within this state.
Doing business in Nevada
NRS 611.030 requires that employment agencies operating in Nevada be licensed.
5
Subsection (1) forbids opening, keeping, operating or maintaining an employment agency in
the state. Subsection (2) forbids soliciting employers in the state, and referring or placing a
person for employment in this state, or otherwise doing business in this state.
Pinsker did not open, keep, operate or maintain an employment agency in this state,
since it was located in California. Further, the record demonstrates that RTTC solicited
Pinsker in California, and that Pinsker located Laird and Fetzer in California.
[Headnote 2]
The issue, then, is whether Pinsker's agreement with RTTC constitutes do[ing] business
in this state for the purposes of NRS 611.030(2).
____________________

4
Latterner v. Latterner, 51 Nev. 285, 290, 274 P. 194, 195 (1929).

5
NRS 611.030 states:
1. A person shall not open, keep, operate or maintain an employment agency in this state without first
obtaining a license therefor as provided in NRS 611.020 to 611.320, inclusive, from the Labor
Commissioner.
2. No employment agency may solicit any employer in this state and refer or place any person for
employment with such employer or otherwise do business in this state unless such employment agency
has
........................................
RTTC urges this court to conclude that Pinsker was doing business in Nevada since the
agreement was signed in Nevada and the hiring of the employees occurred in Nevada.
Alternatively, RTTC argues that Pinsker had no standing to bring a collection action, since
Pinsker had not qualified and filed as a foreign corporation doing business in Nevada as
required by NRS 80.055.
The issue of whether or not Pinsker's single transaction is considered do[ing] business
under NRS 611.030(2) is an issue of first impression. The most instructive case law and
statutory language involve Nevada's foreign corporation statutes, NRS Chapter 80, also at
issue here.
[Headnote 3]
Under NRS 80.015(1)(m), [t]ransacting business in interstate commerce does not
constitute doing business in this state, since states may not impose filing requirements in a
way that will interfere with federal regulation of interstate commerce.
6

[Headnote 4]
This court has held that transacting a single piece of business in the state is not doing
business' in the sense contemplated by the [foreign corporation] statute.
7
In determining
whether a company is doing business in Nevada, this court has used a two-pronged test as
set forth in Sierra Glass & Mirror v. Viking Industries.
8
The court first looks to the nature of
the company's business functions in the state and then to the quantity of business it conducts
in the state.
9
In Sierra Glass, an Oregon corporation maintained one sales representative in
Nevada, who took orders locally and then remitted the orders and payments to the Oregon
corporation. The Nevada sales comprised about one-seventh of the corporation's total sales
volume. This court determined that the nature of the Oregon corporation's business was
predominantly interstate rather than intrastate, but the quantity of business done in
Nevada was substantial.
____________________
obtained a license from the Labor Commissioner under the provisions of NRS 611.045.
3. Any person who opens, keeps, operates or maintains an employment agency without first
procuring a license is guilty of a misdemeanor.

6
Sierra Glass & Mirror v. Viking Industries, 107 Nev. 119, 121, 808 P.2d 512, 513 (1991) (citing Robbins v.
Shelby Taxing District, 120 U.S. 489 (1886)).

7
Pacific States Sec. Co. v. District Court, 48 Nev. 53, 57, 226 P. 1106, 1107 (1924) ([I]t may be laid down
as a general rule that the action of a foreign corporation in entering into one contract or transacting an isolated
business act in the state does not ordinarily constitute the carrying on or doing of business' therein.).

8
Sierra Glass, 107 Nev. at 122, 808 P.2d at 513 (citing Eli Lilly & Co. v. Sav-On Drugs, 366 U.S. 276
(1961)).

9
Id.
........................................
Oregon corporation's business was predominantly interstate rather than intrastate, but the
quantity of business done in Nevada was substantial. Ultimately, although acknowledging
that the issue was extremely close, this court concluded that the Oregon corporation's
business in Nevada had not taken on an intrastate quality.
10
Thus, the Oregon corporation
was not required to comply with Nevada's foreign corporation laws before filing an action in
Nevada.
11

In this instance, Pinsker was transacting business in interstate commerce. Pinsker was
incorporated in California, and it sought and identified the eventual employees hired by
RTTC in California. Pinsker maintained no offices in Nevada and did not solicit Nevada
employers. Therefore, Pinsker was not required to qualify and file under Nevada's foreign
corporation statutes to be eligible to bring suit for collection against RTTC.
The foreign corporations statutes specifically disavow their applicability to any other
provision of law.
12
Nevertheless, the two-prong test utilized by this court in Sierra Glass is
instructive in determining whether Pinsker was doing business in this state for the
employment agency statutes at issue. As noted above, Pinsker's business functions in this
state were limited to meeting with RTTC and signing the agreement. Pinsker actually
conducted most, if not all, of the actual search for potential executives in California. Even the
two executives identified by Pinsker and subsequently hired by RTTC were California
natives. Neither the nature nor the quantity of business conducted by Pinsker in Nevada rises
to the level necessary to be considered do[ing] business in this state under NRS 611.030(2).
Accordingly, Pinsker's lack of an employment agency license does not render the recruitment
agreement unenforceable.
Attorney fees
[Headnotes 5-7]
An award of attorney fees lies within the district court's discretion,
13
but a court may not
award attorney fees absent authority under a specific rule or statute.
14
Both NRCP 68 and
NRS 17.115 allow for an award of attorney fees to a party that makes an offer of
judgment that is refused by the other party, and then subsequently obtains a more
favorable judgment.
____________________

10
Id. at 125, 808 P.2d at 515.

11
Id.

12
NRS 80.015(4)(b).

13
Allianz Ins. Co. v. Gagnon, 109 Nev. 990, 993, 860 P.2d 720, 722 (1993).

14
State, Dep't of Human Resources v. Fowler, 109 Nev. 782, 784, 858 P.2d 375, 376 (1993).
........................................
allow for an award of attorney fees to a party that makes an offer of judgment that is refused
by the other party, and then subsequently obtains a more favorable judgment.
15
Here, the
district court cited NRCP 68 in its award of attorney fees to Pinsker.
[Headnotes 8, 9]
An offer of judgment must specify the statute or rule that provides for the costs or fees
sought by the offeror.
16
In addition, when exercising discretion to award attorney fees based
on such an offer, a court must consider the four factors articulated in Beattie v. Thomas:
17

(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.
In Yamaha Motor Co. v. Arnoult,
18
this court concluded that when the defendant is the
offeree instead of the offeror, the first factor should be whether the defendant's claims or
defenses were litigated in good faith.
19

Prior to 1998, joint unapportioned offers of judgment were invalid for an award of attorney
fees under both NRCP 68 and NRS 17.115.
20
However, NRCP 68 was amended in 1998 and
NRS was amended in 1999 to permit an award of fees when there has been an
unapportioned offer of judgment, under certain circumstances.
____________________

15
NRCP 68(f)(2) ([T]he offeree shall pay the offeror's post-offer costs, applicable interest . . . and
reasonable attorney's fees.).

16
MRO Communications v. American Tel. & Tel. Co., 197 F.3d 1276, 1282 (9th Cir. 1999); Ramadanis v.
Stupak, 104 Nev. 57, 59-60, 752 P.2d 767, 768 (1988).

17
99 Nev. 579, 588-89, 668 P.2d 268, 274 (1983).

18
114 Nev. 233, 955 P.2d 661 (1998).

19
Id. at 252, 955 P.2d at 673.

20
Yada v. Simpson, 112 Nev. 254, 258, 913 P.2d 1261, 1263 (1996) (plaintiff's unapportioned offer to
multiple defendants invalid to support award of attorney fees); Morgan v. Demille, 106 Nev. 671, 674, 799 P.2d
561, 563 (1990) (unapportioned offer from multiple plaintiffs to sole defendant invalid to support award of
attorney fees); Ramadanis, 104 Nev. at 59, 752 P.2d at 768 (defendant's unapportioned offer to multiple
plaintiffs, here a corporation and its principal, invalid to support award of attorney fees); Uniroyal Goodrich
Tire v. Mercer, 111 Nev. 318, 322-23, 890 P.2d 785, 788-89 (1995) (plaintiff's unapportioned offer to multiple
defendants valid to support award of attorney fees, since defendants had stipulated in advance which entity
would pay any judgment, therefore no separate liability or basis of liability between defendants, and counsel for
joint defendants could appropriately assess risk of refusing offer).
........................................
17.115 was amended in 1999
21
to permit an award of fees when there has been an
unapportioned offer of judgment, under certain circumstances.
22

NRCP 68(c)(2) now reads, in pertinent part, as follows:
(2) Offers to Multiple Defendants. An offer made to multiple defendants will
invoke the penalties of this rule only if (A) there is a single common theory of liability
against all the offeree defendants, such as where the liability of some is entirely
derivative of the others or where the liability of all is derivative of common acts by
another, and (B) the same entity, person or group is authorized to decide whether to
settle the claims against the offerees.
[Headnote 10]
The conditions under which joint unapportioned offers of judgment are sufficient to allow
for an award of attorney fees under NRCP 68 and NRS 17.115 are almost identical. Both the
rule and the statute call for either a single theory of liability or derivative liability for all, and
both call for the same person or entity to be able to make the decision of whether or not to
settle. These conditions help to accomplish the purpose of both the statute and the rule, which
is to encourage settlement,
23
and they serve to assuage the concerns that joint unapportioned
offers of judgment do not encourage settlement,
24
since such offers are only allowed in
circumstances where that purpose can be served.
It is undisputed here that Pinsker obtained a more favorable judgment than its offer of
judgment and that the district court properly cited appropriate authority in the award. RTTC
argues, however, that the district court improperly applied the Beattie factors and that the
unapportioned offer of judgment was insufficient to support an award.
____________________

21
A review of the minutes of the Assembly Committee on Judiciary, May 6 and 11, 1999, shows that NRS
17.115 was amended to make it consistent with Nevada Rules of Civil Procedure 68.

22
NRCP 68 (replaced, effective October 27, 1998); 1999 Nev. Stat., ch. 258, 1-3, at 1102-05 (amending
NRS 17.115 as of May 24, 1999).

23
Beattie, 99 Nev. at 588, 668 P.2d at 274; Dillard Department Stores v. Beckwith, 115 Nev. 372, 382, 989
P.2d 882, 888 (1999) (The purpose of NRS 17.115 and NRCP 68 is to save time and money for the court
system, the parties and the taxpayers. They reward a party who makes a reasonable offer and punish the party
who refuses to accept such an offer. (citing Muije v. A North Las Vegas Cab Co., 106 Nev. 664, 667, 799 P.2d
559, 561 (1990))).

24
Yada, 112 Nev. at 258, 913 P.2d at 1263 ([A] single plaintiff's offer of judgment . . . not apportioned
among multiple defendants . . . does not serve to encourage settlement since the individual defendants are unable
to determine their share of a joint offer and make a meaningful choice between accepting the offer or continuing
to litigate.).
........................................
In the district court's order awarding fees, all four Beattie factors are mentioned, as well as
the additional factor from Yamaha.
25
Additionally, there is ample support in the record to
support the district court's findings that both Pinsker's claim and offer of judgment were
brought in good faith, that RTTC had a meritorious defense and acted in good faith in
rejecting Pinsker's offer, and that the requested attorney fees were reasonable and justified.
We find no abuse of discretion in the district court's analysis of the Beattie factors.
The district court, in the order granting the motion for attorney fees, stated that there was a
single theory of liability against all three defendants. This statement was based on the court's
finding that Pinsker made two claims for relief, both arising from [its] service in procuring a
management employee. Both of these claims were directed at all defendants, but only one
defendant would have been responsible for the judgment. The district court also found that
the defendants had a unity of interest, apparent from the fact that defendants were jointly
represented in this matter by one law firm.
With respect to a single theory of liability, ample evidence in the record supports Rowe's
liability only as an agent of RTTC. Redundant Networks, Inc., is mentioned in the original
complaint and in the pleadings on the defendants' motion to dismiss as successor in interest to
RTTC. In RTTC's motion for summary judgment, RTTC admits that if an obligation to pay
the commission exists here it is the obligation of RTTC only.
With respect to unity of interest, evidence in the record reveals that joint counsel for the
three original defendants admitted that RTTC would be liable for any judgment rendered.
From this the district court could reasonably conclude that RTTC was solely authorized to
make the decision of whether or not to settle.
Thus, substantial evidence supports the district court's finding of unity of interest and a
single theory of liability, and the district court did not abuse its discretion as to the attorney
fees award. Accordingly, we affirm the award of the district court.
CONCLUSION
For the reasons set forth above, we affirm the judgment of the district court and its order
awarding attorney fees.
Becker, C. J., Rose, Maupin, Gibbons, Hardesty and Parraguirre, JJ., concur.
____________________

25
Uniroyal Goodrich Tire, 111 Nev. at 322-23, 890 P.2d at 789 (Beattie factors should have express written
support in decision, but award is proper if the record makes clear that the trial court considered the factors;
unless evaluation of the factors is arbitrary or capricious, they will not be disturbed).
____________
........................................
121 Nev. 44, 44 (2005) Jordan v. State, Dep't of Motor Vehicles
JAMES JACOB JORDAN, Appellant, v. THE STATE OF NEVADA on Relation of the
DEPARTMENT OF MOTOR VEHICLES AND PUBLIC SAFETY, CAPITOL POLICE
DIVISION, JIMMIE JONES, Respondents.
No. 38189
JOHN LUCKETT, Appellant, v. EDWARD DOUMANI and
LA CONCHA MOTEL, Respondents.
No. 39052
April 14, 2005 110 P.3d 30
Proper person appeals from district court orders granting summary judgment in an
intentional tort action (Docket No. 38189) and dismissing an intentional tort/negligence
action for failure to post security for costs (Docket No. 39052). First Judicial District Court,
Carson City; Michael R. Griffin, Judge (Docket No. 38189); Eighth Judicial District Court,
Clark County; Kathy A. Hardcastle, Judge (Docket No. 39052).
Arrestee sued State for oppression while using physical force, malicious prosecution, false
imprisonment, false lawsuit, libel, and perjury, and he was granted leave to proceed in forma
pauperis. The district court granted summary judgment for State, and ordered that arrestee
would not be allowed to proceed as proper person litigant with waiver of fees in any new
actions and would be required to obtain leave of court before filing any new action. In a
second action, a nonresident plaintiff brought claims against alleged con artist and motel
owner for unlawful practice of law, negligence, conspiracy to commit and aid fraud, and
intentional infliction of emotional distress, and plaintiff was granted in forma pauperis status.
The district court dismissed the action, based on plaintiff's failure, as nonresident, to post
security for costs, declared plaintiff a vexatious litigant, and restricted his court access.
Appeals were taken in each case. The supreme court held that: (1) pre-service complaint
review may be used, to prevent litigation abuse by proper person litigants with in forma
pauperis status; (2) four-factor analysis guides courts in balancing various interests implicated
by court-access restrictions on vexatious litigants; (3) sua sponte vexatious-litigant order
violated litigant's due process rights; (4) vexatious-litigant restrictive order could not
implicate other courts' powers; (5) fact issue precluded summary judgment on claims for
malicious prosecution, false arrest, and false imprisonment; and (6) court could waive
statutory requirement that nonresident plaintiff post security for costs.
Affirmed in part, reversed in part and remanded (Docket No. 38189); affirmed and
remanded with instructions (Docket No. 39052).
........................................
[Rehearing denied June 6, 2005]
James Jacob Jordan, Lynnwood, Washington, in Proper Person.
John Luckett, Anaheim, California, in Proper Person.
Brian Sandoval, Attorney General, Carson City, for Respondents State of Nevada and
Jimmie Jones.
Law Offices of Michael F. Bohn, Ltd., and Michael F. Bohn, Las Vegas, for Respondents
Edward Doumani and La Concha Motel.
1. Costs.
Upon receiving a proper-person civil complaint and an application to proceed in
forma pauperis, the district court must first consider the application's merits and
determine whether the accompanying affidavit and any additional investigation
demonstrate that the applicant is unable to pay the costs of proceeding with the action,
and if the court so finds, the court must grant the applicant leave to proceed without the
payment of costs and file the complaint. NRS 12.015.
2. Costs.
Once the proper-person civil plaintiff's application to proceed in forma pauperis is
granted and the complaint is filed, the district court is free to review the complaint's
merits for apparent defects, and if the complaint appears completely frivolous on its
face, meaning that it appears to lack an arguable basis either in law or in fact, then the
court may direct the clerk to defer issuing the summonses pending the completion of its
review, and the court may then hold a preliminary evidentiary hearing with the plaintiff
to determine whether the action should be allowed to proceed, and if the district court
determines that the action or a specific claim is indeed frivolous, the court can dismiss
the action or claim. NRS 12.015; NRCP 11(c)(2)(3).
3. Costs.
The dismissal of a complaint as frivolous, based on information obtained in a
preliminary evidentiary hearing after the proper-person civil plaintiff has been granted
in forma pauperis status and the complaint has been filed, but before issuance of
summonses, is an extreme action, and if the complaint can be amended to cure any
apparent defects, the plaintiff should be permitted to do so. NRS 12.015; NRCP 11.
4. Courts; Equity.
Nevada courts possess inherent powers of equity and of control over the exercise of
their jurisdiction.
5. Injunction.
Nevada courts have the power to permanently restrict a vexatious litigant's right to
access the courts. Const. art. 6, 6(1); NRCP 11.
6. Injunction.
A court may permanently restrict a vexatious litigant's right to access the courts
either after a party so moves, or in appropriate circumstances, sua sponte. NRCP
11(c)(1).
7. Constitutional Law; Injunction.
Because an order permanently restricting a vexatious litigant's right to access the
courts implicates an individual's constitutional right to access the courts, such orders
must be narrowly tailored.
........................................
8. Injunction.
A four-factor analysis guides courts in balancing the various interests implicated by
court-access restrictions on vexatious litigants: (1) due process requires notice and
opportunity to be heard before issuance of restrictive order, (2) district court must
create adequate record for appellate review, (3) district court must make substantive
findings as to frivolous or harassing nature of litigant's actions, and (4) restrictive order
must be narrowly drawn to address the specific problem encountered. U.S. Const.
amend. 14; NRCP 11(c).
9. Injunction.
A court considering a vexatious-litigant restrictive order must use caution in
reviewing filings in other cases, so as not to interfere with other judges' pending
assignments, and the judge issuing the restrictive order should rely only on observations
obtained from cases to which he or she is assigned, and on actual rulings in other cases.
10. Injunction.
While a vexatious-litigant restrictive order may be warranted based solely on
documents before the district court in that particular case, the district court must
identify those documents and explain how, by filing them, the litigant abused the court
system.
11. Injunction.
A vexatious-litigant restrictive order cannot issue merely upon a showing of
litigiousness; the litigant's filings must not only be repetitive or abusive, but also
without an arguable factual or legal basis, or filed with the intent to harass.
While courts may, as a general rule, restrict vexatious litigants' access to courts,
constitutional considerations prohibit a complete ban on filings by indigent proper
person litigants if the ban prevents the litigant from proceeding in criminal cases and in
original civil actions that sufficiently implicate a fundamental right; such orders are
impermissible.
13. Injunction.
Since vexatious-litigant restrictive orders necessarily implicate future filings of
actions, which may involve criminal cases or fundamental rights, even broad restrictive
orders should set an appropriate standard against which any future filings will be
measured, e.g., barring litigant from filing any new actions involving specific defendant
or specific claim, or barring litigant from filing any new actions unless court first
determines that proposed action is not frivolous or brought for improper purpose and/or
implicates a fundamental right.
The appellate court examines vexatious-litigant restrictive orders under an abuse of
discretion standard.
Sua sponte vexatious-litigant order, entered without first providing proper-person
civil litigant with notice or opportunity to respond, violated litigant's due process rights;
while district court's previous orders hinted at its displeasure with litigant's improper
filings, court never expressly warned litigant that it was considering issuing restrictive
order affecting his right to access the court. U.S. Const. amend. 14.
16. Injunction.
Vexatious-litigant restrictive order against proper-person civil litigant did not satisfy
requirement of creating adequate record for appellate review.
........................................
view. While order contained partial explanation, i.e., that litigant repeatedly, in that
case and others, wasted State's resources with meritless and unintelligible filings that
did not conform with court rules, and while order included two examples of such
filings, order did not otherwise contain list of filings and rulings that led court to
impose broad filing restriction, and order did not sufficiently indicate that litigant had
previously instituted other suits that were determined meritless or otherwise resulted in
adverse resolution.
17. Injunction.
Vexatious-litigant restrictive order against proper-person civil litigant was improper,
where it did not contain substantive findings as to frivolous or harassing nature of
litigant's actions, though record indicated that many of litigant's filings were difficult to
understand and often procedurally improper; litigant's allegations in current action
against State relating to his arrest were not without arguable merit, and a preliminary
evidentiary hearing, after litigant had been granted in forma pauperis status and
complaint had been filed but before issuance of summonses, could have helped prevent
confusion regarding the filings.
18. Injunction.
Vexatious-litigant restrictive order against proper-person civil litigant, ordering that
litigant would not be allowed to proceed as proper-person litigant with waiver of fees in
any new actions and would be required to obtain leave of court before filing any new
action, was unconstitutionally overbroad, given that order failed to set any standard
against which a future court-access determination would be made; order contained
apparent blanket prohibition on filing of any new actions in forma pauperis, despite
litigant's indigence and regardless of whether the future action involved a fundamental
right.
Proper-person civil litigant's due process rights to notice and opportunity to be
heard, before entry of vexatious-litigant order, were not violated where litigant was
warned of district court's intention to issue the order and he was given three weeks in
which to file an opposition, and hearing was held before order was filed, although
litigant did not attend the hearing. U.S. Const. amend. 14.
20. Injunction.
Vexatious-litigant restrictive order against proper-person civil litigant satisfied
requirement of creating adequate record for appellate review, though order did not
specifically identify filings that district court found unmeritorious, repetitive, and
contradictory, where district court's findings were easily substantiated in record of
current civil action against alleged con artist and motel owner, and litigant's pattern of
abusiveness could be gleaned from published opinion of another state's court declaring
the litigant a vexatious litigant.
21. Injunction.
Vexatious-litigant restrictive order against proper-person civil litigant satisfied
requirement of containing substantive findings as to frivolous or harassing nature of
litigant's actions, though district court could have made additional substantive findings,
where district court specifically found that litigant filed numerous unmeritorious and
contradictory documents and documents in which he merely reasserted allegations
under changed captions, record demonstrated that litigant repeatedly submitted
meritless, legally improper and contradictory filings, and litigant's repeated attacks on
opposing counsel and district judge demonstrated pattern of intent to harass defendants
and the court.
........................................
22. Injunction.
Vexatious-litigant restrictive order against proper-person civil litigant, which was
issued by district court, prohibited litigant from filing any new litigation in Nevada state
courts in forma pauperis without first obtaining leave of the presiding judge of the
court, and required litigant to notify district court of any new litigation he filed in
Nevada, was narrowly drawn to curb widespread abuses noted by court but improperly
omitted standard against which presiding judge should measure potential new filings.
23. Injunction.
Vexatious-litigant restrictive order against proper-person civil litigant, which was
issued by district court, prohibited litigant from filing any new litigation in Nevada state
courts in forma pauperis without first obtaining leave of the presiding judge of the
court, and required litigant to notify district court of any new litigation he filed in
Nevada, was based on court's inherent powers involving exercise of its jurisdiction, so
court could not implicate other courts' powers to prevent litigant from filing new
litigation in courts of this state without permission; rather, order could only apply to
the district of the court that entered the order.
The appellate court reviews orders granting summary judgment de novo. NRCP
56(c).
25. Judgment.
Summary judgment should not have been granted for State as defendant, in arrestee's
action as proper person alleging oppression while using physical force, malicious
prosecution, false imprisonment, and false lawsuit, based on arrestee's claims
allegedly being indecipherable, where lack of clarity in arrestee's pleadings could be
overcome without excessive difficulty; complaint and other papers were typewritten
and demonstrated an obvious attempt to organize and base claims on legally
recognizable causes of action, arrestee attached to complaint the statutes under which
he purported to derive his causes of action, and State was able, for the most part, to
appropriately respond to arrestee's allegations. NRS 197.200, 199.320.
26. Torts.
Arrestee could not sue State for perjury, even assuming a civil cause of action
existed for perjury, where arrestee's perjury allegations were subsumed within his other
causes of action for malicious prosecution and false imprisonment or false arrest.
27. Libel and Slander.
In order to maintain a claim of libel, a plaintiff must show a false and defamatory
statement, its unprivileged publication, fault, and damages.
A statement is defamatory when it would tend to lower the subject in the
estimation of the community, excite derogatory opinions about the subject, and hold the
subject up to contempt.
Generally, whether a statement is defamatory is a question of law.
Only false statements of fact, as opposed to opinion, are actionable as being
defamatory.
State police officer's statement, in declaration of probable cause arrest form
relating to arrest for trespassing outside of supreme court building, that arrestee had
been uncooperative, was a mere opinion, which was not actionable as being
defamatory.
........................................
building, that arrestee had been uncooperative, was a mere opinion, which was not
actionable as being defamatory.
Statements made in good faith furtherance of one's official duties as a public official
are generally privileged from defamation claims.
33. Action.
Statute making it a criminal offense for a police officer to unlawfully and
maliciously, under pretense or color of official authority, commit oppression by
arresting or detaining another against his will does not create a civil cause of action.
NRS 197.200.
34. Malicious Prosecution.
Malicious prosecution consists of a prior criminal action being filed against the
claimant, plus lack of probable cause to commence the prior action, malice, a favorable
termination of the prior criminal action, and damages.
35. Malicious Prosecution.
Proof of lack of probable cause may denote malice, as element of malicious
prosecution.
36. False Imprisonment.
To establish false arrest, a claimant must show that the actor instigated or effected an
unlawful arrest.
False imprisonment arising from a false arrest occurs when the claimant's liberty is
restrained under the probable imminence of force without any legal cause or
justification.
An actor is subject to liability to another for false imprisonment if: (1) he acts
intending to confine the other or a third person within boundaries fixed by the actor; (2)
his act directly or indirectly results in such a confinement of the other; and (3) the other
is conscious of the confinement or is harmed by it.
39. Judgment.
Plaintiff arrestee did not fail to provide, in response to defendant State's motion for
summary judgment, documentation setting forth specific facts of genuine triable issue
which would preclude summary judgment for State on arrestee's claims of malicious
prosecution, false arrest, and false imprisonment relating to his arrest for trespassing
outside of supreme court building, though arrestee's documentation was not by
affidavit, where arrestee had attached police reports to his complaint, and he later
submitted letter from Administrator of State Buildings and Grounds Division stating
that supreme court building's grounds were continuously open to the public. NRCP
56(e).
40. States.
Justice of the peace's initial determination to hold arrestee for trial for trespassing on
supreme court building grounds did not constitute irrebuttable evidence of probable
cause to arrest, as would preclude arrestee from suing State for malicious prosecution,
false arrest, and false imprisonment; arrestee alleged that justice of the peace's
determination was procured through perjury.
41. Judgment.
Genuine issue of material fact as to state police officer's basis for believing that
citizen's refusal to leave supreme court building grounds constituted a crime precluded
summary judgment for State, as to citizen's claims for malicious prosecution, false
arrest, and false imprisonment.
........................................
42. Judgment.
Genuine issue of material fact as to whether police officer had been acting in bad
faith when he arrested citizen for trespassing on supreme court building grounds
precluded summary judgment for State based on discretionary act immunity, in citizen's
action for malicious prosecution, false arrest, and false imprisonment. NRS 41.032.
A dismissal of a nonresident plaintiff's civil action, based on failure to post security
for costs, will be overturned only upon the finding of an abuse of discretion. NRS
18.130.
44. Costs.
Neither the statute permitting a district court to allow an indigent plaintiff to
commence a civil action without costs, nor any other statute, clearly and manifestly
removed district court's inherent power to waive, upon finding of indigency, statutory
requirement that nonresident plaintiff post security for costs. NRS 12.015, 18.130.
45. Costs.
Nonresident plaintiff was not required to post security for costs in civil action, where
trial court entered in forma pauperis order which included language effectively
excusing security requirement, though later oral and written orders addressed security
requirement; oral orders were never reduced to writing and they did not vacate in forma
pauperis order, and to extent that any written orders addressed security requirement,
they did not expressly vacate in forma pauperis order and no order was entered at a time
early enough in proceedings to effectively give plaintiff any opportunity to respond by
posting security. NRS 12.015, 18.130.
The appellate court will affirm an order of the district court if it reached the correct
result, albeit for different reasons.
47. Appeal and Error; Pretrial Procedure.
The appellate court rigorously reviews the dismissal of an action for failure to state a
claim, and a complaint should only be dismissed if it appears beyond a reasonable
doubt that the plaintiff could prove no facts entitling him to relief. NRCP 12(b)(5).
48. Attorney and Client.
Nevada has not yet recognized a private cause of action for the unauthorized practice
of law.
Even assuming Nevada recognized private cause of action for unauthorized practice
of law, plaintiff did not state a claim for such cause of action, which alleged defendant
gave plaintiff legal advice about pending case in Nevada court. Plaintiff did not allege
defendant was not an attorney or that he falsely claimed to be licensed in Nevada and
instead alleged only that California State Bar had no record of defendant as
California-licensed attorney, plaintiff later stated that defendant was California-licensed
attorney, and plaintiff did not allege that any legal advice given by defendant
proximately caused, or was likely to cause, any damage to plaintiff.
50. Negligence.
A claim for negligence must be based on: (1) an existing duty of care, (2) breach, (3)
legal causation, and (4) damages.
51. Torts.
Under the economic loss doctrine, there can be no recovery in tort for purely
economic loss.
........................................
52. Innkeepers.
Even assuming motel owner had duty to inform plaintiff that motel guest was a scam
artist, economic loss rule precluded plaintiff from bringing negligence claim against
motel owner. Plaintiff did not allege that he was physically harmed or injured in any
way other than through guest's appropriation of sum of money.
53. Conspiracy.
An actionable civil conspiracy-to-defraud claim exists when there is: (1) a
conspiracy agreement, i.e., a combination of two or more persons who, by some
concerted action, intend to accomplish an unlawful objective for the purpose of
harming another; (2) an overt act of fraud in furtherance of the conspiracy; and (3)
resulting damages to the plaintiff.
54. Conspiracy.
An underlying cause of action for fraud is a necessary predicate to a cause of action
for conspiracy to defraud.
55. Fraud.
Fraudulent misrepresentation occurs when a false representation is made with
knowledge or belief that it is false, or with an insufficient basis of information for
making the representation, and with intent to induce the plaintiff to act, and the plaintiff
relies on the misrepresentation with resulting damages.
56. Fraud.
Intent to induce the plaintiff to act must be specifically alleged, in an action for
fraudulent misrepresentation.
57. Conspiracy.
Allegation that motel owner knew of motel guest's tendency to scam yet let him
live at motel rent-free without warning potential victims did not establish motel owner
conspired with guest, in alleged victim's action against motel owner for conspiracy to
defraud.
58. Conspiracy.
Even assuming motel owner conspired with motel guest, plaintiff's allegations that
motel guest told plaintiff he had a hot tip, that plaintiff gave money to motel guest to
wager with, and that plaintiff never heard from motel guest again, did not establish the
underlying fraud, in action against motel owner for conspiracy to defraud; plaintiff did
not specifically allege that motel guest intended for plaintiff to act on the hot tip or
even that motel guest offered to place the wager.
59. Damages.
To establish a cause of action for intentional infliction of emotional distress, a
complaint must allege the following: (1) extreme and outrageous conduct with either
the intention of, or reckless disregard for, causing emotional distress; (2) severe or
extreme emotional distress suffered by the plaintiff; and (3) actual or proximate
causation.
60. Damages.
A complaint for intentional infliction of emotional distress must specifically allege
intent to cause emotional distress.
61. Damages.
Plaintiff's allegation that motel owner knew of motel guest's intent to scam the
plaintiff did not state a claim for intentional infliction of emotional distress; plaintiff
did not allege that motel owner intended for motel guest to scam the plaintiff or that
plaintiff actually suffered any emotional distress as a result.
........................................
OPINION
Per Curiam:
In addition to challenging district court dispositions, these proper person appeals involve
first impression issues regarding orders that place permanent restrictions on the ability of
proper person litigants with in forma pauperis status to access the Nevada state courts. As
both appeals raise similar questions of substantial importance, we considered them together.
We conclude that the district court has authority to limit the court access of a litigant
proceeding in proper person with in forma pauperis status when certain guidelines, designed
to protect important constitutional rights, are followed.
FACTS AND PROCEDURAL HISTORIES
Docket No. 38189 (Jordan)
On a Sunday afternoon, respondent Capitol Police Officer Jimmie W. Jones arrested
proper person appellant James Jacob Jordan outside of the Nevada Supreme Court building
for trespassing on state property in violation of NRS 207.200(1)(b), which prohibits people
from willfully remaining on land after having been warned not to trespass. According to
Officer Jones' arrest report, he and a Carson City Sheriff's Deputy were investigating
complaints of a suspicious person when they located Jordan sitting on a bench within the
building's grounds. Determining that Jordan matched the description of the person for whom
they were looking, Officer Jones then identified himself, questioned Jordan's reason for being
on state property, and told him to return on Monday if he had business with the State. After
asking for identification, Officer Jones told Jordan that he was trespassing on state property
and requested that he leave. Jordan refused and Officer Jones informed him that he would be
arrested if he did not leave. Jordan again refused to move and was consequently arrested and
booked at the Carson City Sheriff's Department's jail on one count of trespass.
The next morning, a justice of the peace reviewed the arrest and found probable cause to
hold Jordan for trial. However, Jordan was apparently released the next day, and the trespass
charge was dropped.
Jordan, in proper person, subsequently sued respondents Officer Jones and the Capitol
Police Division of the Nevada State Department of Motor Vehicles and Public Safety
(collectively, the State) for {1) oppression while using physical force, {2) malicious
prosecution, {3) false imprisonment, {4) false lawsuit, {5) libel, and {6) perjury.
........................................
for (1) oppression while using physical force, (2) malicious prosecution, (3) false
imprisonment, (4) false lawsuit, (5) libel, and (6) perjury. To his complaint, Jordan attached
copies of the arrest report and criminal complaint, the declaration of probable cause arrest
form, and the Nevada criminal statutes from which he purported to derive his claims. Jordan
was granted leave to proceed in forma pauperis.
Jordan then obtained and submitted a letter from the State Buildings and Grounds Division
administrator, stating that the supreme court building's grounds are continuously open to the
public. During the suit's pendency, Jordan also filed numerous other papers, including various
motions, requests for rulings and other actions. The purposes behind many of these papers are
difficult to decipher or understand, and the papers are in many instances procedurally
improper.
The district court issued an order reciting its difficulties in comprehending and responding
to Jordan's filings and declaring that Jordan should not be allowed to abuse his proper person
status to file meritless ramblings. Further, the court found that another of Jordan's
complaints was so long and incomprehensible as to be incapable of legal resolution.
Consequently, the court restricted Jordan's court access, ordering that Jordan will not be
allowed to proceed in pro per' with a waiver of fees in any new actions, and that Jordan
must obtain leave of the court before filing any new action.
A few months later, a joint case conference report, apparently typed by Jordan but signed
by both parties, was filed. The joint report acknowledges that Jordan's complaint essentially
alleged that he was unjustly arrested and that Officer Jones lied about the alleged unjust arrest
in the police report. The State then moved for summary judgment, which the district court
granted based solely on its inability to decipher the meaning of Jordan's claims. Jordan timely
appealed.
Docket No. 39052 (Luckett)
Proper person appellant John Luckett, a California resident, met M.L., an alleged con
artist, during a trip to Las Vegas. Luckett alleged that M.L. made him multiple promises,
including that he would give Luckett tickets to various casinos' shows and make a bet for him
based on a hot tip that M.L. had received. Luckett then handed M.L. money to wager with.
Luckett apparently never saw or heard from M.L. again.
According to Luckett, M.L. also introduced him to respondent Edward Doumani, owner of
respondent the La Concha Motel, so that Doumani could counsel Luckett on a legal matter.
Luckett alleged that Doumani falsely asserted his status as a practicing California lawyer
and gave him legal advice in connection with a different Nevada case that Luckett was
involved in.
........................................
leged that Doumani falsely asserted his status as a practicing California lawyer and gave him
legal advice in connection with a different Nevada case that Luckett was involved in.
Moreover, Luckett asserted that Doumani allowed M.L. to live at the motel rent-free, despite
being aware of M.L.'s alleged criminal record and having received many complaints from
people whom M.L. had defrauded. Luckett asserted that the La Concha Motel serves as a
front for M.L.'s scams, from which Doumani and the La Concha Motel are profiting.
Luckett filed a complaint in the district court, in proper person, against M.L.,
1
Doumani,
and the La Concha Motel. In it, he asserted that Doumani had a duty to warn him of M.L.'s
tendencies to scam and, since Doumani did not warn him, that both Doumani and the La
Concha Motel are responsible for M.L.'s injurious acts. The complaint asserted claims against
Doumani and the La Concha Motel for the unlawful practice of law, negligence, conspiracy to
commit and aid a fraud, and intentional infliction of emotional distress. In a district court
order that expressly allowed him to proceed without payment or fees or security therefor,
Luckett was granted in forma pauperis status.
Doumani and the La Concha Motel then served Luckett with a demand for security for
costs under NRS 18.130, which requires an out-of-state plaintiff to post security for any
future adverse award of costs and charges. They later moved to dismiss the action based on
Luckett's failure to post the requested security. The court orally advised Luckett that he had
thirty days in which to post a security bond, or the case would be dismissed. Thereafter,
Doumani and the La Concha Motel again moved to dismiss for Luckett's failure to post
security costs and also moved to dismiss for his failure to state a claim. They did not,
however, seek at that point to set aside the in forma pauperis order waiving security
requirements.
The court conducted a hearing on the pending motions. During the hearing, the court
notified Luckett of its intent to grant the dismissal motions. The court also indicated its intent
to issue a restrictive order declaring Luckett a vexatious litigant. Luckett was granted three
weeks in which to file an opposition and to provide the court with information as to any
lawsuits he had filed in Nevada and California within the past five years. The next hearing
was scheduled for December 20, 2001.
Luckett responded by filing two motions explaining his involvement in other cases and
pointing out the previous district court order granting him in forma pauperis status and
waiving security requirements.
____________________

1
M.L. was never properly served and never appeared in the district court proceedings, and he is not a party to
this appeal.
........................................
requirements. However, Luckett did not attend the December 20 hearing,
2
and the district
court subsequently entered a written order declaring Luckett a vexatious litigant and
restricting his court access. In it, the court noted that Luckett was previously declared a
vexatious litigant in California
3
and that Luckett had filed at least five cases in the Eighth
Judicial District Court, each with in forma pauperis status. Further, the court stated that he
had repeatedly filed unmeritorious and often contradictory pleadings and papers in each of
those cases, including several documents in which he simply deleted an original caption and
inserted a new one in its place. Finally, the court noted that Luckett frequently referred to his
ability to travel and gamble. Accordingly, the court declared that Luckett is not indigent, that
he is a vexatious litigant, and that he may not file any new litigation in Nevada state courts in
forma pauperis without first obtaining leave of the presiding judge of the court. In addition,
the court directed Luckett to notify the Eighth Judicial District Court of any new litigation
that he files in Nevada. Finally, the court admonished that any violation of the order could
result in contempt of court punishable by fine or imprisonment.
A few days later, the district court entered a written order granting Doumani's and the La
Concha Motel's motions to dismiss for failure to post security for costs. Thereafter, the
district court entered an amended restrictive order. The amended order is almost identical to
the original order; however, it additionally prohibits Luckett from proceeding in his action
against Doumani and the La Concha Motel without paying appropriate costs. Luckett timely
appealed.
DISCUSSION
Nevada has long recognized the importance of maintaining direct access to its state courts.
4
Accordingly, Nevada Supreme Court Rule 44 generally allows for self-representation in all
lower courts, and NRS 12.015 permits an indigent person to proceed in forma pauperis,
without the payment of court costs and fees.
5
Such rules and statutes help to ensure that
every person in Nevada is afforded meaningful access to the courts, regardless of that
person's financial status.
____________________

2
Luckett asserts that he attempted to attend the hearing but was initially unable to locate the correct
courtroom and then locked out of the room.

3
See In re Luckett, 283 Cal. Rptr. 312 (Ct. App. 1991).

4
See, e.g., Sullivan v. District Court, 111 Nev. 1367, 904 P.2d 1039 (1995) (recognizing citizens', whether or
not indigent, constitutional right to access to the courts with the protection of due process of law); Hollis v.
State, 95 Nev. 664, 601 P.2d 62 (1979) (recognizing prisoners' court access rights).

5
See also Wilkie v. State, 98 Nev. 192, 194, 644 P.2d 508, 509 (1982) (recognizing that a prisoner's right to
represent himself is guaranteed by the United States Constitution).
........................................
meaningful access to the courts, regardless of that person's financial status. At the same time,
however, notions of unlimited free court access have led to a plethora of frivolous litigation:
the threat of monetary sanctions or professional discipline is ineffective to deter abusive
litigation practices when those practices are carried out by proper person litigants proceeding
in forma pauperis.
6

As a result, this court has recognized that a litigant's right to access the courts in proper
person and with in forma pauperis status is not without limits.
7
Like courts in other
jurisdictions that deal with an overabundance of frivolous or abusive proper person and in
forma pauperis litigation, Nevada courts have available multiple methods of reducing misuse
of the legal system. Pre-service complaint review and restriction of court access constitute
two methods of particular pertinence in the instant cases.
Pre-service review of complaints with in forma pauperis status
In Nevada, a district court is authorized under NRCP 11(c)(2) to impose sanctions
sufficient to deter repetition of a party's conduct in frivolously or vexatiously pursuing an
action or defense, even when that party is proceeding in proper person. As perhaps one of the
most extreme NRCP 11 sanctions, the court may sua sponte dismiss a completely
unwarranted action or claim in order to prevent an in forma pauperis litigant from continuing
in a course of completely baseless litigation or harassment.
8
Of course, a party against whom
an NRCP 11 sanction is proposed must first be afforded notice and an opportunity to oppose
the sanction's imposition.
9

Other jurisdictions similarly permit a complaint to be dismissed if, upon holding an
abbreviated evidentiary hearing before service of process to determine whether an
accompanying application for in forma pauperis status should be granted, the court
determines that the applicant is not indigent or that the action is frivolous.
____________________

6
See Barnes v. District Court, 103 Nev. 679, 683, 748 P.2d 483, 486 (1987) (noting that plaintiffs who are
allowed to proceed in forma pauperis are not affected by economic deterrents to filing frivolous lawsuits).

7
Id.; see also Wilkie, 98 Nev. 192, 644 P.2d 508 (concluding that, under the circumstances, a prisoner's
confinement without access to an adequate law library did not violate his constitutional right of
self-representation).

8
See NRCP 11(c)(1)(B); Trustees v. Developers Surety, 120 Nev. 56, 63, 84 P.3d 59, 63 (2004) (recognizing
the legislative intent to deter frivolous or vexatious claims and defenses[, which] overburden limited judicial
resources, hinder the timely resolution of meritorious claims and increase the costs of engaging in business and
providing professional services to the public,' through the courts' imposition of sanctions under Rule 11
(quoting S.B. 250, 72d Leg. (Nev. 2003); 2003 Nev. Stat., ch. 508, 153, at 3478)); see also Blanks v. State,
594 So. 2d 25, 28 (Miss. 1992), abrogated in part by Bilbo v. Thigpen, 647 So. 2d 678 (Miss. 1994).

9
See NRCP 11(c)(1)(A), (B).
........................................
mines that the applicant is not indigent or that the action is frivolous.
10
These courts have
followed the United States Court of Appeals for the Fifth Circuit's lead in Spears v.
McCotter.
11
In Spears, the court recognized that preliminary evidentiary hearings regarding
the specificity of a trial court complaint and accompanying application to proceed in forma
pauperis may be held in order to dig beneath the conclusional allegations; to reduce the level
of abstraction upon which the claims rest; to ascertain exactly what scenario the . . . claims
occurred, as well as the legal basis for the claim.
12
The court concluded that if, at the
hearing, the complaint is determined frivolous, the action may be dismissed under the federal
in forma pauperis statute.
13

[Headnote 1]
Although we generally approve of the Spears approach, we do not adopt it completely.
Unlike the federal statute, Nevada's in forma pauperis statute, NRS 12.015, does not
authorize the district court to review a complaint (or a petition) for frivolity when considering
a litigant's application to proceed without paying court fees and costs.
14
Accordingly, upon
receiving a complaint and an application to proceed in forma pauperis, the district court must
first consider the application's merits and determine whether the accompanying affidavit and
any additional investigation
15
demonstrate that the applicant is unable to pay the costs of
proceeding with the action. If the court so finds, the court must grant the applicant leave to
proceed without the payment of costs and file the complaint.
[Headnotes 2, 3]
Nevertheless, once the complaint is filed, the court is free to review the complaint's merits
for apparent defects. If the complaint appears completely frivolous on its face, meaning
that it appears to lack "an arguable basis either in law or in fact," then the court may
direct the clerk to defer issuing the summons{es) pending the completion of its review.
____________________

10
Blanks, 594 So. 2d at 27; see also Brown v. Diaz, 361 S.E.2d 490 (Ga. Ct. App. 1987) (dismissing an in
forma pauperis inmate's complaint for frivolity after holding a preliminary hearing); Evans v. Green, 391 S.E.2d
11 (Ga. Ct. App. 1990) (same, at least when prisoner complaints alleging violations of federal law are involved).

11
766 F.2d 179 (5th Cir. 1985), abrogated in part by Neitzke v. Williams, 490 U.S. 319, 323 (1989),
modified in part by statute as recognized in Christiansen v. Clarke, 147 F.3d 655 (8th Cir. 1998).

12
Id. at 180.

13
Id.; 28 U.S.C. 1915(e)(2).

14
Compare NRS 12.015, with 28 U.S.C. 1915(e)(2), Del. Code Ann. tit. 10, 8803(b) (1999), Ga. Code
Ann. 9-15-2(d) (1993), Neb. Rev. Stat. 25-2301 (1995), and 42 Pa. Cons. Stat. Ann. 240(j) (West 2002).

15
See Sullivan v. District Court, 111 Nev. 1367, 1371, 904 P.2d 1039, 1042 (1995) (If, on subsequent
review of the application, the district court determines that petitioner has not shown he is indigent, the district
court may order petitioner to provide further information or may deny the application in an appropriately filed
written order.).
........................................
appears completely frivolous on its face, meaning that it appears to lack an arguable basis
either in law or in fact,
16
then the court may direct the clerk to defer issuing the
summons(es) pending the completion of its review. The court may then hold a preliminary
evidentiary hearing with the litigant to determine whether the action should be allowed to
proceed. If the district court determines that the action or a specific claim is indeed frivolous,
the court can dismiss the action or claim, as the case may be, in accordance with NRCP 11.
17
We emphasize that, although this procedure is constitutionally permissible,
18
the dismissal of
a complaint based on information obtained in a Spears-type hearing is an extreme action, and
if the complaint can be amended to cure any apparent defects, the litigant should be permitted
to do so. This pre-service review process will not only spare prospective defendants the
inconvenience and expense of answering frivolous or incoherent complaints,
19
but will also
assist the court in deciphering the litigant's basic allegations and aid the litigant in presenting
a more legally viable complaint, if possible.
Court-access restrictions
[Headnotes 4, 5]
Unlike some states, Nevada does not have a court rule or statute authorizing a court to
declare an individual a vexatious litigant and to limit accordingly that individual's access to
the courts.
20

____________________

16
Neitzke, 490 U.S. at 325. This definition comports with our explanation in Bergmann v. Boyce, 109 Nev.
670, 676, 856 P.2d 560, 564 (1993). In Bergmann, we defined a frivolous claim under NRCP 11, when made
by attorneys, as one that is both baseless and made without a reasonable and competent inquiry.' Id. (quoting
Townsend v. Holman Consulting Corp., 929 F.2d 1358, 1362 (9th Cir. 1990)). We noted that the baseless
prong requires examination of whether the pleading is well grounded in fact and is warranted by existing law
or a good faith argument for the extension, modification or reversal of existing law.' Id. The second prong of
the Bergmann definition, whether the attorney made a reasonable and competent inquiry, is inapplicable to
nonattorney litigants proceeding in proper person. Id. We note that the NRCP 11 frivolous standard is different
from the standard pertaining to dismissals under NRCP 12(b)(5) for failure to state a claim. Id. at 676-77, 856
P.2d at 564; see also Neitzke, 490 U.S. at 326-28.

17
See NRCP 11(c)(2), (3).

18
See Christiansen v. Clarke, 147 F.3d 655, 657-58 (8th Cir. 1998); accord Vanderberg v. Donaldson, 259
F.3d 1321, 1324 (11th Cir. 2001); see also Coppedge v. United States, 369 U.S. 438 (1962); Stephen M.
Feldman, Indigents in the Federal Courts: The In Forma Pauperis StatuteEquality and Frivolity, 54 Fordham
L. Rev. 413, 432-36 (1985).

19
Neitzke, 490 U.S. at 324.

20
See, e.g., Cal. Civ. Proc. Code 391-391.7 (West 2004); Del. Code Ann. tit. 10, 8803(e) (1999); Fla.
Stat. Ann. 68.093 (West Supp. 2005); Haw. Rev. Stat. Ann. 634J (Michie 1993); Tex. Civ. Prac. & Rem.
Code Ann. 11.051 (Vernon 2002).
........................................
Nonetheless, Nevada's courts are constitutionally authorized to issue all writs proper and
necessary to the complete exercise of their jurisdiction.
21
In addition, as discussed above,
NRCP 11 permits a district court to impose appropriate deterrent sanctions on a party who
violates that rule by signing court documents that are frivolous or presented for an improper
purpose. Finally, Nevada courts also possess inherent powers of equity and of control over
the exercise of their jurisdiction.
22
We recognize that these authorities bestow upon Nevada
courts the power to permanently restrict a litigant's right to access the courts.
23

____________________

21
Nev. Const. art. 6, 6(1); see also id. 4.

22
See Matter of Hartford Textile Corp., 681 F.2d 895, 897 (2d Cir. 1982) (The equity power of a court to
give injunctive relief against vexatious litigation is an ancient one . . . .).

23
See De Long v. Hennessey, 912 F.2d 1144 (9th Cir. 1990) (recognizing that the federal courts' inherent
power to regulate abusive litigation activities includes enjoining a litigant's right to access the courts under the
All Writs Act, 28 U.S.C. 1651); accord Hartford Textile, 681 F.2d at 897; see People v. Dunlap, 623 P.2d
408, 410-11 (Colo. 1981) (noting that the administration of justice for other litigants is hampered when frivolous
lawsuits create unwarranted taxpayer expenses and interfere with the court's functioning by increasing court
costs, crowding dockets, and causing delay, disruption, and confusion and basing its power to issue restrictive
orders, in part, on state constitutional clauses granting the Colorado Supreme Court superintending control over
inferior courts and the power to issue writs); In re Lawsuits of Carter, 510 S.E.2d 91 (Ga. Ct. App. 1998)
(recognizing a trial court's authority to issue vexatious litigant orders restricting proper person litigants' court
access); Eismann v. Miller, 619 P.2d 1145, 1149-50 (Idaho 1980) (recognizing that, although every individual
in our society has a right of access to the courts[,] . . . the exercise of that right cannot be allowed to rise to the
level of abuse, impeding the normal and essential functioning of the judicial process, and basing the Idaho
Supreme Court's fundamental power to order restrictive orders on state constitutional clauses granting the court
supervisory powers over the judicial system); Hooker v. Sundquist, 150 S.W.3d 406 (Tenn. Ct. App. 2004)
(upholding a trial court's imposition of temporary prefiling restrictions based on a Tennessee rule substantially
similar to NRCP 11); Minniecheske v. Griesbach, 468 N.W.2d 760 (Wis. Ct. App. 1991) (noting that frivolous
claims and appeals statutes would be ineffective against an indigent proper person litigant and basing its decision
to uphold the trial court's restrictive order on federal law, taxpayers' rights, and the public's interest in
maintaining the judicial system's integrity); see also Chambers v. NASCO, Inc., 501 U.S. 32, 43-46 (1991)
(discussing the control necessarily vested in courts to police themselves and administer the judicial process
in an orderly and effective manner, in a case involving a court's sua sponte imposition of sanctions (internal
quotations omitted)); Howard v. Sharpe, 470 S.E.2d 678 (Ga. 1996) (noting a problematic prisoner litigant's
right to meaningful court access, but upholding a habeas court's order enjoining him from filing suits in forma
pauperis without prior approval); Town of Brookline v. Goldstein, 447 N.E.2d 641, 645 n.6 (Mass. 1983)
(recognizing that a preliminary injunction prohibiting certain future legal actions might be appropriate if it could
be shown that the party is unable to pay sanctions or is otherwise undeterred).
........................................
[Headnotes 6, 7]
A court may impose such restrictions either after a party so moves, or, in appropriate
circumstances, sua sponte.
24
Nonetheless, because restrictive orders implicate an individual's
constitutional right to access the courts, such orders must be narrowly tailored.
25
Further, we
note a general reluctance to impose restrictive orders when standard remedies like sanctions
are available and adequate to address the abusive litigation.
26

[Headnote 8]
We have not previously addressed what approach courts should take when imposing
vexatious litigant restrictive orders. The Ninth Circuit, however, has developed a four-factor
analysis to guide courts in balancing the various interests implicated by court-access
restrictions.
27

First, the litigant must be provided reasonable notice of and an opportunity to oppose a
restrictive order's issuance. This requirement protects the litigant's due process rights.
28

[Headnotes 9, 10]
Second, the district court must create an adequate record for review, including a list of all
the cases and documents, or an explanation of the reasons, that led it to conclude that a
restrictive order was needed to curb repetitive or abusive activities.
29
In regard to this factor,
we recognize that the district court's access to documents filed and proceedings taken in other
courts is often limited.
____________________

24
See NRCP 11(c)(1); In re Oliver, 682 F.2d 443, 445-46 n.5 (3d Cir. 1982); Pavilonis v. King, 626 F.2d
1075, 1079 (1st Cir. 1980) (Generally, this kind of order should not be considered absent a request by the
harassed defendants.).

25
Chambers, 501 U.S. at 44 (Because of their very potency, inherent powers must be exercised with
restraint and discretion.); Moy v. U.S., 906 F.2d 467, 470 (9th Cir. 1990) ([A]n injunction . . . restrict[ing] an
individual's access to the court system . . . is an extraordinary remedy that should be narrowly tailored and rarely
used.); accord De Long, 912 F.2d at 1147; Pavilonis, 626 F.2d at 1079 (We expect that injunctions against
litigants will remain very much the exception to the general rule of free access to the courts.); Hooper v. Harris,
512 S.E.2d 312, 315 (Ga. Ct. App. 1999) (recognizing that order restricting an inmate's right to access the courts
must be clearly warranted by the particular circumstances); Minniecheske, 468 N.W.2d at 762.

26
See, e.g., Goldstein, 447 N.E.2d at 645 n.6.

27
De Long, 912 F.2d at 1147-48; see also Morgan Cty. Com'rs Bd. v. Winslow, 862 P.2d 921, 924 (Colo.
1993) ( [A] litigant's right of access to the courts must be balanced against and, in a proper case, must yield to
the interests of other litigants and of the public in general in protecting judicial resources from the deleterious
impact of repetitious, baseless pro se litigation.' (quoting Bd. of County Com'rs v. Winslow, 706 P.2d 792, 794
(Colo. 1985))).

28
De Long, 912 F.2d at 1147; see also NRCP 11(c).

29
De Long, 912 F.2d at 1147.
........................................
ited. Moreover, filings that have not been deemed frivolous or vexatious or otherwise
resolved remain pending on the merits before the court to which they are assigned. Therefore,
a court considering a restrictive order must use caution in reviewing filings in other cases, so
as not to interfere with other judges' pending assignments.
30
The judge issuing the restrictive
order should rely only on observations obtained from cases to which he or she is assigned,
and on actual rulings in other cases.
31
Further, while a restrictive order may be warranted
based solely on documents before the court in that particular case, the district court must
identify those documents and explain how, by filing them, the litigant abused the court
system.
32

[Headnote 11]
Third, the district court must make substantive findings as to the frivolous or harassing
nature of the litigant's actions.'
33
Thus, the restrictive order cannot issue merely upon a
showing of litigiousness.
34
The litigant's filings must not only be repetitive or abusive, but
also be without an arguable factual or legal basis, or filed with the intent to harass.
35

[Headnotes 12, 13]
Finally, the order must be narrowly drawn to address the specific problem encountered.
36
We note that when a litigant's misuse of the legal system is pervasive, a restrictive order
that broadly restricts a litigant from filing any new actions without permission from the
court might nonetheless be narrowly drawn.
____________________

30
See, e.g., DCR 18(2) (No judge except a judge of the district where the cause or proceeding is pending
shall . . . do any act or thing required to be done in any cause or proceeding unless [certain requirements are
met].); Rohlfing v. District Court, 106 Nev. 902, 803 P.2d 659 (1990) (recognizing that, generally, a district
judge has no authority to review another judge's order).

31
See generally Cal. Civ. Proc. Code 391(b) (West 2004) (describing frivolous litigation sufficient to
warrant a restrictive order as, among other things, the final determination, adverse to the litigant, of five out of
seven proceedings within the past seven years; litigation unjustifiably permitted to remain pending for two years;
proceedings repeatedly brought to re-litigate previous determinations or previously determined claims; the
repeated proper person filing of unmeritorious papers within a proceeding; and actions based upon
circumstances substantially similar to those upon which another jurisdiction has based a vexatious litigant
determination); accord Haw. Rev. Stat. Ann. 634J-1 (Michie 1993); Tex. Civ. Prac. & Rem. Code 11.054
(Vernon 2002).

32
For example, abuse could be found not only when the litigant violates NRCP 11, but also when the litigant
persistently files documents that are unintelligible, redundant, immaterial, impertinent, or scandalous. See NRCP
12(f).

33
De Long, 912 F.2d at 1148 (quoting In re Powell, 851 F.2d 427, 431 (D.C. Cir. 1988)).

34
Moy v. U.S., 906 F.2d 467, 470 (9th Cir. 1990).

35
See id.; De Long, 912 F.2d at 1148 n.3.

36
De Long, 912 F.2d at 1148.
........................................
legal system is pervasive, a restrictive order that broadly restricts a litigant from filing any
new actions without permission from the court might nonetheless be narrowly drawn.
However, even though courts may, as a general rule, restrict vexatious litigants' access,
constitutional considerations prohibit a complete ban on filings by indigent proper person
litigants if the ban prevents the litigant from proceeding in criminal cases and in original civil
actions that sufficiently implicate a fundamental right; such orders are impermissible.
37
Since restrictive orders necessarily implicate future filings, which may involve criminal cases
or fundamental rights, even broad restrictive orders should set an appropriate standard against
which any future filings will be measured.
38
For example, depending on the specific
problems encountered, a restrictive order might bar a litigant from filing any new actions
involving a specific defendant or a specific claim, or it might bar a litigant from filing any
new actions unless the court first determines that the proposed action is not frivolous or
brought for an improper purpose and/or implicates a fundamental right.
[Headnote 14]
As these guidelines adequately protect a litigant's constitutional rights, provide appropriate
guidance to courts issuing vexatious litigant orders, and set forth suitable factors for review of
such orders, we adopt the Ninth Circuit's four-part analysis, as modified, for Nevada courts
issuing restrictive orders. On review, this court examines restrictive orders under an abuse of
39

We now turn to the restrictive orders at issue in these appeals.
____________________

37
See, e.g., Sullivan v. District Court, 111 Nev. 1367, 904 P.2d 1039 (1995); Barnes v. District Court, 103
Nev. 679, 683-84, 748 P.2d 483, 487 (1987); Procup v. Strickland, 792 F.2d 1069, 1072-73 n.6 (11th Cir. 1986)
(listing several cases in which courts have vacated or modified orders broadly prohibiting a prisoner from
obtaining meaningful access to the courts without paying court fees, including: Abdullah v. Gatto, 773 F.2d 487
(2d Cir. 1985); Franklin v. Murphy, 745 F.2d 1221 (9th Cir. 1984); Carter v. United States, 733 F.2d 735 (10th
Cir. 1984) (noting also that such orders improperly disallow district courts from appropriately exercising their
statutory discretion to grant in forma pauperis status); and In re Green, 669 F.2d 779 (D.C. Cir. 1981) (same));
Ali v. Moore, 984 S.W.2d 224 (Tenn. Ct. App. 1998) (holding that an order permanently barring the litigants
from filing any new actions in proper person unconstitutionally violated their right to access the courts).

38
See, e.g., Howard v. Sharpe, 470 S.E.2d 678 (Ga. 1996) (requiring the litigant to certify that the claims are
novel); Town of Brookline v. Goldstein, 447 N.E.2d 641, 645 (Mass. 1983) (recognizing that an order restricting
a litigant's right to file actions against the town without prior court approval failed to identify a standard against
which any future pleadings would be recognized, e.g., as having merit or being sufficiently plain and definite to
warrant a response).

39
Minniecheske v. Griesbach, 468 N.W.2d 760, 762 (Wis. Ct. App. 1991); see also Chambers v. NASCO,
Inc., 501 U.S. 32, 55 (1991).
........................................
[Headnote 15]
The restrictive order in Docket No. 38189 runs afoul of our guidelines for several reasons.
First, although the district court's previous orders hinted at its displeasure with Jordan's
improper filings, the court never expressly warned Jordan that it was considering issuing a
restrictive order affecting his right to access the court. While much of Jordan's conduct in the
district court was inappropriate, the sua sponte order, entered without first providing Jordan
with notice or an opportunity to respond, violated Jordan's due process rights.
40

[Headnote 16]
Second, although the order appears to include at least a partial explanation of the reason
for its issuance, i.e., that Jordan repeatedly wasted the State's resources with meritless and
unintelligible filings that do not conform with court rules, in that case and others, and
includes two examples of such filings, the order does not otherwise contain a list of the
filings and rulings that led the court to impose its broad filing restriction. Moreover, the order
does not sufficiently indicate that Jordan had previously instituted other suits that were
determined meritless or otherwise resulted in an adverse resolution.
41
In this instance, it is
unclear from the order whether the district judge based his explanation on observations
obtained in cases to which he was assigned, on rulings in other cases, or elsewhere.
[Headnote 17]
Third, the court made no substantive findings as to the frivolous or harassing nature of
Jordan's actions. Even though the record indicates that many of Jordan's filings were difficult
to understand and often procedurally improper, Jordan's allegations were not without arguable
merit. Given the district court's difficulties in comprehending Jordan's complaint, this matter
was particularly suitable for a Spears-type hearing. Such a preliminary hearing could have
helped to prevent, at the outset, the ensuing confusion presented by Jordan's filings.
[Headnote 18]
Finally, and perhaps most importantly, the restrictive order fails to set any standard against
which a future court-access determination should be made.
____________________

40
See In re Oliver, 682 F.2d 443 (3d Cir. 1982) (vacating a restrictive order because the litigant was not
provided an opportunity to oppose its issuance).

41
See Speleos v. McCarthy, 201 B.R. 325 (D.D.C. 1996) (vacating a restrictive order for which no evidence
supported a finding that the litigant had repeatedly filed frivolous suits).
........................................
tion should be made. Indeed, the order contains an apparent blanket prohibition on the filing
of any new actions in forma pauperis, despite Jordan's indigence, and regardless of whether
the future action involves a fundamental right. Accordingly, the order is unconstitutionally
overbroad.
42
For the above reasons, we conclude that the district court abused its discretion
when it issued the order restricting Jordan's access to state courts.
[Headnote 19]
In contrast, the restrictive order in Docket No. 39052, declaring Luckett a vexatious
litigant, prohibiting him from filing any new litigation in Nevada state courts in forma
pauperis without first obtaining leave of the presiding judge of the court, and requiring him to
notify the Eighth Judicial District Court of any new litigation he files in Nevada, is less
problematic. First, Luckett was warned of the court's intention to issue the order, and he was
given three weeks in which to file an opposition. Further, a hearing was held regarding the
matter before the order was filed, although Luckett did not attend. Accordingly, Luckett was
provided with sufficient notice and opportunity to be heard.
[Headnote 20]
Second, although the district court does not specifically identify the filings it found
unmeritorious, repetitive, and contradictory, its findings are easily substantiated in the record.
For instance, despite material allegations in his complaint that Doumani is not a
California-licensed attorney, Luckett later claimed that Doumani is a California-licensed
attorney. Also, Luckett repeatedly asserted the same losing arguments in motions to
reconsider matters that had already been determined against him; the court's order pointed out
that Luckett filed several documents in which he simply delete[d] an original caption and
insert[ed] a new one. Further, Luckett continually badgered opposing counsel in repeated
filings and motions for sanctions, an inappropriate forum for many of his comments. He often
continued to assert unmeritorious arguments even after the error in their legal analysis had
been brought to his attention. And the record is replete with other examples. Further, as the
district court recognized, the pattern of abusiveness can additionally be gleaned from the
California published opinion that declares Luckett a vexatious litigant.
____________________

42
See Sullivan v. District Court, 111 Nev. 1367, 904 P.2d 1039 (1995); Barnes v. District Court, 103 Nev.
679, 683-84, 748 P.2d 483, 487 (1987); see also Hooper v. Harris, 512 S.E.2d 312 (Ga. Ct. App. 1999)
(vacating for overbreadth a restrictive order that purported to declare all of an individual's filings null and
void).
........................................
clares Luckett a vexatious litigant. Accordingly, even though restrictive orders are often
issued only after the instigation of an exorbitant number of meritless filings,
43
and even
though such orders should make ample inventory of the observations and rulings on which
the need for a restriction is based, Luckett's filings in the instant matter were both repetitive
and abusive and provide a sufficient basis for restricting subsequent filings.
44

We point out, however, that the court's finding regarding motions, pleadings, and other
papers filed in the other district court cases does not support the vexatious litigant
determination under these circumstances. In transcripts of the two hearings, the court
mentioned that it had reviewed six suits previously instituted or attempted in the district
court. However, these cases were ongoing at the time the court issued its restrictive order; the
record does not include findings of frivolity or abuse made by the judges presiding over those
cases, and it appears that those cases were assigned to other judges. Accordingly, those cases
could not be used to support the restrictive order.
[Headnote 21]
Third, the district court did make at least some substantive findings as to the frivolous
nature of Luckett's filings in this case. Specifically, as noted above, the court found that
Luckett filed numerous unmeritorious and contradictory documents, and documents in which
he merely reasserted allegations under changed captions. Although the court could have made
more substantive findings, the record demonstrates that Luckett repeatedly submitted
meritless legally improper, and contradictory filings. In addition, those documents' repeated
attacks on opposing counsel and the district judge demonstrate a pattern of intent to harass the
defendants and the court.
____________________

43
See, e.g., In re Green, 669 F.2d 779 (D.C. Cir. 1981) (noting between 600 and 700 repetitious complaints);
Morgan Cty. Com'rs Bd. v. Winslow, 862 P.2d 921 (Colo. 1993) (noting 162 separate proceedings); People v.
Dunlap, 623 P.2d 408 (Colo. 1981) (noting at least nine complaints filed against at least thirty-five state officials
or their spouses); Howard v. Sharpe, 470 S.E.2d 678 (Ga. 1996) (noting over forty civil lawsuits); Eismann v.
Miller, 619 P.2d 1145 (Idaho 1980) (noting over forty criminal and civil complaints, notices of lis pendens, and
common law liens).

44
Cf. Tex. Civ. Prac. & Rem. Code 11.054(1) (Vernon 2002) (permitting a vexatious litigant order to be
entered if the litigant is unlikely to prevail and has instigated at least five suits within seven years that were lost,
permitted to remain pending for two or more years, or determined to be frivolous or groundless); Mehdipour v.
State Dept. of Corrections, 90 P.3d 546 (Okla. 2004) (upholding a statute barring prisoners from filing civil
actions absent payment of the filing fee if at least three previously filed actions were dismissed on the grounds
that the complaint was frivolous, malicious, or failed to state a claim, with certain exceptions).
........................................
[Headnotes 22, 23]
Fourth, Luckett's misuse of the legal system is not confined to any particular person or
process. Accordingly, the order is narrowly drawn to curb the widespread abuses noted by the
district court. In particular, the order limits the possibility that Luckett will continue to file
meritless suits, because it requires him to first obtain the presiding judge's permission.
Nevertheless, an order broadly restricting future court filings must explicitly set a standard
against which the presiding judge should measure potential new filings, for example, as
having merit and/or potential impact on constitutional rights.
45
And because the authority to
issue such an order is based on a court's inherent powers involving the exercise of its
jurisdiction, the district court may not implicate other courts' powers by attempting to
prevent Luckett from filing any new litigation in the courts of this state without permission.
Accordingly, although the district court did not abuse its discretion when it declared Luckett a
vexatious litigant and limited his court access accordingly, the order should be modified to
include an appropriate standard and to apply only to the Eighth Judicial District Court.
Final judgments
[Headnote 24]
The final judgment in Docket No. 38189 granted the State's motion for summary judgment
on all of Jordan's claims. This court reviews orders granting summary judgment de novo.
46
Summary judgment is appropriate when, after an examination of the record, no genuine
issues of material fact remain and the moving party is entitled to judgment as a matter of law.
47

[Headnote 25]
Preliminarily, we note that the district court's order, based on its inability to decipher
Jordan's basic claims, was unwarranted. Jordan's complaint and other papers were typewritten
and demonstrate an obvious attempt to organize and base his claims on legally recognizable
causes of action.
____________________

45
Although the original restrictive order did not specifically address the problems that the district court was
encountering in the instant matter, it appears that the court had already decided to dismiss the case, and therefore
likely did not expect the problems to continue. Further, the amended restrictive order appears to address this
issue by requiring Luckett to pay appropriate costs before proceeding.

46
Pegasus v. Reno Newspapers, Inc., 118 Nev. 706, 713, 57 P.3d 82, 87 (2002).

47
NRCP 56(c); Pegasus, 118 Nev. at 713, 57 P.3d at 87.
........................................
ognizable causes of action. He also attached to the complaint the statutes under which he
purported to derive his causes of action. Moreover, the State was able, for the most part, to
appropriately respond to Jordan's allegations. Accordingly, since the lack of clarity in Jordan's
pleadings can be overcome without excessive difficulty, the court should not have granted
summary judgment based on Jordan's claims being indecipherable.
Jordan was arrested for violating NRS 207.200(1)(b), which provides:
1. Any person who, under circumstances not amounting to a burglary:
. . . .
(b) Willfully goes or remains upon any land or in any building after having been
warned by the owner or occupant thereof not to trespass,
is guilty of a misdemeanor.
In Scott v. Justice's Court,
48
a 1968 decision, this court considered whether a criminal
complaint charging the petitioner with disturbing the peace and willfully remaining on hotel
grounds after having been asked to leave by hotel employees was sufficient to try the
petitioner for trespass under NRS 207.200(1)(b). After concluding that the statute makes
punishable either entering or remaining, we noted that the petitioner was charged with
trespassing upon premises to which the public was invited.
49
Therefore, we stated, a
revocation of the general invitation would seem necessary before one could be considered a
trespasser.
50
In this instance, Jordan submitted evidence indicating that the building's
grounds were continuously open to the public, but the affidavits and papers documenting
Jordan's arrest do not address why Officer Jones ordered Jordan off the building's public
grounds. Officer Jones' report stated only that he advised Jordan that he was trespassing and
asked him to leave. It did not reveal what Jordan was doing that would have authorized
Officer Jones to exclude him from the property. Jordan therefore claims that his arrest was
unlawful.
____________________

48
84 Nev. 9, 435 P.2d 747 (1968).

49
Id. at 12, 435 P.2d at 749.

50
Id. (citing People v. Goduto, 174 N.E.2d 385 (Ill. 1961); State v. Carriker, 214 N.E.2d 809 (Ohio Ct. App.
1964)). In Scott, the petitioner had been permanently barred from the premises because of prior misconduct and,
at the time, was alleged to have been using loud language. Id. at 10-11, 435 P.2d at 748. Scott, however,
involved the revocation of a general invitation to enter on private land; we note that the standard for revoking a
general invitation to be on private land may differ from the standard for revoking a general invitation to be on
public land.
........................................
[Headnote 26]
Jordan's complaint does allege some wrongs for which civil remedies might be available.
Jordan's independent claims for libel, oppression while using physical force and perjury
damages must fail;
51
however, his remaining claims for malicious prosecution and false
imprisonment/false arrest (false lawsuit) present genuine issues of material fact precluding
summary judgment, as discussed below.
Libel
[Headnotes 27-30]
In order to maintain a claim of libel, a plaintiff must show a false and defamatory
statement, its unprivileged publication, fault, and damages.
52
A statement is defamatory
when it would tend to lower the subject in the estimation of the community, excite derogatory
opinions about the subject, and hold the subject up to contempt.'
53
Generally, whether a
statement is defamatory is a question of law.
54
Only false statements of fact, as opposed to
opinion, are actionable.
55

[Headnote 31]
Jordan's libel claim appears to arise from Officer Jones' statements on the declaration of
probable cause arrest form that Jordan was uncooperative, had no business being there (on the
building's grounds), and was arrested for trespass on state property. On appeal, the State notes
that Officer Jones submitted his statements in a sworn affidavit averring that the stated events
reflect what occurred at the time of Jordan's arrest. Further, the State argues that Jordan has
provided no admissible evidence or argument demonstrating an issue as to the falseness of
these statements.
[Headnote 32]
We agree. Although Jordan repeatedly asserted to the district court that Officer Jones made
false statements, he did not submit any other discernable account of relevant events,
admissible or otherwise, demonstrating the falseness of the above statements.
____________________

51
See Droppleman v. Horsley, 372 F.2d 249 (10th Cir. 1967) (recognizing that no independent civil
conspiracy to commit perjury cause of action exists); Hokanson v. Lichtor, 626 P.2d 214, 218 (Kan. Ct. App.
1981) (recognizing that the majority of authority from other jurisdictions holds that no civil cause of action for
damages exists for . . . perjury). In any case, Jordan's perjury allegations appear to be subsumed within his other
causes of action.

52
Pegasus v. Reno Newspapers, Inc., 118 Nev. 706, 57 P.3d 82 (2002).

53
Lubin v. Kunin, 117 Nev. 107, 111, 17 P.3d 422, 425 (2001) (quoting K-Mart Corporation v. Washington,
109 Nev. 1180, 1191, 866 P.2d 274, 281-82 (1993)).

54
See Miller v. Jones, 114 Nev. 1291, 1296, 970 P.2d 571, 575 (1998).

55
Id.
........................................
any other discernable account of relevant events, admissible or otherwise, demonstrating the
falseness of the above statements. Further, the only statements that might be defamatory, that
Jordan was uncooperative and was arrested, are mere opinion and admitted fact, respectively.
56
Therefore, the district court properly granted summary judgment on Jordan's libel claim.
Oppression while using physical force
[Headnote 33]
This claim was purportedly made under NRS 197.200, which makes it a criminal offense
for an officer to unlawfully and maliciously, under pretense or color of official authority,
commit oppression by arresting or detaining another against his will. The State correctly
notes that NRS 197.200 does not create a civil cause of action.
57
Accordingly, the district
court properly granted summary judgment on this claim.
Malicious prosecution, false arrest,
58
and false imprisonment
[Headnotes 34, 35]
Malicious prosecution consists of a prior criminal action being filed against the claimant,
plus lack of probable cause to commence the prior action, malice, a favorable termination of
the prior criminal action, and damages.
59
Proof of lack of probable cause may denote malice.
60

[Headnotes 36-38]
As for false arrest, we have held that a claimant must show that the actor instigated or
effected an unlawful arrest.
61
Similarly, we have pointed out that false imprisonment arising
from a false arrest occurs when the claimant's liberty is restrained under the probable
imminence of force without any legal cause or justification."
____________________

56
We note that statements made in good faith furtherance of one's official duties are generally privileged. See
Towne v. Cope, 233 S.E.2d 624, 626-27 (N.C. Ct. App. 1977); 50 Am. Jur. 2d Libel & Slander 276, at 545
(1995); see also K-Mart Corporation v. Washington, 109 Nev. 1180, 1191, 866 P.2d 274, 282 (1993); cf.
Sahara Gaming v. Culinary Workers, 115 Nev. 212, 984 P.2d 164 (1999). Accordingly, Officer Jones'
statements might constitute privileged communication.

57
See Collins v. Palczewski, 841 F. Supp. 333, 340 (D. Nev. 1993).

58
Presumably, by citing NRS 199.320, false lawsuit, Jordan was alleging false arrest.

59
LaMantia v. Redisi, 118 Nev. 27, 38 P.3d 877 (2002).

60
Chapman v. City of Reno, 85 Nev. 365, 369, 455 P.2d 618, 620 (1969).

61
Nau v. Sellman, 104 Nev. 248, 251, 757 P.2d 358, 360 (1988).
........................................
fication. '
62
Thus, in Hernandez v. City of Reno,
63
we held that an actor is subject to
liability to another for false imprisonment if (a) he acts intending to confine the other or a
third person within boundaries fixed by the actor, and (b) his act directly or indirectly results
in such a confinement of the other, and (c) the other is conscious of the confinement or is
harmed by it.'
[Headnotes 39-42]
In response, the State primarily contends that Jordan is unable to show the existence of any
issue of material fact as to lack of probable cause or legal justification for the arrest because
the justice of the peace's probable cause determination, attached to Jordan's complaint,
constitutes conclusive evidence of probable cause.
64
However, the justice of the peace's
initial determination to hold Jordan for trial does not constitute irrebuttable evidence of
probable cause to arrest.
65
In this case, Jordan has alleged that the finding was procured
through perjury. Moreover, Officer Jones' affidavits do not answer material questions
regarding his basis for believing that Jordan's refusal to leave constituted a crime. Thus, at
this point, genuine issues of material fact exist as to whether the State committed malicious
prosecution andJor false arrestJfalse imprisonment, and the district court improperly
granted summary judgment on those claims.
____________________

62
Garton v. City of Reno, 102 Nev. 313, 314-15, 720 P.2d 1227, 1228 (1986) (quoting Marschall v. City of
Carson, 86 Nev. 107, 110, 464 P.2d 494, 497 (1970) (quoting Hernandez v. City of Reno, 97 Nev. 429, 433,
634 P.2d 668, 671 (1981))).

63
97 Nev. at 433, 634 P.2d at 671 (quoting Restatement (Second) of Torts 35 (1965)).

64
The State also suggests that summary judgment on all claims was proper because Jordan failed to present
any further evidence once the State moved for summary judgment, as required by NRCP 56(e). NRCP 56(e)
permits a court, when appropriate, to enter summary judgment against an adverse party who fails to respond to
such motion by going beyond the pleadings and supplying the court with documentation setting forth specific
facts of a genuine triable issue. But Jordan did not rely merely on his pleadings. He attached the police reports to
his complaint and later submitted the letter from the grounds division. Based on the above discussions, Jordan's
documentation, although not by affidavit, sufficiently demonstrates triable issues of fact. Therefore, NRCP 56(e)
does not provide grounds for summary judgment in this instance. See Garvey v. Clark County, 91 Nev. 127, 532
P.2d 269 (1975).

65
See Ricord v. C. P. R. R. Co., 15 Nev. 167, 180 (1880) (recognizing that, in a malicious prosecution case,
the commitment and indictment of a defendant constitutes prima facie evidence that probable cause for criminal
prosecution existed but noting that the prima facie evidence could be rebutted with a relevant showing of false
testimony or suppressed facts); Awabdy v. City of Adelanto, 368 F.3d 1062, 1067 (9th Cir. 2004) (recognizing
that a decision by a judge or magistrate to hold a defendant to answer after a preliminary hearing constitutes
prima faciebut not conclusiveevidence of probable cause, and stating that a prima facie finding can be
rebutted with evidence that the criminal prosecution was induced by fraud, corruption, perjury, fabricated
evidence, or other wrongful conduct undertaken in bad faith).
........................................
State committed malicious prosecution and/or false arrest/false imprisonment, and the district
court improperly granted summary judgment on those claims.
66

[Headnote 43]
The final judgment in this matter dismissed Luckett's complaint based on his failure to
post security under NRS 18.130. NRS 18.130 permits a defendant in an action instituted by
an out-of-state plaintiff to make a demand for security for the costs and charges that the
defendant might be awarded.
67
The district court may dismiss the action if the security is not
posted within thirty days from the date that the demand's notice is served or from the date of
an order for new or additional security.
68
A dismissal for failure to post security will be
overturned only upon the finding of an abuse of discretion.
69

[Headnote 44]
The district court's in forma pauperis order granted Luckett leave to proceed in forma
pauperis, without payment or fees or security therefor. Doumani and the La Concha Motel
argue that the district court is not authorized by NRS 12.015 to exempt security requirements
upon a finding of indigence.
70
However, because neither NRS 12.015 nor any other statute
clearly and manifestly removes a district court's inherent power to waive a security bond
requirement upon a finding of indigence, the district court appropriately waived the
security requirement in this case even without express statutory authority.
____________________

66
We note that, to the extent that the State asserts immunity under NRS 41.032, there exist unresolved
questions as to whether Officer Jones' acts were made in bad faith and, accordingly, whether the State is entitled
to immunity. Compare Ortega v. Reyna, 114 Nev. 55, 62, 953 P.2d 18, 23 (1998), Maturi v. Las Vegas Metro.
Police Dep't, 110 Nev. 307, 871 P.2d 932 (1994), Carey v. Nevada Gaming Control Bd., 279 F.3d 873 (9th Cir.
2002), and Herrera v. Las Vegas Metropolitan Police Dept., 298 F. Supp. 2d 1043, 1054 (D. Nev. 2004), with
Falline v. GNLV Corp., 107 Nev. 1004, 1009-10, 823 P.2d 888, 891-92 (1991) (applying the bad-faith
exception to insurance-claim processors' discretionary-act immunity), and Ex Parte City of Montgomery, 758
So. 2d 565 (Ala. 1999) (recognizing that discretionary official-act immunity does not attach to an officer who
acts in bad faith, or willfully or maliciously, since that act would not be considered discretionary); accord Long
v. Seabrook, 197 S.E.2d 659 (S.C. 1973); Powell v. Foxall, 65 S.W.3d 756 (Tex. Civ. App. 2001).

67
NRS 18.130(1).

68
NRS 18.130(2), (4); see also Brion v. Union Plaza, 104 Nev. 553, 763 P.2d 64 (1988).

69
Brion, 104 Nev. 553, 763 P.2d 64.

70
NRS 12.015(1)(a)(1) authorizes a district court to, upon determining that a person is unable to pay, allow
the person to commence or defend the action without costs.
........................................
rity bond requirement upon a finding of indigence, the district court appropriately waived the
security requirement in this case even without express statutory authority.
71
In this instance,
language included in the district court's in forma pauperis order effectively excused the
security requirement.
72

[Headnote 45]
Respondents appear to argue that, despite the in forma pauperis order, several subsequent
district court oral orders and findings directing Luckett to provide the required security were
effective to give Luckett notice that he was nonetheless required to post a bond. The oral
orders, however, were never reduced to writing and did not vacate the in forma pauperis
order.
73
To the extent that any written orders address the security requirement, the record
contains no order expressly vacating the in forma pauperis order and no order was entered at
a time early enough in the proceedings to effectively give Luckett any opportunity to respond
by posting security.
74
Therefore, the district court abused its discretion when it dismissed
Luckett's action based on his failure to post security.
Respondents alternatively claim that the district court properly dismissed the action,
because it also granted respondents' motion to dismiss for failure to state a claim. However,
although the district court minutes suggest that the court intended to grant the NRCP
12{b){5) motion, the written order did not mention Luckett's purported failure to state a
claim, but instead dismissed the action based solely on Luckett's failure to post security.
____________________

71
See, e.g., Bank of America Nat. Trust & Sav. Assn. v. Superior Court, 63 Cal. Rptr. 366, 367 (Ct. App.
1967) (upholding the trial court's decision to waive out-of-state security requirements for an indigent plaintiff
under the court's inherent power) (citing County of Sutter v. Superior Court for Sutter, 53 Cal. Rptr. 424 (Ct.
App. 1966)); see also Baltayan v. Estate of Getemyan, 110 Cal. Rptr. 2d 72 (Ct. App. 2001) (Johnson, J.,
concurring) (discussing the effects of in forma pauperis status on security requirements, especially in light of
constitutional equal protection clauses); Bolden v. City of Shreveport, 278 So. 2d 138, 144 (La. Ct. App. 1973).

72
See Arrambide v. St. Mary's Hosp., Inc., 647 F. Supp. 1148 (D. Nev. 1986) (noting that similar language in
the federal in forma pauperis statute, authorizing a district court to waive fees and costs or security therefor,
includes NRS 18.130's security requirement).

73
See State, Div. Child & Fam. Servs. v. Dist. Ct., 120 Nev. 445, 454, 92 P.3d 1239, 1245 (2004)
([D]ispositional court orders that are not administrative in nature, but deal with the procedural posture or merits
of the underlying controversy, must be written, signed, and filed before they become effective.). During the
November 20 hearing, the district court indicated that it had previously entered an order directing Luckett to post
security. Further, the court indicated that it would request the then-Chief Judge to strike the in forma pauperis
order. However, no such written orders appear in the record. See also DCR 18(1) (governing when a district
judge may act upon a matter already ruled upon by a different judge); State v. Babayan, 106 Nev. 155, 165, 787
P.2d 805, 812-13 (1990) (determining that a judge violated DCR 18(1) when making a ruling that conflicted
with a different judge's previous ruling in the same case).

74
See NRS 18.130's thirty-days' notice requirements.
........................................
trict court minutes suggest that the court intended to grant the NRCP 12(b)(5) motion, the
written order did not mention Luckett's purported failure to state a claim, but instead
dismissed the action based solely on Luckett's failure to post security. Consequently, NRCP
12(b)(5) was not a basis for the district court's dismissal order.
[Headnotes 46, 47]
Nevertheless, this court will affirm [an] order of the district court if it reached the correct
result, albeit for different reasons.
75
And we held in Hampe v. Foote
76
that [d]ismissal is
proper where the allegations are insufficient to establish the elements of a claim for relief.
Although we rigorously review the dismissal of an action under NRCP 12(b)(5) for failure to
state a claim, and a complaint should only be dismissed if it appears beyond a reasonable
doubt that the plaintiff could prove no facts entitling him to relief,
77
Luckett's complaint
clearly failed to demonstrate any basis for his requested relief.
[Headnotes 48, 49]
Luckett's complaint asserted claims against respondents for (1) the unlawful practice of
law, (2) negligence, (3) conspiracy to commit and aid a fraud, and (4) intentional infliction of
emotional distress. First, although Nevada has not yet recognized a private cause of action for
the unauthorized practice of law, other jurisdictions have recognized such a claim.
78
Luckett's complaint alleges that Doumani (lied) to me in telling me that he is a (CA)
practicing lawyer, and also gave Luckett legal advice concerning a pending Nevada Eighth
Judicial District Court case. Luckett did not, however, assert that Doumani is not an attorney
or that he falsely claimed to be licensed in Nevada, but only that the California State Bar has
no record of Doumani as a California-licensed attorney.
____________________

75
Rosenstein v. Steele, 103 Nev. 571, 575, 747 P.2d 230, 233 (1987).

76
118 Nev. 405, 408, 47 P.3d 438, 439 (2002).

77
Id.

78
See, e.g., McMahon v. Advanced Title Services Co., 607 S.E.2d 519, 524 (W. Va. 2004) (noting that many
jurisdictions recognize a private right of action for the unauthorized practice of law, and holding that a party
who has suffered or may likely suffer a legally cognizable injury, wrong, or other actionable violation of his or
her personal legal rights and interests as a proximate result of the unlawful and unauthorized practice of law by
another has standing to assert a claim alleging such actual or threatened unlawful and unauthorized practice and
seeking relief appropriate to the injury, wrong, or violation); see also Paso Builders, Inc. v. Hebard, 83 Nev.
165, 172, 426 P.2d 731, 736 (1967) (recognizing that whether or not a claim for negligence per se based on the
unauthorized practice of law is viable in Nevada was of no import when the conduct complained of did not
proximately cause any damage).
........................................
And as noted above, he later stated that Doumani is a California-licensed attorney. Further,
Luckett did not allege that any legal advice given by Doumani proximately caused, or was
likely to cause, any damage to Luckett. In addition, although Luckett asserted that the advice
was given on the La Concha Motel's premises, and that the Motel served as a front . . . for
this scam, the Motel could be held liable directly for the unauthorized practice of law only
under a theory of respondeat superior, in which case the underlying cause of action must
exist.
79
Thus, whether or not Doumani is a licensed attorney, Luckett failed to state a claim
for the unlawful practice of law.
[Headnotes 50-52]
Second, a claim for negligence must be based on (1) an existing duty of care, (2) breach,
(3) legal causation, and (4) damages.
80
However, in Calloway v. City of Reno,
81
we held that
under the economic loss doctrine there can be no recovery in tort for purely economic loss.
Luckett appears to have based his claim for negligence on the assertion that Doumani allowed
M.L. to scam Luckett at the motel. But he did not allege that he was physically harmed or
injured in any way other than through M.L.'s appropriation of a sum of money. Therefore,
even assuming that Doumani and the La Concha Motel had a reasonable duty to inform
[Luckett] that [M.L.] was a scam artist, Luckett has failed to sufficiently state any cause of
action for negligence.
[Headnotes 53-56]
Third, we recognize that an actionable civil conspiracy-to-defraud claim exists when there
is (1) a conspiracy agreement, i.e., a combination of two or more persons who, by some
concerted action, intend to accomplish an unlawful objective for the purpose of harming
another' ;
82
(2) an overt act of fraud in furtherance of the conspiracy; and {3) resulting
damages to the plaintiff.
____________________

79
See, e.g., Kornton v. Conrad, Inc., 119 Nev. 123, 125, 67 P.3d 316, 317 (2003) (Generally, the trier of
fact determines whether an employee was acting within the scope of his or her employment' when the tortious
act occurred. (emphasis added) (quoting Evans v. Southwest Gas, 108 Nev. 1002, 1005, 842 P.2d 719, 721
(1992))).

80
Riley v. OPP IX L.P., 112 Nev. 826, 830, 919 P.2d 1071, 1074 (1996) (quoting Sims v. General Telephone
& Electric, 107 Nev. 516, 521, 815 P.2d 151, 154 (1991), overruled on other grounds by Tucker v. Action
Equip. and Scaffold Co., 113 Nev. 1349, 951 P.2d 1027 (1997)).

81
116 Nev. 250, 267, 993 P.2d 1259, 1270 (2000), overruled on other grounds by Olson v. Richard, 120
Nev. 240, 89 P.3d 31 (2004).

82
Consolidated Generator v. Cummins Engine, 114 Nev. 1304, 1311, 971 P.2d 1251, 1256 (1998) (quoting
Hilton Hotels v. Butch Lewis Productions, 109 Nev. 1043, 1048, 862 P.2d 1207, 1210 (1993)).
........................................
the conspiracy; and (3) resulting damages to the plaintiff.
83
Thus, an underlying cause of
action for fraud is a necessary predicate to a cause of action for conspiracy to defraud.
84
In
Nevada, fraudulent misrepresentation occurs when a false representation is made with
knowledge or belief that it is false, or with an insufficient basis of information for making the
representation, and with intent to induce the plaintiff to act, and the plaintiff relies on the
misrepresentation with resulting damages.
85
Intent must be specifically alleged.
86

[Headnotes 57, 58]
It is unclear from the complaint what representation Luckett believed was fraudulent. The
only alleged misrepresentation from which Luckett appears to have claimed actual damages is
the purported statement by M.L. that he had a hot tip. Yet Luckett did not assert that
Doumani or the La Concha Motel agreed with M.L. to scam him; he only complained that
Doumani knew of M.L.'s tendency to scam yet let him live at the motel rent-free without
warning potential victims. Further, even if Luckett had adequately asserted that Doumani and
the La Concha Motel conspired with M.L. regarding the hot tip, no underlying cause of
action for fraud exists; Luckett did not specifically allege that M.L. intended for Luckett to
act on the hot tip or even that M.L. offered to place the wager. Accordingly, Luckett failed
to sufficiently state a claim for fraud and, consequently, for conspiracy to defraud.
[Headnotes 59-61]
Finally, to establish a cause of action for intentional infliction of emotional distress, a
complaint must allege the following: (1) extreme and outrageous conduct with either the
intention of, or reckless disregard for, causing emotional distress; (2) severe or extreme
emotional distress suffered by the plaintiff; and (3) actual or proximate causation.
87
Again,
the plaintiff's complaint must specifically allege intent.
88
In this instance, Luckett failed to
allege any of the above elements of intentionally tortious conduct. He merely asserted that
Doumani knew of M.L.
____________________

83
16 Am. Jur. 2d Conspiracy 63 (1998); see also Flowers v. Carville, 266 F. Supp. 2d 1245, 1249 (D. Nev.
2003).

84
Id.

85
Barmettler v. Reno Air, Inc., 114 Nev. 441, 446-47, 956 P.2d 1382, 1386 (1998).

86
Tahoe Village Homeowners v. Douglas Co., 106 Nev. 660, 663, 799 P.2d 556, 558 (1990) (upholding the
dismissal of an intentional tort complaint that failed to allege intent).

87
Barmettler, 114 Nev. at 447, 956 P.2d at 1386.

88
See generally Tahoe Village Homeowners, 106 Nev. at 663, 799 P.2d at 558.
........................................
serted that Doumani knew of M.L.'s likely intentions and should have so warned him. He did
not claim that Doumani intended for M.L. to scam him or that he actually suffered any
emotional distress as a result. Accordingly, Luckett failed to state a claim for intentional
infliction of emotional distress.
While we recognize that the district court abused its discretion in dismissing Luckett's
complaint for failure to post security, the complaint clearly failed to state a claim upon which
relief could be granted. Accordingly, the complaint's dismissal was warranted.
CONCLUSION
Nevada courts have at least two viable methods of preventing litigation abuse by proper
person litigants with in forma pauperis status: pre-service complaint review and restrictions
on court access. Even so, society's right to meaningful court access is significant, and such
right should not be lightly constrained. Accordingly, Nevada courts, when considering
restricting that right, should follow the guidelines discussed in this opinion.
The district court abused its discretion when it granted summary judgment on Jordan's
action based on its inability to decipher his claims. Further, while Jordan's claims for perjury,
libel, and oppression while using physical force are unsupportable, material facts preclude
summary judgment on Jordan's claims for malicious prosecution and false imprisonment/false
arrest. Accordingly, we affirm that portion of the district court's judgment pertaining to
perjury, libel and oppression while using physical force, and we reverse that portion of the
judgment relating to Jordan's claims for malicious prosecution and false imprisonment/false
arrest. As the district court also abused its discretion when it entered the restrictive order,
broadly prohibiting Jordan from proceeding in forma pauperis in any future actions and
requiring him to obtain leave of the court before filing any new actions, we direct the district
court to vacate its restrictive order on remand. Any subsequent restrictive order must comply
with the guidelines discussed in this opinion.
89

Although the district court abused its discretion when it dismissed Luckett's action for his
failure to post security, Luckett's complaint nevertheless fails to state an actionable claim.
____________________

89
Although Jordan was not granted leave to file papers in proper person, see NRAP 46(b), we have
considered the proper person documents received from Jordan. In light of this opinion, we deny his proper
person requests as moot. Jordan's request to remand this matter to a different department is denied.
........................................
complaint nevertheless fails to state an actionable claim. Accordingly, we affirm the district
court's order dismissing Luckett's complaint. In addition, we conclude that the vexatious
litigant order restricting Luckett's access to the court was warranted by the circumstances of
this case. The district court's restrictive order, however, lacks a complaint-review standard
and improperly attempts to apply to all Nevada courts. Accordingly, we remand this matter to
the district court with instructions that it modify its restrictive order in accordance with this
opinion.
90

____________
121 Nev. 77, 77 (2005) State, Dep't of Conservation v. Foley
DEPARTMENT OF CONSERVATION AND NATURAL RESOURCES, DIVISION OF
WATER RESOURCES, a Political Subdivision of the State of Nevada, Appellant, v.
DENISE C. FOLEY; CHARLES F. FOLEY; and LOUIS C. FOSTER, Respondents.
No. 40940
April 14, 2005 109 P.3d 760
Appeal from a district court order granting a preliminary injunction that reinstated a
disputed water permit. Eighth Judicial District Court, Clark County; Lee A. Gates, Judge.
Purchasers of subdivision lot brought action against state Department of Conservation and
Natural Resources, Division of Water Resources, seeking issuance of preliminary injunction
to reinstate permit for well service. The district court issued preliminary injunction. Division
appealed. The supreme court, Hardesty, J., held that: (1) Division was not required to provide
notice of cancellation of water rights to persons who obtained their water rights before
amendment of applicable statute, but had not reported the fact of their interest to the Division;
(2) purchasers were not entitled to notice from Division regarding cancellation of water
rights; and (3) purchasers and subsequent purchaser were not entitled to issuance of
preliminary injunction.
Reversed.
Brian Sandoval, Attorney General, and Michael L. Wolz, Deputy Attorney General, Carson
City, for Appellant.
R. Nathan Gibbs, Las Vegas; Kelleher & Kelleher, LLC, and John T. Kelleher, Las Vegas,
for Respondents.
____________________

90
Although Luckett was not granted leave to file papers in proper person, see NRAP 46(b), we have
considered the proper person documents received from Luckett. In light of this opinion, we deny his proper
person motions as moot.
........................................
1. Injunction.
For a preliminary injunction to issue, the moving party must show that there is a
likelihood of success on the merits and that the nonmoving party's conduct, should it
continue, would cause irreparable harm for which there is no adequate remedy at law.
2. Injunction.
Injunctive relief is extraordinary relief, and the irreparable harm supporting issuance
of preliminary injunction must be articulated in specific terms by the issuing order or be
sufficiently apparent elsewhere in the record.
Supreme court reviews preliminary injunctions for abuse of discretion.
4. Waters and Water Courses.
State Department of Conservation and Natural Resources, Division of Water
Resources, was not required to provide notice of cancellation of water rights to persons
who obtained their water rights before October 1, 1995, which was effective date of
statutes requiring transferee to file report with State Engineer, but who had not reported
the fact of their interest to the Division. NRS 533.384(1)(a), 533.386(4).
Purchasers of subdivision lot were not entitled to notice from state Department of
Conservation and Natural Resources, Division of Water Resources, regarding
cancellation of water rights for lot; purchasers failed to file report of conveyance with
State Engineer. NRS 533.384(1)(a), 533.386(4).
Water rights holders of record with the state Department of Conservation and
Natural Resources, Division of Water Resources, remain the only interested parties
entitled to notice of cancellation of water rights permits. NRS 533.384(1)(a),
533.386(4).
Purchasers and subsequent purchaser of subdivision lot were not entitled to issuance
of preliminary injunction requiring state Department of Conservation and Natural
Resources, Division of Water Resources, to reinstate water permit for well service after
Division had canceled water rights without providing notice to purchasers and
subsequent purchaser because purchasers and subsequent purchaser failed to advise
State Engineer of their interest in water permit and made no showing that water was put
to beneficial use before any deadline for submission of proof thereof. NRS
533.384(1)(a), 533.386(4).
OPINION
By the Court, Hardesty, J.:
This appeal raises questions of interpretation of the statutory scheme under which the
appellant, the Nevada Department of Conservation and Natural Resources, Division of Water
Resources {the Division), regulates water rights held by Nevada landowners.
........................................
(the Division),
1
regulates water rights held by Nevada landowners. Because of Nevada's arid
geography, vital public policy considerations dictate that the Division, through the State
Engineer, monitor the beneficial use of water rights. This oversight occasionally requires
cancellation of water rights due to forfeiture from lack of use or development. In this case, we
resolve whether the Division must provide notice of cancellation of water rights to permit
owners whose interests do not appear of record in the files of the State Engineer. We
conclude that such notice is not required.
David Baal acquired a piece of real estate situated in Clark County, Nevada. In 1990, Baal
applied for a water permit, and in 1991 he subdivided the property into four separate lots.
The State Engineer granted permit number 53454 (the permit) for well service to the four
parcels. The permit required that the holder file certain certificates with the Division,
including a Proof of Completion of Work and a Proof of Water to Beneficial Use. Baal filed a
Proof of Completion of Work in April 1992 but failed to provide a Proof of Water to
Beneficial Use. The Division notified Baal in 1995 that his permit would be canceled unless
he provided such proof within thirty days. Over the next several years, the Division granted
several extensions of time for Baal to comply. In 1999, Baal failed to respond to additional
notices requesting proof of beneficial use. The State Engineer ultimately gave final notice to
Baal and canceled the permit on August 5, 1999.
This case involves two of the subdivided parcels, both of which Baal conveyed to
respondents Denise and Charles Foley. The Foleys first purchased one of the lots from Baal in
1994 and have resided on it ever since.
2
They purchased the other lot in 1996 and resold it to
respondent Louis Foster in 2001. Although records of the transactions were apparently filed
with the Clark County Recorder, none of these individuals filed a report or record of the
transactions with the State Engineer.
The Foleys first learned of the permit cancellation when they sold the second parcel to
Foster. The parties to this appeal agree that the Foleys never received any of the Division's
notices.
The Foleys filed a complaint for a preliminary injunction seeking reinstatement of the
permit. Foster intervened in the action. Upon application, the district court concluded that the
Foleys were entitled to notice of cancellation and issued an injunction directing that the
permit be reinstated.
____________________

1
The Division and the State Engineer are referred to interchangeably in this opinion.

2
Because the record is silent as to the transfer of water rights, we presume that the real property conveyances
included the water rights. See Margrave v. Dermody Properties, 110 Nev. 824, 828, 878 P.2d 291, 293 (1994).
........................................
entitled to notice of cancellation and issued an injunction directing that the permit be
reinstated.
3
In this, the district court found and concluded that the Foleys and Foster would
suffer irreparable harm if the permit was canceled, were without an adequate remedy at law,
and had a reasonable probability of success on the merits. The Division filed its timely notice
of appeal.
DISCUSSION
[Headnotes 1-3]
For a preliminary injunction to issue, the moving party must show that there is a likelihood
of success on the merits and that the nonmoving party's conduct, should it continue, would
cause irreparable harm for which there is no adequate remedy at law.
4
Injunctive relief is
extraordinary relief, and the irreparable harm must be articulated in specific terms by the
issuing order or be sufficiently apparent elsewhere in the record.
5
This court reviews
preliminary injunctions for abuse of discretion.
6

Chapter 533 of the Nevada Revised Statutes contains the legislative scheme governing
water rights in Nevada. In part to resolve a lack of clarity in the statutory notice and filing
requirements concerning water rights matters, the 1995 Nevada Legislature comprehensively
amended Chapter 533. Pertinent to this appeal are the additions of NRS 533.384(1) and NRS
533.386(4), both of which became effective October 1, 1995. Under NRS 533.384(1)(a),
transferees of water rights must file a report of the conveyance with the State Engineer.
7
Additionally, under the amendments to NRS 533.386(4), the Division may only consider
persons mentioned in a report of conveyance, filed with the Division, as interested parties
to water rights permits.
____________________

3
Foster did not acquire his interest in the property until after the State Engineer canceled the permit. Thus,
the notice issue only relates to him as a subsequent purchaser from the Foleys.

4
Dangberg Holdings v. Douglas Co., 115 Nev. 129, 142, 978 P.2d 311, 319 (1999); Pickett v. Comanche
Construction, Inc., 108 Nev. 422, 426, 836 P.2d 42, 44 (1992).

5
Dangberg, 115 Nev. at 144, 978 P.2d at 320.

6
S.O.C., Inc. v. The Mirage Casino-Hotel, 117 Nev. 403, 407, 23 P.3d 243, 246 (2001).

7
NRS 533.384(1), as amended, states in pertinent part:
1. A person to whom is conveyed an application or permit to appropriate any of the public waters, a
certificate of appropriation, an adjudicated or unadjudicated water right or an application or permit to
change the place of diversion, manner of use or place of use of water, shall:
(a) File with the State Engineer, together with the prescribed fee, a report of conveyance which
includes the following information on a form to be provided by the State Engineer:
(1) An abstract of title;
........................................
a report of conveyance, filed with the Division, as interested parties to water rights permits.
8

Prior to October 1, 1995, nothing in NRS Chapter 533 explicitly imposed a duty upon the
State Engineer to conduct title searches in connection with permit approvals or cancellations.
Division personnel, however, routinely performed a degree of title work in connection with
water rights applications and cancellations.
9
Because these employees were not necessarily
experts in title disputes, and because of a need to clearly define the Division's responsibilities,
the amendments to Chapter 533 now specifically place the duty to memorialize conveyance
transactions concerning water rights upon the person to whom the right is conveyed. Thus,
the 1995 amendments relieve the Division of any affirmative duty to seek information from
the county recorders when acting upon permit applications and expired water rights.
10
In
this, the legislature sought to clarify the process of water rights registration and minimize
potential ambiguities concerning water rights ownership. By implication, the statute limits the
persons who are entitled to statutory notice of water right cancellations.
Notice requirements concerning the pre-October 1, 1995, transactions
[Headnote 4]
The first Baal/Foley transaction was completed before the effective date of the
amendments to Chapter 533. Nevertheless, as noted, the State was under no obligation
under the pre-October 1, 1995, version of NRS Chapter 533 to give notice to parties
whose interests were not of record with the Division.
____________________
(2) Except as otherwise provided in subsection 2, a copy of any deed, written agreement or
other document pertaining to the conveyance; and
(3) Any other information requested by the State Engineer.
(Emphasis added.)

8
NRS 533.386(4) now provides:
The State Engineer shall not consider or treat the person to whom:
(a) An application or permit to appropriate any of the public waters;
(b) A certificate of appropriation;
(c) An adjudicated or unadjudicated water right; or
(d) An application or permit to change the place of diversion, manner of use or place of use of water,
is conveyed as the owner or holder of the application, right, certificate or permit for the purposes of this
chapter, including, without limitation, all advisements and other notices required of the State Engineer
and the granting of permits to change the place of diversion, manner of use or place of use of water, until
a report of the conveyance is confirmed pursuant to subsection 1.
(Emphases added.)

9
Hearing on S.B. 93 Before the Assembly Government Affairs Comm., 68th Leg. (Nev., June 13, 1995)
(statement of R. Michael Turnipseed, State Engineer).

10
NRS Chapter 533 (as amended 1995).
........................................
noted, the State was under no obligation under the pre-October 1, 1995, version of NRS
Chapter 533 to give notice to parties whose interests were not of record with the Division.
The State Engineer's compliance with the former statutory notice requirements concerning
permit cancellation satisfies due process. This holds true unless there is a defect in the notice
or the State Engineer has been negligent in the notice process.
11

Neither Baal nor the Foleys reported the initial conveyance to the State Engineer.
Consequently, the Foleys' interest in the water rights remained unknown to the Division.
Moreover, the permit application remained in Baal's name during all relevant time periods,
and Baal sought extensions to file the proof of beneficial use even after the first lot was
conveyed to the Foleys in 1994. These factors underscore the propriety of the permit
cancellation in this instancewith notice to Baal rather than the Foleys.
As the Division was not required to provide notice of cancellation to persons who obtained
their water rights before October 1, 1995, but had not reported the fact of their interest to the
Division, the Foleys were not entitled to any notice of cancellation with respect to the first lot
that they purchased.
Application of notice requirements under the amended statutory scheme
[Headnote 5]
As noted, NRS 533.384(1)(a) was amended in 1995 and imposes an affirmative duty on
the recipient of a water right to file a report of conveyance information with the State
Engineer. In this case, the transfers of the second parcel to the Foleys in 1996 and to Foster in
2001 clearly fall within the amended statutory mandate. Accordingly, the Foleys' and Foster's
12
failure to file reports with the Division of the 1996 and 2001 conveyances of the second lot
constitute direct failures of compliance with NRS 533.384(1)(a).
[Headnote 6]
Going further, as noted above, effective October 1, 1995, the Division may only consider
persons mentioned in a report of a conveyance as interested parties in water rights permits.
13
Nothing in this statutory scheme requires the Division to give notice of cancellation to any
person whose interest in the water rights is not on file with the State Engineer.
____________________

11
Bailey v. State of Nevada, 95 Nev. 378, 381, 594 P.2d 734, 736 (1979).

12
Foster could not comply with the statutory requirement to file a report of water right conveyance in any
event because the water permit was canceled before he acquired the real property. See supra note 3.

13
NRS 533.386(4).
........................................
file with the State Engineer. Therefore, under the 1995 amendments to Chapter 533, water
rights holders of record with the Division remain the only interested parties entitled to notice
of cancellation of water rights permits.
We conclude that the Division properly revoked the permit as it related to the Foley/Foster
parcel without notice to the Foleys. Thus, the district court abused its discretion when it
provided the injunctive relief in connection with the parcel purchased from Baal and
transferred to Foster.
Equitable relief
[Headnote 7]
Notwithstanding the failures to advise the State Engineer of their interest in the water
permit, the Foleys and Foster argue that the district court properly granted equitable relief.
We disagree.
In State Engineer v. American National Insurance Co.,
14
Bailey v. State of Nevada,
15
and
Engelmann v. Westergard,
16
this court embraced the principle that the district court may
grant extraordinary equitable relief in some instances. We note, however, that the water rights
in State Engineer, Bailey and Engelmann were of record with the Division,
17
and that we
have restricted such equitable relief to situations where the holders of water rights either
exercised diligence in the placement of water to beneficial use or sought relief in response to
defects in the cancellation notice.
18

In State Engineer, this court upheld an order granting equitable relief where the record
owner diligently pursued his water rights and demonstrated that he had in fact put the water to
beneficial use before the deadline for filing proofs.
19
In Bailey, equitable relief was
warranted in a situation where the State Engineer failed to serve notice of the final decision to
cancel.
20
In Engelmann, the record reflected a defect in the notice process.
21

As noted, the Division was not required to provide cancellation notice to unknown water
rights holders. Additionally, the Foleys and Foster made no showing that the water was put to
beneficial use before any deadline for submission of proof thereof. Thus, State Engineer,
Bailey and Engelmann are inapposite to the present case.
____________________

14
88 Nev. 424, 426, 498 P.2d 1329, 1330 (1972).

15
95 Nev. 378, 382, 594 P.2d 734, 736-37 (1979).

16
98 Nev. 348, 352, 647 P.2d 385, 388 (1982).

17
See Engelmann, 98 Nev. 348, 647 P.2d 385; see also Bailey, 95 Nev. 378, 594 P.2d 734.

18
Bailey, 95 Nev. at 384, 549 P.2d at 738; State Engineer, 88 Nev. at 426, 498 P.2d at 1330.

19
88 Nev. at 426-27, 498 P.2d at 1330.

20
95 Nev. at 381-82, 594 P.2d at 736-37.

21
98 Nev. at 351-52, 647 P.2d at 387-88.
........................................
Engineer, Bailey and Engelmann are inapposite to the present case. We therefore conclude
that the Foleys and Foster failed to provide the district court with an appropriate basis for
equitable relief.
CONCLUSION
The Division is not statutorily required to provide notice of cancellation of water rights
permits to persons whose interest in the rights has not been reported to the State Engineer.
This conclusion applies to transfers of water rights before and after October 1, 1995.
We note in passing that the Foleys and Foster have available to them a partial, albeit not
totally adequate, remedy at law. State Engineer Order 1054, issued April 15, 1992, provides
that [a]pplications filed for the purpose of reinstating a permit that has been cancelled and
where some use has been made of the water will be processed according to NRS Chapter 533,
but only for the uses that are existing. The State has acknowledged that this language
provides the Foleys and Foster with an administrative remedy to reinstate at least some water
usage to their land.
In light of the above, we reverse the district court's order issuing the preliminary
injunction.
Rose and Gibbons, JJ., concur.
____________
121 Nev. 84, 84 (2005) Nevada Gold & Casinos v. American Heritage
NEVADA GOLD & CASINOS, INC., a Corporation; and ROUTE 66 CASINOS, LLC, a
Limited Liability Company, Appellants, v. AMERICAN HERITAGE, INC., dba THE
GILLMANN GROUP, a Corporation; and FRED GILLMANN, an Individual,
Respondents.
No. 40757
April 28, 2005 110 P.3d 481
Motion to dismiss appeal from a district court order denying appellants' motion to compel
arbitration. Eighth Judicial District Court, Clark County; Allan R. Earl, Judge.
Majority partner in a limited liability company (LLC) that was organized to operate a
casino on tribal land brought an action in Texas against corporation that was minority partner
in LLC and that corporation's shareholder, seeking to collect on promissory note and
guaranty, which were apparently related to LLC's operating agreement. Thereafter, LLC's
minority partner and that partner's shareholder brought action in Nevada against majority
partner and LLC, seeking rescission of LLC's operating agreement, dissolution of LLC, and
damages for defamation and for tortious interference with minority partner's relationship
with Indian tribe.
........................................
dissolution of LLC, and damages for defamation and for tortious interference with minority
partner's relationship with Indian tribe. The district court denied LLC's and majority partner's
motion to compel arbitration pursuant to LLC's operating agreement. They appealed. While
the appeal was pending, the Texas court denied minority partner's and shareholder's motion to
abate the Texas proceedings, and depositions were taken and written discovery was
conducted in the Texas case. Minority partner brought motion to dismiss the Nevada appeal.
The supreme court held that: (1) supreme court could consider relevant facts outside the
record on appeal to determine whether appellants had waived their appeal; and (2) majority
partner waived the right to arbitration, by amending its Texas complaint to add claims it had
asserted were arbitrable and vigorously litigating those claims for eighteen months without
moving Texas court to compel arbitration.
Dismissed.
Lionel Sawyer & Collins and Rodney M. Jean, Las Vegas; J. Mark Brewer, Houston,
Texas, for Appellants.
Lemons Grundy & Eisenberg and Robert L. Eisenberg, Reno; Schreck Brignone Godfrey
and Todd L. Bice and Rebecca S. Levine, Las Vegas, for Respondents.
1. Arbitration.
Supreme court could consider relevant facts outside the record on appeal to
determine whether appellants had waived their right to arbitration under limited liability
company's (LLC) operating agreement by litigating the dispute in a Texas court while
the Nevada appeal was pending; there were no Nevada trial court factual findings to
review on the issue of waiver because respondents' motion to dismiss the appeal, which
alleged waiver, was brought in supreme court in first instance, and waiver issue rested
on legal implications of essentially uncontested facts.
While as a general rule the supreme court cannot consider matters outside the record
on appeal, the supreme court may consider relevant facts outside the record in
determining whether appellants have waived their appeal.
3. Estoppel.
Waiver is generally a question of fact, but when the determination rests on the legal
implications of essentially uncontested facts, then it may be determined as a matter of
law.
4. Arbitration.
A waiver of the right to arbitrate may be shown when the party seeking to arbitrate:
(1) knew of his right to arbitrate, (2) acted inconsistently with that right, and (3)
prejudiced the other party by his inconsistent acts.
5. Arbitration.
Prejudice to the party opposing arbitration, as element for finding waiver of right to
arbitration, may be shown: (1) when the parties use discovery not available in
arbitration, {2) when they litigate substantial issues on the merits, or {3) when
compelling arbitration would require a duplication of efforts.
........................................
covery not available in arbitration, (2) when they litigate substantial issues on the
merits, or (3) when compelling arbitration would require a duplication of efforts.
6. Arbitration.
Majority partner in limited liability company (LLC) waived its right to arbitration
under LLC's operating agreement, in dispute with minority partner, though majority
partner, as defendant in minority partner's Nevada action, initially demanded
arbitration, where majority partner had filed an action in Texas, which apparently
related to the operating agreement, before minority partner filed the Nevada action, and
after Nevada trial court denied majority partner's motion to compel arbitration, majority
partner amended its Texas complaint to add claims it had asserted were arbitrable and
vigorously litigated those claims for eighteen months without moving Texas court to
compel arbitration; majority partner, knowing of its arbitration right, acted
inconsistently with that right and thereby prejudiced minority partner because
substantial issues were litigated on the merits in Texas and arbitration would require
parties to duplicate their efforts.
OPINION
Per Curiam:
In this appeal from a district court order denying appellants' motion to compel arbitration,
we consider whether appellants have waived any right to demand arbitration by vigorously
litigating the dispute in a Texas court. Applying an analytical framework crafted by the
Eighth Circuit Court of Appeals, we conclude that appellants, knowing of their arbitration
right, have acted inconsistently with an intent to arbitrate, and that they have thereby
prejudiced respondents. We determine that appellants have waived arbitration, and so we
grant respondents' motion to dismiss this appeal.
FACTS
Appellant Nevada Gold & Casinos, Inc., (Nevada Gold) develops gaming properties and
has real estate interests in several states. Respondent American Heritage, Inc., has business
arrangements with Native American tribes to open and operate casinos on tribal land.
American Heritage's principal is respondent Fred Gillmann. Nevada Gold and American
Heritage own, respectively, 51% and 49% of appellant Route 66 Casinos, LLC (Route 66), a
limited liability company that was organized to operate a casino on tribal land in New
Mexico.
The specifics concerning Route 66's formation are disputed. According to appellants,
American Heritage was to run the casino and was to assign its rights under its agreement
with the tribe to Route 66.
........................................
and was to assign its rights under its agreement with the tribe to Route 66. Nevada Gold was
to obtain financing of $8 million initially, for the temporary facility, and later was to obtain
financing of $40 million for a permanent facility. All receipts from the casino were to be
placed in a Route 66 account. Appellants claim that these core obligations were memorialized
in an April 2002 letter agreement, and that the arrangement was then finalized in a June 3,
2002 operating agreement for Route 66. The temporary casino opened on June 1, 2002.
Appellants claim that shortly after the agreement was signed, Gillmann, acting for American
Heritage, stopped returning calls, and eventually maintained that he was defrauded into
signing the agreement, and that it contained terms to which he did not agree. Appellants
assert that in actuality, the tribe agreed to provide financing, and so Gillmann wanted to
withdraw from the agreement so that he would not be obliged to share the casino's proceeds
with appellants in exchange for appellants' financing of the project.
Respondents dispute several key points. According to them, American Heritage had an
arrangement with the Pueblo of Laguna Tribe in New Mexico (Laguna) to open and operate
the casino. Gillmann, on behalf of American Heritage, began negotiations with Nevada Gold
to finance the casino and asserts that Nevada Gold represented that it could provide the $8
million initial financing itself. In the course of negotiations, a draft operating agreement was
prepared by Nevada Gold. According to Gillmann, he believed that certain terms in the
agreement were incorrect but signed the draft at the urging of Thomas Winn, Nevada Gold's
president, on the understanding that the agreement could later be amended to reflect the
corrections Gillmann wanted. Later, he found that the draft operating agreement had been
filed with the Nevada Secretary of State to establish Route 66 as a Nevada LLC. According to
Gillmann, Nevada Gold refused to make the changes he wanted. Gillmann claims that the
agreement is therefore not enforceable, and that Route 66 must be dissolved.
The operating agreement contains a dispute resolution provision, which provides for
mediation of any disputes under the agreement. If mediation is unsuccessful, then the
agreement calls for binding arbitration.
By September 2002, Gillmann had ceased responding to Nevada Gold's inquiries. On
September 27, 2002, Nevada Gold demanded arbitration, without first attempting mediation.
It sent a copy of the demand to Laguna. On October 2, 2002, Nevada Gold filed a complaint
in Harris County, Texas, to collect on a promissory note executed by American Heritage and
guaranteed by Gillmann, but it did not immediately serve the complaint. The note and
guaranty, which do not contain arbitration provisions, are apparently related to the Route
66 agreement.
........................................
anty, which do not contain arbitration provisions, are apparently related to the Route 66
agreement. On October 4, 2002, American Heritage and Gillman filed a complaint in Nevada
district court, seeking rescission of the agreement and/or a declaration that it was void,
dissolution of Route 66, and damages for defamation and interference with American
Heritage's relationship with Laguna.
Nevada Gold then moved the Nevada district court to compel arbitration and to stay the
Nevada litigation. American Heritage opposed the motion, arguing that a claim for
dissolution could not be the subject of arbitration, that it had never agreed to the operating
agreement's terms and was fraudulently induced into signing the draft agreement, and that
Gillman could not be bound by the arbitration clause because he had signed solely in his
representative capacity. The district court denied the motion. As permitted under NRS
38.247, Nevada Gold appealed from the district court's order.
After the district court denied its stay motion, Nevada Gold moved this court for a stay on
March 31, 2003. On April 10, 2003, Nevada Gold and Route 66 amended their Texas
complaint to include additional claims, including several based on American Heritage's
alleged breach of the operating agreement. This court granted Nevada Gold's motion for a
stay pending appeal on August 19, 2003. Also, as the district court denied American
Heritage's motion to stay the arbitration, this court enjoined Nevada Gold from proceeding
with the arbitration on September 26, 2003.
After this court entered its September 26, 2003 order, American Heritage attempted to
abate the Texas proceedings pending this court's ruling; the Texas court denied the motion.
The parties then continued to vigorously litigate the Texas case. They engaged in discovery,
including depositions and written discovery, and Nevada Gold filed at least one motion to
compel discovery. Trial had originally been set for late October 2003, but was continued,
over Nevada Gold's objection, to February 2004.
According to American Heritage's Texas counsel, several pretrial motions were heard
during the weeks before trial, including motions in limine. Counsel avers that the Texas court
made several rulings adverse to Nevada Gold. Nevada Gold does not dispute the substance of
counsel's affidavit. Following the adverse rulings, Nevada Gold moved to compel arbitration.
American Heritage opposed the motion, arguing that Nevada Gold had waived any right to
arbitrate by participating in the Texas litigation. The Texas court took the matter under
submission, and then entered a minute order abating the Texas proceedings pending this
court's disposition of the appeal.
After the Texas court abated the Texas proceedings, American Heritage filed a motion to
dismiss this appeal, contending that Nevada Gold had waived its right to appeal because it
had waived any right to arbitrate.
........................................
any right to arbitrate. Nevada Gold opposes the motion, arguing that it has always
demonstrated an intent to arbitrate and that American Heritage has not shown sufficient
prejudice for a waiver.
DISCUSSION
[Headnotes 1, 2]
Appellants first argue that this court cannot consider matters outside the record on appeal,
and thus the issue of waiver is not properly before us. In support, appellants rely on Carson
Ready Mix v. First National Bank.
1
While Carson Ready Mix recites the general rule, it is
not without exception. In particular, we may consider relevant facts outside the record in
determining whether appellants have waived their appeal.
2

[Headnote 3]
Next, because the motion to dismiss the appeal was filed in this court in the first instance,
we have no district court factual findings to review on the issue of waiver. Waiver is
generally a question of fact.
3
But when the determination rests on the legal implications of
essentially uncontested facts, then it may be determined as a matter of law.
4

Here, the pertinent facts are not contested. Nevada Gold does not dispute that it engaged in
litigation in Texas, and American Heritage does not dispute that Nevada Gold initially sought
arbitration. Also, American Heritage has alleged prejudice in the form of litigation expenses
and disclosure of its strategy. While Nevada Gold disputes the significance of American
Heritage's claimed prejudice, it does not dispute that American Heritage incurred costs and
necessarily disclosed some of its strategies in the Texas litigation. Factual determinations are
thus unnecessary to resolve the waiver issue. As noted by the Fifth Circuit:
As it comes before this court, this case presents few, if any, important factual
disputes. . . .
. . . Of course, the parties are in disagreement as to the legal implications that should
be drawn from the facts. But in these circumstances an appellate tribunal has broad
authority to substitute its own conclusions of law for those of the trial court.
____________________

1
97 Nev. 474, 635 P.2d 276 (1981).

2
See Rosen v. Rae, 647 P.2d 640 (Ariz. Ct. App. 1982) (determining that appellate court may receive
evidence outside the record to establish whether appellant waived right to appeal); accord Bolen v. Cumby, 14
S.W. 926 (Ark. 1890); Ehrman v. Astoria & P. Ry. Co., 38 P. 306 (Or. 1894); Ward v. Charlton, 12 S.E.2d 791
(Va. 1941).

3
See Merrill v. DeMott, 113 Nev. 1390, 1399, 951 P.2d 1040, 1045-46 (1997).

4
See id.
........................................
these circumstances an appellate tribunal has broad authority to substitute its own
conclusions of law for those of the trial court.
5

Respondents argue that appellants have waived their right to demand arbitration by their
actions in the related Texas litigation, including: (1) amending their Texas complaint to
include claims that they assert are arbitrable, (2) pursuing discovery, (3) seeking a preferential
trial setting, and (4) delaying their motion to compel arbitration until the week before trial,
after several adverse pretrial rulings. Respondents also maintain that they have suffered
prejudice because they have necessarily disclosed some of their strategy in the Texas
litigation and because they have incurred significant fees and costs.
Appellants contend that their participation in the Texas case does not rise to the level of
waiving their right to arbitrate, because: (1) they initially demanded arbitration, before filing a
complaint with the Texas court, (2) they only added the allegedly arbitrable claims to their
Texas complaint after the Nevada district court entered the order appealed from here, refusing
to compel arbitration, (3) they continued to pursue arbitration until this court's September 26,
2003 stay, and (4) their conduct as a whole evidences an intent to arbitrate. Appellants also
argue that respondents cannot show sufficient prejudice to support waiver and that any
disadvantage they may have suffered is the result of their own actions in resisting appellants'
efforts to arbitrate this case.
[Headnotes 4, 5]
We have previously held that the primary focus in determining whether arbitration has
been waived is the resulting prejudice to the party opposing arbitration.
6
We take this
opportunity to further refine the test for determining when a waiver has been demonstrated
and adopt the test set forth in a recent Eighth Circuit case, Kelly v. Golden.
7
Under this test, a
waiver may be shown when the party seeking to arbitrate (1) knew of his right to arbitrate, (2)
acted inconsistently with that right, and (3) prejudiced the other party by his inconsistent acts.
8
Prejudice may be shown (1) when the parties use discovery not available in arbitration, {2)
when they litigate substantial issues on the merits, or {3) when compelling arbitration
would require a duplication of efforts.
____________________

5
Miller Brewing Co. v. Fort Worth Distributing Co., 781 F.2d 494, 496 (5th Cir. 1986).

6
See Int'l Assoc. Firefighters v. City of Las Vegas, 104 Nev. 615, 764 P.2d 478 (1988); County of Clark v.
Blanchard Constr. Co., 98 Nev. 488, 653 P.2d 1217 (1982).

7
352 F.3d 344 (8th Cir. 2003).

8
Id. at 349.
........................................
(2) when they litigate substantial issues on the merits, or (3) when compelling arbitration
would require a duplication of efforts.
9

[Headnote 6]
Here, Nevada Gold initially sought to arbitrate its dispute with American Heritage. But
when the Nevada district court denied its motion to compel arbitration, it immediately
amended its Texas complaint to add the claims that it previously asserted were arbitrable.
Nevada Gold proceeded to vigorously litigate the matter in the Texas court for eighteen
months without moving the Texas court to compel arbitration. Only on the eve of trial, and
after litigating substantial issues, did Nevada Gold belatedly seek an order from the Texas
court compelling arbitration. Consequently, Nevada Gold, knowing of its arbitration right,
acted inconsistently with that right and thereby prejudiced American Heritage. Here,
American Heritage has shown prejudice because Nevada Gold litigated substantial issues on
the merits and because compelling arbitration would require the parties to duplicate their
efforts. As an Ohio federal district court aptly observed in Uwaydah v. Van Wert County
Hospital:
10

If plaintiff's demand for arbitration were to be upheld, there would be nothing to
keep any litigant with an arbitration clause from testing the judicial waters, and to do so
for as long as he liked, even to the point where the case has arrived on the brink of
resolution, and then nullifying all that has gone before by demanding arbitration.
11

We conclude that, as a matter of law, Nevada Gold has waived its right to arbitrate its dispute
with American Heritage. Accordingly, we grant respondents' motion and dismiss this appeal.
____________________

9
Id.

10
246 F. Supp. 2d 808 (N.D. Ohio 2002).

11
Id. at 814.
____________
........................................
121 Nev. 92, 92 (2005) Miller v. State
RICHARD WILLIAM MILLER, Appellant, v. THE STATE
OF NEVADA, Respondent.
No. 43192
April 28, 2005 110 P.3d 53
Appeal from a judgment of conviction, upon a jury verdict, of one count of larceny from
the person. Eighth Judicial District Court, Clark County; Jessie Elizabeth Walsh, Judge.
The supreme court held that: (1) defense of entrapment encompasses two elements, i.e., an
opportunity to commit a crime is presented by the state, and it is presented to a person not
predisposed to commit the act, overruling Shrader v. State, 101 Nev. 499, 706 P.2d 834
(1985); Moreland v. State, 101 Nev. 455, 705 P.2d 160 (1985); Oliver v. State, 101 Nev. 308,
703 P.2d 869 (1985); Moore v. State, 93 Nev. 645, 572 P.2d 216 (1977); and In re Wright, 68
Nev. 324, 232 P.2d 398 (1951); (2) defendant was not entrapped by undercover police
detective who had disguised himself as an intoxicated vagrant, from whom defendant stole
twenty dollars; (3) defendant failed to meet his burden to show that prosecutor's statement
constituted improper comment on his right not to testify, as necessary to establish plain error;
and (4) any error in prosecutor's statement during closing argument that defendant had preyed
on others was harmless.
Affirmed.
Philip J. Kohn, Public Defender, and Lynn Avants, Howard S. Brooks, and Gary H.
Lieberman, Deputy Public Defenders, Clark County, for Appellant.
Brian Sandoval, Attorney General, Carson City; David J. Roger, District Attorney, James
Tufteland, Chief Deputy District Attorney, and Frank M. Ponticello, Deputy District
Attorney, Clark County, for Respondent.
1. Criminal Law.
The entrapment defense is made available to defendants not to excuse their criminal
wrongdoing but as a prophylactic device designed to prevent police misconduct.
2. Criminal Law.
The defense of entrapment encompasses two elements: (1) an opportunity to commit
a crime is presented by the state, (2) to a person not predisposed to commit the act;
overruling Shrader v. State, 101 Nev. 499, 706 P.2d 834 (1985); Moreland v. State, 101
Nev. 455, 705 P.2d 160 (1985); Oliver v. State, 101 Nev. 308, 703 P.2d 869 (1985);
Moore v. State, 93 Nev. 645, 572 P.2d 216 (1977); and In re Wright, 68 Nev. 324, 232
P.2d 398 (1951).
3. Criminal Law.
The government may use undercover agents to enforce the law; nevertheless,
undercover agents may not originate a criminal design, implant in an innocent person's
mind the disposition to commit a criminal act, and then induce commission of the
crime so that the government may prosecute.
........................................
in an innocent person's mind the disposition to commit a criminal act, and then induce
commission of the crime so that the government may prosecute.
4. Criminal Law.
There is a clear line between a realistic decoy who poses as an alternative victim of
potential crime, and the helpless, intoxicated, and unconscious decoy with money
hanging out of a pocket; the former is permissible undercover police work, whereas the
latter is entrapment.
5. Criminal Law.
Defendant was not entrapped by undercover police detective who had disguised
himself as intoxicated vagrant, from whom defendant stole twenty dollars; opportunity
that was presented to commit crime was not improper, in that detective did not feign
unconsciousness nor was his money readily accessible, only the tips of one-dollar bills
were exposed, to extent that passerby could see edges of currency but not
denominations, and detective did not entice defendant into stealing money, but rather
defendant approached detective and asked him for money, and when detective refused,
defendant picked his pocket, indicating that defendant was predisposed to commit
larceny from the person.
6. Criminal Law.
Factors relevant in determining predisposition to commit the crime, for purposes of
an entrapment defense, include: (1) defendant's character, (2) who first suggested
criminal activity, (3) whether defendant engaged in activity for profit, (4) whether
defendant demonstrated reluctance, and (5) nature of government's inducement. Of
these five factors, the most important is whether defendant demonstrated reluctance
which was overcome by government's inducement.
7. Criminal Law.
Defendant waived on appeal issue of whether prosecutor had improperly commented
on defendant's right not to testify, as defense counsel failed to object to prosecutor's
statement.
8. Criminal Law.
Appellate review of only objected-to misconduct ensures the accuracy of appellate
court's decisions in two ways; first, such review properly restricts appellate court to
deciding actual controversies, and second, judicial resources are conserved by
encouraging trial counsel to take issue with inappropriate conduct at a time when the
conduct can be corrected.
9. Criminal Law.
Timely objections enable the trial court to instruct the jury to disregard improper
statements by counsel, thus remedying any potential for prejudice.
10. Criminal Law.
Judicial economy requires that appellate courts encourage good trial practice, and
granting new trials for error that could have been corrected with a simple objection by
an alert attorney does not encourage good trial practice.
11. Criminal Law.
Defendant failed to meet his burden to show that prosecutor's statement constituted
improper comment on his right not to testify, as necessary to establish plain error, in
prosecution for larceny from the person, as defendant merely asserted that prosecutor's
statements were error, but did not demonstrate that alleged error was prejudicial to him.
12. Criminal Law.
A plain error affects substantial rights if it had a prejudicial impact on the verdict
when viewed in context of the trial as a whole. NRS 178.602.
........................................
13. Criminal Law.
A criminal conviction is not to be lightly overturned on the basis of a prosecutor's
comments standing alone, for the statements or conduct must be viewed in context;
only by so doing can it be determined whether the prosecutor's conduct affected the
fairness of the trial.
14. Criminal Law.
Supreme court will not order a new trial on the grounds of prosecutorial misconduct
unless the misconduct is clearly demonstrated to be substantial and prejudicial.
15. Criminal Law.
Defendant waived on appeal issue of whether prosecutor's comment during opening
statement improperly referred to him as dangerous, as defendant failed to object to
statement at trial.
16. Criminal Law.
Any error in prosecutor's statement during closing argument that defendant had
preyed on others was harmless, in prosecution for larceny from the person, as evidence
supported prosecutor's characterization of defendant as someone who preyed upon
others by stealing from them.
17. Criminal Law.
A prosecutor may not argue facts or inferences not supported by the evidence;
nevertheless, the prosecutor may argue inferences from the evidence and offer
conclusions on contested issues.
OPINION
Per Curiam:
This appeal arises out of an undercover decoy program initiated by the Las Vegas
Metropolitan Police Department (LVMPD). The decoy program was designed to combat an
increase in street-level robberies occurring in downtown Las Vegas. A street-level robbery is
a person-to-person crime where one person walks up to another and either robs them or picks
their pocket.
As part of the decoy operation, Detective Jason Leavitt disguised himself as an intoxicated
vagrant to blend in with transient persons that reside in certain areas of Las Vegas. Detective
Leavitt carried twenty one-dollar bills in a pocket and left a small portion of the bills exposed.
This allowed someone standing close to him to see the money, but the bills were hidden well
enough that they did not attract the attention of every passerby. Detective Leavitt wore a
monitoring device that allowed surveillance and arrest teams to hear what Detective Leavitt
heard and said. When Detective Leavitt gave a predetermined signal, arrest teams would
approach the scene and apprehend the suspect.
On July 29, 2003, Detective Leavitt was dressed in black jeans, a dirty t-shirt, a
short-sleeved flannel shirt, and a baseball cap.
........................................
Twenty one-dollar bills were folded inside the breast pocket of the flannel shirt so that only
the tips of the bills were exposed. Detective Leavitt rubbed charcoal on his face to appear
dirty and wiped beer on his neck to give off the odor of alcohol. He also walked with a limp
and carried a can of beer to appear intoxicated.
Detective Leavitt positioned himself on the 200 block of Main Street across from the
Greyhound Bus Station and leaned against a chain link fence. Appellant Richard Miller, who
was walking southbound on Main Street, approached Detective Leavitt and asked him for
money. When Detective Leavitt told Miller that he would not give him any money, Miller put
his arm around Detective Leavitt and invited him to get a drink.
Miller stood to the left of Detective Leavitt with his right arm around Detective Leavitt's
shoulders. Miller then pulled Detective Leavitt closer to him, quickly reached his hand into
Detective Leavitt's pocket, and took the twenty dollars. Miller then loosened his grip on
Detective Leavitt and again asked for money. Detective Leavitt said that he could not give
Miller any money because his money was gone. The undercover arrest team then converged
on the location and took Miller into custody.
The State charged Miller, by information, with larceny from the person. After a two-day
trial, the jury convicted Miller, and the district court sentenced him to a maximum of 32
months and a minimum of 12 months imprisonment. On appeal, Miller argues that he was
entrapped, that the prosecutor impermissibly commented on his decision not to testify, and
that the prosecutor committed other misconduct.
DISCUSSION
Miller was not entrapped
Miller argues that police officers entrapped him by improperly tempting him with exposed
money and a helpless victim. We disagree.
[Headnotes 1-3]
The entrapment defense is made available to defendants not to excuse their criminal
wrongdoing but as a prophylactic device designed to prevent police misconduct.'
1

[E]ntrapment encompasses two elements: (1) an opportunity to commit a crime is presented
by the state (2) to a person not predisposed to commit the act.'
2
[T]he Government may
use undercover agents to enforce the law."
____________________

1
Foster v. State, 116 Nev. 1088, 1092, 13 P.3d 61, 64 (2000) (quoting Shrader v. State, 101 Nev. 499, 501,
706 P.2d 834, 835 (1985)).

2
DePasquale v. State, 104 Nev. 338, 340, 757 P.2d 367, 368 (1988) (quoting Shrader, 101 Nev. at 504, 706
P.2d at 837). We note that there has been
........................................
the law.
3
Nevertheless, undercover agents may not originate a criminal design, implant in
an innocent person's mind the disposition to commit a criminal act, and then induce
commission of the crime so that the Government may prosecute.
4

In DePasquale v. State, we discussed our prior entrapment jurisprudence where an
undercover officer posed as a decoy.
5
We cited three earlier cases that collectively held that
the defendant was entrapped where the undercover decoy was apparently helpless,
intoxicated, and feigned unconsciousness with cash hanging from his pocket.
6
Specifically,
we noted that the degree of vulnerability, exemplified in [those prior cases] by the decoy's
feigned lack of consciousness, . . . cloaks any suggestion of the defendant's predisposition.
7

[Headnote 4]
However, in DePasquale, we held that the defendant was not entrapped when he stole
from a female undercover police officer who was walking along open sidewalks around a
casino with money zipped into her purse.
8
Thus, we have drawn a clear line between a
realistic decoy who poses as an alternative victim of potential crime
9
and the helpless,
intoxicated, and unconscious decoy with money hanging out of a pocket.
10
The former is
permissible undercover police work, whereas the latter is entrapment.
The opportunity presented to commit a crime was not improper
[Headnote 5]
The theft in this case occurred across from the Greyhound Bus Station at the 200 block of
South Main Street in Las Vegas. Twenty one-dollar bills were folded inside the breast pocket
of Detective Leavitt's flannel shirt so that only the tips of the bills were exposed.
____________________
some inconsistency in the elements of entrapment in our prior jurisprudence. To correct that inconsistency, we
reaffirm the two-part entrapment test as clarified by DePasquale and Foster, 116 Nev. at 1091, 13 P.3d at 64.
To the extent that our opinions in Shrader, Moreland v. State, 101 Nev. 455, 705 P.2d 160 (1985), Oliver v.
State, 101 Nev. 308, 703 P.2d 869 (1985), Moore v. State, 93 Nev. 645, 572 P.2d 216 (1977), and In re Wright,
68 Nev. 324, 232 P.2d 398 (1951), are inconsistent with the entrapment standard set forth in this opinion, they
are overruled.

3
Jacobson v. United States, 503 U.S. 540, 548 (1992).

4
Id.

5
104 Nev. at 340-41, 757 P.2d at 368-69.

6
Id.

7
Id.

8
Id. at 341, 757 P.2d at 369.

9
Id.

10
Sheriff v. Hawkins, 104 Nev. 70, 73, 752 P.2d 769, 771 (1988).
........................................
Leavitt's flannel shirt so that only the tips of the bills were exposed. Miller, who was walking
southbound on Main Street, approached Detective Leavitt and asked him for money. When
Detective Leavitt told Miller that he would not give him any money, Miller put his arm
around Detective Leavitt and invited him to get a drink. Miller stood to the left of Detective
Leavitt with his right arm around Detective Leavitt's shoulders. Miller then pulled Detective
Leavitt closer to him, quickly reached his hand into Detective Leavitt's pocket, and took the
twenty dollars.
The police committed no misconduct in this operation. The opportunity presented was
sufficient to lead to a criminal act only by a person predisposed to commit a crime. Though a
suspect is entrapped when the decoy officer poses as an unconscious vagrant with exposed
money hanging from his pockets,
11
Detective Leavitt did not feign unconsciousness nor was
his money readily accessible. Only a portion of the bills were exposed; a passerby could see
the edges of currency, but not the denominations.
12
Detective Leavitt did not entice Miller
into stealing the money. Rather, Miller approached Detective Leavitt and asked him for
money. When Detective Leavitt refused to give him money, Miller picked his pocket.
Miller was predisposed to commit larceny from the person
[Headnote 6]
It is clear that Miller was predisposed to commit larceny from the person. We have
recognized five factors that, though not exhaustive, are helpful to determine whether the
defendant was predisposed: (1) the defendant's character, (2) who first suggested the criminal
activity, (3) whether the defendant engaged in the activity for profit, (4) whether the
defendant demonstrated reluctance, and (5) the nature of the government's inducement.
13
Of
these five factors, the most important is whether the defendant demonstrated reluctance
which was overcome by the government's inducement.
14

Miller's character is unclear from the record, but it is clear that Miller initiated the
conversation and engaged in the larceny for profit. Furthermore, Miller exhibited no
reluctance about his actions. Finally, the critical balance between government inducement and
Miller's reluctance weighs in favor of predisposition here.
____________________

11
DePasquale, 104 Nev. at 340-41, 757 P.2d at 368-69.

12
See id. at 341, 757 P.2d at 369 (noting that exposed money was insufficient to entrap the suspect because
exposed money merely provided an alternative victim for potential crime).

13
Foster, 116 Nev. at 1093, 13 P.3d at 64.

14
Id. (emphasis added) (quoting, with approval, language from jury instruction).
........................................
here. Miller approached Detective Leavitt, initiated a conversation, and asked for money.
When Detective Leavitt told Miller he would not give him any money, Miller picked his
pocket. These facts demonstrate a predisposition to commit the crime of larceny from the
person. Since Miller was predisposed to commit the crime, he was not entrapped.
15

The State did not improperly comment on Miller's failure to testify
Miller argues that he is entitled to a new trial because the State improperly commented on
his right not to testify. We disagree.
During opening statements, the prosecutor told the jury that the defense was not obligated
to present evidence at trial: [T]he State has the burden beyond a reasonable doubt, and the
Defendant is presumed innocent, they don't have to put on any case. They could sit there
entirely, and you would be left to judge whether we have met our burden based only on the
State's case. Defense counsel did not object to the statement.
On appeal, Miller argues that the statement detrimentally minimized the State's burden to
subsequently prove Mr. Miller's predisposition to commit [a] crime prior to contact with
government agents. We disagree.
[Headnote 7]
Initially, we note that Miller has waived the opportunity to challenge the prosecutor's
statement on appeal. In Gallego v. State, we reiterated that [f]ailure to object during trial
generally precludes appellate consideration of an issue.
16
Miller concedes that trial counsel
did not object to the allegedly improper statements. Thus, Miller has waived appellate review.
[Headnote 8]
In Ringle v. Bruton, we held that reviewing only objected-to misconduct ensures the
accuracy of our decisions in two ways.
17
First, such review restricts us, properly, to deciding
actual controversies.
18
Second, judicial resources are conserved by encouraging trial counsel
to take issue with inappropriate conduct at a time when the conduct can be corrected.
19

____________________

15
Id. at 1094-95, 13 P.3d at 65-66.

16
117 Nev. 348, 365, 23 P.3d 227, 239 (2001).

17
120 Nev. 82, 94-95, 86 P.3d 1032, 1040 (2004).

18
Id.; see also Beccard v. Nevada National Bank, 99 Nev. 63, 65-66, 657 P.2d 1154, 1156 (1983) (The
failure to object to allegedly prejudicial remarks at the time an argument is made, and for a considerable time
afterwards, strongly indicates that the party . . . did not consider the arguments objectionable at the time they
were delivered, but made that claim as an afterthought.).

19
Ringle, 120 Nev. at 95, 86 P.3d at 1040.
........................................
[Headnotes 9, 10]
Timely objections enable the district court to instruct the jury to disregard improper
statements, thus remedying any potential for prejudice.
20
Judicial economy requires that this
court encourage good trial practice, and granting new trials for error that could have been
corrected with a simple objection by an alert attorney does not encourage good trial practice.
As in Ringle, judicial economy militates against finding prejudice in a statement so
inconsequential as to warrant no objection below.
[Headnotes 11, 12]
Nevertheless, we may still review plain error affecting [the defendant's] substantial
rights.
21
A plain error affects substantial rights if it had a prejudicial impact on the
verdict when viewed in context of the trial as a whole.'
22
Miller bears the burden to prove
that the error was prejudicial.
23
Miller merely asserts that the prosecutor's statements were
error; he fails to demonstrate that the error was prejudicial. Thus, Miller has failed to meet his
burden.
The State did not commit prosecutorial misconduct by implying that Miller was dangerous
and that he preyed upon vulnerable persons
Miller argues that the State committed prosecutorial misconduct by referring to him as
dangerous during opening statements and by suggesting during closing argument that he was
a predator. We disagree.
[Headnotes 13, 14]
[A] criminal conviction is not to be lightly overturned on the basis of a prosecutor's
comments standing alone, for the statements or conduct must be viewed in context; only by
so doing can it be determined whether the prosecutor's conduct affected the fairness of the
trial.'
24
We will not order a new trial on the grounds of prosecutorial misconduct unless the
misconduct is clearly demonstrated to be substantial and prejudicial.
25

____________________

20
Id.

21
NRS 178.602; Rowland v. State, 118 Nev. 31, 38, 39 P.3d 114, 118 (2002).

22
Rowland, 118 Nev. at 38, 39 P.3d at 118 (quoting Libby v. State, 109 Nev. 905, 911, 859 P.2d 1050, 1054
(1993), vacated on other grounds, 516 U.S. 1037 (1996)).

23
Gallego, 117 Nev. at 365, 23 P.3d at 239.

24
Evans v. State, 112 Nev. 1172, 1204-05, 926 P.2d 265, 286 (1996) (quoting United States v. Young, 470
U.S. 1, 11 (1985)).

25
Sheriff v. Fullerton, 112 Nev. 1084, 1098, 924 P.2d 702, 711 (1996).
........................................
Opening statement
[Headnote 15]
During his opening statement, the prosecutor told the jury that the surveillance team
watched the decoy constantly because the officer's safety is of paramount importance . . .
because it's dangerous. An officer can get shot or stabbed. Miller argues that the statement
was improper because it argued facts not in evidence and improperly appealed to juror
emotion. We decline to consider this issue because Miller failed to object below and therefore
waived his right to appellate review. Further, Miller has made no showing that the statement
constituted plain error.
Closing argument
[Headnote 16]
During his closing argument, the prosecutor told the jury that this man was preying on the
citizens of Nevada, and maybe people who are tourists and visitors. He was across from the
Greyhound Bus Station looking for people to prey upon. Defense counsel objected, and the
following argument ensued:
[DEFENSE COUNSEL]: Objection, there wasn't any evidence as to whether or not he
was looking around for people to prey upon.
THE COURT: I don't recall hearing any.
[PROSECUTOR]: This is argument, Your Honor.
The district court neither sustained nor overruled the objection and the prosecutor continued
his closing argument.
[Headnote 17]
We conclude that this statement does not constitute prejudicial error. A prosecutor may
not argue facts or inferences not supported by the evidence.
26
Nevertheless, the prosecutor
may argue inferences from the evidence and offer conclusions on contested issues.
27
Furthermore, other jurisdictions have held that unflattering characterizations of a defendant
will not provoke a reversal when such descriptions are supported by the evidence.'
28

In this case, Miller was charged with larceny from the person, and the evidence supported
the State's characterization of Miller as someone who preyed upon others by stealing from
them. Thus, we conclude that any error in the statement was harmless.
____________________

26
Williams v. State, 103 Nev. 106, 110, 734 P.2d 700, 703 (1987).

27
Jones v. State, 113 Nev. 454, 467, 937 P.2d 55, 63 (1997).

28
U.S. v. Tisdale, 817 F.2d 1552, 1555 (11th Cir. 1987) (quoting United States v. Windom, 510 F.2d 989,
994 (5th Cir. 1975)).
........................................
CONCLUSION
We conclude that Miller was not entrapped because he was predisposed to commit the
crime of larceny from the person. Furthermore, the State did not improperly comment on
Miller's failure to testify, nor did the State commit prosecutorial misconduct by implying that
Miller was dangerous and preyed upon vulnerable persons. Accordingly, we affirm the
conviction.
____________
121 Nev. 101, 101 (2005) Daniels v. State
RUFUS LANE DANIELS, aka DANIEL RUFUS,
Appellant, v. THE STATE OF NEVADA, Respondent.
No. 42545
April 28, 2005 110 P.3d 477
Appeal from a judgment of conviction, upon a jury verdict, of one count of robbery.
Eighth Judicial District Court, Clark County; Kathy A. Hardcastle, Judge.
The supreme court held that: (1) defendant was not entrapped into robbing officer, (2)
defendant's prior burglary conviction was admissible, and (3) evidence supported conviction.
Affirmed.
Philip J. Kohn, Public Defender, and Kedric A. Bassett, Deputy Public Defender, Clark
County, for Appellant.
Tufteland, Chief Deputy District Attorney, and Martin W. Hart, Deputy District Attorney,
Clark County, for Respondent.
1. Criminal Law.
Defendant was not entrapped into robbing officer, who posed as transient, although
approximately 1 inches of officer's wallet was exposed and edges of currency were
showing because denominations of currency were not exposed, officer did not feign
unconsciousness, money was not readily available, and defendant initiated contact and
engaged in robbery for profit. NRS 200.380(1).
2. Criminal Law.
Entrapment defense represents the necessary balance between the permissible use of
undercover officers to investigate crimes and the prohibition against inducing an
innocent person to commit a crime.
3. Criminal Law.
Suspect is entrapped where the decoy officer poses as an unconscious vagrant with
exposed money hanging from his pockets.
4. Criminal Law.
Most important factor in determining whether defendant who is claiming entrapment
was predisposed to commit criminal offense is whether the defendant demonstrated
reluctance that was overcome by the government's inducement.
........................................
whether the defendant demonstrated reluctance that was overcome by the government's
inducement.
5. Criminal Law.
Defendant's prior burglary conviction was admissible in prosecution for robbery
because prior conviction was relevant to defendant's assertion in connection with
entrapment defense that he was not predisposed to commit robbery and less than ten
years had elapsed since termination of sentence for burglary conviction. NRS 50.095,
200.380(1).
6. Criminal Law.
Decision to admit or exclude evidence of prior offenses is within the discretion of
the trial court.
7. Criminal Law.
Trial court's determination whether to admit or exclude evidence of prior offenses
will be reversed only upon a clear showing of abuse.
8. Robbery.
Evidence supported robbery conviction where evidence indicated that defendant
forced his hand into undercover officer's face, contact caused officer to be in
apprehension of violence, and defendant took wallet from officer's breast pocket while
defendant's hand was in officer's face. NRS 200.380(1).
9. Criminal Law.
In determining the sufficiency of the evidence, supreme court considers whether the
jury, acting reasonably, could have been convinced beyond a reasonable doubt of the
defendant's guilt.
10. Criminal Law.
Critical question when deciding sufficiency-of-the-evidence claim 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.
OPINION
Per Curiam:
This appeal arises out of an undercover decoy program initiated by the Las Vegas
Metropolitan Police Department (LVMPD). As part of the decoy operation, Detective Jason
Leavitt disguised himself as an intoxicated vagrant to blend in with transient persons that
reside in certain areas of Las Vegas.
On July 1, 2003, Detective Leavitt dressed in tan pants, a white t-shirt, a sports coat, and a
baseball cap. He carried a single-fold wallet in the breast pocket of his sports coat. The wallet
contained twenty one-dollar bills. Detective Leavitt testified that the wallet extended from his
pocket approximately 1 inches and that someone standing close to him could see the edges
of the money.
As part of his disguise, Detective Leavitt rubbed charcoal on his face to appear dirty and
wiped beer on his neck to give off the odor of alcohol.
........................................
odor of alcohol. He also walked with a limp and carried a can of beer to appear intoxicated.
Detective Leavitt positioned himself on the corner of 7th and Fremont Streets and leaned
against a power box at that intersection.
Appellant Rufus Daniels approached Detective Leavitt and showed him a silver charm
necklace. Daniels told Detective Leavitt to take a look at the necklace. Detective Leavitt
responded that he did not want to look at the necklace and pushed Daniels' arm away. Daniels
then thrust his hand back into Detective Leavitt's face, using more force than before. Daniels
reiterated that he should take a look at the necklace. Detective Leavitt testified that Daniels
was using enough force to push his head back and that Detective Leavitt's own hands were
against his face as he attempted to push Daniels away. Detective Leavitt testified that the
altercation made him nervous because he had been attacked on prior undercover
investigations.
While Daniels pushed the necklace into Detective Leavitt's face with one hand, he grabbed
the wallet with the other and hid the wallet on his person. Detective Leavitt accused Daniels
of taking his money, but Daniels replied that he did not know what Leavitt was talking about.
Daniels then crossed the street where the arrest team apprehended him in a motel parking lot.
Daniels told the officers that he had hidden the wallet under his shirt and that he knew what
he did was wrong.
The State charged Daniels, by information, with robbery and a lesser-included charge of
larceny from the person. After a two-day trial, the jury convicted Daniels of robbery, and the
district court sentenced him to 120 months imprisonment with the possibility of parole after
24 months. On appeal, Daniels argues that he was entrapped and that there was insufficient
evidence presented at trial to convict him of robbery.
DISCUSSION
Daniels was not entrapped
[Headnote 1]
Daniels argues that police officers entrapped him by improperly tempting him with
exposed money and a helpless victim. We disagree.
[Headnote 2]
We addressed a similar entrapment claim in Miller v. State.
1
In Miller, we reiterated that
the entrapment defense requires proof of two elements: (1) the State presented the
opportunity to commit a crime, and {2) the defendant was not otherwise predisposed to
commit the crime.
____________________

1
121 Nev. 92, 95, 110 P.3d 53, 56 (2005).
........................................
crime, and (2) the defendant was not otherwise predisposed to commit the crime.
2
The
entrapment defense represents the necessary balance between the permissible use of
undercover officers to investigate crimes and the prohibition against inducing an innocent
person to commit a crime.
3
Where the State uses undercover officers as decoys, we have
drawn a clear line between a realistic decoy who poses as an alternative victim of potential
crime and the helpless, intoxicated, and unconscious decoy with money hanging out of a
pocket. The former is permissible undercover police work, whereas the latter is entrapment.
4

The opportunity presented to commit a crime was not improper
The altercation in this case occurred at the corner of 7th and Fremont Streets in Las Vegas.
Detective Leavitt posed as a transient to blend into the transient community that lived in that
area. Daniels approached Leavitt and showed him a silver charm necklace. Daniels told
Leavitt to take a look at the necklace. Leavitt responded that he did not want to look at the
necklace and pushed Daniels' arm away. Daniels then thrust his hand back into Detective
Leavitt's face and grabbed the wallet with his other hand.
[Headnote 3]
The police committed no misconduct in this operation. The opportunity presented was
sufficient to lead to a criminal act only by a person predisposed to commit a crime. Though a
suspect is entrapped where the decoy officer poses as an unconscious vagrant with exposed
money hanging from his pockets,
5
Detective Leavitt did not feign unconsciousness and his
money was not readily accessible. Approximately 1 inches of his wallet was exposed and
showed the edges of currency, but not the denominations.
6
Detective Leavitt did not entice
Daniels into stealing the money. Rather, Daniels approached Detective Leavitt on his own
accord, shoved a necklace in Detective Leavitt's face, and grabbed Detective Leavitt's wallet.
This case is closely analogous to both Miller
7
and DePasquale v. State.
8
Here, the decoy
disguised himself to blend into the community that he was patrolling.
____________________

2
Id.

3
Jacobson v. United States, 503 U.S. 540, 548 (1992).

4
Miller, 121 Nev. at 96, 110 P.3d at 56 (footnotes omitted).

5
DePasquale v. State, 104 Nev. 338, 340-41, 757 P.2d 367, 368-69 (1988).

6
See id. at 341, 757 P.2d at 369 (noting that exposed money was insufficient, standing alone, to entrap the
suspect because exposed money merely provided an alternative victim for potential crime).

7
121 Nev. at 96-97, 110 P.3d at 56-57.

8
104 Nev. at 341, 757 P.2d at 369.
........................................
nity that he was patrolling. The decoy presented an alternative target for potential thieves
without posing as a helpless victim. Daniels decided on his own to approach the decoy and to
steal his money. Thus, there was no entrapment.
Daniels was predisposed to commit robbery
[Headnote 4]
It is clear that Daniels was predisposed to commit robbery. We have recognized five
factors that, though not exhaustive, are helpful to determine whether the defendant was
predisposed: (1) the defendant's character, (2) who first suggested the criminal activity, (3)
whether the defendant engaged in the activity for profit, (4) whether the defendant
demonstrated reluctance, and (5) the nature of the government's inducement.
9
Of these five
factors, the most important is whether the defendant demonstrated reluctance which was
overcome by the government's inducement.
10

Daniels' character is unclear from the record, but it is clear that Daniels initiated contact
with Detective Leavitt and engaged in the robbery for profit. Furthermore, Daniels exhibited
no reluctance about his actions until after he had been apprehended. Finally, the critical
balance between government inducement and Daniels' reluctance weighs in favor of
predisposition here. Daniels approached Detective Leavitt, initiated a conversation about the
silver necklace, refused to leave when asked, shoved one hand into Detective Leavitt's face to
distract him, and took Detective Leavitt's wallet with his other hand. These facts demonstrate
a predisposition to commit the crime of robbery. Since Daniels was predisposed to commit
the crime, he was not entrapped.
11

The district court properly admitted prior conviction evidence to show predisposition
[Headnote 5]
Daniels argues that the trial court abused its discretion by admitting a judgment of
conviction from a 1993 burglary he committed in California. Daniels argues that the
conviction was insufficient to indicate a predisposition to commit robbery. We disagree.
[Headnotes 6, 7]
The decision to admit or exclude evidence of prior offenses is within the discretion of the
trial court.
12
[T]hat determination will be reversed only upon a clear showing of abuse."
____________________

9
Foster v. State, 116 Nev. 1088, 1093, 13 P.3d 61, 64 (2000).

10
Id. (emphasis added) (quoting, with approval, language from jury instruction).

11
Id. at 1094-95, 13 P.3d at 65-66.

12
Owens v. State, 96 Nev. 880, 884, 620 P.2d 1236, 1239 (1980).
........................................
will be reversed only upon a clear showing of abuse.
13
The judgment of conviction was
relevant to Daniels' assertion that he was not predisposed to commit robbery. Daniels put his
predisposition to commit robbery in issue when he raised the affirmative defense of
entrapment.
14

Furthermore, the judgment of conviction was not too stale to impeach Daniels' credibility.
NRS 50.095 allows for the impeachment of a witness with evidence of a felony conviction if
10 years or less have elapsed since the termination of his confinement, parole, probation, or
sentence for that conviction. In using that statute as a guide, we conclude that the district
court properly admitted the judgment of conviction because it was used to attack Daniels'
credibility and less than 10 years had elapsed since the termination of Daniels' sentence for
that crime.
The State presented sufficient evidence to convict Daniels of robbery
[Headnote 8]
Daniels argues that there was insufficient evidence presented at trial to show that he used
force or the threat of force to take Detective Leavitt's wallet. Thus, Daniels argues that he
could not have been guilty of robbery. We disagree.
In relevant part, NRS 200.380(1) defines robbery as the unlawful taking of personal
property . . . 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.
15
Daniels argues that he did not commit robbery because he did not attack
Detective Leavitt with his hands or fists. This argument is without merit.
The degree of force used is immaterial if it is used to compel acquiescence to the taking
of or escaping with the property.
16
Here, Daniels shoved his hand into Detective Leavitt's
face in order to show him the necklace. Detective Leavitt testified that Daniels used such
force that Detective Leavitt's own hands were pressed against his face as he attempted to push
Daniels away. Detective Leavitt further testified that the altercation made him nervous
because he had been attacked numerous times in similar altercations while acting in an
undercover capacity.
We conclude that Daniels' actions fit within the definition of robbery. Daniels used force
and the threat of force to prevent Detective Leavitt from noticing or resisting the taking.
____________________

13
Yates v. State, 95 Nev. 446, 450, 596 P.2d 239, 242 (1979).

14
Foster, 116 Nev. at 1094, 13 P.3d at 65.

15
NRS 200.380(1).

16
Id.
........................................
tective Leavitt from noticing or resisting the taking. Having determined that Daniels' actions
fit within the statute, the next question is whether sufficient evidence was presented at trial to
find Daniels guilty of robbery.
[Headnotes 9, 10]
In determining the sufficiency of the evidence below, we consider whether the jury,
acting reasonably, could have been convinced beyond a reasonable doubt of the defendant's
guilt.
17
The critical question 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.'
18

Sufficient evidence was presented at trial to convict Daniels of robbery. The jury heard
Detective Leavitt testify that Daniels forced his hand into Detective Leavitt's face and that the
contact caused Detective Leavitt to be in apprehension of violence. The jury also heard that
while his hand was in Detective Leavitt's face, Daniels took the wallet from Detective
Leavitt's breast pocket. Under the above test, this evidence was sufficient to sustain a robbery
conviction.
CONCLUSION
We conclude that Daniels was not entrapped because he was predisposed to commit
robbery. Furthermore, the State presented sufficient evidence at trial to convict Daniels of
robbery. Accordingly, we affirm the conviction.
____________
121 Nev. 107, 107 (2005) Sparks v. State
JASON ROBERT SPARKS, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 43593
April 28, 2005 110 P.3d 486
Appeal from a judgment of conviction, pursuant to a guilty plea, of one count of
possession of a controlled substance. Eighth Judicial District Court, Clark County; Joseph T.
Bonaventure, Judge.
The supreme court held that: (1) failure to appear (FTA) clause contained in parties'
written plea agreement was not rendered invalid due to fact that no FTA clause was included
in standard form agreement set forth in statute, and {2) FTA clause was not an
unconscionable contractual provision.
____________________

17

18
Koza v. State, 100 Nev. 245, 250, 681 P.2d 44, 47 (1984) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)).
........................................
dard form agreement set forth in statute, and (2) FTA clause was not an unconscionable
contractual provision.
Affirmed.
Philip J. Kohn, Public Defender, and Danny A. Silverstein, Deputy Public Defender, Clark
1. Criminal Law.
When the State enters into a plea agreement, it is held to the most meticulous
standards of both promise and performance with respect to both the terms and the spirit
of the plea bargain.
2. Criminal Law.
Failure to appear (FTA) clause contained in parties' written plea agreement, which
released the State from its promise to recommend, or refrain from recommending, a
particular sentence if the defendant failed to appear for scheduled sentencing
proceeding or committed an additional criminal offense before sentencing, was not
rendered invalid simply because no FTA clause was included in standard form
agreement set forth in statute. Under statute's plain language, written plea agreement
only had to substantially comply with statutory form, and statute's legislative history
indicated that statute had been specifically crafted so that parties retained some
discretion as to form of written agreement. NRS 174.063.
3. Statutes.
Where legislative intent can be clearly discerned from the plain language of the
statute, it is the duty of the supreme court to give effect to that intent and to effectuate,
rather than nullify, the legislative purpose.
4. Criminal Law.
The supreme court will enforce unique terms of a plea agreement even in cases
where there has not been substantial compliance with statute setting forth written form
for plea agreements, provided that the totality of the circumstances indicates that the
guilty plea was knowing, voluntary and intelligent. NRS 174.063.
5. Criminal Law.
Failure to appear (FTA) clause contained in written plea agreement, which
released the State from its promise to recommend, or refrain from recommending, a
particular sentence if the defendant failed to appear for scheduled sentencing
proceeding or committed an additional criminal offense before sentencing, was not an
unconscionable contractual provision where the defendant consented to FTA clause, he
signed written plea agreement containing FTA clause and acknowledged that he had
read it, he admitted that he committed charged offense and made admission under terms
of agreement, and the State's conditional promise was reasonable because contingency
involved the defendant's ability to abide by the law and follow the court's orders.
6. Criminal Law.
It is the district court's acceptance of the parties' bargain that gives the written plea
agreement legal effect, not the defendant's waiver of the preliminary examination.
........................................
OPINION
Per Curiam:
In this appeal, we consider whether a provision of the written plea agreement known as the
failure to appear (FTA) clause is legally enforceable. The FTA clause releases the State
from its promise to recommend, or refrain from recommending, a particular sentence if the
defendant fails to appear for a scheduled sentencing proceeding or commits an additional
criminal offense prior to sentencing. We conclude that the FTA clause is valid under Nevada
law. Accordingly, in this case, the State did not breach the plea agreement by exercising its
right under that provision to argue for the imposition of consecutive sentences.
FACTS
While on probation for a theft offense, appellant Jason Robert Sparks was arrested and
charged by way of a criminal complaint with one count each of possession of a controlled
substance with intent to sell and transport of a controlled substance.
At his initial appearance in justice's court, Sparks waived his right to a preliminary hearing
and agreed to enter into a plea bargain with the State. Under the plea agreement, Sparks
would plead guilty to the reduced charge of possession of a controlled substance and the State
would agree to make no recommendation at sentencing.
On March 4, 2004, Sparks entered his guilty plea. The written plea agreement, prepared by
the State and signed by Sparks, contained the following FTA clause:
I understand that if the State of Nevada has agreed to recommend or stipulate to a
particular sentence or has agreed not to present argument regarding the sentence, or
agreed not to oppose a particular sentence, such agreement is contingent upon my
appearance in court on the initial sentencing date (and any subsequent if the sentencing
is continued). I understand that if I fail to appear for the scheduled sentencing date or I
commit a new criminal offense prior to sentencing the State of Nevada would regain
the full right to argue for any lawful sentence.
(Emphases added.) Thereafter, Sparks failed to appear for his scheduled sentencing hearing
and, later, was arrested on additional criminal charges. At a subsequent sentencing hearing,
the State asserted its right under the FTA clause and argued that the sentence imposed should
run consecutively to the sentence imposed in a case in which Sparks was charged with theft.
After hearing arguments from counsel, the district court sentenced Sparks to serve a
prison term of 12 to 30 months to run consecutively to the sentence imposed in the theft
case.
........................................
guments from counsel, the district court sentenced Sparks to serve a prison term of 12 to 30
months to run consecutively to the sentence imposed in the theft case. Sparks filed this timely
appeal.
DISCUSSION
Sparks argues that the State breached the plea agreement at the sentencing hearing by
arguing for consecutive prison terms because, under the terms of the plea bargain, the State
promised it would make no sentencing recommendation. We conclude that Sparks' contention
lacks merit.
[Headnote 1]
When the State enters into a plea agreement, it is held to the most meticulous standards
of both promise and performance' with respect to both the terms and the spirit of the plea
bargain.
1
In this case, the State did not breach the plea agreement by arguing for consecutive
sentences because, pursuant to the FTA clause, Sparks' failure to appear for his first
scheduled sentencing hearing or commission of a subsequent criminal offense released the
State from its obligation to make no sentencing recommendation.
Although Sparks acknowledges that the FTA clause includes language releasing the State
from its promise to make no sentencing recommendation, he argues that the FTA clause is
unenforceable because it is contrary to Nevada law. We disagree.
[Headnote 2]
Sparks first argues that the FTA clause is not valid because it is not included in the
standard form agreement set forth in NRS 174.063. Sparks contends that the Legislature,
mindful of the superior bargaining power of the State and seeking to protect the rights of
criminal defendants throughout the plea bargaining process, has mandated that guilty plea
agreements comply with the written statutory form.
[Headnote 3]
NRS 174.063 sets forth a written statutory form for plea agreements. Technical preciseness
is not necessary, however, and under the plain language of NRS 174.063, a written plea
agreement must only substantially comply with the statutory form.
2
By requiring only
substantial compliance, the Legislature clearly contemplated modifications to the form
agreement. Where legislative intent can be clearly discerned from the plain language of the
statute, it is the duty of this court to give effect to that intent and to effectuate, rather
than nullify, the legislative purpose.
____________________

1
Van Buskirk v. State, 102 Nev. 241, 243, 720 P.2d 1215, 1216 (1986) (quoting Kluttz v. Warden, 99 Nev.
681, 683-84, 669 P.2d 244, 245 (1983)).

2
See also NRS 174.035(2) (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.).
........................................
statute, it is the duty of this court to give effect to that intent and to effectuate, rather than
nullify, the legislative purpose.
3

Although it is unnecessary to review the legislative history under circumstances where, as
here, the plain language of the statute reveals an unambiguous legislative intent, we note that
one of the proponents of NRS 174.063 explained at a legislative hearing on the provision that
the bill was specifically crafted so that the parties retain some discretion as to the form of the
written agreement, to facilitate the various fact patterns' that arise in criminal law.
4
That
type of flexibility is important to further the key purpose of NRS 174.063: ensuring that
unique terms of a plea bargain are adequately memorialized in order to facilitate the speedy
resolution of collateral attacks on the validity of the plea.
5
Accordingly, we reject Sparks'
contention that the FTA clause is contrary to Nevada law merely because it is not included in
the statutory form agreement set forth in NRS 174.063.
Sparks also argues that the FTA clause is void under Nevada law because it contravenes
this court's holdings in Gamble v. State
6
and Villalpando v. State.
7
We conclude that those
cases are inapposite.
In Gamble, this court held that, where the State alleges that it is released from a promise
made in a plea agreement because of a criminal defendant's alleged breach, the district court
must conduct an evidentiary hearing to determine whether a material breach occurred.
8
Later,
in Villalpando, this court clarified Gamble and concluded that an evidentiary hearing is
unnecessary in instances where the defendant is obviously to blame for breach of the plea
agreement.
9
Both Gamble and Villalpando are inapplicable here because neither case
involved a plea agreement containing an FTA clause or other similar clause conditionally
releasing the State from a particular promise.
[Headnote 4]
This court has, however, implicitly approved of a plea agreement containing an explicit
reservation of a conditional right to argue by the State.
10
In Citti v. State, this court stated:
____________________

3
See Sheriff v. Luqman, 101 Nev. 149, 155, 697 P.2d 107, 111 (1985).

4
Hearing on S.B. 549 Before the Senate Judiciary Comm., 68th Leg. (Nev., June 9, 1995) (summarizing
statement of Clark County Chief Deputy District Attorney Ben Graham).

5
Id.; see also State v. Freese, 116 Nev. 1097, 1106, 13 P.3d 442, 448 (2000).

6
95 Nev. 904, 604 P.2d 335 (1979).

7
107 Nev. 465, 814 P.2d 78 (1991).

8
95 Nev. at 907, 604 P.2d at 337.

9
107 Nev. at 467-68, 814 P.2d at 80.

10
Citti v. State, 107 Nev. 89, 92, 807 P.2d 724, 726 (1991).
........................................
[I]f the State intends to enter into a plea agreement on the basis of an understanding that
the defendant has committed no additional offenses up to the date of the agreement,
such a reservation or condition should be clearly specified in the agreement along with
the specific reservations of right in the State if other such offenses come to light.
11

This court has also recognized that a defendant is entitled to enter into a plea agreement
affecting fundamental rights.
12
For example, this court has upheld a plea agreement
containing an unequivocal waiver of the right to appeal, rather than the conditional waiver
contained in the statutory form and also set forth in NRS 177.015(4).
13
This court will
enforce unique terms of the parties' plea agreement even in cases where there has not been
substantial compliance with NRS 174.063, provided that the totality of the circumstances
indicates that the guilty plea was knowing, voluntary and intelligent.
14
Accordingly, we
reject Sparks' contention that the FTA clause is prohibited by this court's case law.
[Headnote 5]
Sparks last argues that the FTA clause is void because it is an unconscionable contractual
provision surreptitiously included in the agreement by the State without his consent.
Specifically, Sparks argues that, because he was not informed of the FTA clause before
waiving his right to a preliminary hearing, the unfavorable term should not have been
subsequently added to the plea agreement without his express consent, or at the very least,
without additional consideration for his waiver of a valuable right. We disagree.
Our review of the record on appeal indicates that Sparks consented to the FTA clause. He
signed the written plea agreement containing the FTA clause and acknowledged that he had
read it. Also, Sparks solemnly admitted that he committed the charged offense and made that
admission pursuant to the terms of the written plea agreement. By doing so, he should have
reasonably expected that his failure to appear at the first sentencing hearing or commission of
another criminal offense prior to sentencing would cause the State to invoke the right to
argue.
[Headnote 6]
Additionally, we note that the proper time for Sparks to object to a particular term in the
written plea agreement was prior to signing the agreement and entering his guilty plea in the
district court.
____________________

11
Id.

12
Krauss v. State, 116 Nev. 307, 310, 998 P.2d 163, 165 (2000).

13
Cruzado v. State, 110 Nev. 745, 879 P.2d 1195 (1994), overruled on other grounds by Lee v. State, 115
Nev. 207, 985 P.2d 164 (1999).

14
Ochoa-Lopez v. Warden, 116 Nev. 448, 451, 997 P.2d 136, 138 (2000).
........................................
It is the district court's acceptance of the parties' bargain that gives the written plea agreement
legal effect, not the defendant's waiver of the preliminary examination.
15

Finally, we disagree with Sparks that the substance of the FTA provision is
unconscionable because it gives the State the unilateral right to withdraw. In practice, it is the
criminal defendant, not the State, who actually controls whether the State will be allowed to
argue for a particular sentence. Provided the defendant appears at the scheduled sentencing
hearings and refrains from engaging in additional criminal activities before those
proceedings, the State's promise with respect to the sentencing recommendation will be
strictly enforced. Moreover, we conclude that the conditional promise is reasonable because
the contingency involves the defendant's ability to abide by the law and follow the court's
orders, which are relevant considerations for a prosecutor in deciding whether to enter into a
particular plea bargain in the first place. Accordingly, we conclude that the FTA clause is not
unconscionable and is, therefore, enforceable.
16

CONCLUSION
The FTA clause in the plea agreement was lawful and enforceable. Because Sparks
violated the terms of the clause, the State properly argued for consecutive sentences.
Accordingly, we conclude that the State did not breach the plea agreement. We therefore
affirm the judgment of conviction.
____________
121 Nev. 113, 113 (2005) Aviation Ventures v. Joan Morris, Inc.
AVIATION VENTURES, INC., dba VISION AIR, a Nevada Corporation, Appellant, v.
JOAN MORRIS, INC., dba LAS VEGAS TOURIST BUREAU, a Nevada Corporation,
Respondent.
No. 39253
April 28, 2005 110 P.3d 59
Appeal from a district court order granting summary judgment in an action to recover on a
promissory note. Eighth Judicial District Court, Clark County; Lee A. Gates, Judge.
____________________

15
See Sturrock v. State, 95 Nev. 938, 942-43, 604 P.2d 341, 344-45 (1979) (when a plea agreement is not
consummated, the validity of the defendant's waiver of preliminary hearing is vitiated, and thus the defendant has
a clear right to a preliminary examination).

16
On October 8, 2004, Sparks filed a motion for leave to file a reply to the fast track response. Cause
appearing, we grant the motion and direct the clerk of this court to file the response. We have considered the
argument in the reply in resolving this appeal.
........................................
Creditor brought action to collect on promissory note, and debtor alleged that note was to
be repaid from profits of creditor and debtor's joint venture. The district court denied debtor's
motion for continuance for discovery before summary judgment and granted summary
judgment for creditor. Debtor appealed. The supreme court, Rose, J., held that: (1) debtor was
entitled to continuance for discovery before summary judgment, and (2) insolvency of one of
the parties is not necessary to obtain a setoff between two mutually indebted parties,
overruling Campbell v. Lake Terrace, Inc., 111 Nev. 1329, 905 P.2d 163 (1995).
Lemons Grundy & Eisenberg and Alice G. Campos Mercado, Reno; Eric L. Zubel, Las
Vegas, for Appellant.
Deaner, Deaner, Scann, Malan & Larsen and Susan Williams Scann, Las Vegas, for
Respondent.
1. Judgment.
A district court may grant a continuance for additional discovery before summary
judgment when a party opposing a motion for summary judgment is unable to marshal
facts in support of its opposition. NRCP 56(f).
A district court's decision to refuse a request for a continuance for additional
discovery before summary judgment is reviewed for abuse of discretion. NRCP 56(f).
3. Judgment.
A motion for a continuance for additional discovery before summary judgment is
appropriate only when the movant expresses how further discovery will lead to the
creation of a genuine issue of material fact that would preclude summary judgment.
NRCP 56(f).
4. Judgment.
Debtor was entitled to continuance for discovery before summary judgment, in
creditor's action to recover on promissory note; discovery had not yet begun because
parties had not filed joint case conference report, less than eight months passed between
filing of complaint and granting of summary judgment, debtor's motion for continuance
alleged that creditor had refused to give debtor financial information regarding debtor
and creditor's joint venture and that such information was required to determine full
amount of indebtedness because note allegedly was to have been paid from profits of
joint venture, and discovery regarding circumstances surrounding execution of
promissory note was necessary to determine whether parol evidence rule barred
admission of alleged separate agreement that profits from joint venture would be used
to repay promissory note. NRCP 16.1, 56(f).
5. Set-Off and Counterclaim.
Setoff is an equitable remedy that should be granted when justice so requires to
prevent inequity.
........................................
Setoff is a form of counterclaim that a defendant may urge by way of defense or to
obtain a judgment for whatever balance is due.
Setoff is a doctrine used to extinguish the mutual indebtedness of parties who each
owe a debt to one another.
The claims that give rise to a setoff need not arise out of the same transaction; they
may be entirely unrelated.
Insolvency of one of the parties is not necessary to obtain a setoff between two
mutually indebted parties; overruling Campbell v. Lake Terrace, Inc., 111 Nev. 1329,
905 P.2d 163 (1995).
The purpose behind the doctrine of setoff is to allow mutually indebted parties to
apply the debts of the other so that by mutual reduction everything but the difference is
extinguished.
Setoff serves the interests of efficiency by allowing two parties with mutual claims
of indebtedness to extinguish their debts against one another in a single proceeding.
OPINION
By the Court, Rose, J.:
This is an appeal from a district court order granting respondent's motion for summary
judgment in an action to recover on a promissory note. We conclude that the district court
improperly granted respondent's motion for summary judgment before the development of the
record through discovery. We also conclude that insolvency is not a requirement to obtain a
setoff. Inasmuch as our decision in Campbell v. Lake Terrace, Inc.
1
requires the insolvency
of one of the parties to assert a setoff, that case is overruled.
In the early summer of 1996, Aviation Ventures, Inc., d/b/a Vision Air (Vision), a Nevada
corporation, and the Las Vegas Tourist Bureau (LVTB) allegedly formed a joint venture
agreement to set up a wholesale tour company in Las Vegas called Las Vegas Tour and
Travel (LVT&T). Vision admits that both parties failed to document the existence of the joint
venture agreement. Vision's president and chief executive officer is William Acor. Robert
Morris, a friend of Acor's, owned and operated LVTB with his wife Joan Morris {Ms.
____________________

1
111 Nev. 1329, 905 P.2d 163 (1995).
........................................
ris, a friend of Acor's, owned and operated LVTB with his wife Joan Morris (Ms. Morris).
Vision avers that under the joint venture agreement, Vision and LVTB agreed to share
ownership and profits equally and, as a result, the two companies divided LVT&T's profits
equally, at least until June or July 1999. To improve profits, Vision charged a discounted rate
to LVT&T for all customers booked on Vision tours and also provided LVT&T with office
space at its own facilities at no extra charge.
According to Vision, this joint venture continued to expand into other aspects of the
parties' businesses and in 1997, the companies entered into a business association under
which Vision and LVTB would then form other businesses. To achieve that purpose, the
companies formed Vision Holidays, Inc., and Tour Coach Leasing, LLC, in 1998.
Subsequently, Vision asserts that it purchased three tour buses at a cost of $400,000 per bus,
paid exclusively by Vision. Ms. Morris, Mr. Morris, William Acor and other Vision officers
signed personal guarantees on the notes for the buses, which Vision maintains is further
evidence of the joint venture agreement. The parties supposedly agreed to share equally in the
profits of the two new companies.
As a new company, Vision needed start-up capital and as a result, Mr. Morris, acting on
behalf of LVTB, agreed to lend Vision $150,000. On or about December 4, 1998, Vision's
chief financial officer executed and delivered a promissory note to LVTB in the amount of
$150,000, which Robert Morris signed on behalf of LVTB. Ms. Morris did not sign the first
note. However, the note was re-executed six times, each time extending the date of maturity,
and Ms. Morris signed the sixth and seventh promissory notes. The final note gave Vision
until December 31, 2000, to make payment.
The loan provided Vision with a line of credit under which it could take advances against
the principal. The note did not discuss a means of repayment. LVTB contends that Vision has
paid nothing on the loan. Acor admitted in his deposition that as of May 2000, Vision had
paid nothing on the loan. Vision contends, however, that Acor and Mr. Morris agreed that
LVTB would be paid with Vision's share of the profits from LVT&T.
Vision alleges that after Mr. Morris' death in November 1999, the business relationship
between Vision and LVTB deteriorated. As a result, LVT&T vacated the offices located at
Vision's facilities on February 15, 2001. While Vision and LVTB divided LVT&T's profits
equally until June or July 1999, LVTB ceased distributing profits from LVT&T to Vision
after 1999. Vision complains that LVTB also declined Vision's requests for financial
information about LVT&T, despite Vision's repeated requests for such information for the
calendar years 2000 and 2001.
........................................
such information for the calendar years 2000 and 2001. Vision also sought an accounting to
determine the amount of its profits to be applied to the promissory note.
On July 24, 2001, approximately six months after the maturity date of the promissory note,
Joan Morris, Inc., d/b/a LVTB, a Nevada corporation, filed a lawsuit against Vision and
asserted claims of unjust enrichment and breach of the promissory note. In response, on
September 18, 2001, Vision filed an answer and alleged various defenses including the
defense of setoff. Vision contended that because LVTB owed it money pursuant to other
business transactions between the parties, that amount should be offset against the amount
due on the note.
In December 2001, before the parties had held the early case conference required under
NRCP 16.1, LVTB moved for summary judgment, basing the motion on the terms of the
promissory note and Acor's admission of nonpayment. Discovery had not yet begun at this
time. In opposition, Vision requested a continuance under NRCP 56(f) to allow it to engage
in discovery in order to marshal facts to oppose the motion.
To support its opposition, Vision presented affidavits from Acor, and Gary Acquavella,
Vision's chief financial officer, both of whom attested to the business association plan, the
creation of the promissory note, and the terms under which the note would be repaid. Vision
maintained that it demonstrated a genuine issue of material fact as to Vision's right to set off
amounts owed by Ms. Morris and LVTB. Vision argued that further discovery was necessary
on these issues.
The district court denied Vision's request for an NRCP 56(f) continuance and granted
LVTB's motion for summary judgment, with judgment entered in favor of LVTB in the
amount of $202,959.41, including interest and costs. The district court entered the order and
judgment in February 2002, approximately seven months after LVTB filed its complaint and
before the initiation of discovery. Vision appeals the district court's order.
DISCUSSION
NRCP 56(f) motion for a continuance
Vision contends that the district court erred in granting summary judgment because it
improperly denied Vision's NRCP 56(f) request for a continuance to allow it to conduct
discovery to oppose the summary judgment motion. We agree.
[Headnotes 1-3]
NRCP 56(f) permits a district court to grant a continuance when a party opposing a motion
for summary judgment is unable to marshal facts in support of its opposition.
........................................
shal facts in support of its opposition.
2
A district court's decision to refuse such a
continuance is reviewed for abuse of discretion.
3
Furthermore, a motion for a continuance
under NRCP 56(f) is appropriate only when the movant expresses how further discovery will
lead to the creation of a genuine issue of material fact.
4

In Halimi v. Blacketor, this court concluded that a district court had abused its discretion
when it denied an NRCP 56(f) motion for a continuance and granted summary judgment in a
case where the complaint had been filed only a year before summary judgment was granted.
5
This court noted that summary judgment is improper when a party seeks additional time to
conduct discovery to compile facts to oppose the motion.
6
Furthermore, this court held that
when no dilatory motive was shown, it was an abuse of discretion to refuse a request for
further discovery at such an early stage in the proceedings.
7

[Headnote 4]
In its opposition to the motion for summary judgment, Vision informed the district court
that the parties had yet to file a joint case conference report as required under NRCP 16.1
and that, as a result, discovery had not yet begun.
____________________

2
Ameritrade, Inc. v. First Interstate Bank, 105 Nev. 696, 699, 782 P.2d 1318, 1320 (1989). NRCP 56(f)
provides:
Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons
stated present by affidavit facts essential to justify the party's opposition, the court may refuse the
application for judgment or may order a continuance to permit affidavits to be obtained or depositions to
be taken or discovery to be had or may make such other order as is just.

3
Harrison v. Falcon Products, 103 Nev. 558, 560, 746 P.2d 642, 643 (1987).

4
Bakerink v. Orthopaedic Associates, Ltd., 94 Nev. 428, 431, 581 P.2d 9, 11 (1978) (Rule 56(f), NRCP,
provides that a court may, in its discretion, refuse an application for summary judgment or order a continuance,
[s]hould it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by
affidavit facts essential to justify his opposition. . . .' There is nothing in the record before this court which would
support a finding that the district court abused its discretion in this instance. Appellant made no attempt to
identify in his affidavit what facts might be obtained, in addition to the records, depositions, and affidavits
already on file, that were essential to justify his opposition.).

5
105 Nev. 105, 106, 770 P.2d 531, 531-32 (1989).

6
Id. at 106, 770 P.2d at 531; see also Ameritrade, 105 Nev. at 699-700, 782 P.2d at 1320 (concluding that
the district court abused its discretion when summary judgment was granted only eight months after the filing of
the complaint).

7
Halimi, 105 Nev. at 106, 770 P.2d at 531-32; see also Ameritrade, 105 Nev. at 700, 782 P.2d at 1320;
Summerfield v. Coca Cola Bottling Co., 113 Nev. 1291, 1294-95, 948 P.2d 704, 705-06 (1997) (holding that
district court abused its discretion by denying an NRCP 56(f) motion for continuance when complaint had been
filed two years previous and party was not dilatory in conducting discovery).
........................................
case conference report as required under NRCP 16.1 and that, as a result, discovery had not
yet begun. In order to obtain discovery, Vision filed a motion for a continuance and attached
affidavits from Vision's president and from its chief financial officer that detailed LVTB's
refusal to give Vision financial information regarding LVT&T. Vision argued that this
information was required to determine the full amount of Vision's indebtedness on the note.
We agree with Vision that the district court should have granted its motion for a
continuance to allow it to engage in discovery. Vision clearly enunciated how discovery
would allow it to develop the record in order to properly oppose LVTB's motion.
8
Furthermore, less than eight months had passed between the complaint and the granting of
summary judgment. There is no evidence in the record that Vision lacked diligence in
conducting discovery. More importantly, Vision requested a continuance before either party
had filed a joint case conference report, which must precede discovery.
In this case, discovery was necessary for the court to appropriately consider the
circumstances surrounding the agreement on the note, a necessary corollary to properly
determining whether evidence of a separate agreement to pay the note with LVT&T's profits
violates the parol evidence rule. Because it is unclear whether genuine issues of material fact
exist as to the circumstances surrounding the making of the note and its terms, we conclude
that the district court should have granted Vision's motion for a continuance to allow for
proper development of the record. As a result, we further conclude that LVTB's motion for
summary judgment was improperly granted.
9

The defense of setoff
In its answer, Vision asserted the defense of setoff, arguing that it was entitled to such
relief due to the parties' mutual indebtedness. Vision opposed LVTB's motion for summary
judgment, arguing that genuine issues of material fact exist as to Vision's affirmative defense
of setoff. We agree.
[Headnotes 5-8]
Setoff is an equitable remedy that should be granted when justice so requires to prevent
inequity.
10
Setoff is a form of counterclaim which a defendant may urge by way of
defense or to obtain a judgment for whatever balance is due."
____________________

8
Cf. Bakerink, 94 Nev. 428, 581 P.2d 9 (concluding that district court did not abuse its discretion in denying
request for continuance where party failed to identify how discovery was necessary to oppose motion for
summary judgment).

9
We decline to address the issue of whether evidence of a separate agreement to pay the note with LVT&T's
profits is barred by the parol evidence rule because we conclude that further discovery is necessary to properly
address that issue.

10
Campbell, 111 Nev. at 1333, 905 P.2d at 165.
........................................
claim which a defendant may urge by way of defense or to obtain a judgment for whatever
balance is due.
11
Setoff is a doctrine used to extinguish the mutual indebtedness of parties
who each owe a debt to one another.
12
In fact, the claims that give rise to a setoff need not
arise out of the same transaction; they may be entirely unrelated.
13
At least one court has
allowed a defendant to assert the defense of setoff in an action between original parties to a
note.
14

In Campbell, this court set forth two requirements that must be met under Nevada law to
successfully assert the defense of setoff: (1) each party must have a valid and enforceable debt
against the other party, and (2) one of the parties must be insolvent.
15
This court concluded
that a setoff was improper because the parties were not mutually indebted to one another.
16
The Campbell case therefore did not discuss the insolvency requirement.
In Campbell,
17
and the subsequent Nevada cases addressing the issue of setoff, the
insolvency requirement was based on the reasoning of an Oregon case, Korlann v. E-Z Pay
Plan, Inc.,
18
which dealt with the issue in the context of a debtor-creditor relationship. In that
case, the Oregon Supreme Court stated:
Setoff is usually allowed where, through a course of separate transactions, two
parties become indebted to each other. If one of the parties becomes insolvent, the
other, instead of paying his debt in full and receiving a dividend on what is owed him,
is held only for the difference, if any, between his debt and the insolvent's. The reason
for such a rule is said to lie in the injustice of a contrary rule.
19

From this language, we imported the requirement of insolvency. However, the Oregon
Supreme Court stated further that [b]etween solvent merchants, setoffs are a matter of
routine bookkeeping.
20
In Paul B. Emerick Co. v. Wm. Bohnenkamp & Associates, Inc., the
Oregon Supreme Court noted that:
Williston says that Where both parties to a controversy are solvent, the right of set-off
has merely procedural importance.
____________________

11
Trueheart v. Braselton, 875 S.W.2d 412, 415 (Tex. App. 1994).

12
Id.

13

14
Trueheart, 875 S.W.2d at 415-16.

15
111 Nev. at 1333, 905 P.2d at 165.

16
Id.

17
Id.

18
428 P.2d 172 (Or. 1967).

19
Id. at 175.

20
Id.
........................................
tance. . . . But if one of them is insolvent, it is a substantial disadvantage to the solvent
party if he is compelled to discharge in full the debt which he owes and recover only a
fraction of the debt which is owing to him.
21

Therefore, setoff should be allowed in cases where both parties are solvent, but is especially
necessary in cases where one party is insolvent to protect the interests of the solvent party.
[Headnotes 9-11]
We now conclude that insolvency is not necessary to obtain a setoff between two mutually
indebted parties. This conclusion coheres with the purpose behind the doctrine of setoff,
which allows mutually indebted parties to apply the debts of the other so that by mutual
reduction everything but the difference is extinguished.
22
It also serves the interests of
efficiency by allowing two parties with mutual claims of indebtedness to extinguish their
debts against one another in a single proceeding. Therefore, we overrule that portion of
Campbell that requires insolvency for the claim to apply.
As a result, Vision is entitled to assert setoff as a defense in the instant case. We also
conclude that it is unclear whether genuine issues of material fact exist regarding the issue of
the amount of Vision's indebtedness. Further discovery will clarify whether summary
judgment is appropriate in this case. Therefore, we reverse the district court's order granting
summary judgment and remand for further proceedings consistent with this opinion.
Motion to amend
Vision also contends that the district court erred in denying its motion to amend its answer
to add a counterclaim. This court has stated that the determination to grant leave to amend to
add a counterclaim is within the sound discretion of the trial court, and is not to be disturbed
on appeal in the absence of a gross abuse thereof.
23
At this time, we cannot conclude that
the district court committed such an abuse. However, we note that once further discovery has
been conducted, leave to amend may be appropriate to allow for the efficient disposal of the
claims and counterclaims between Vision and LVTB.
____________________

21
409 P.2d 332, 334 (Or. 1965) (quoting 6 Williston on Contracts 1998, at 5602 (rev. ed. 1938)) ([I]f this
had been a contest between Emerick and a solvent Bohnenkamp there would have been no doubt as to Emerick's
right to a set-off.).

22

23
Nev. Bank Commerce v. Edgewater, Inc., 84 Nev. 651, 653, 446 P.2d 990, 992 (1968).
........................................
CONCLUSION
The district court improperly denied Vision's motion for a continuance under NRCP 56(f).
That continuance should have been granted to allow development of the record through
discovery. Consequently, we conclude that the district court erred by granting LVTB's motion
for summary judgment at such an early stage in the proceedings. We further conclude that it
is not necessary for a party to demonstrate the insolvency of one of the parties to
appropriately assert a claim of setoff and inasmuch as Campbell requires one of the parties to
be insolvent to achieve setoff, that case is overruled.
Accordingly, we reverse the district court's order granting summary judgment and remand
this case to the district court for further proceedings consistent with this opinion.
Gibbons and Hardesty, JJ., concur.
____________
121 Nev. 122, 122 (2005) Wright v. State, Dep't of Motor Vehicles
JOHN KEVIN WRIGHT, Appellant, v. THE STATE OF NEVADA, DEPARTMENT OF
MOTOR VEHICLES, Respondent.
No. 41427
May 12, 2005 110 P.3d 1066
Appeal from a district court order affirming the Department of Motor Vehicles' revocation
of appellant's driver's license. Eighth Judicial District Court, Clark County; David Wall,
Judge.
The supreme court held that: (1) factors for requesting evidentiary test for blood alcohol
concentration, under implied consent law, are not limited to an officer smelling alcohol on the
motorist's breath and the officer observing that the motorist has bloodshot eyes; (2) officer
had reasonable grounds for requesting evidentiary test; and (3) officer's certification of cause
for revocation was sufficient.
Affirmed.
Law Offices of John G. Watkins and John Glenn Watkins, Las Vegas, for Appellant.
Brian Sandoval, Attorney General, and Brent D. Michaels, Deputy Attorney General,
Carson City, for Respondent.
1. Administrative Law and Procedure.
The supreme 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.
........................................
trary or capricious and was thus an abuse of the agency's discretion. NRS 233B.135.
The court's review of an administrative agency's decision is limited to the record,
and the court may not substitute its judgment for that of the agency regarding questions
of fact.
The question the court must address when reviewing an administrative agency's
decision is whether substantial evidence supports the agency's decision.
Substantial evidence is that which a reasonable mind might accept as adequate to
support a conclusion.
Substantial evidence need not be voluminous and may even be inferentially shown
by a lack of certain evidence.
6. Automobiles.
The factors for establishing reasonable grounds to believe that the motorist is under
the influence of alcohol, as required under implied consent law to request that motorist
submit to evidentiary test for blood alcohol concentration, are not limited to an officer
smelling alcohol on the motorist's breath and the officer observing that the motorist has
bloodshot eyes. The officer may consider many other factors, even when the motorist
does not have bloodshot eyes or smell of alcohol. NRS 484.383(1).
7. Automobiles.
Officer had reasonable grounds, as was required under implied consent law, to
believe that motorist was under the influence of alcohol and therefore to request that
motorist submit to evidentiary test for blood alcohol concentration where motorist
rear-ended another vehicle, officer smelled moderate odor of alcohol on motorist,
motorist admitted that he had consumed about four drinks that day, motorist's gait was
unsteady and he had to place his hands on car several times to steady himself, and
motorist failed all field sobriety tests, including horizontal gaze nystagmus test. NRS
484.383(1).
8. Automobiles.
Officer's certification of cause for revocation, by Department of Motor Vehicles
(DMV), of motorist's license to drive supported license revocation, though certification
referred to blood alcohol concentration by weight, and license revocation statute had
been amended to omit the reference to by weight in the standard for revocation; the
old and new standards had the same meaning, and officer's certification was based on
evidentiary test result, which met the new standard, i.e., officer did not submit, or even
sign, certification of cause until he received evidentiary test result from laboratory.
NRS 484.038, 484.385(2), (3).
OPINION
Per Curiam:
In this appeal, we clarify that the decision in State, Department of Motor Vehicles v.
McLeod
1
does not limit the factors that an officer may consider when determining whether
reasonable grounds exist for an evidentiary test.
____________________

1
106 Nev. 852, 801 P.2d 1390 (1990).
........................................
ficer may consider when determining whether reasonable grounds exist for an evidentiary
test. Substantial evidence supports the Department of Motor Vehicles' (DMV) revocation of
appellant's driver's license. We, therefore, affirm the district court's order denying appellant's
petition for judicial review of the determination.
FACTS
In January 2002, Officer Lewis of the Henderson Police Department proceeded to the
scene of a rear-end motor vehicle accident in Henderson, Nevada. Upon arrival, Officer
Lewis observed appellant John Kevin Wright, the owner of the rear vehicle, standing in the
way of oncoming traffic. Officer Lewis instructed Wright to proceed toward the patrol unit.
Officer Lewis noted that Wright's gait was unsteady, as if he was unsure of his next step,
and that Wright needed to steady himself by placing one hand on a vehicle. In response to
Officer Lewis's inquiry as to what happened, Wright turned and moved away. Officer Lewis
then instructed him to come back to the patrol unit, after which Officer Lewis, at some point,
noted a moderate smell of alcohol. Wright admitted to having consumed about four drinks.
Wright then submitted to, and failed, a series of standardized field sobriety tests. During the
tests, Wright informed Officer Lewis that he had knee problems and had undergone several
knee surgeries. Officer Lewis took that information into account when administering the field
sobriety tests. During a horizontal gaze nystagmus test, Officer Lewis observed six indicators
of intoxication that would not be affected by knee problems. After confirming that Wright
had been in physical control of the rear vehicle, Officer Lewis placed Wright under arrest for
driving under the influence of intoxicating liquor and for following the front vehicle too
closely, which resulted in the accident.
Officer Lewis transported Wright to the Henderson Detention Center, where a nurse
obtained a blood sample from Wright's arm. Subsequent laboratory testing confirmed that on
the night in question Wright's blood alcohol content was 0.23 gram per 100 milliliters of
blood.
Under NRS 484.385(2), Officer Lewis submitted a certificate of cause, with the
evidentiary test result attached, to the DMV, requesting that Wright's driver's license be
revoked. The DMV accordingly revoked Wright's license.
After conducting an administrative hearing, a DMV hearing officer upheld the revocation
of Wright's driving privileges. The DMV hearing officer concluded that Officer Lewis had
reasonable grounds to believe that Wright was driving while under the influence of
intoxicating liquor and that the evidentiary test revealed a concentration of 0.10 or more of
alcohol in Wright's blood.
........................................
The district court denied Wright's subsequent petition for judicial review. Wright appeals.
DISCUSSION
[Headnotes 1-5]
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.
2
In our review, we are limited to the record and may not substitute our judgment
for that of the agency regarding questions of fact.
3
The question this court must address is
whether substantial evidence supports the agency's decision.
4
Substantial evidence is that
which a reasonable mind might accept as adequate to support a conclusion.
5
Additionally,
[s]ubstantial evidence need not be voluminous and may even be inferentially shown by [a]
lack of [certain] evidence.
6
The burden on appeal is on the party opposing the
administrative decision.
7

Reasonable grounds for sobriety testing
Wright first contends that the officer ordered the evidentiary blood test without reasonable
grounds. We disagree.
[Headnote 6]
A person is deemed to have consented to an evidentiary test of blood, urine, or breath
under NRS 484.383(1) if an officer has reasonable grounds to believe that the person is under
the influence of alcohol.
8
Wright contends that this court, in McLeod,
9
held that the
reasonable-grounds requirement is satisfied only when an officer smells alcohol on an
individual's breath and the individual has bloodshot eyes. Wright argues that, because he did
not have bloodshot eyes, Officer Lewis did not have reasonable grounds to request that he
submit to an evidentiary test.
____________________

2
United Exposition Service Co. v. SIIS, 109 Nev. 421, 423, 851 P.2d 423, 424 (1993); see also NRS
233B.135 (setting forth standard for judicial review of an administrative agency's decision).

3
United Exposition, 109 Nev. at 423-24, 851 P.2d at 424.

4
Id. at 424, 851 P.2d at 424.

5
Id. at 424, 851 P.2d at 424-25.

6
City of Reno v. Estate of Wells, 110 Nev. 1218, 1222, 885 P.2d 545, 548 (1994).

7
NRS 233B.135(2).

8
NRS 484.383(1).

9
106 Nev. at 855, 801 P.2d at 1392.
........................................
Wright, however, misperceives this court's holding in McLeod. The indications of
intoxication discussed in McLeod serve only as examples of the factors that may establish
reasonable grounds to require that a person submit to an evidentiary test. An officer may
consider many other factors when determining whether reasonable grounds exist for an
evidentiary test, even when a person does not have bloodshot eyes or smell of alcohol.
McLeod did not in any way limit the factors that officers may use to determine whether there
are reasonable grounds to believe that a person is impaired.
[Headnote 7]
Substantial evidence supports Officer Lewis's decision to require an evidentiary test. First,
although Wright contends that he did not have bloodshot eyes, there was no testimony to this
effect. Second, Wright was involved in a car accident in which he rear-ended another vehicle.
Third, Officer Lewis smelled a moderate odor of alcohol on Wright, and Wright admitted that
he had consumed about four drinks that day. Fourth, Officer Lewis testified that Wright's gait
was unsteady, as if he was unsure of his next step, and that Wright had to place his hands on
the car several times to steady himself. Finally, Wright performed a series of field sobriety
tests, including a horizontal gaze nystagmus test, all of which he failed. Accordingly, we
conclude that Officer Lewis had adequate grounds to require that Wright submit to an
evidentiary test.
Reliability of field sobriety tests
Wright next argues that the field sobriety tests, as administered, were unreliable indicators
of intoxication and, therefore, Officer Lewis improperly relied on them to establish
reasonable grounds for evidentiary testing. Central to Wright's argument is the National
Highway Transportation Safety Administration's (NHTSA) recognition that persons with
physical disabilities will have difficulty performing tests that are designed to evaluate a
person's balance. Wright, however, informed Officer Lewis of his knee problems before
submitting to the field sobriety tests, and Officer Lewis considered Wright's knee problems
when he administered the tests.
Wright asserts that the NHTSA Student Manual requires that officers administer tests in a
standardized manner, and that the validity of the test results is compromised if any element
of the test is changed. Wright further asserts that the student manual does not permit an
officer to modify a field sobriety test by considering physical disabilities. Wright, however,
fails to provide a copy of the manual in the record, nor is there any evidence that Officer
Lewis modified any of the tests. Wright did not cross-examine Officer Lewis at the hearing
on the type of tests that were administered or how Wright's knee problems were taken into
consideration.
........................................
how Wright's knee problems were taken into consideration. Moreover, Officer Lewis testified
that he administered several tests that did not depend on Wright's ability to balance, including
the horizontal gaze nystagmus test, which Wright failed.
On appeal, Wright contends for the first time that no evidence suggested that Officer
Lewis had been properly trained to administer field sobriety tests and that, therefore, the tests
do not constitute reliable evidence of Wright's intoxication. Even if Wright had properly
preserved his argument, which he did not, Wright fails to provide any facts or law supporting
his contention.
10
Accordingly, we reject Wright's challenges to the field sobriety tests
conducted in this case.
DMV's revocation authority
[Headnote 8]
Wright contends that the DMV lacked jurisdiction to initiate a driver's license revocation
proceeding because the DMV had insufficient information. We view this as a separate
challenge to whether substantial evidence supported the revocation decision. Wright also
contends that the DMV did not receive valid documentation pertaining to his arrest and,
therefore, there was insufficient evidence supporting revocation. Wright further argues that
the officer's certification of cause and the evidentiary test result were contradictory.
Specifically, Wright notes that Officer Lewis signed the certification of cause, stating that
Wright had an alcohol content of 0.10 percent or more by weight in his blood, while NRS
484.385(2) required that the person charged have a concentration of alcohol of [0.10] or
more in his blood.
11
The term by weight was deleted from the statute in 1999.
12

The DMV counters that the previous standard, 0.10 percent or more by weight, has the
same meaning as the new standard, concentration of alcohol of [0.10] or more in his blood.
We agree.
NRS 484.038 defines the new standard as [0.10] gram or more of alcohol per 100
milliliters of the blood.
13
The previous standard was defined as a concentration of alcohol
in the blood . . . of a person of 0.10 gram or more by weight of alcohol .
____________________

10
See SIIS v. Buckley, 100 Nev. 376, 382, 682 P.2d 1387, 1390 (1984) (declining to consider assignments of
error not supported by citation to relevant authority); see also NRAP 28(a)(4) (requiring that appellant provide
argument in opening brief that includes reasons for contentions with citations to the authorities, statutes, and
parts of the record relied on).

11
In 2003, the Nevada Legislature amended NRS 484.385, replacing 0.10 with 0.08. See 2003 Nev. Stat., ch.
421, 9, at 2562.

12
See 1999 Nev. Stat., ch. 480, 6, at 2451; id. 13, at 2455.

13
In 2003, the Nevada Legislature amended NRS 484.038, replacing 0.10 with 0.08. See 2003 Nev. Stat., ch.
421, 5, at 2559.
........................................
person of 0.10 gram or more by weight of alcohol . . . [p]er 100 milliliters of his blood.
14
The DMV also suggests that, because gram is a measurement of weight, the term by
weight in the previous standard was merely redundant wording that has since been removed.
The DMV, therefore, contends that the two standards are similarly defined and have the same
meaning.
Nevada law directs the DMV to revoke a driver's license in certain situations. Under NRS
484.385(2), when an evidentiary test reveals that an individual had a concentration of
alcohol of [0.10] or more in his blood while driving a motor vehicle, the police officer must
submit to the DMV a copy of the evidentiary test result and a written certificate that he had
reasonable grounds to believe that the person had been driving or in actual physical control of
a vehicle with a concentration of alcohol of [0.10] or more in his blood. The DMV, upon
receiving the certificate, and after examining the certificate and copy of the result of the
chemical test, and finding that revocation is proper, must revoke the person's driving
privileges.
15
That is what occurred here.
To explain, the record demonstrates that Officer Lewis relied on the evidentiary test result,
which meets the applicable standard, to complete the certification of cause. Indeed, at the
hearing, Officer Lewis testified that he did not submit, or even sign, the certification of cause
until he received the evidentiary test result from the laboratory. Thus, the certification of
cause is based on the evidentiary test result, which established that Wright was significantly
over the legal alcohol limit. Accordingly, because there is substantial evidence in the record
supporting the DMV's revocation decision, Wright's argument is without merit.
CONCLUSION
For the foregoing reasons, we affirm the district court's order upholding the DMV's
revocation of appellant's driver's license.
____________________

14
NRS 484.0135 (1989) (amended 1999), replaced in revision by NRS 484.038.

15
NRS 484.385(3).
____________
........................................
121 Nev. 129, 129 (2005) Jezdik v. State
MICHAEL JEZDIK, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 41876
May 12, 2005 110 P.3d 1058
Appeal from a judgment of conviction entered upon jury verdicts finding appellant guilty
on one count of obtaining and using the personal identification of another, three counts of
fraudulent use of a credit or debit card and two counts of burglary. Eighth Judicial District
Court, Clark County; Nancy M. Saitta, Judge.
The supreme court, Maupin, J., held that: (1) defendant placed his character at issue
through testimony that he had never been accused of anything prior to these current
charges; (2) the rules of evidence do not prohibit a party from introducing extrinsic evidence
specifically rebutting the adversary's proffered evidence of good character, overruling
Rowbottom v. State, 105 Nev. 472, 779 P.2d 934 (1989); (3) witness's testimony was
admissible under limited exception to the collateral-fact rule to rebut defendant's proffered
character testimony; (4) court would decline to consider whether it was plain error to allow
detective to testify as a lay witness that signatures on store receipts matched the signature on
defendant's voluntary statement; and (5) there was no evidence to support finding that
defendant fraudulently used credit card at particular grocery store named in amended
information.
Affirmed in part and reversed in part.
Carmine J. Colucci & Associates and Carmine J. Colucci, Las Vegas, for Appellant.
1. Criminal Law.
The supreme court reviews a district court's decision to admit or exclude evidence
for an abuse of discretion.
2. Criminal Law.
Defendant placed his character at issue through testimony that he had never been
accused of anything prior to these current charges, such that detective and defendant's
father-in-law could testify to defendant's character. NRS 48.045(1)(a), 48.055.
3. Criminal Law.
As a general matter, when a defendant chooses to introduce character evidence in the
form of reputation or opinion evidence, the prosecution is similarly limited in its
rebuttal evidence and can only inquire into specific acts of conduct on
cross-examination. NRS 48.045(1)(a).
........................................
4. Witnesses.
Under the collateral-fact rule, it is error to allow the State to impeach a witness's
credibility with extrinsic evidence relating to a collateral matter; facts are collateral if
they are outside the controversy, or are not directly connected with the principal matter
or issue in dispute.
5. Witnesses.
The collateral-fact rule, which prohibits the State from impeaching a witness's
credibility with extrinsic evidence relating to a collateral matter, has limited
application.
6. Witnesses.
credibility with extrinsic evidence relating to a collateral matter, does not limit the
scope of cross-examination; an examiner can question a witness on practically any
aspect of the witness's direct testimony.
7. Witnesses.
The core prohibition of the collateral-fact rule, which prohibits the State from
impeaching a witness's credibility with extrinsic evidence relating to a collateral matter,
applies when the witness to be impeached has already left the stand and the former
cross-examiner later calls a second witness or proffers an exhibit to impeach the earlier
witness's credibility.
8. Witnesses.
The policy behind the collateral-fact rule, which prohibits the State from impeaching
a witness's credibility with extrinsic evidence relating to a collateral matter, is to
prevent the cross-examiner from injecting collateral matters into the trial by setting the
witness up and then allowing the very party that injected the matter into the trial to
impeach the witness's credibility with extrinsic evidence relating to those collateral
matters.
9. Witnesses.
Most methods of impeachment are exempt from the collateral-fact rule, which
prohibits the State from impeaching a witness's credibility with extrinsic evidence
relating to a collateral matter.
10. Witnesses.
credibility with extrinsic evidence relating to a collateral matter, does not apply to
attacks on a witness's ulterior motive for testifying, attacks on a witness's capacity or
personal knowledge, or impeachment using criminal convictions.
11. Witnesses.
credibility with extrinsic evidence relating to a collateral matter, only truly applies
when a specific contradiction is coupled with impeachment by a prior inconsistent
statement or impeachment using extrinsic prior bad acts not resulting in a conviction.
12. Witnesses.
A specific contradiction involving extrinsic evidence of a prior bad act generally
implicates the collateral-fact rule, which prohibits the State from impeaching a
witness's credibility with extrinsic evidence relating to a collateral matter. NRS
50.085(3).
13. Criminal Law; Witnesses.
The rules of evidence do not prohibit a party from introducing extrinsic evidence
specifically rebutting the adversary's proffered evidence of good character; however,
when a party resorts to extrinsic evidence to show a specific contradiction with the
adversary's proffered testimony, the evidence should squarely contradict the
adverse testimony; overruling Rowbottom v.
........................................
show a specific contradiction with the adversary's proffered testimony, the evidence
should squarely contradict the adverse testimony; overruling Rowbottom v. State, 105
Nev. 472, 779 P.2d 934 (1989). NRS 50.085(3).
14. Criminal Law.
Witness's explicit testimony that defendant admitted to wrongfully obtaining a credit
card in witness's name, and that defendant attempted to persuade witness to conceal the
fraud after the authorities discovered the card in defendant's home, was admissible
under limited exception to the collateral-fact rule to rebut defendant's proffered
character testimony that he had never been accused of anything prior to charges of
fraudulent use of a credit card and other charges, even though witness's testimony did
not explicitly establish that defendant was aware that accusations had been lodged
against him. NRS 50.085(3).
15. Criminal Law.
Supreme court would decline to consider whether it was plain error in credit card
fraud trial to allow detective to testify as a lay witness that signatures on store receipts
matched the signature on defendant's voluntary statement, as defense counsel's reason
for not objecting to the testimony was not apparent on the record. NRS 50.265(2).
16. False Pretenses.
There was no evidence to support finding that defendant fraudulently used credit
card at particular grocery store named in amended information; store receipt admitted
into evidence at trial was from a store that was not named in information, and receipt
was only evidence that placed defendant at store at time of alleged fraudulent use.
OPINION
In this appeal we consider the extent to which the State may rebut character evidence
introduced by the defendant in a criminal case.
This matter involves allegations of identity theft and fraudulent use of a credit card. The
State initially filed charges against appellant Michael Jezdik
1
relating to numerous purchases
made in Nevada and California in late April and early May of 2001. However, unable to
obtain receipts supporting many of the charges, the State ultimately only pursued charges
concerning purchases at three Las Vegas grocery stores on May 6, 2001: Vons, Albertsons,
and Raley's. A jury convicted Jezdik on a single count of obtaining and using identification
of another, three counts of fraudulent use of a credit card, and two counts of burglary.
____________________

1
We note that the district court documents reflect different spellings of appellant's name: Michal and
Michael. Because the judgment of conviction spells appellant's first name as Michael, that is the spelling we will
use in this opinion.
........................................
ing and using identification of another,
2
three counts of fraudulent use of a credit card,
3
and
two counts of burglary.
4

Jezdik contends on appeal that: (1) the district court erred in allowing the State to
introduce prior bad act evidence in rebuttal to Jezdik's character testimony on direct
examination, (2) the district court's admission of lay witness testimony regarding handwriting
comparisons constitutes plain error, (3) insufficient evidence supports the verdicts, (4) his
trial counsel rendered ineffective assistance, and (5) cumulative error warrants reversal. We
conclude that the district court properly allowed admission of rebuttal evidence in response to
improper evidence of character either intentionally or inadvertently introduced during defense
counsel's direct examination of Jezdik. Further, with the exception of one count of fraudulent
use and one count of burglary, we conclude that sufficient evidence supports the verdicts.
Finally, we decline to reach Jezdik's claims of ineffective assistance of counsel
5
and
conclude that Jezdik's remaining assignments of error are without merit.
Jezdik and the victim in this case, Anna Behran, are both Czechoslovakian immigrants
who met in Las Vegas in early 1997. They became romantically involved for a brief period
but soon parted ways. Near the end of 2000, they renewed their friendship. Shortly thereafter,
Behran informed Jezdik that she was interested in purchasing a home but was uncertain of the
process. Jezdik, who had just completed a mortgage application himself, informed Behran
that she could complete a mortgage application online and save money. According to her trial
testimony, Jezdik offered to help her with the transaction with the aid of his personal home
computer.
In February or March 2001, Behran and Jezdik completed an online mortgage application
from Jezdik's residence, located at 3400 Termination Court in Las Vegas. During the
application process, Jezdik gained access to Behran's social security number, her mother's
maiden name and other confidential information. Behran testified at trial that Jezdik and her
estranged husband were the only people with access to this information. Behran further
testified that she never gave Jezdik permission to use her personal information to obtain
a credit card and that she never went to Jezdik's Termination Court address for any
purpose other than to generate the mortgage application.
____________________

2
NRS 205.463.

3
NRS 205.760.

4
NRS 205.060.

5
See Feazell v. State, 111 Nev. 1446, 1449, 906 P.2d 727, 729 (1995) (stating that claims of ineffective
assistance of counsel may not be raised on direct appeal, unless there has already been an evidentiary hearing).
........................................
ther testified that she never gave Jezdik permission to use her personal information to obtain
a credit card and that she never went to Jezdik's Termination Court address for any purpose
other than to generate the mortgage application.
Terry Chodosh, a fraud investigator for Citibank, testified that, on April 2, 2001, Citibank
received an online application for a MasterCard listing Anna Behran as the primary
cardholder and Michael Jezdik as the secondary cardholder. The application required
Behran's social security number and date of birth, provided an address of 3400 Termination
Court, and stated that Behran worked for a firm known as Southwest Advertising, Jezdik's
employer. Because the application listed Jezdik as a secondary cardholder, Citibank did not
require his personal information. Although previously a Citibank cardholder, Behran
disclaimed any responsibility for the April 2, 2001, application. She also denied at trial that
she had used Jezdik's address for the purpose of receiving mail and denied ever working for
Southwest Advertising.
Citibank approved the application on April 19, 2001, and sent two cards to 3400
Termination Court. Subsequent bills went unpaid. Behran testified that she became aware of
the second account after receiving Citibank correspondence regarding a recent change of her
account address from Termination Court to another Las Vegas address on Flaming Coral
Lane. Other testimony at trial established that Jezdik moved from Termination Court to
Flaming Coral Lane in May 2001. Citibank's security operations department closed the
account in August 2001 at Behran's request.
As part of the subsequent fraud investigation, Detective John Woosnam of the Las Vegas
Metropolitan Police Department (LVMPD) contacted a Citibank investigator, learned that
Citibank suffered losses in connection with the account, and obtained copies of three receipts
and the billing statements. The statements revealed seventeen purchases made between April
25 and May 6, 2001. Four of the transactions occurred in California between April 26 and
April 28, 2001. The State ultimately argued that Behran could not have made the California
charges because she was in Hawaii at the time.
6
Behran's personal bank statements, admitted
at trial, confirmed transactions in Hawaii on April 23, 25, and 26, 2001.
At trial, Detective Woosnam conducted a lay comparison of Jezdik's signature with the
Citibank receipts. While Detective Woosnam admitted he was not an expert, he testified that
based on general experience .
____________________

6
The California transactions were not the subject of the charges below. However, the State admitted evidence
relating to these transactions without objection.
........................................
on general experience . . . [t]he signature on the receipts [is] similar in appearance with the
signature that appeared on the copy of the voluntary statement . . . obtained from [Michael]
Jezdik. Based on this similarity, Woosnam testified that it was his opinion that the
signatures are from the same person, [Michael] Jezdik.
Gene Olewinski, a detective in the LVMPD financial crimes unit, also participated in the
investigation concerning Jezdik. Olewinski testified at trial that, as part of the investigation,
he required Jezdik to execute exemplar signatures for expert handwriting analysis. Attempts
to make comparisons failed due to the type and quality of the signatures on the receipt copies.
The defense theorized that Behran herself opened the Citibank account and was motivated
financially to deny ownership of the account. Jezdik testified in his own defense that he and
Behran had renewed a romantic relationship at the time of the events in question, that Behran
enjoyed unrestricted access to the Termination Court residence, and that she could have used
his computer to complete the credit card application in his absence. Jezdik further testified
that Behran received mail at both Termination Court and Flaming Coral Lane even after he
instructed her to change her mailing address, and that he and Behran were in fact coworkers
at Southwest Advertising. The defense also attempted to establish that Jezdik could not have
made several of the alleged charges in Nevada because he was in California on some of the
days of the alleged transactions on the Citibank card, and that Jezdik originally gained access
to Behran's personal information during their first relationship but had never made use of it.
In an apparent attempt to establish Jezdik's good character, defense counsel asked Jezdik
on direct examination, Have you ever been accused of anything prior to these current
charges? Jezdik responded, No. The prosecutor then asked to approach the bench and a
brief conference occurred off the record. When testimony resumed, defense counsel
proceeded to a different line of questioning. Later, outside the jury's presence, the State
argued that the no accusation evidence opened the door to specific rebuttal concerning
misconduct similar to that charged in the case. After reviewing a tape-recorded transcript
provided by the State, the district court ultimately allowed the testimony of two rebuttal
witnesses.
Pursuant to the ruling, Detective Olewinski testified concerning another ongoing
investigation of Jezdik. The record does not reveal the nature of this alleged offense or
whether Jezdik was aware that he was under investigation, but the record clearly shows that
the State had not formally charged Jezdik with any offense relating to it.
Karel Kothera, Jezdik's father-in-law, additionally testified for the State that Jezdik and
Kothera's daughter, Monica, approached him sometime during 2001 asking for his assistance
in purchasing a home.
........................................
a home. Kothera agreed to help and provided Monica a power of attorney with his personal
information to complete the loan paperwork. Kothera further testified that he became aware
that an unauthorized credit card had been opened under his name when Jezdik and Monica
told him that the authorities found a credit card in Kothera's name at their residence. Kothera
testified that he never gave Jezdik or Monica permission to use a credit card issued in his
name, that Jezdik admitted to opening the account, that the unauthorized card carried a
balance over $5,000, and that Jezdik and Monica asked him to cover it up to protect Jezdik.
Kothera further testified that he did not immediately become aware of the alleged fraud
because the credit card company sent the billing statements to Jezdik who, in turn, made
payments on the account.
The jury returned verdicts of guilty on all charges. The district court sentenced Jezdik to
12 to 48 months imprisonment on a single count of identity theft, and concurrent sentences of
12 to 30 months on the remaining charges. The court suspended these sentences and placed
him on probation for an indeterminate period, not to exceed four years.
7
Jezdik timely filed
his notice of appeal.
DISCUSSION
Rebuttal evidence specifically contradicting a defendant's proffered character evidence
Jezdik argues that the testimony of Detective Olewinski and Karl Kothera constitutes
improper character evidence under NRS 48.045 and improper impeachment under NRS
50.085. The State argues that neither of these provisions applies because the State introduced
the testimony to rebut Jezdik's own testimony on direct examination.
[Headnote 1]
This court reviews a district court's decision to admit or exclude evidence for an abuse of
discretion.
8
NRS 48.045(1) states the general rule regarding the admissibility of character
evidence in a criminal trial:
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 . . . .
____________________

7
The court also ordered Jezdik to pay $3,361.70 in restitution, a $150.00 DNA analysis fee, and a $25.00
administrative assessment.

8
E.g., Collman v. State, 116 Nev. 687, 704, 7 P.3d 426, 437 (2000).
........................................
(Emphasis added.) Thus, NRS 48.045(1)(a) gives the defendant the sole election to place his
character in issue. NRS 48.055 provides the general 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.
(Emphasis added.)
[Headnotes 2, 3]
As a general matter, when a defendant chooses to introduce character evidence in the form
of reputation or opinion evidence, the prosecution is similarly limited in its rebuttal evidence
and can only inquire into specific acts of conduct on cross-examination. Here, however,
Jezdik did not place his character in issue as specified by one of the exclusive means
provided in NRS 48.055: reputation or opinion evidence. Rather, he placed his character in
issue through testimony that he had never been accused of anything prior to these current
charges. As such, we reject Jezdik's assertion that counsel's question was an over-vague
non-specific question [which] had no real impact on the State's case. Quite to the contrary,
this statement in effect denies any prior specific instances of criminal misconduct.
We also reject Jezdik's contention that Detective Olewinski's testimony improperly
exposed the jury to testimony about other alleged uncharged crimes.
9
First, under these
discrete circumstances, we conclude that NRS 48.045(1)(a) permits rebuttal of Jezdik's
testimony of good character with similar evidence offered by the prosecution. Second, as
discussed below, we conclude that such evidence is also admissible to impeach Jezdik's
credibility.
[Headnote 4]
At common law, a party could attack an opposing witness's credibility by offering
contradictory testimony.
10
Over time, courts developed restrictions to specific contradiction
evidence, the foremost of which is the collateral fact rule.
11
Under this doctrine, "[i]t is
error to allow the State to impeach a defendant's credibility with extrinsic evidence
relating to a collateral matter."
____________________

9
See NRS 48.045(2).

10
Francis A. Gilligan & Edward J. Imwinkelried, Bringing the Opening the Door Theory to a Close: The
Tendency to Overlook the Specific Contradiction Doctrine in Evidence Law, 41 Santa Clara L. Rev. 807, 810
(2001) (citing 3A John Henry Wigmore, Evidence in Trials at Common Law 1000-1007 (Chadbourn rev.
1970)).

11
See id. at 811.
........................................
[i]t is error to allow the State to impeach a defendant's credibility with extrinsic evidence
relating to a collateral matter.
12
Facts are collateral if they are outside the controversy, or
are not directly connected with the principal matter or issue in dispute.'
13
Yet, under NRS
50.085(3), a party can impeach a witness on collateral matters during cross-examination
with questions about specific acts as long as the impeachment pertains to truthfulness or
untruthfulness and no extrinsic evidence is used.
14

[Headnotes 5-11]
As this court recently noted in Lobato v. State, the collateral-fact rule has limited
application.
15
The rule does not limit the scope of cross-examination; an examiner can
question a witness on practically any aspect of the witness's direct testimony.
16
Thus, the
core prohibition [of the collateral-fact rule] applies when the witness to be impeached has
already left the stand and the former cross-examiner later calls a second witness or proffers an
exhibit to impeach the earlier witness's credibility.
17
The policy behind this rule is to
prevent the cross-examiner from injecting collateral matters into the trial by setting the
witness up and then allowing the very party that injected the matter into the trial to impeach
the witness's credibility with extrinsic evidence relating to those collateral matters.
18
Even
so, most methods of impeachment are exempt from the collateral-fact rule.
19
For example,
the rule does not apply to attacks on a witness's ulterior motive for testifying, attacks on a
witness's capacity or personal knowledge, or impeachment using criminal convictions.
____________________

12
McKee v. State, 112 Nev. 642, 646, 917 P.2d 940, 943 (1996).

13
Lobato v. State, 120 Nev. 512, 518, 96 P.3d 765, 770 (2004) (quoting Black's Law Dictionary 262 (6th ed.
1990)).

14
Collman, 116 Nev. at 703, 7 P.3d at 436; see also 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.).

15
120 Nev. at 518, 96 P.3d at 770 ([i]mpeachment by use of extrinsic evidence is prohibited when collateral
to the proceedings).

16
See NRS 50.085(3); see also 1 John W. Strong, et al., McCormick on Evidence 49, at 200 (5th ed. 1999)
(hereinafter McCormick).

17
McCormick, supra note 16, 49, at 201 (footnote omitted); see also McKee, 112 Nev. at 646-47, 917 P.2d
at 942-43.

18
Cf. McKee, 112 Nev. at 646, 917 P.2d at 942-43.

19
McCormick, supra note 16, 49, at 201.
........................................
criminal convictions.
20
As noted in Lobato, the collateral-fact rule only truly applies when a
specific contradiction is coupled with impeachment by a prior inconsistent statement or
impeachment using extrinsic prior bad acts not resulting in a conviction.
21

[Headnote 12]
A specific contradiction involving extrinsic evidence of a prior bad act generally
implicates the collateral-fact rule embodied in NRS 50.085(3).
22
However, authorities have
noted an exception to the collateral-fact rule when the State seeks to introduce evidence on
rebuttal to contradict specific factual assertions raised during the accused's direct
examination.
23
Under this exception, the defendant's false statements on direct examination
trigger or open the door to the curative admissibility of specific contradiction evidence.
24
The example in McCormick is illustrative:
Suppose, for example, that on direct examination, an accused witness made a sweeping,
superlative assertion that he had never committed a deceitful act. That assertion is
such a serious violation of the rules limiting bolstering evidence that on a curative
admissibility theory, many courts allow the opposing counsel to both cross-examine
about the assertion and later introduce extrinsic evidence rebutting the assertion.
25

We have never explicitly embraced the modern doctrine of specific contradiction.
26
However, a review of our case law reveals implicit acceptance on previous occasions. For
example, in Allen v. State, we affirmed the State's use of collateral act testimony to impeach
the defendant's own testimony on direct examination.
27
We reasoned that the impeachment
provided a valuable aid to the jury in assessing [appellant's] credibility.
____________________

20
See Lobato, 120 Nev. at 518-19, 96 P.3d at 770 (citing McCormick, supra note 16, 49; 4 Jack B.
Weinstein & Margaret A Berger, Weinstein's Federal Evidence 608.20[3][b] (Joseph M. McLaughlin ed., 2d
ed. 2004)).

21
Id.

22
See id.

23
McCormick, supra note 16, 49, at 202.

24
Id.

25
Id.; see also U.S. v. Beltran-Rios, 878 F.2d 1208, 1212-13 (9th Cir. 1989) (allowing government to
introduce otherwise excludable testimony when the defendant opens the door' by introducing potentially
misleading testimony).

26
See Roever v. State, 114 Nev. 867, 878 n.11, 963 P.2d 503, 510 n.11 (1998) (Maupin, J., concurring)
(noting that this court should address the modern doctrine of specific contradiction' in an appropriate future
case).

27
94 Nev. 285, 286-87, 579 P.2d 771, 772 (1978).
........................................
jury in assessing [appellant's] credibility.'
28
Thus, we held the evidence properly admissible
as being more probative than prejudicial.
29
Of particular note, we quoted Chief Justice
Burger's rationale in Harris v. New York:
Every criminal defendant is privileged to testify in his own defense, or to refuse to
do so. But that privilege cannot be construed to include the right to commit perjury.
Having voluntarily taken the stand, [appellant] was under an obligation to speak
truthfully and accurately, and the prosecution here did no more than utilize the
traditional truth-testing devices of the adversary process.
30

Similarly, in Bostic v. State, we held the admission of specific contradiction evidence proper
when the defendant testified in his own defense.
31
We stated in Bostic that testimony for the
purpose of contradicting [the defendant's] testimony is clearly distinguishable from the use of
specific acts of misconduct to impeach the accused's character or credibility.
32

[Headnote 13]
We cannot pervert the shield provided by NRS 50.085(3) into a license for a defendant to
purposefully, or even inadvertently, introduce evidence giving the jury a false impression
through an absolute denial of misconduct and then frustrate the State's attempt to contradict
this evidence through proof of specific acts.
33
As a result, we adopt a limited exception to the
collateral-fact rule and hold that our statutory rules of evidence do not prohibit a party from
introducing extrinsic evidence specifically rebutting the adversary's proffered evidence of
good character.
34

[Headnote 14]
However, when a party resorts to extrinsic evidence to show a specific contradiction with
the adversary's proffered testimony, the evidence should squarely contradict the adverse
testimony.
35
In this respect, Jezdik asserts that Kothera's "vague and unclear" testimony
did not directly contradict Jezdik's denial of prior accusations.
____________________

28
Id. at 286, 579 P.2d at 772 (quoting Harris v. New York, 401 U.S. 222, 225 (1971) (alteration in original)).

29
Id. (citing NRS 50.085 and NRS 48.035).

30
Id. at 287, 579 P.2d at 772 (quoting Harris, 401 U.S. at 225 (alteration in original) (citations omitted)).

31
104 Nev. 367, 371-72, 760 P.2d 1241, 1244 (1988).

32
Id.

33
Cf. Harris, 401 U.S. at 226.

34
To the extent that Rowbottom v. State, 105 Nev. 472, 483-85, 779 P.2d 934, 941-42 (1989), is inconsistent
with this opinion, it is overruled.

35
See Gilligan & Imwinkelried, supra note 10, at 829-30.
........................................
this respect, Jezdik asserts that Kothera's vague and unclear testimony did not directly
contradict Jezdik's denial of prior accusations. We disagree. Kothera explicitly testified that
Jezdik admitted to wrongfully obtaining a credit card in Kothera's name, and that Jezdik
attempted to persuade Kothera to conceal the fraud after the authorities discovered the card in
Jezdik's home. Further, while neither Kothera's nor Olewinksi's testimony explicitly
established that Jezdik was aware that accusations had been lodged against him, we
conclude that the State's rebuttal testimony squarely contradicted the potentially false
impression that Jezdik's testimony left in the eyes of the jurors. Thus, the district court did not
abuse its discretion in permitting the State to rebut Jezdik's misleading testimony.
Lay opinion on signature
[Headnote 15]
Jezdik next argues that it was plain error to allow Detective Woosnam to testify as a lay
witness that the signatures on the store receipts matched the signature on Jezdik's voluntary
statement. Testimony at trial established Woosnam had no training in handwriting analysis.
Thus, it appears at first blush that his testimony that the signatures matched was improper
under NRS 50.265(2) as being unhelpful to the jury.
36
However, defense counsel's reason for
not objecting to the testimony is not apparent on this record. As a result, we decline to reach
this issue under a plain error analysis,
37
and like Jezdik's other claims of ineffective
assistance of counsel, we reserve decision on the merits of any related ineffective-assistance
claim for future post-conviction review.
38

Insufficiency of evidence/incorrect information
[Headnote 16]
While not raised on appeal, we sua sponte address a problem with the State's proof of facts
alleged in the amended information below.
39
As noted above, the amended information
charges Jezdik with burglary and fraudulent use of a credit card in connection with three
May 6, 2001, purchases made at three separate grocery stores: Vons, Albertsons, and
Raley's.
____________________

36
See Collins v. State, 113 Nev. 1177, 1184, 946 P.2d 1055, 1060 (1997) (holding an officer's opinion, based
on experience, was helpful to determination of a fact at issue); see also Hall v. United Ins. Co. of America, 367
F.3d 1255, 1259 (11th Cir. 2004) (explaining the interplay between FRE 901 and 701 in the context of
documents containing handwriting and holding both must be satisfied before lay witness testimony concerning
handwriting is admissible); accord U.S. v. Scott, 270 F.3d 30, 48-50 (1st Cir. 2001).

37
Cf. Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 94-95 (2003).

38
See Feazell v. State, 111 Nev. 1446, 1449, 906 P.2d 727, 729 (1995).

39
See Sterling v. State, 108 Nev. 391, 394, 834 P.2d 400, 402 (1992).
........................................
with burglary and fraudulent use of a credit card in connection with three May 6, 2001,
purchases made at three separate grocery stores: Vons, Albertsons, and Raley's.
At trial, the State produced receipts from three grocery stores. Two of these receipts
concerned purchases made at Albertsons and Raley's on May 6, 2001. However, the other
receipt admitted at trial concerned a purchase made on April 27, 2001, at Smith's grocery
store. The Vons' allegations did not relate to that purchase.
This defect of proof is not harmless because the State otherwise failed to place Jezdik at
Vons on May 6, 2001, a fact crucial to proving fraudulent use of a credit card and burglary.
40
Accordingly, we conclude that insufficient evidence supports the counts the State alleged
involving the Vons' transaction on May 6, 2001.
41
However, with respect to the remaining
charges, we conclude that adequate circumstantial evidence supports Jezdik's convictions.
42

CONCLUSION
We conclude that the district court did not err in permitting the State to rebut Jezdik's
denial of prior accusations on direct examination. Further, we decline to reach Jezdik's claims
of ineffective assistance of counsel during this direct appeal, and with the exception of the
two counts related to the alleged Vons' transaction, we conclude that sufficient evidence
supports the jury's verdict. Accordingly, we reverse the burglary and fraudulent use
convictions related to the May 6, 2001, Vons' transaction, and affirm the remainder of the
judgment of conviction.
____________________

40
See Evans v. State, 117 Nev. 609, 641, 28 P.3d 498, 520 (2001) (the defendant must show prejudice as a
result of an information that does not provide proper notice of the charges against him).

41
See Hernandez v. State, 118 Nev. 513, 531, 50 P.3d 1100, 1112 (2002) (In reviewing the sufficiency of
the evidence, this court must determine whether the jury, acting reasonably, could have been convinced by the
competent evidence of the defendant's guilt beyond a reasonable doubt.).

42
See id. (stating that circumstantial evidence alone may support a conviction).
____________
........................................
121 Nev. 142, 142 (2005) Langon v. Matamoros
JOHN LANGON, Appellant, v. JULIA MATAMOROS,
an Individual, Respondent.
No. 42153
May 26, 2005 111 P.3d 1077
Appeal from a final judgment, pursuant to a jury verdict, in a personal injury action and
from an order denying new trial. Second Judicial District Court, Washoe County; James W.
Hardesty, Judge.
Motorist brought personal injury action arising from automobile accident. Following a jury
trial, the district court entered judgment in favor of alleged tortfeasor and denied motorist's
motion for new trial. Motorist appealed. The supreme court, Maupin, J., held that statute
mandating that conviction of a crime resulting in injury to the victim is conclusive evidence
of civil liability for the injury does not apply to misdemeanor traffic offenses.
Affirmed.
E. Sue Saunders, Reno, for Appellant.
Turner & Riddle and Karl H. Smith, Reno, for Respondent.
Construction of a statute is a question of law, which supreme court reviews de novo.
Supreme court reviews an order denying a motion for a new trial for abuse of
discretion.
Order denying judgment notwithstanding the verdict (JNOV) is not appealable.
4. Judgment.
Statute mandating that conviction of a crime resulting in injury to the victim is
conclusive evidence of civil liability for the injury does not apply to misdemeanor
traffic offenses. NRS 41.133.
5. Statutes.
Supreme court ascribes the plain meaning to a statute that is not ambiguous.
6. Statutes.
When the statutory language fails to address an issue impliedly affected by the
statute, legislative intent controls.
7. Statutes.
Supreme court looks to reason and public policy to discern legislative intent.
........................................
OPINION
In this appeal, we consider whether NRS 41.133, which mandates that conviction of a
crime resulting in injury to the victim is conclusive evidence of civil liability for the injury,
applies to misdemeanor traffic violations.
Appellant John Langon and respondent Julia Matamoros were involved in an automobile
accident, as a result of which police issued Matamoros a citation for failure to yield the right
of way. Matamoros ultimately pleaded no contest, forfeited bail and paid a fine in connection
with the citation.
Langon sued Matamoros for personal injuries under a negligence theory of recovery and
proceeded to trial. The jury returned a verdict in favor of Matamoros, and the district court
entered judgment accordingly. The district court then denied Langon's motion for judgment
notwithstanding the verdict and in the alternative for a new trial. Langon appeals from the
judgment and order denying his post-trial motions.
DISCUSSION
[Headnotes 1-3]
The construction of a statute is a question of law, which we review de novo.
1
We review
an order denying a motion for a new trial for abuse of discretion.
2

NRS 41.133 civil liability
[Headnote 4]
Langon argues that, under NRS 41.133, Matamoros' conviction pursuant to a no contest
plea and forfeiture of bail for failure to yield is admissible as conclusive evidence that she is
liable for his injuries. Accordingly, Langon argues that the district court erred in denying his
post-trial motions. Matamoros asserts that her plea of no contest did not result in a judgment
of conviction of a "crime" for the purposes of NRS 41.133.
____________________

1
White v. Continental Ins. Co., 119 Nev. 114, 116, 65 P.3d 1090, 1091 (2003).

2
Krause Inc. v. Little, 117 Nev. 929, 933, 34 P.3d 566, 569 (2001). The order denying judgment
notwithstanding the verdict is not appealable. Id.
........................................
crime for the purposes of NRS 41.133. We agree with Matamoros and hold that NRS
41.133 does not apply to misdemeanor traffic offenses.
3

[Headnotes 5-7]
We ascribe the plain meaning to a statute that is not ambiguous.
4
When the statutory
language . . . fails to address [an] issue [impliedly affected by the statute],' legislative intent
controls.
5
We look to reason and public policy to discern legislative intent.
6
Because the
scope of NRS 41.133 is inherently unclear, particularly in relation with other statutory
measures governing tort liability, and because a literal reading of the measure would result in
consequences unintended by the Legislature, we must undertake an examination of the
Legislature's intent with regard to its enactment.
NRS 41.133 states: If an offender has been convicted of the crime which resulted in the
injury to the victim, the judgment of conviction is conclusive evidence of all facts necessary
to impose civil liability for the injury.
The Legislature enacted NRS 41.133 from a group of victims' rights bills, which included
a companion measure that prohibited a convicted offender from suing victims for injuries
sustained during the commission of sexual assault, kidnapping, arson, robbery, burglary,
sexual molestation and criminal homicide.
7
The bill was approved and signed by the
Governor, and the companion provision became NRS 41.135.
8
The separation of the
companion provision as NRS 41.135, from the text of the bill that eventually became NRS
41.133, resulted from an administrative act of revision not performed by the Legislature. The
crimes of violence originally enumerated in the bill draft that became NRS 41.135 reflected
malum in se offenses that legislators clearly intended NRS 41.133 to include; nothing in
the legislative history indicates that legislators contemplated that malum in prohibitum
offenses such as traffic violations would be considered crimes for the purposes of the
overall measure.
____________________

3
In Mendez v. Brinkerhoff, 105 Nev. 157, 771 P.2d 163 (1989), this court held that forfeiture of bail in
connection with a traffic citation was not admissible in a civil proceeding as an admission that the cited party
committed the charged traffic offense. Although Mendez was decided after the enactment of NRS 41.133, we did
not determine whether the statute applied because, at least ostensibly, the events in question pre-dated the
statute's effective date.

4
Crestline Inv. Group v. Lewis, 119 Nev. 365, 368, 75 P.3d 363, 365 (2003).

5
Id. (quoting A.F. Constr. Co. v. Virgin River Casino, 118 Nev. 699, 703, 56 P.3d 887, 890 (2002)).

6
State v. Catanio, 120 Nev. 1030, 1033, 102 P.3d 588, 590 (2004).

7
See A.B. 268, 63d Leg. (Nev. 1985).

8
The Legislature amended NRS 41.135 in 1997 to state that a person who is convicted of committing or
attempting to commit a felony, an act that would have been a felony if committed by an adult, or a misdemeanor
or gross misdemeanor that constitutes domestic violence, may not bring an action against the victim for injuries
or property damage the offender suffered. 1997 Nev. Stat., ch. 476, 17, at 1811.
........................................
malum in se offenses that legislators clearly intended NRS 41.133 to include; nothing in the
legislative history indicates that legislators contemplated that malum in prohibitum offenses
such as traffic violations would be considered crimes for the purposes of the overall measure.
9
We therefore conclude that NRS 41.133 does not apply to misdemeanor violations of state
and local traffic codes.
Moreover, the application of NRS 41.133 to misdemeanor traffic violations would directly
conflict with NRS 41.141, Nevada's comparative negligence statute, thus thwarting a more
specific legislative purpose.
10
First, NRS 41.141 insulates a defendant from liability in cases
in which a plaintiff's comparative negligence exceeds that of the parties to the action against
whom recovery is sought.
11
Second, NRS 41.141 reduces the extent of the defendant's
liability when the comparative negligence of the plaintiff is found to be less than 51 percent
of the total causal negligence. If NRS 41.133 were applied as Langon suggests, discretionary
police decisions to issue traffic citations, regardless of potential evidence of comparative
negligence, would serve to conclusively override the basic statutory construct governing the
law of negligence. Such an approach would render the comparative negligence scheme of
NRS 41.141 meaningless in this context.
Remaining assignments of error
Langon asserts that the district court erred in rejecting his proposed jury instruction on
negligence per se. He further contends that the district court abused its discretion in refusing
to allow the police officer who responded to the scene to testify as an expert, admitting a
letter by Langon's treating chiropractor, and admitting Langon's employment records. We
have considered these arguments and conclude that they lack merit.
CONCLUSION
Because NRS 41.133 does not apply to misdemeanor traffic offenses, convictions entered
upon traffic citations may not be used to conclusively establish civil liability. We therefore
affirm the judgment below and the order denying post-trial motions.
____________________

9
See, e.g., State, Div. of Insurance v. State Farm, 116 Nev. 290, 293-94, 995 P.2d 482, 485 (2000) (noting
that when a statute is ambiguous, the court should examine legislative history and intent); Nunez v. Sahara
Nevada Corp., 677 F. Supp. 1471, 1473 (D. Nev. 1988) (considering a statute's meaning in the context of a
larger statutory scheme).

10
See SIIS v. Surman, 103 Nev. 366, 367-68, 741 P.2d 1357, 1359 (1987).

11
See also Buck v. Greyhound Lines, 105 Nev. 756, 783 P.2d 437 (1989).
____________
........................................
121 Nev. 146, 146 (2005) Seino v. Employers Ins. Co. of Nevada
SANDRA SEINO, Appellant, v. EMPLOYERS INSURANCE COMPANY OF NEVADA, a
Mutual Company, Respondent.
No. 41521
May 26, 2005 111 P.3d 1107
Appeal from a district court order denying a petition for judicial review in a workers'
compensation case. Eighth Judicial District Court, Clark County; Lee A. Gates, Judge.
The supreme court held that: (1) a request for a workers' compensation hearing is filed
when the hearing officer receives it, not when it is mailed; (2) claimant's request for hearing
was untimely, even if it was mailed within seventy-day period; (3) claimant's benefits denial
letter was not a unique circumstance which saved her late-filed application for hearing; and
(4) doctrine of equitable tolling did not apply.
Affirmed.
Beckley Singleton, Chtd., and James L. Edwards and Daniel F. Polsenberg, Las Vegas, for
Appellant.
Beckett & Yott, Ltd., and Kevin L. Johnson, Las Vegas, for Respondent.
The role of the supreme court 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. Administrative Law and Procedure; Statutes.
Agency decisions based upon questions of statutory construction are purely legal
issues, and the supreme court reviews pure questions of law de novo.
The supreme court reviews an agency's fact-based conclusions of law for substantial
evidentiary support in the record.
4. Workers' Compensation.
Typically, a Nevada Department of Administration Hearings Division (NDAHD)
hearing officer has jurisdiction over a workers' compensation claim only if the claimant
files a timely request for a hearing. NRS 616C.315(3).
Statutory periods for requesting administrative review of workers' compensation
determinations are mandatory and jurisdictional.
Purpose of statute stating that a request for a workers' compensation hearing is
timely when it is filed with the Nevada Department of Administration Hearings
Division (NDAHD) within seventy days of the date that the insurer mailed notice of its
determination is to shorten the overall administrative process of a workers'
compensation claim.
........................................
A request for a workers' compensation hearing is filed when the hearing officer
receives it, not when it is mailed. NRS 616C.315(3).
Failure to file a request for a workers' compensation hearing within the statutory
period is excused only if the claimant proves by a preponderance of evidence that he or
she did not receive the notice of determination and the forms necessary to request a
hearing. NRS 616C.315(3).
Workers' compensation claimant's request for hearing after denial of benefits was
untimely, even if it was mailed within seventy-day period, where Nevada Department
of Administration Hearings Division (NDAHD) received request after seventy-day
period had expired, and claimant had promptly received both the denial letter and the
request for hearing form. NRS 616C.315(3).
Workers' compensation claimant's benefits denial letter, in which insurer stated that
she may lose right to appeal if Nevada Department of Administration Hearings
Division (NDAHD) did not receive request for hearing within seventy days, was not a
unique circumstance which saved her late-filed application for hearing, assuming that
court recognized the unique circumstances exception to the timely filing requirement;
use of word may was legally and technically correct, and insurer never made any
assurances that claimant's appeal would be perfected by mailing within the seventy-day
period. NRS 616C.315(3).
11. Limitation of Actions.
Generally, the purpose of statutory time limitations for judicial review is to prevent
stale issues from being raised against a party; nevertheless, in situations where the
danger of prejudice to the defendant is absent, and the interests of justice so require,
equitable tolling of the limitations period may be appropriate.
Doctrine of equitable tolling did not apply to mandatory and jurisdictional statutory
seventy-day time period in which the Nevada Department of Administration Hearings
Division (NDAHD) must receive an appeal from the denial of workers' compensation
benefits. NRS 616C.315(3).
OPINION
Per Curiam:
This is an appeal from a district court order denying appellant Sandra Seino's petition for
judicial review in a workers' compensation matter. In this appeal, we examine whether Seino
satisfied the jurisdictional requirements of NRS 616C.315, which requires that a hearing
request be filed within seventy days of the date that the industrial insurer's notice of
determination is mailed. Although Seino mailed a notice of appeal to the Nevada Department
of Administration Hearings Division {NDAHD), it was never received.
........................................
ministration Hearings Division (NDAHD), it was never received. Seino contends that we
should reexamine our holding in SIIS v. Partlow-Hursh,
1
which recognized that a workers'
compensation administrative appeal is filed upon the appeals officer's receipt of the appeal
request form, not upon mailing. Further, Seino asserts that the doctrines of exceptional
circumstances and equitable tolling merit setting aside the jurisdictional deadlines in this
instance. We decline to retreat from our holding in Partlow-Hursh and conclude that the
doctrines of exceptional circumstances and equitable tolling do not apply. Consequently, we
affirm the district court's order.
FACTS
Seino alleges that in January 2000, she burned her hands with chemical solvent during the
course of her employment. Seino, however, did not notify her employer of the injury until
several weeks later. In March 2000, two months after the injury, Seino completed and filed a
claim for workers' compensation with respondent Employers Insurance Company of Nevada
(EICN).
On March 22, 2000, EICN sent Seino a letter denying her claim on two grounds: (1) EICN
could not determine if Seino's injury arose out of and in the course of employment; and (2)
Seino, in violation of NRS 616C.015, failed to notify her employer within seven days of the
injury. Additionally, EICN informed Seino of her right to administratively appeal its decision.
For this purpose, the letter stated:
If you or your employer disagree with this decision, you have the right to file an appeal
and mail it directly to the [NDAHD] . . . . If your request does not reach the Hearings
Division within seventy (70) days from the date of this letter, you may lose your right to
appeal the decision.
In addition to the denial letter, Seino also received a request for hearing form. This form
stated:
If you are appealing the determination rendered above, complete, date, sign and FILE
THE FORM AND ANY ATTACHMENTS WITH THE . . . HEARINGS
DIVISION . . . . For your appeal to be heard, this form must be received by the
Hearings Division within 70 days of the determination date shown at the top of this
form.
On March 24, 2000, two days after EICN's denial letter, Seino mailed the appeal form to
the NDAHD. The NDAHD, however, never received Seino's mailed form. In addition, the
record contains no evidence that Seino, during the seventy-day period, contacted the NDAHD
concerning her appeal.
____________________

1
101 Nev. 122, 125, 696 P.2d 462, 464 (1985).
........................................
tacted the NDAHD concerning her appeal. Rather, on November 9, 2000, over seven months
later, Seino faxed the appeal form to the NDAHD.
After receiving the faxed form, the NDAHD set and held a hearing concerning Seino's
claim. Upon hearing the parties' arguments, the hearing officer dismissed the appeal as
untimely under NRS 616C.315(3). On February 8, 2001, Seino filed a timely notice of appeal
of the hearing officer's decision with the Nevada Department of Administration Appeals
Office. The appeals officer believed that Seino mailed the appeal form on March 24, 2000,
but affirmed the hearing officer's decision because the NDAHD did not receive the form
within the seventy-day period.
Seino then filed a petition for judicial review in the district court. The district court
concluded that the appeals officer's decision was supported by substantial evidence. As a
result, the district court denied Seino's petition for judicial review and affirmed the appeals
officer's decision. Seino timely appealed the district court's order.
DISCUSSION
Standard of review
[Headnotes 1-3]
The role of this court 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
Agency decisions based upon questions of statutory construction are purely legal issues,
3
and
this court reviews pure questions of law de novo.
4
In contrast, this court reviews an agency's
fact-based conclusions of law for substantial evidentiary support in the record.
5

Jurisdiction
[Headnotes 4-6]
Typically, an NDAHD hearing officer has jurisdiction over a workers' compensation claim
only if the claimant files a timely request for a hearing.
____________________

2
Ruggles v. Public Service Comm'n, 109 Nev. 36, 40, 846 P.2d 299, 301 (1993).

3
Manke Truck Lines v. Public Service Comm'n, 109 Nev. 1034, 1036, 862 P.2d 1201, 1203 (1993).

4
State, Dep't Mtr. Veh. v. Jones-West Ford, 114 Nev. 766, 772, 962 P.2d 624, 628 (1998); Nyberg v. Nev.
Indus. Comm'n, 100 Nev. 322, 324, 683 P.2d 3, 4 (1984).

5
Beavers v. State, Dep't of Mtr. Vehicles, 109 Nev. 435, 438, 851 P.2d 432, 434 (1993).
........................................
quest for a hearing.
6
Statutory periods for requesting administrative review of workers'
compensation determinations are mandatory and jurisdictional.
7
Under NRS 616C.315(3)(b),
a request for a hearing is timely when it is filed with the NDAHD within seventy days of the
date that the insurer mailed notice of its determination.
8
The Legislature included this
provision to shorten the overall administrative process of a workers' compensation claim.
9

[Headnotes 7, 8]
In Partlow-Hursh, this court held that a notice of appeal from a hearing officer's decision
is filed when the appeals officer receives it, not when it is mailed.
10
The language in the
statute addressed in Partlow-Hursh is similar to that in NRS 616C.315(3); both statutes
provide that the required document be filed within a specified time period. Moreover, we
have previously relied on Partlow-Hursh in concluding that the filing requirement under NRS
616C.315(3) is mandatory and jurisdictional.
11
We see no reason to interpret the filing
requirements under the two statutes differently; a request for a hearing is filed when the
hearing officer receives it, not when it is mailed. Failure to file a request for a hearing within
the statutory period is excused only if the claimant proves by a preponderance of evidence
that he or she did not receive the notice of determination and the forms necessary to request a
hearing.
12

Seino argues that our interpretation of NRS 616C.315 should be similar to the filing
requirements of NRAP 25, which provides that documents filed in this court are filed when
mailed. In Partlow-Hursh, this court stated that former NRAP 25 was analogous to
administrative filing requirements.
13
At that time, NRAP 25(a) specifically stated that filing
was timely when received by the clerk. NRAP 25 was amended in 1988 and currently deems
a filing timely when mailed to the clerk. Consequently, NRAP 25 is no longer analogous to
administrative filing requirements. Furthermore, the NRAP is not applicable to
administrative proceedings.
____________________

6
NRS 616C.315(3).

7
SIIS v. Partlow-Hursh, 101 Nev. 122, 125, 696 P.2d 462, 464 (1985).

8
See also id. at 124, 696 P.2d at 463-64.

9
A.B. 84, 60th Leg. (Nev. 1979).

10
101 Nev. at 124, 696 P.2d at 463 (discussing former NRS 616.5422(1) (replaced in revision by NRS
616C.345(1)).

11
Reno Sparks Visitors Auth. v. Jackson, 112 Nev. 62, 66-67, 910 P.2d 267, 270 (1996) (discussing NRS
616.5412 (replaced in revision by NRS 616C.315)).

12
NRS 616C.315(4); Jackson, 112 Nev. at 66, 910 P.2d at 270.

13
101 Nev. at 124, 696 P.2d at 463.
........................................
more, the NRAP is not applicable to administrative proceedings.
14
Accordingly, we decline
to overrule Partlow-Hursh's rule that administrative workers' compensation appeals are filed
when received, not mailed.
[Headnote 9]
In this case, the NDAHD did not receive Seino's request for a hearing within the
seventy-day period, and Seino conceded that she promptly received both the denial letter and
the request for hearing form. Therefore, the appeals officer's conclusion that Seino's request
was untimely under NRS 616C.315 is based on substantial evidence.
Unique circumstances
[Headnote 10]
To save her untimely request, Seino urges us to adopt and apply the unique
circumstances doctrine. The United States Supreme Court has explained that unique
circumstances exist only when a party has performed an act which, if properly done, would
postpone the deadline for filing his appeal and has received specific assurance by a judicial
officer that this act has been properly done.
15
We have not applied the doctrine of unique
circumstances to Nevada administrative appeal periods or private insurance providers. Even
if we were to adopt the unique circumstances doctrine and expand its scope to include
assurances by administrators, the facts in this case fail to meet the doctrine's requirements.
Seino argues that unique circumstances exist because EICN's March 22 denial letter states
that an employee has the right to file an appeal and mail it directly to the [NDAHD]. The
next line of the letter, however, expressly cautions that if the request is not received by the
NDAHD within seventy (70) days from the date of this letter, you may lose your right to
appeal. (Emphasis added.)
Seino suggests that the word may makes the notice provision inadequate since it implies
that the statutory period is flexible. The use of the word may, however, is legally and
technically correct. First, in Nyberg v. Nevada Industrial Commission,
16
we extended
statutory periods, such as NRS 616C.315(3)(b), by three days to account for the mailing of
decisions to injured employees. Second, NRS 616C.315(4) excuses the failure to file a
request for hearing within the statutory period if the claimant proves that he or she did not
receive the determination and necessary appeal form.
____________________

14
NRAP 1(a) (These rules govern procedure in appeals to the Supreme Court of Nevada from the district
courts of Nevada and in applications for writs or other relief which the Supreme Court or a justice thereof is
competent to give.).

15
Osterneck v. Ernst & Whinney, 489 U.S. 169, 179 (1989).

16
100 Nev. 322, 324-25, 683 P.2d 3, 5 (1984).
........................................
within the statutory period if the claimant proves that he or she did not receive the
determination and necessary appeal form. Accordingly, EICN's use of the word may in its
denial letter does not make the notice provision inadequate since some employees may have
longer than seventy days to file their appeals.
Furthermore, EICN never made any assurances that Seino's appeal would be perfected by
mailing. Accordingly, since the letter's notice provision was adequate and Seino was not
assured that mailing would perfect an administrative appeal, no unique circumstances exist
in this instance.
Equitable tolling
[Headnotes 11, 12]
Generally, the purpose of statutory time limitations for judicial review is to prevent stale
issues from being raised against a party.
17
Nevertheless, in situations [w]here the danger of
prejudice to the defendant is absent, and the interests of justice so require, equitable tolling of
the limitations period may be appropriate.
18
Originally, we adopted the doctrine of equitable
tolling for Nevada's antidiscrimination statutes.
19
Since then, however, the doctrine has been
expanded to operate in other areas of law.
20
Without limiting the doctrine's application, we
have set forth several factors to determine when equitable tolling is appropriately applied.
21
These factors include
the diligence of the claimant; the claimant's knowledge of the relevant facts; the
claimant's reliance on authoritative statements by the administrative agency that misled
the claimant about the nature of the claimant's rights; any deception or false assurances
on the part of the employer against whom the claim is made; the prejudice to the
employer that would actually result from delay during the time that the limitations
period is tolled; and any other equitable considerations appropriate in the particular
case.
22

____________________

17
Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 1131, 1136 (9th Cir. 2001).

18
Azer v. Connell, 306 F.3d 930, 936 (9th Cir. 2002).

19
Copeland v. Desert Inn Hotel, 99 Nev. 823, 826, 673 P.2d 490, 492 (1983).

20
O'Lane v. Spinney, 110 Nev. 496, 501, 874 P.2d 754, 757 (1994) (recognizing that the doctrine of
equitable tolling might apply to toll the deadline for enforcing judgments).

21
Copeland, 99 Nev. at 826, 673 P.2d at 492.

22
Id.
........................................
This court, however, has never applied the doctrine of equitable tolling to statutory periods
that are mandatory and jurisdictional.
23

Thus, since NRS 616C.315 is mandatory and jurisdictional, the doctrine of equitable
tolling does not apply.
CONCLUSION
We conclude that the district court properly denied Seino's petition for judicial review.
Substantial evidence supports the appeals officer's determination that Seino failed to file her
request for a hearing within the required period and that conclusion will not be disturbed. In
addition, since EICN did not expressly state that Seino's request for hearing was perfected by
mailing, no unique circumstances exist to excuse her untimely workers' compensation appeal.
Further, because NRS 616C.315 is mandatory and jurisdictional, the doctrine of equitable
tolling does not apply. We therefore affirm the district court's order denying Seino's petition
for judicial review.
____________
121 Nev. 153, 153 (2005) Morsicato v. Sav-On Drug Stores, Inc.
ANDREW MORSICATO and CONCETTA MORSICATO, Husband and Wife, Appellants,
v. SAV-ON DRUG STORES, INC., a Delaware Corporation, Respondent.
No. 41879
May 26, 2005 111 P.3d 1112
Appeal from a district court judgment in a pharmacy malpractice action and an order
denying a motion for new trial. Eighth Judicial District Court, Clark County; Allan R. Earl,
Judge.
Patient and wife brought pharmacy malpractice action, claiming that wife's mislabeled
prescription bottle, which directed lindane application every 12 hours in order to combat
scabies, caused patient permanent injuries. The district court granted directed verdict on issue
of negligence but entered judgment on jury verdict as to lack of causation and denied motions
for new trial and judgment notwithstanding the verdict (JNOV). Patient and wife appealed.
The supreme court held that expert's causation testimony was speculative and inadmissible.
[Rehearing denied August 3, 2005]
[En banc reconsideration denied September 8, 2005]
____________________

23
Id.; see also O'Lane, 110 Nev. at 501, 874 P.2d at 757.
........................................
Harrison Kemp & Jones, LLP, and Artemus W. Ham IV and J. Randall Jones, Las Vegas,
for Appellants.
Beckley Singleton, Chtd., and Joel D. Henriod and Daniel F. Polsenberg, Las Vegas, for
Respondent.
Supreme court would not address trial court order denying patient's motion for
judgment notwithstanding the verdict (JNOV), as order was not appealable.
2. Jury; New Trial.
Use of a lottery selection system to select alternate jurors did not warrant new trial
for patient and wife in pharmacy malpractice action, as patient's counsel acquiesced to
the process, and nothing precluded counsel from stipulating to the use of a lottery
system for selecting alternate jurors. NRCP 47(b).
Any error by trial court in failure to follow rules regarding selection of alternate
jurors and using lottery system did not prejudice patient in pharmacy malpractice action
and thus did not warrant new trial. NRCP 47(b).
4. Evidence.
Medical expert's testimony on causation in pharmacy malpractice action was
speculation and conjecture and thus was inadmissible; expert was not certain what
caused patient's injuries, stated that he could offer a theory that was just as plausible as
the theory that lindane from improperly labeled prescription bottle caused the injury,
and testified that he ranked an autoimmune response as the most likely cause of the
injury, but stated that it was more likely than not that an autoimmune response was the
most likely cause of the injuries only after the court explained that his testimony would
be stricken unless he testified in accordance with Nevada law. NRS 50.275.
A district court's decision to admit expert testimony is reviewed for an abuse of
discretion.
A district court's decision to admit expert testimony will not be overturned absent a
clear abuse of discretion.
7. Evidence.
Not all medical expert testimony must be stated with a reasonable degree of medical
probability; the standard for admissibility varies depending upon the expert opinion's
nature and purpose. NRS 50.275.
8. Evidence.
Medical expert testimony regarding standard of care and causation must be stated to
a reasonable degree of medical probability. NRS 50.275.
........................................
OPINION
Per Curiam:
Andrew Morsicato and Concetta Morsicato appeal from a final judgment of the district
court, following a jury verdict, of no liability in a pharmacy malpractice action. The
Morsicatos challenge the district court's admission of expert testimony that failed to conform
to the reasonable degree of medical probability standard. We take this opportunity to clarify
our holding in Banks v. Sunrise Hospital
1
and confirm that medical expert testimony on the
issue of causation must be stated to a reasonable degree of medical probability. Because, in
this case, the testimony did not conform to this standard, we reverse the district court's
judgment.
FACTS
After suffering rash-like symptoms, Andrew Morsicato was diagnosed with scabies. His
dermatologist prescribed lindane lotion, an extremely potent neurotoxin lotion used as an
insecticide to treat scabies. The dermatologist wrote two prescriptions for the lotion, one for
Mr. Morsicato and one for his wife, as scabies is highly contagious to members of the same
household.
Morsicato presented both prescriptions to Sav-On Drug Stores for filling and received two
bottles of lindane, each with different application instructions. Morsicato's prescription
correctly indicated the lotion should be applied at bedtime and washed off after 12 hours. The
label on his wife's prescription displayed flawed instructions, directing application of the
lotion every 12 hours. Sav-On's pharmacy expert admitted that Sav-On improperly labeled the
wife's prescription bottle by directing lindane application every 12 hours.
Morsicato used his wife's prescription, applying the lotion every 12 hours for several days.
Following multiple applications of the lotion, Morsicato began experiencing pain and
significant skin irritation. Morsicato returned to his primary treating physician with boils,
blisters, redness, and extreme pain on those areas where he had applied the lotion. Several
physicians evaluated Morsicato and concluded that his injuries were linked to overexposure
to lindane.
The Morsicatos sued Sav-On claiming that multiple applications of lindane caused
Morsicato's permanent injuries. Because Sav-On admitted to improperly labeling the bottle,
the district court granted a directed verdict in favor of the Morsicatos on the issue of Sav-On's
negligence.
____________________

1
120 Nev. 822, 834-35, 102 P.3d 52, 60-61 (2004).
........................................
Sav-On's negligence. The issues of causation, comparative negligence, and damages remained
for the jury.
Prior to jury selection, the district court informed all parties that it was using a lottery
system to select alternate jurors. In the lottery system, a total of ten jurors were seated in the
jury box for the trial, and after closing argument but before deliberation, two alternate jurors
were chosen by random drawing. Under this selection process, any two of the ten jurors could
have been selected to be the alternate jurors. The record reveals the Morsicatos' counsel
acquiesced in the district court's suggested process.
During trial, the jurors considered causation evidence. The Morsicatos presented several
experts, who testified to a reasonable degree of medical probability that Morsicato's injuries
were caused by the lindane lotion. Sav-On offered only the testimony of a neurologist, Dr.
Michael Schneck. Dr. Schneck acknowledged the theory that lindane exposure caused
Morsicato's injuries, but he opined that other theories, including an autoimmune response,
could explain the injury. After counsel objected to the speculative nature of Dr. Schneck's
testimony, the court explained that medical opinions regarding causation must state that the
particular form of causation was more likely than not, or more than 50 percent likely. Dr.
Schneck then testified that his autoimmune theory was not more likely than other causes but
that he would rank that theory as the most likely medical cause. Dr. Schneck acknowledged
that his ranking of possible causes was inconsistent with Nevada's evidentiary standard.
Again, the court explained the standard, clarifying that the opinion must be more than 50
percent likely or the court would strike the testimony. Dr. Schneck then stated that the
autoimmune phenomenon was the most likely cause.
[Headnotes 1-3]
The jury returned a unanimous verdict, finding that Sav-On's negligence did not cause
Morsicato's skin condition. The judgment was then entered based on this verdict. The
Morsicatos filed a motion for new trial and a motion for judgment notwithstanding the verdict
(JNOV), which the district court denied in a subsequent order.
2

____________________

2
The Morsicatos raise on appeal the denial of these motions. The order denying the JNOV is not appealable;
therefore, we do not address it now. Krause Inc. v. Little, 117 Nev. 929, 933, 34 P.3d 566, 569 (2001). The
Morsicatos also argue that a new trial is warranted, given the use of a lottery selection system to select alternate
jurors. The Morsicatos' counsel, however, acquiesced to the process used in this trial, and nothing precludes
counsel from stipulating to the use of a lottery system for selecting alternate jurors. Further, even if counsel had
not acquiesced, so that the lottery system violated NRCP 47(b), we would conclude that any failure to follow
NRCP 47(b) did not result in prejudice that would warrant a new trial. City of Elko v. Zillich, 100 Nev. 366, 371,
683 P.2d 5, 8 (1984).
........................................
DISCUSSION
Admissibility of expert testimony
[Headnote 4]
The Morsicatos argue Dr. Schneck's expert testimony on causation was speculation and
conjecture that failed to meet the requisite standard for expert testimony and therefore should
have been stricken. We agree.
[Headnotes 5, 6]
A district court's decision to admit expert testimony is reviewed for an abuse of discretion.
3
The district court's decision will not be overturned absent a clear abuse of discretion.
4

NRS 50.275 provides that a witness qualified as an expert by special knowledge, skill,
experience, training or education may testify to matters within the scope of such knowledge.
In United Exposition Service Co. v. SIIS, we concluded that an award of compensation
cannot be based solely upon possibilities and speculative testimony.
5
In that case, which
involved the payment of workers' compensation benefits after an industrial injury, we held
that physician[s] must state to a degree of reasonable medical probability that the condition
in question was caused by the industrial injury, or sufficient facts must be shown so that the
trier of fact can make the reasonable conclusion that the condition was caused by the
industrial injury.
6
The speculative nature of an opinion that an injury possibly could have
been a precipitating factor was insufficient to support a finding of causation; specifically, we
stated, A possibility is not the same as a probability.
7

Sav-On argues that even though Dr. Schneck's testimony was not made to a reasonable
degree of medical probability, it was nevertheless admissible under the general standard of
NRS 50.275 because it did not address an ultimate finding of fact.
[Headnote 7]
Not all medical expert testimony must be stated with a reasonable degree of medical
probability. The standard for admissibility varies depending upon the expert opinion's nature
and purpose.
In Banks v. Sunrise Hospital, this court considered the contention that the district court
erred in admitting expert medical opinion testimony.
8
During trial, the medical expert
testified regarding possible ways anesthesia equipment could fail and admitted that,
because he could not examine the actual machine used, he could not determine whether
the equipment contributed to the victim's injury.
____________________

3
Krause, 117 Nev. at 933-34, 34 P.3d at 569.

4
Id. at 934, 34 P.3d at 569.

5
109 Nev. 421, 424, 851 P.2d 423, 425 (1993).

6
Id. at 424-25, 851 P.2d at 425.

7
Id. at 425, 851 P.2d at 425.

8
120 Nev. 822, 834-35, 102 P.3d 52, 60-61 (2004).
........................................
garding possible ways anesthesia equipment could fail and admitted that, because he could
not examine the actual machine used, he could not determine whether the equipment
contributed to the victim's injury.
9
Although the expert opinion testimony was based on less
than a reasonable degree of medical probability, we concluded that the district court did not
abuse its discretion in admitting the evidence.
10
The medical opinion testimony related to the
operation of equipment and not to any medical standard of care. However, the holding in
Banks was not intended to modify or change in any way the requirement that medical expert
testimony, regarding the standard of care and causation in a medical malpractice case, must
be based on testimony made to a reasonable degree of medical probability.
Since 1989, this court has held that a medical expert is expected to testify only to matters
that conform to the reasonable degree of medical probability standard.
11
Furthermore, in
dictum, this court has observed that expert testimony regarding causation must also rise to
this level of certainty.
12
As the Pennsylvania Supreme Court has recognized, one rationale
for requiring such specificity with expert opinions is that if the plaintiff's medical expert
cannot form an opinion with sufficient certainty so as to make a medical judgment, there is
nothing on the record with which a jury can make a decision with sufficient certainty so as to
make a legal judgment.
13

[Headnote 8]
We conclude that medical expert testimony regarding standard of care and causation must
be stated to a reasonable degree of medical probability. In this case, Dr. Schneck testified
concerning an ultimate issue in the case, causation. He was not certain what caused
Morsicato's injuries; however, he stated that he could offer a theory that was just as plausible
as the theory that lindane caused the injury. He further testified that he ranked an autoimmune
response as the most likely cause of the injury and recognized that this was inconsistent with
Nevada's evidentiary standard. Only after the court explained that Dr.
____________________

9
Id. at 835, 102 P.3d at 61.

10
Id.

11
Brown v. Capanna, 105 Nev. 665, 671-72, 782 P.2d 1299, 1304 (1989).

12
See, e.g., id. at 671-72, 782 P.2d at 1304 (recognizing that testimony regarding causation must conform to
the reasonable degree of medical probability standard); accord Fitzgerald v. Manning, 679 F.2d 341, 350 (4th
Cir. 1982) (in order to qualify on causation, the medical expert opinion cannot be stated in general terms but
must be stated in terms of a reasonable degree of medical certainty).

13
McMahon v. Young, 276 A.2d 534, 535 (Pa. 1971).
........................................
after the court explained that Dr. Schneck's testimony would be stricken unless he testified in
accordance with Nevada law, did he state that more likely than not an autoimmune response
was the most likely cause of the injuries. Dr. Schneck never stated his medical opinion to a
reasonable degree of medical probability, however.
Dr. Schneck's testimony was highly speculative and failed to meet the admissibility
standard. Therefore, we conclude that the district court abused its discretion in failing to
strike the testimony, and we reverse the district court's judgment and remand for a new trial
on the issues of causation, contributory negligence, and damages, if any.
____________
121 Nev. 159, 159 (2005) Viray v. State
BENJARDI BATUCAN VIRAY, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 42325
May 26, 2005 111 P.3d 1079
Appeal from a judgment of conviction, pursuant to a jury verdict, of six counts of
lewdness with a minor under the age of fourteen, four counts of sexual assault of a minor
under the age of fourteen, and two counts of preventing or dissuading a person from testifying
or producing evidence. Eighth Judicial District Court, Clark County; John S. McGroarty,
Judge.
The supreme court, Hardesty, J., held that: (1) defendant's substantial rights were not
prejudiced by trial court's decision to allow the State to amend information; (2) trial court has
discretion to remove a juror mid-trial for violation of the court's admonishment to jurors not
to talk among themselves or with anyone else on any subject connected with trial, rather than
declaring a mistrial; and (3) trial court did not abuse its discretion in removing and replacing
juror mid-trial who had admitted to violating admonishment given to jurors not to talk among
themselves or with anyone else on any subject connected with trial.
Affirmed.
Philip J. Kohn, Public Defender, and Craig F. Jorgenson, Chief Deputy Public Defender,
Clark County, for Appellant.
........................................
121 Nev. 159, 160 (2005) Viray v. State
1. Indictment and Information.
Decision to permit an indictment or information to be amended is within the trial
court's discretion. NRS 173.095(1).
A criminal defendant has a substantial and fundamental right to be informed of the
charges against him so that he can prepare an adequate defense.
An information must properly include a statement of the acts constituting the offense
in ordinary and concise language.
4. Criminal Law.
An inaccurate information does not prejudice defendant's substantial rights if the
defendant had notice of the State's theory of prosecution.
5. Criminal Law.
Defendant's substantial rights were not prejudiced by trial court's decision to allow
State to amend information, which charged defendant with numerous sexual offenses
involving a minor; original information alleged that victim sat on defendant's lap while
he massaged her legs and/or feet, but victim testified at preliminary hearing that
defendant forced her to massage his legs and feet, and information was amended to
conform to victim's testimony at hearing. NRS 173.095(1).
6. Jury.
A trial court has discretion to remove a juror mid-trial for violation of the court's
admonishment to jurors not to talk among themselves or with anyone else on any
subject connected with trial, rather than declaring a mistrial. NRS 175.401(1).
7. Jury.
In exercising its discretion to remove a juror mid-trial for violation of the court's
admonishment to jurors not to converse among themselves or with anyone else on
subject connected with trial, a trial court must conduct a hearing to determine if the
violation of the admonishment occurred and whether the misconduct is prejudicial to
the defendant. Prejudice requires an evaluation of the quality and character of the
misconduct, whether other jurors have been influenced by the discussion, and the extent
to which a juror who has committed misconduct can withhold any opinion until
deliberation. NRS 175.401(1).
8. Jury.
Trial court did not abuse its discretion in removing and replacing juror mid-trial who
had admitted to violating admonishment given to jurors not to talk among themselves
or with anyone else on any subject connected with trial, rather than declaring a mistrial;
trial court conducted hearing for each of two jurors involved in violating admonishment
outside presence of the other jurors, misconduct was established as to juror four when
he violated admonishment in his discussion of case with juror five, but juror five was
not influenced by discussion and could withhold any opinion until deliberations, and
thus mistrial was not warranted. NRS 16.080, 175.401(1).
........................................
121 Nev. 159, 161 (2005) Viray v. State
OPINION
Although it is clear that a district court must grant a mistrial in cases of prejudicial juror
misconduct,
1
on appeal we consider whether a juror can be removed mid-trial and
substituted by an alternate for violating the court's admonishment not to discuss the case
before deliberations.
Appellant Benjardi Batucan Viray contends that the district court erred by refusing to: (1)
grant a continuance when the State amended the information on the first day of trial, and (2)
order a mistrial instead of substituting an alternate juror mid-trial for a juror who violated the
court's admonishment not to discuss the case. Because we conclude the amendment to the
information simply corrected a transposition of peripheral facts and the district court utilized
the proper procedure for dismissing a juror during trial and appointing an alternate, we affirm
the judgment of conviction.
FACTS
The State filed a criminal complaint against Viray, accusing him of performing lewd acts
and sexually assaulting his live-in girlfriend's daughter. At the preliminary hearing, the victim
testified that, among other things, Viray forced her to massage his legs and feet. Following
the preliminary hearing, the State filed an information that alleged that the victim sat on
Viray's lap while he massaged her legs and/or feet. The inconsistency between the
information and the victim's testimony became apparent when Viray filed a pretrial petition
for a writ of habeas corpus. In its response to the writ petition, the State acknowledged the
error and proposed an amendment to conform the information to the victim's testimony at the
preliminary hearing. The writ was denied, but the State failed to amend the information until
the first day of trial. Viray sought a continuance, which the court denied.
On the fourth day of trial, the district court received a note from juror four expressing
reservations about his role as a juror and requesting to be released from his duties. The court
provided copies to both parties and read the note into the record.
Over Viray's objection, the court interviewed juror four. Juror four was escorted into the
courtroom, placed under oath and questioned by the court.
____________________

1
Lane v. State, 110 Nev. 1156, 1162, 881 P.2d 1358, 1363 (1994), vacated on other grounds on rehearing,
114 Nev. 299, 956 P.2d 88 (1998).
........................................
121 Nev. 159, 162 (2005) Viray v. State
tioned by the court. He confirmed the content of the note, expressed doubts about his ability
to participate, and explained that he had awakened in the middle of the night trying to figure
out how to form a solution that would not be disruptive for both parties in the case. During
the colloquy, the court asked if juror four had discussed this issue with anyone else. Juror four
confirmed that he had discussed his concerns with juror five who sat next to him on the jury
panel.
The district court then questioned juror five who confirmed a discussion with juror four;
however, juror five testified that their conversation was limited to juror four's doubts about
serving as a juror and the fact that he had a sleepless night thinking about a solution for the
case. Juror five stated that he had not made up his mind and would withhold personal
opinions about the case until it was finally submitted to the jury for deliberation.
Viray objected to the removal of juror four, or in the alternative, requested a mistrial. The
court excused juror four and replaced him with an alternate. Juror five was allowed to remain.
DISCUSSION
Amendment of information
Viray argues that the district court abused its discretion by allowing the State to amend the
information during the first day of trial, substantially prejudicing his rights. We disagree.
[Headnote 1]
NRS 173.095(1) states, The court may permit an indictment or information to be
amended at any time before verdict or finding if no additional or different offense is charged
and if substantial rights of the defendant are not prejudiced. Such a determination is within
the district court's discretion.
2

[Headnotes 2-4]
A criminal defendant has a substantial and fundamental right to be informed of the charges
against him so that he can prepare an adequate defense.
3
As a result, this court has held that
[t]he State is required to give adequate notice to the accused of the various theories of
prosecution.
4
An information must properly include a statement of the acts constituting the
offense in ordinary and concise language.
5
An inaccurate information does not prejudice a
defendant's substantial rights if the defendant had notice of the State's theory of
prosecution.
____________________

2
Green v. State, 94 Nev. 176, 177, 576 P.2d 1123, 1123 (1978).

3
Jennings v. State, 116 Nev. 488, 490, 998 P.2d 557, 559 (2000).

4
State v. Dist. Ct., 116 Nev. 374, 377, 997 P.2d 126, 129 (2000).

5
Jennings, 116 Nev. at 490, 998 P.2d at 559 (internal quotation marks and citations omitted); NRS
173.075(1).
........................................
121 Nev. 159, 163 (2005) Viray v. State
udice a defendant's substantial rights if the defendant had notice of the State's theory of
prosecution.
6

This court addressed the amendment of a criminal complaint during trial in Shannon v.
State.
7
In that case, the original complaint stated that Shannon had committed sexual assault
by inserting his penis into the mouth of a minor.
8
After the trial commenced, the State
amended the information to allege that the minor's penis was inserted into Shannon's mouth.
9
Despite a change in the factual sequence, this court concluded that the mid-trial amendment
did not affect the defendant's substantial rights and the charged offense remained the same.
10

[Headnote 5]
Here, Viray's substantial rights were not prejudiced, and the charges remained the same.
As the State proposed in its opposition to the pretrial habeas corpus petition, the information
was amended to conform to the victim's testimony at the preliminary hearing. The district
court did not abuse its discretion in allowing the State to amend the information and refusing
to continue the trial.
Juror removal
We take this opportunity to discuss the procedure for removing and replacing a juror who
has violated the district court's admonishment not to discuss the case at hand.
[Headnotes 6, 7]
Juror four was dismissed for violating the district court's admonishment under NRS
175.401(1), which states in pertinent part that at each adjournment, the judge must admonish
the jurors not to [c]onverse among themselves or with anyone else on any subject connected
with the trial. We have previously held that a district court must grant a mistrial in cases of
prejudicial juror misconduct.
11
We conclude today that a district court has discretion to
remove a juror mid-trial for violation of the court's admonishment rather than declaring a
mistrial. In exercising its discretion, a district court must conduct a hearing to determine if the
violation of the admonishment occurred and whether the misconduct is prejudicial to the
defendant. Prejudice requires an evaluation of the quality and character of the misconduct,
whether other jurors have been influenced by the discussion, and the extent to which a
juror who has committed misconduct can withhold any opinion until deliberation.
____________________

6
Dist. Ct., 116 Nev. at 378-79, 997 P.2d at 129; Koza v. State, 104 Nev. 262, 264, 756 P.2d 1184, 1185
(1988).

7
105 Nev. 782, 783 P.2d 942 (1989).

8
Id. at 785 n.2, 783 P.2d at 944 n.2.

9
Id. at 785, 783 P.2d at 944.

10
Id.

11
Lane, 110 Nev. at 1162, 881 P.2d at 1363.
........................................
121 Nev. 159, 164 (2005) Viray v. State
been influenced by the discussion, and the extent to which a juror who has committed
misconduct can withhold any opinion until deliberation.
NRS 16.080 provides for the discharge and replacement of jurors who are disqualified or
unable to perform their duties. The ability to replace a juror with an alternate is particularly
important before the juror's misconduct influences the other jurors or results in prejudice to
the defendant. Further, district courts can, under appropriate circumstances, replace a juror
with an alternate during deliberations instead of declaring a mistrial.
12

The California Supreme Court in People v. Daniels addressed the removal of a juror who
violated the admonishment not to discuss the case with others.
13
That court held removal
was proper because a juror who violates the admonishment to refrain from discussing the
case or reading newspaper accounts of the trial cannot be counted on to follow jury
instructions in the future.
14
A juror is obligated to follow directions, and a juror who is
unable to follow directions is unable to perform his or her duty as a juror.
15

[Headnote 8]
In this case, the district court conducted a hearing for each juror involved in violating the
admonishment outside the presence of the other jurors. Misconduct was established as to
juror four when he violated the admonishment in his discussion of the case with juror five.
However, juror five was not influenced by the discussion and could withhold any opinion
until deliberations. A mistrial was not required and the district court properly exercised its
discretion to remove and replace juror four.
CONCLUSION
We conclude the district court did not abuse its discretion by allowing the amendment to
the information during the first day of trial and refusing to grant a continuance. We further
conclude that the district court did not abuse its discretion by properly rejecting a motion for
mistrial and following the proper procedure to remove and replace a juror mid-trial for failure
to abide by the court's admonishment not to discuss the case with others. Accordingly, we
affirm the judgment of conviction.
____________________

12
Id.; McKenna v. State, 96 Nev. 811, 813, 618 P.2d 348, 349 (1980).

13
802 P.2d 906 (Cal. 1991).

14
Id. at 930.

15
People v. Williams, 21 P.3d 1209, 1213-14 (Cal. 2001).
____________
........................................
121 Nev. 165, 165 (2005) Foster v. State
TROY ANTHONY FOSTER, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 42749
May 26, 2005 111 P.3d 1083
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; Janet J. Berry, Judge.
Defendant, convicted of three counts of sexual assault, filed a post-conviction petition for
a writ of habeas corpus. The district court denied the petition. Defendant appealed. The
supreme court held that: (1) trial court did not abuse its discretion in finding that defense
counsel violated Batson, (2) trial court did not abuse its discretion in reseating one of the
women jurors who had been improperly peremptorily challenged by the defense, and (3)
defense counsel's conduct during trial did not constitute ineffective assistance.
Affirmed.
[Rehearing denied July 8, 2005]
Richard F. Cornell, Reno, for Appellant.
and Joseph R. Plater III, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
A claim of ineffective assistance of counsel presents a mixed question of law and
fact, subject to independent review. U.S. Const. amend. 6.
2. Criminal Law.
The key to evaluating an ineffective assistance of counsel claim is whether the
proper functioning of the adversarial process was so undermined by counsel's conduct
that the reviewing court cannot trust that the trial produced a just result.
3. Criminal Law.
In order to prevail on a claim of ineffective assistance of counsel, a claimant must
make two showings. First, the claimant must show that counsel's performance was
deficient, i.e., that counsel's representation fell below an objective standard of
reasonableness, and second, a claimant must show that counsel's deficient performance
prejudiced the defense. U.S. Const. amend. 6.
4. Criminal Law.
For purposes of deficient performance element of ineffective assistance of counsel
claim, the inquiry on review must be whether, in light of all the circumstances,
counsel's assistance was reasonable. U.S. Const. amend. 6.
5. Criminal Law.
For purposes of prejudice element of ineffective assistance of counsel claim, the
claimant must show that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different.
........................................
bility 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. U.S. Const. amend. 6.
6. Criminal Law.
Judicial review of defense counsel's representation is highly deferential. U.S. Const.
amend. 6.
7. Criminal Law.
To fairly assess defense counsel's performance, the reviewing court must try to avoid
the distorting effects of hindsight and evaluate the conduct under the circumstances and
from counsel's perspective at the time. U.S. Const. amend. 6.
8. Criminal Law.
A district court's purely factual findings regarding a claim of ineffective assistance of
counsel are entitled to deference on subsequent review by the supreme court. U.S.
Const. amend. 6.
9. Criminal Law.
The court need not consider both prongs of the Strickland test for ineffective
assistance of counsel if the petitioner makes an insufficient showing on either prong.
U.S. Const. amend. 6.
10. Criminal Law.
A defendant's constitutional right to effective assistance of counsel extends to a
direct appeal. U.S. Const. amend. 6.
11. Criminal Law.
The supreme court reviews claims of ineffective assistance of appellate counsel
under the Strickland test. In order to establish prejudice based on deficient assistance of
appellate counsel, the petitioner must show that the omitted issue would have had a
reasonable probability of success on appeal. U.S. Const. amend. 6.
12. Criminal Law.
Appellate counsel is not required to raise every non-frivolous or meritless issue to
provide effective assistance. U.S. Const. amend. 6.
13. Criminal Law.
Appellate counsel is entitled to make tactical decisions to limit the scope of an
appeal to issues that counsel feels have the highest probability of success. U.S. Const.
amend. 6.
14. Jury.
Trial court did not abuse its discretion in finding that defense counsel violated
Batson by engaging in a pattern of gender discriminatory strikes; counsel exercised
peremptory challenges to five women in the jury venire.
15. Jury.
It is impermissible to use a peremptory challenge to exclude a potential juror based
on race or gender.
16. Jury.
In determining whether peremptory challenges have been used in a discriminatory
manner, the complaining party must first make a prima facie showing of intentional
discrimination; next, the party accused of discriminatory challenges must offer a gender
or race-neutral explanation for striking the jurors; the trial court must then decide
whether the complaining party has carried his burden of proving purposeful
discrimination.
17. Jury.
Trial court did not abuse its discretion in reseating one of the women jurors who had
been improperly peremptorily challenged by the defense, as a remedy for the Batson
violation; trial court offered counsel the choice of starting over with an entirely new
venire, or of continuing with the same venire with the last woman juror reinstated
to the panel.
........................................
as a remedy for the Batson violation; trial court offered counsel the choice of starting
over with an entirely new venire, or of continuing with the same venire with the last
woman juror reinstated to the panel.
18. Jury.
Trial courts should assure that all peremptory challenges during jury selection are
exercised and considered outside the presence of the jury venire.
19. Criminal Law.
Defense counsel's decision not to provide more detailed evidence of the defense of
accidental anal penetration during sexual assault trial did not constitute ineffective
assistance; counsel could have reasonably concluded that the jury would have rejected
as improbable any claim that injuries as severe as the victim's resulted from accidental
contact. U.S. Const. amend. 6.
20. Criminal Law.
Defense counsel's decision not to seek a limiting instruction with respect to evidence
of pimping and prostitution as prior uncharged misconduct did not constitute
ineffective assistance; during a chambers conference at trial, counsel renewed his
objection to the prior uncharged misconduct evidence, but stated that he did not want to
draw the jurors' attention to that evidence by objecting in open court. U.S. Const.
amend. 6.
OPINION
Per Curiam:
In this appeal, we consider whether the district court properly denied appellant Troy
Anthony Foster's post-conviction petition for a writ of habeas corpus. Foster asserts a number
of claims of error in connection with that denial. Primarily, we address Foster's claim that his
Sixth Amendment right to the effective assistance of counsel was violated when his counsel
on direct appeal failed to assign any error with regard to the trial court's finding that defense
counsel violated Batson v. Kentucky.
1
During jury selection, the trial court sustained the
State's Batson objection to peremptory challenges exercised by defense counsel, ruling that
defense counsel had engaged in a pattern of gender discriminatory strikes. As a remedy for
the Batson violation, the trial court reseated one of the women jurors who had been
improperly peremptorily challenged by the defense.
____________________

1
476 U.S. 79 (1986) (holding that it is impermissible to use a peremptory challenge to exclude a potential
juror based on race). The term Batson challenge is often used generically to refer to discriminatory challenges
for gender, as well as race. The Batson decision addressed only race discrimination, but the holding of Batson
was expanded to include gender discrimination in the later case of J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127
(1994).
........................................
We conclude that the district court did not err in rejecting this and other claims presented
in Foster's post-conviction habeas petition below, and we therefore affirm the district court's
order denying Foster's petition. We nonetheless emphasize our strong preference that, in
future cases, the trial courts of this State should follow the American Bar Association
Standard recommending that all peremptory challenges to the jury venire should be exercised
outside the presence of the venire.
2

The State charged Foster by information with four counts of sexual assault and one count
of kidnapping. At his jury trial, testimony established that in December of 1997, while
driving the victim from Reno to Carson City, Foster turned off the road, stopped the car, and
sexually assaulted the victim. The victim testified clearly and unequivocally at trial that
Foster ordered her out of her clothes, assaulted her both anally and vaginally, and forced her
to perform oral sex. The victim also testified that Foster told her he was into prostitution
and wanted to pimp her out.
A friend of the victim testified that the victim was noticeably upset when Foster returned
her to her home in Carson City after the assault. The friend also testified that she observed
bite marks and bruises on the victim. A nurse specializing in sexual assault cases testified to
finding bite marks on the victim's breasts, bruises on her legs, neck, and breast, a swollen and
torn rectum, a bruised colon, and tears on the outside of her vagina. At the conclusion of the
trial, the jury found Foster guilty of three counts of sexual assault and acquitted him of one
count of sexual assault and one count of kidnapping.
Foster appealed his conviction to this court, enumerating five assignments of error.
3
This
court rejected those contentions and affirmed his conviction, concluding in part that the
evidence presented at trial was more than sufficient to sustain the jury's verdict.
4
Foster
then filed a timely post-conviction petition for a writ of habeas corpus in the district court,
claiming ineffective assistance of both trial and appellate counsel.
____________________

2
See ABA Standards for Criminal Justice: Discovery and Trial by Jury 15-2.7(a) (3d ed. 1996).

3
On direct appeal, Foster's appellate counsel argued: (1) there was insufficient evidence to support the
conviction, (2) the repeated canvass of Foster as to his right to testify impaired his ability to knowingly and
intentionally waive his right, (3) the trial court erred in not conducting a hearing into an incident where a juror
may have learned of Foster's in-custody status during trial, (4) an improper reasonable doubt jury instruction
impermissibly reduced the State's burden of proof, and (5) the trial court erred in not giving the two jury
instructions proffered by the defense.

4
Foster v. State, Docket No. 32872 (Order Dismissing Appeal, January 26, 2000).
........................................
writ of habeas corpus in the district court, claiming ineffective assistance of both trial and
appellate counsel. The district court appointed counsel to represent Foster and conducted an
evidentiary hearing. On January 28, 2004, the district court entered an order rejecting all of
Foster's claims and denying the petition. This appeal follows.
DISCUSSION
Standards of review
[Headnotes 1, 2]
A claim of ineffective assistance of counsel presents a mixed question of law and fact,
subject to independent review.
5
The key to evaluating an ineffectiveness claim is whether
the proper functioning of the adversarial process was so undermined by counsel's conduct that
the reviewing court cannot trust that the trial produced a just result.
6

[Headnotes 3, 4]
Under the test established in Strickland v. Washington,
7
in order to prevail on a claim of
ineffective assistance of counsel, a claimant must make two showings. First, [a claimant]
must show that counsel's performance was deficient,
8
i.e., that counsel's representation fell
below an objective standard of reasonableness.
9
The inquiry on review must be whether, in
light of all the circumstances, counsel's assistance was reasonable.
10
This court has recently
held that a habeas corpus petitioner must prove the disputed factual allegations underlying his
ineffective assistance of counsel claims by a preponderance of the evidence.
11

[Headnote 5]
Second, a claimant must show that counsel's deficient performance prejudiced the
defense.
12
Specifically, the claimant 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.
13

____________________

5
Evans v. State, 117 Nev. 609, 622, 28 P.3d 498, 508 (2001).

6
Strickland v. Washington, 466 U.S. 668, 686 (1984).

7
Id. at 687.

8
Id.

9
Evans, 117 Nev. at 622, 28 P.3d at 508.

10
Strickland, 466 U.S. at 688.

11
Means v. State, 120 Nev. 1001, 1012, 103 P.3d 25, 33 (2004).

12
Evans, 117 Nev. at 622, 28 P.3d at 508.

13
........................................
[Headnotes 6-9]
Judicial review of [counsel's] representation is highly deferential . . . .
14
To fairly assess
counsel's performance, [t]he reviewing court must try to avoid the distorting effects of
hindsight and evaluate the conduct under the circumstances and from counsel's perspective at
the time.
15
A district court's purely factual findings regarding a claim of ineffective
assistance of counsel are entitled to deference on subsequent review by this court.
16
In
addressing ineffective-assistance-of-counsel issues, this court has stated that a tactical
decision . . . is virtually unchallengeable absent extraordinary circumstances.'
17
Additionally, the court need not consider both prongs of the Strickland test if the petitioner
makes an insufficient showing on either prong.
18

[Headnotes 10-13]
A defendant's constitutional right to effective assistance of counsel extends to a direct
appeal.
19
This court reviews claims of ineffective assistance of appellate counsel under the
Strickland test; in order to establish prejudice based on deficient assistance of appellate
counsel, the petitioner must show that the omitted issue would have had a reasonable
probability of success on appeal.
20
Appellate counsel is not required to raise every
non-frivolous or meritless issue to provide effective assistance.
21
Appellate counsel is
entitled to make tactical decisions to limit the scope of an appeal to issues that counsel feels
have the highest probability of success.
22

Batson ruling and remedy
Foster contends that the district court erred in rejecting his claims that his trial counsel was
ineffective for failing to properly object to the trial court's Batson decision and remedy and
that his appellate counsel was ineffective for failing to assert any claims of error on appeal
with respect to the trial court's resolution of the Batson issue. We disagree.
____________________

14
Evans, 117 Nev. at 622, 28 P.3d at 508.

15
Id.

16
Lara v. State, 120 Nev. 177, 179, 87 P.3d 528, 530 (2004).

17
Doleman v. State, 112 Nev. 843, 848, 921 P.2d 278, 280-81 (1996) (quoting Howard v. State, 106 Nev.
713, 722, 800 P.2d 175, 180 (1990)).

18

19
Kirksey v. State, 112 Nev. 980, 998, 923 P.2d 1102, 1113 (1996).

20
Lara v. State, 120 Nev. 177, 183-84, 87 P.3d 528, 532 (2004) (citing Kirksey, 112 Nev. at 998, 923 P.2d at
1114).

21
Id. at 184, 87 P.3d at 533.

22
Id.
........................................
During jury selection, Foster's counsel exercised peremptory challenges to five women in
the jury venire, prompting a Batson challenge from the prosecutor. A hearing was held in
chambers outside the presence of the jury. After finding a pattern of gender discriminatory
strikes by defense counsel, the trial court considered reseating the last woman juror, the only
one of the challenged women remaining in the courthouse. After a discussion with counsel,
the judge announced that instead she would dismiss the entire venire and start jury selection
over.
Foster's counsel objected, stating he did not think it was fair to Foster to strike a venire that
included an African-American male, which in counsel's opinion was a rarity in that court.
Foster's counsel wanted the same venire, but he also did not want the last woman juror
reinstated, citing possible bias because the juror was aware that the defense had exercised a
peremptory challenge striking her from the panel. The trial court ruled that Foster's counsel
couldn't have it both ways, and gave the defense the option of either choosing an entirely
new venire, or utilizing the same venire with the woman juror at issue reseated with a
curative instruction. After consulting with Foster, defense counsel chose to keep the venire,
but preserved his objection to reinstating the woman juror on the record. The State concurred
with the decision to reinstate the juror instead of selecting an entirely new venire. It is not
clear from the record before this court if a curative instruction was ever given to the reseated
juror.
Counsel's response to the finding of purposeful discrimination
[Headnote 14]
The record clearly establishes that Foster's trial counsel did object to the trial court's
decision and remedy. Thus, Foster's claim that his trial counsel was ineffective for failing to
properly object to the trial court's decision is belied by the record. Moreover, we conclude
that Foster has failed to establish that the district court erred in finding a pattern of gender
discriminatory strikes against women in the venire or in reinstating the last juror as a remedy
for the Batson violation. Thus, Foster has failed to demonstrate prejudice sufficient to
establish that he is entitled to relief on his claims of ineffective assistance of trial counsel.
[Headnotes 15, 16]
It is impermissible to use a peremptory challenge to exclude a potential juror based on race
23
or gender.
24
In determining whether peremptory challenges have been used in a
discriminatory manner, the complaining party "must [first] make a prima facie showing of
intentional discrimination."
____________________

23
Batson v. Kentucky, 476 U.S. 79 (1986).

24
U.S. v. De Gross, 913 F.2d 1417 (9th Cir. 1990); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994);
Libby v. State, 115 Nev. 45, 975 P.2d 833 (1999).
........................................
peremptory challenges have been used in a discriminatory manner, the complaining party
must [first] make a prima facie showing of intentional discrimination.
25
Next, the party
accused of discriminatory challenges must offer a gender or race-neutral explanation for
striking the jurors.
26
The trial court must then decide whether the complaining party has
carried his burden of proving purposeful discrimination.
Our review of the record reveals that the trial court properly considered the State's Batson
challenge under this three-step analysis and conducted a thorough canvass of defense
counsel's reasons for striking the challenged women. Such findings are given great deference
on appeal,
27
and we discern no legal error or abuse of discretion in the trial court's finding of
purposeful discrimination. Thus, Foster has not shown the prejudice necessary to establish
any entitlement to relief on his claims relating to his appellate counsel's failure to challenge
the trial court's finding of discrimination; such a challenge would not have had a reasonable
probability of success on appeal.
The decision to reinstate the juror
[Headnote 17]
This court has not previously addressed the appropriate remedy for a Batson violation, and
we decline to engage in a comprehensive analysis of that issue in the context of this
post-conviction appeal. We address the merits of the trial court's decision to reinstate the
juror in question here solely for the purpose of determining whether Foster can demonstrate
the prejudice necessary to establish that he is entitled to relief on his claim of ineffective
assistance of appellate counsel. In so doing, we conclude that, under the singular facts and
circumstances of this case, the trial court did not err in reinstating the challenged juror as an
appropriate remedy. We reserve for another more appropriate case a more definitive decision
of what remedy may best serve to vindicate in Nevada courts the multiple interests that
Batson protects.
28

____________________

25
Walker v. State, 113 Nev. 853, 867, 944 P.2d 762, 771 (1997) (citing Batson, 476 U.S. at 96).

26
Id. (citing Hernandez v. New York, 500 U.S. 352, 360 (1991) (plurality opinion) (At this step of the
inquiry, the issue is the facial validity of the [accused party's] explanation.)).

27
Id. at 867-68, 944 P.2d at 771-72.

28
The holding in Batson serves to protect three interests that are threatened by discriminatory jury selection:
(1) the defendant's right to equal protection, (2) the excluded juror's equal protection rights, and (3) the public's
confidence in the fairness of our system of justice. 476 U.S. at 86-87.
........................................
The Batson decision expressly left to state courts how best to implement its holding. It
expressed no view:
whether it is more appropriate in a particular case, upon a finding of discrimination . . .
, for the trial court to discharge the venire and select a new jury from a panel not
previously associated with the case, or to disallow the discriminatory challenges and
resume selection with the improperly challenged jurors reinstated on the venire.
29

In implementing Batson, the states have generally followed one of three different approaches.
30
Some jurisdictions require the trial courts to disallow a peremptory strike made in violation
of Batson or to reseat the improperly stricken juror.
31
Other jurisdictions require the trial
courts to discharge the venire and commence jury selection anew from an entirely new venire.
32
The majority of courts, however, have delegated to the discretion of the trial judge the
determination of the appropriate remedy for a Batson violation.
33
Thus, the remedy that the
trial court selected in Foster's case has been held to be an appropriate means of addressing a
Batson violation in other jurisdictions.
34

In the instant case, the trial court offered counsel the choice of starting over with an
entirely new venire, or of continuing with the same venire with the last woman juror
reinstated to the panel. Trial counsel's objection to the first option, made after consultation
with his client, was in the nature of a tactical decision, and this court will not second-guess
counsel's strategic decision. As for the trial court's ultimate decision to reinstate the
challenged juror, Foster failed to demonstrate in the post-conviction proceedings below that
merely because the juror at issue was aware that the defense had exercised a peremptory
challenge against her, she harbored any animus or bias towards the defense.
____________________

29
Id. at 99-100 n.24 (citations omitted).

30
See Jones v. State, 683 A.2d 520, 525 (Md. 1996) (affirming a trial court's decision to reseat jurors
improperly challenged by the defense and providing a comprehensive review of the remedies applied in other
jurisdictions).

31
Id.

32
Id.

33
Id.

34
See, e.g., Jones, 683 A.2d 520 (concluding that reseating improperly challenged jurors was an appropriate
remedy for a Batson violation committed by defense counsel). Notably, in the instant case, the district court
relied on the California Supreme Court decision in People v. Willis, 43 P.3d 130, 137 (Cal. 2002), which held
that such action is a permissible remedy to a successful Batson challenge. Following Willis, the California Court
of Appeals affirmed a trial court's decision to reseat an improperly challenged juror. The court of appeals held
that such an alternative remedy is only proper when the conventional remedy of dismissing the entire venire
serves only to reward the offending party, and when the complaining party assents. People v. Overby, 22 Cal.
Rptr. 3d 233, 236 (Ct. App. 2004).
........................................
below that merely because the juror at issue was aware that the defense had exercised a
peremptory challenge against her, she harbored any animus or bias towards the defense.
As the district court found in its order denying Foster's post-conviction claims, [t]here is
nothing in the record to suggest that the female juror who was peremptorily challenged and
ultimately retained on the panel exhibited any bias or prejudice for or against either party.
The district court also observed that the trial court proceedings involving the Batson
challenge were conducted outside the presence of the venire, and the juror at issue was
instructed merely to wait while the court addressed some procedural issues. Further, the
trial court provided general instructions to the venire as to how challenges were made and
subsequently admonished the empanelled jury repeatedly to keep an open mind and to not
form or express any opinion on the case. In sum, we conclude that, under the particular
circumstances of this case, the reinstatement of the juror in question did not offend Foster's
rights under the United States or Nevada Constitutions. Thus, Foster has not established the
prejudice necessary to entitle him to relief on his claim that his appellate counsel was
ineffective for failing to assign error on direct appeal with respect the trial court's resolution
of the Batson issues; such assignments of error would not have had a reasonable chance of
success on appeal.
[Headnote 18]
We emphasize, however, our strong preference that in accordance with the American Bar
Association Standards, the trial courts of this state should assure that all peremptory
challenges during jury selection are exercised and considered outside the presence of the jury
venire.
35
Additionally, if a juror in such a situation is reseated and a curative instruction is
requested, that curative instruction should be given on the record for purposes of review.
Defense theory of accidental anal penetration
[Headnote 19]
Foster claims his trial counsel was ineffective for not investigating and providing more
detailed evidence of the defense of accidental anal penetration.
____________________

35
Standard 15-2.7(a) of the ABA Standards for Criminal Justice: Discovery and Trial by Jury provides:
All challenges . . . should be addressed to the court outside of the presence of the jury, in a manner so that
the jury panel is not aware of the nature of the challenge, the party making the challenge, or the basis of
the court's ruling on the challenge.
As the commentary to this standard suggests, such a procedure avoids any potential risk that counsel's remarks
may offend the challenged juror.
........................................
anal penetration. Foster also claims in this respect that his counsel was deficient for not using
photos of the car, as well as Foster's own testimony, to effectively rebut the victim's version
of events. Foster's arguments are based on the flawed premise that the only reasonable
defense theory was accidental anal penetration. We conclude that defense counsel's tactical,
strategic decisions in these respects were not unreasonable. Defense counsel could have
reasonably concluded that the jury would have rejected as improbable any claim that injuries
as severe as the victim's resulted from accidental contact. Instead, defense counsel reasonably
elected to present evidence supporting the defense theory that the victim consented.
Trial counsel's advice that Foster not testify
Foster asserts that the district court erred in rejecting his claim that trial counsel was
ineffective in urging Foster to waive his Sixth Amendment right to testify. We disagree.
Near the end of the four-day trial, the trial court canvassed Foster to assure that he
understood his constitutional rights to testify or not. Foster asked for more time to decide.
The judge allowed Foster to consider the matter overnight. The following day, outside the
presence of the jury, defense counsel told the court that Foster had decided to testify against
the advice of counsel. The judge once again canvassed Foster, who indicated he understood
his rights. Just before the jury was brought in, Foster's counsel told the judge that Foster had
changed his mind and would not testify. Once again Foster was canvassed. Defense counsel
was granted a five-minute recess to discuss the situation with Foster. After the recess, Foster
advised the court that his decision was not to testify.
In rejecting Foster's claim on direct appeal that the repeated canvassing conducted by the
district court impaired his ability to knowingly and intentionally waive his right to testify, this
court observed that both the district court and defense counsel exhibited patience and
caution in dealing with Foster's decision whether to exercise his right to testify.
36
We
further concluded that neither the district court nor defense counsel influenced Foster's
decision.
37
Our holding in this respect is the law of the case.
38
Foster was fully informed
regarding his rights and his decision not to testify was his and his alone. Under these
circumstances, where Foster elected of his own volition not to testify, he cannot be heard to
complain that his counsel was ineffective in this respect.
____________________

36
Foster v. State, Docket No. 32872 (Order Dismissing Appeal, January 26, 2000).

37
Id.

38
Hall v. State, 91 Nev. 314, 535 P.2d 797 (1975).
........................................
In addition, we note that had Foster testified, he would have been subject to potentially
damaging cross-examination by the State with respect to his prior felony conviction and his
involvement in pimping and prostitution. Moreover, given the implausibility of Foster's claim
of accidental anal penetration, counsel could have reasonably concluded as a tactical matter
that Foster's testimony would have been more harmful than helpful. We therefore conclude
that the district court properly rejected this claim.
Theory of the case jury instruction
Foster claims that his trial counsel was ineffective for failure to seek a proper theory of the
case jury instruction on reasonable mistake of fact as to consent. In fact, Foster's trial
counsel proposed such an instruction.
39
The district court did not accept the instruction,
however, finding instead that other instructions adequately instructed the jury on this issue.
This court affirmed the district court's ruling in Foster's direct appeal, and the decision on that
point is the law of this case.
40
Thus, Foster cannot demonstrate prejudice, i.e., that but for
counsel's alleged error, the result of the trial would have been different. Moreover, the record
demonstrates that Foster's counsel made reasonable efforts to include theory of the case jury
instructions, and as such, his performance did not fall below an objective standard of
reasonableness. Accordingly, the district court did not err in rejecting this claim.
Prior uncharged misconduct
[Headnote 20]
Prior to trial, counsel for Foster moved to have witness statements about Foster's alleged
ties to prostitution excluded. The district court denied the motion, citing to NRS 48.035 and
finding the evidence to be admissible because it was significantly intertwined with the facts
that formed the basis of the alleged crime.
41

In his post-conviction petition, Foster claimed that his trial counsel was ineffective for not
requesting a limiting instruction respecting the evidence of pimping and prostitution as prior
uncharged misconduct.
____________________

39
The tendered instruction read as follows: If you the jury decide that it was reasonable, from the point of
view of Mr. Foster, to conclude that [the victim] had manifested consent, you must find him not guilty.

40
Hall v. State, 91 Nev. 314, 535 P.2d 797 (1975).

41
NRS 48.035(3) provides:
Evidence of another act or crime which is so closely related to an act in controversy or a crime charged
that an ordinary witness cannot describe the 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.
........................................
charged misconduct. Foster further claimed that his appellate counsel was ineffective for
failing to challenge on appeal the district court's ruling admitting this evidence.
Foster's trial pre-dated our recent decision in Tavares v. State, which held that a limiting
instruction is required unless the defense declines such an instruction for strategic purposes.
42
Prior to Tavares, unless requested by the defense, no limiting instruction was required absent
exceptional circumstances.
43
This court found such exceptional circumstances in Meek v.
State,
44
where the prosecution in a sexual assault trial presented the testimony of the victim
of a prior uncharged sexual assault by the defendant.
45
This court held that the district court
erred by failing to conduct a Petrocelli hearing, erred in admitting the evidence absent clear
and convincing evidence of its veracity, and erred in failing to give a jury instruction as to the
proper, limited use of the testimony.
46

Foster cites Freeman v. Class
47
for the proposition that counsel's failure to request an
appropriate instruction is deficient conduct and is prejudicial where the evidence of guilt is
not overwhelming. But in Freeman, as in Meek, the evidence admitted without a cautionary
instruction was the central evidence in convicting the defendant.
48

Here, the decision of Foster's counsel not to seek a limiting instruction was a tactical one.
The record shows that during a chambers conference at trial, Foster's counsel renewed his
objection to the prior uncharged misconduct evidence and stated that he did not want to draw
the jurors' attention to that evidence by objecting in open court. That objection was made to
preserve Foster's right to appeal the court's decision on the motion in limine. Certainly
defense counsel had a right to request a limiting instruction, but there was no requirement that
such an instruction be given absent a request by counsel.
49
We conclude that declining to
request a limiting instruction here was a reasonable tactical decision by counsel and did
not fall below an objective standard of reasonableness.
____________________

42
117 Nev. 725, 731, 30 P.3d 1128, 1132 (2001).

43
Champion v. State, 87 Nev. 542, 490 P.2d 1056 (1971) (plain error to not give limiting instruction, where
testimony by addict-informer was central to case against defendant, even though not requested by defense
counsel).

44
112 Nev. 1288, 930 P.2d 1104 (1996).

45
Id. at 1291-92, 930 P.2d at 1106.

46
Id. at 1295, 930 P.2d at 1109.

47
95 F.3d 639, 641-42 (8th Cir. 1996).

48
In Freeman, the prosecution dropped stolen car charges in exchange for the testimony of a codefendant.
Under state law, such testimony entitled the defendant to instructions on both corroborating evidence and
accomplice testimony. The court found that defense counsel's failure to request such instructions was highly
prejudicial to the petitioner and there was a strong probability that the result of the trial would have been
different had the jury been properly instructed. Id.

49
See NRS 48.035(3).
........................................
ing instruction here was a reasonable tactical decision by counsel and did not fall below an
objective standard of reasonableness. Further, Foster has not shown any prejudice from the
lack of a limiting instruction. There was abundant evidence of guilt, apart from the evidence
of Foster's prior uncharged misconduct, and the evidence of prior misconduct was not central
to the jury's finding of guilt. Given all the evidence, there is not a reasonable probability that
the result of the proceeding would have been different even if a limiting instruction had been
given.
Similarly, we conclude that Foster did not demonstrate prejudice resulting from appellate
counsel's decision to omit any issues on appeal relating to the admission of this evidence.
Given the other abundant evidence of Foster's guilt, such issues would not have had a
reasonable probability of establishing reversible error. The district court did not err in
rejecting these claims.
Psychosexual reports
At the sentencing hearing, the trial court acknowledged receipt of a psychosexual
evaluation attached to a presentence investigation report by the Division of Parole and
Probation, as well as a second psychosexual evaluation provided by the defense. Foster told
the court he had asked to participate in the evaluations, against the advice of counsel. Also
against the advice of counsel, Foster had requested the evaluations be provided to the court.
Foster was sentenced to serve three consecutive terms of life with the possibility of parole.
Foster argues his trial counsel was ineffective for failing to move for exclusion of the
psychosexual reports introduced at sentencing. However, Foster himself testified that, against
the advice of counsel, he insisted on participating in both evaluations, and in having both
reports provided to the trial court. Under these circumstances, Foster will not be heard to
complain about his trial counsel's performance. Additionally, at the sentencing hearing,
Foster's counsel attempted to portray Foster's insistence on participating in the evaluations
and having them submitted to the court in a positive light, speaking to Foster's openness and
willingness to cooperate with the court. The district court did not err in rejecting this claim.
CONCLUSION
Foster's contentions that the district court erred in rejecting his claims of ineffective
assistance of trial and appellate counsel are without merit. Therefore, we affirm the order of
the district court denying Foster's post-conviction petition.
____________
........................................
121 Nev. 179, 179 (2005) Mitchell v. Clark County Sch. Dist.
JULIE MITCHELL, Appellant, v. CLARK COUNTY
SCHOOL DISTRICT, Respondent.
No. 40999
May 26, 2005 111 P.3d 1104
compensation case. Eighth Judicial District Court, Clark County; Michelle Leavitt, Judge.
The supreme court, Parraguirre, J., held that: (1) there was no evidence that staircase
caused claimant's unexplained fall, (2) court declined to adopt positional-risk test, and (3)
claimant could not recover benefits under theory that staircase exacerbated her injuries.
Affirmed.
[En banc reconsideration denied September 7, 2005]
James P. Kemp, Las Vegas, for Appellant.
Carrie S. Bourdeau, Assistant General Counsel, and Africa A. Sanchez, Deputy Assistant
General Counsel, Las Vegas, for Respondent.
The supreme court reviews an administrative body's decision for clear error or an
arbitrary abuse of discretion.
The supreme court will not disturb an agency's factual findings that are supported by
There was no evidence that staircase caused workers' compensation claimant's
unexplained fall down staircase, such that fall arose out of her employment and she
could obtain workers' compensation benefits, even though she did not have any health
problems predisposing her to fall; evidence showed that she started to fall before
reaching staircase and that her momentum carried her forward and down the stairs.
NRS 616C.150(1).
The supreme court declined to adopt positional-risk test, which reduces a workers'
compensation claimant's burden and requires only a showing that the claimant sustained
an injury on the job, as test was incompatible with the Nevada Industrial Insurance Act,
which places the burden on the claimant to show, by a preponderance of the evidence,
that the injury arose out of and in the course of the employment. NRS 616C.150(1).
........................................
Under the positional-risk test, the administrative tribunal must resolve whether the
workers' compensation claimant would have been injured but for the fact that the
conditions and obligations of the employment placed the claimant in the position where
he was injured.
An injury arises out of employment under a positional-risk analysis even if the
only connection of the employment with the injury is that its obligations placed the
employee in the particular place at the particular time when he or she was injured by
some neutral force; the term neutral means that the cause of the injury was not
attributable to some condition personal to the claimant or distinctly associated with the
employment.
Workers' compensation claimant could not recover benefits under theory that
staircase, which was not a dangerous condition that caused claimant's unexplained fall,
exacerbated claimant's injuries from the fall; staircase was not peculiar to claimant's
employment, nor was it related to the cause of the injury. NRS 616C.150.
Noncompensable injuries having no causal connection with the employment do not
become compensable when they are exacerbated by workplace conditions that are
neither peculiar to employment nor related to the cause of the injury in the first place.
OPINION
By the Court, Parraguirre, J.:
In this appeal, we consider whether to modify our holding in Rio Suite Hotel & Casino v.
Gorsky,
1
which requires a workers' compensation claimant to prove a causal connection
between a workplace injury and the workplace environment.
2
In this, appellant urges this
court to adopt a less stringent positional-risk test for compensation under the Nevada
Industrial Insurance Act (NIIA).
3

Appellant Julie Mitchell, a Clark County classroom teacher, inexplicably fell down a flight
of stairs while at work. She could not identify any foreign material on the floor that caused
her to fall. Rather, she stated that one moment she was walking toward the staircase, and the
next moment she was falling down the stairs.
____________________

1
113 Nev. 600, 939 P.2d 1043 (1997).

2
See NRS 616C.150(1).

3
NRS Chapters 616A to 616D, inclusive.
........................................
staircase, and the next moment she was falling down the stairs. Mitchell hit her head and
sustained a broken collarbone, abrasions and bruises to her face. A physician concluded that
the injury was work-related and found no evidence of contributing preexisting conditions or
of drug or alcohol use. Nevertheless, respondent Clark County School District denied
Mitchell's subsequent workers' compensation claim. Mitchell administratively appealed, and
ultimately, the appeals officer, based upon Gorsky, upheld the school district's denial of
benefits. The district court denied Mitchell's subsequent petition for judicial review. Mitchell
appeals.
DISCUSSION
[Headnotes 1-3]
This court review[s] an administrative body's decision for clear error or an arbitrary abuse
of discretion.
4
This court will not disturb an agency's factual findings that are supported by
5
However, [q]uestions of law are reviewed de novo.
6

[Headnote 4]
NRS 616C.150(1) provides that an injured employee is not entitled to receive workers'
compensation unless the employee . . . establish[es] by a preponderance of the evidence that
the employee's injury arose out of and in the course of his employment. The parties do not
dispute that Mitchell's fall occurred during the course of her employment. Instead, they focus
on whether Mitchell's fall arose out of her employment. Mitchell argues that, because her
fall was unexplained rather than the result of an idiopathic reason personal to her, such as
epilepsy or an irregular gait,
7
and because staircases are inherently dangerous, her fall arose
out of her employment, and she is entitled to workers' compensation benefits.
Rio Suite Hotel & Casino v. Gorsky
8
involved injuries suffered by an employee at work
from a fall that occurred while walking on a flat surface.
____________________

4
Construction Indus. v. Chalue, 119 Nev. 348, 352, 74 P.3d 595, 597 (2003).

5
Bullock v. Pinnacle Risk Mgmt., 113 Nev. 1385, 1388, 951 P.2d 1036, 1038 (1997).

6
Id.

7
An unexplained fall, originating neither from employment conditions nor from conditions personal to the
claimant, is considered to be caused by a neutral risk, while a fall caused by the claimant's personal condition is
deemed idiopathic. Builders Square, Inc. v. Industrial Com'n, 791 N.E.2d 1308, 1311 (Ill. App. Ct. 2003).

8
113 Nev. 600, 939 P.2d 1043 (1997).
........................................
a flat surface. In that context, we interpreted the phrase arising out of employment as
requiring a causal connection between the injury and the employee's work, in which the
origin of the injury is related to some risk involved within the scope of employment.
9
We
noted that the statute's language made it clear that the Nevada Industrial Insurance Act was
not intended to make employers absolutely liable for any injury that might happen while an
employee was working, but rather required a claimant to establish more than merely being at
work and suffering an injury in order to recover.
10
As the cause of the Gorsky employee's
fall was the employee's medical condition and not any external force or foreign substance in
the hallway, the employee was unable to show that his injuries were in any way related to an
employment risk. Accordingly, as his injuries were not caused by his work and did not arise
out of employment, the Gorsky employee was not entitled to workers' compensation.
11

Mitchell attempts to distinguish Gorsky based upon the fact that Gorsky's injuries resulted
from a preexisting medical condition, whereas Mitchell had no health problems predisposing
her to fall. This argument is misplaced. Our interpretation of NRS 616C.150(1) in Gorsky
does not focus on whether conditions personal to the claimant caused an injury, but on
whether the cause of an injury is sufficiently connected to a risk of employment. Here,
Mitchell could not explain the cause of her fall. Further, the record showed that she started to
fall even before reaching the staircase and that her momentum carried her forward and down
the stairs. Hence, the staircase, while arguably more inherently dangerous than a flat hallway,
did not cause Mitchell's fall. Because Mitchell was unable to show a causal connection
between her fall and workplace conditions, under Gorsky, the appeals officer properly
concluded that Mitchell's injury did not arise from her employment.
[Headnotes 5-7]
Mitchell further argues that we should modify Gorsky by adopting a positional-risk test
for compensability. Under this test, embraced by a growing number of jurisdictions, the
administrative tribunal must resolve whether the claimant would have been injured but for
the fact that the conditions and obligations of the employment placed [the] claimant in the
position where he was injured.
12
An injury arises out of employment under a positional-risk
analysis, even if "the only connection of the employment with the injury is that its
obligations placed the employee in the particular place at the particular time when he or
she was injured by some neutral force."
____________________

9
Id. at 604, 939 P.2d at 1046.

10
Id. at 605, 939 P.2d at 1046.

11
Id.

12
1 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law 3.05, at 3-6 (2004).
........................................
sis, even if the only connection of the employment with the injury is that its obligations
placed the employee in the particular place at the particular time when he or she was injured
by some neutral force.
13
The term neutral means that the cause of the injury was not
attributable to some condition personal to the claimant [or] distinctly associated with the
employment.
14

We conclude that a positional-risk test is incompatible with the Nevada Industrial
Insurance Act. As we recognized in Gorsky, NRS 616C.150 imposes the burden on the
claimant to show, by a preponderance of the evidence, that the injury arose out of and in the
course of the employment. Because the positional-risk test reduces the claimant's burden and
requires only a showing that the claimant sustained an injury on the job, it directly
contravenes the language of NRS 616C.150.
Moreover, although the positional-risk test is consistent with a liberal statutory
construction favoring the claimant in workers' compensation claims, NRS 616A.010(2)
specifically abrogates the common-law requirement that workers' compensation statutes be
construed liberally because they are remedial in nature. Instead, NRS 616A.010(4) requires a
neutral interpretation of the workers' compensation laws. Therefore, we decline to adopt the
positional-risk test in Nevada and conclude that the appeals officer and district court properly
applied the Gorsky holding to Mitchell's case.
[Headnotes 8, 9]
Finally, Mitchell argues that, even if the staircase did not cause her fall, her injuries are
compensable if the staircase constituted a dangerous condition that exacerbated her injuries.
Several jurisdictions have held that, when some factor peculiar to the employment
contributed to an injury from a fall, the injury is compensable even if the fall had an
idiopathic origin.
15
When the fall is from neutral causes, rather than from the claimant's own
condition, a stronger argument may be made that employment conditions that contribute to or
aggravate the injury should be compensable.
16
However, many of the jurisdictions that allow
compensation for injuries sustained in an unexplained fall do so by applying a presumption
that the injury arose out of the employment.
____________________

13
Id.

14
Id.

15
See Koehler Elec. v. Wills, 608 N.W.2d 1, 2, 5 (Iowa 2000); Flanner v. Tulsa Public Schools, 41 P.3d 972,
976 (Okla. 2002).

16
See, e.g., Circle K Store No. 1131 v. Indus. Com'n, 796 P.2d 893, 898 (Ariz. 1990); Milledge v. Oaks, 784
N.E.2d 926, 930 (Ind. 2003); Logsdon v. ISCO Co., 618 N.W.2d 667, 674 (Neb. 2000); Rackley v. Coastal
Painting, 570 S.E.2d 121, 124 (N.C. Ct. App. 2002); Turner v. B Sew Inn, 18 P.3d 1070, 1076 (Okla. 2000).
........................................
sumption that the injury arose out of the employment. These jurisdictions also generally have
adopted the positional-risk test.
17
As we reject the positional-risk test, we likewise reject the
proposition that noncompensable injuries having no causal connection with the employment
become compensable when they are exacerbated by workplace conditions that are neither
peculiar to employment nor related to the cause of the injury in the first place. Here,
Mitchell's work environment did not cause her to fall, and the staircase did not make her
workplace conditions any different from or any more dangerous than those a member of the
general public could expect to confront in a non-work setting.
18
A rule allowing her to
obtain compensation for any exacerbation would, in effect, abrogate the causal connection
requirement outlined above.
CONCLUSION
Because we decline Mitchell's invitation to adopt a positional-risk test, we conclude that
the appeals officer's decision to deny compensation was not arbitrary and capricious. We
therefore affirm the judgment below.
Maupin and Douglas, JJ., concur.
____________
121 Nev. 184, 184 (2005) Rosky v. State
JOHN ROSKY, Appellant, v. THE STATE OF NEVADA,
Respondent.
No. 41566
May 26, 2005 111 P.3d 690
Appeal from a judgment of conviction, entered upon jury verdicts, of one count of sexual
assault and one count of indecent exposure. Second Judicial District Court, Washoe County;
Steven P. Elliott, Judge.
The supreme court, Maupin, J., held that: (1) review of trial court's determinations as to
whether defendant was in custody for Miranda purposes and voluntariness of defendant's
statements requires two-step analysis, overruling Allan v. State, 118 Nev. 19, 38 P.3d 175
(2002); Proferes v. State, 116 Nev. 1136, 13 P.3d 955 (2000); Mitchell v. State, 114 Nev.
1417, 971 P.2d 813 (1998); and Alward v. State, 112 Nev. 141, 912 P.2d 243 (1996); (2)
defendant was not in custody for Miranda purposes when he admitted to having consensual
sex with minor; {3) defendant's pre-arrest statements to police were voluntarily given;
{4) admission of prior bad acts evidencethat defendant had fondled and digitally
penetrated a 12-year-old girlas evidence of a common scheme or plan, was abuse of
discretion; {5) admission of this prior bad acts evidence as evidence of modus operandi
was abuse of discretion; {6) errors concerning improper admission of prior bad acts
evidence were harmless with respect to conviction for indecent exposure; {7) errors
concerning improper admission of prior bad acts evidence were not harmless with respect
to conviction for sexual assault; and {S) flight instruction was proper.
____________________

17
See Circle K, 796 P.2d at 898; Milledge, 784 N.E.2d at 931-32; Logsdon, 618 N.W.2d at 674; Turner, 18
P.3d at 1076.

18
Abel v. Mike Russell's Standard Service, 924 S.W.2d 502, 504 (Mo. 1996).
........................................
121 Nev. 184, 185 (2005) Rosky v. State
ing consensual sex with minor; (3) defendant's pre-arrest statements to police were
voluntarily given; (4) admission of prior bad acts evidencethat defendant had fondled and
digitally penetrated a 12-year-old girlas evidence of a common scheme or plan, was abuse
of discretion; (5) admission of this prior bad acts evidence as evidence of modus operandi
was abuse of discretion; (6) errors concerning improper admission of prior bad acts evidence
were harmless with respect to conviction for indecent exposure; (7) errors concerning
improper admission of prior bad acts evidence were not harmless with respect to conviction
for sexual assault; and (8) flight instruction was proper.
Affirmed in part, reversed in part and remanded.
Kay Ellen Armstrong, Carson City, for Appellant.
and Joseph R. Plater III, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Trial court's determinations as to whether defendant was in custody for Miranda
purposes and voluntariness of defendant's statements present mixed questions of law
and fact subject to supreme court's de novo review.
2. Criminal Law.
Review of trial court's determinations as to whether defendant was in custody for
Miranda purposes and voluntariness of defendant's statements requires two-step
analysis; trial court's purely historical factual findings pertaining to the scene and
action setting circumstances surrounding an interrogation are entitled to deference and
will be reviewed for clear error, but trial court's ultimate determination of whether a
person was in custody and whether a statement was voluntary will be reviewed de novo,
overruling Allan v. State, 118 Nev. 19, 38 P.3d 175 (2002); Proferes v. State, 116 Nev.
1136, 13 P.3d 955 (2000); Mitchell v. State, 114 Nev. 1417, 971 P.2d 813 (1998); and
Alward v. State, 112 Nev. 141, 912 P.2d 243 (1996).
3. Criminal Law.
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. U.S. Const. amend. 5.
4. Criminal Law.
Custody for Miranda purposes means a formal arrest or restraint on freedom of
movement of the degree associated with a formal arrest; if there is no formal arrest, the
pertinent inquiry is whether a reasonable person in the suspect's position would feel at
liberty to terminate the interrogation and leave, which inquiry must be answered by
taking an objective look at all circumstances surrounding the interrogation.
5. Criminal Law.
Factors pertinent in determining whether defendant was in custody for Miranda
purposes include site of interrogation, whether investigation focused on suspect,
whether objective indicia of arrest were present, and length and form of
questioning; no one factor is dispositive.
........................................
121 Nev. 184, 186 (2005) Rosky v. State
tigation focused on suspect, whether objective indicia of arrest were present, and length
and form of questioning; no one factor is dispositive.
6. Criminal Law.
Defendant was not in custody for Miranda purposes when he admitted to having
consensual sex with minor; defendant was not under formal arrest during interrogation
and detectives informed him that his participation was voluntary, and that he was free
to leave at any time, defendant was not handcuffed, could have moved freely about
during questioning and voluntarily responded to the inquiries, defendant took
unaccompanied ten-minute break outside of station at detective's suggestion, and
review of videotaped statement revealed no use of strong arm or impermissibly
coercive tactics.
7. Criminal Law.
Unlike the objective custody analysis to determine whether accused was in custody
for Miranda purposes, the voluntariness analysis involves a subjective element as it
logically depends on the accused's characteristics; in this context, the prosecution has
the burden of proving by a preponderance of the evidence that the statement was
voluntary, i.e., that defendant's will was not overborne.
8. Criminal Law.
A confession is involuntary if it was coerced by physical intimidation or
psychological pressure.
9. Criminal Law.
Several factors are relevant in deciding whether a suspect's statements are voluntary:
the youth of the accused, his lack of education or his low intelligence, lack of any
advice of constitutional rights, length of detention, repeated and prolonged nature of
questioning, use of physical punishment such as the deprivation of food or sleep, and
suspect's prior experience with law enforcement.
10. Criminal Law.
Defendant's pre-arrest statements to police were voluntarily given based on
circumstances: when asked if he was too intoxicated to be interviewed, defendant
clearly stated, [O]h yeah, I'm coherent, I'm fine; slight subterfuges used to elicit
confession were appropriate; and videotape of interrogation indicated that defendant
tried to deflect accusations, clearly attempted to use semantic dodges to mislead
detectives, and ultimately, albeit reluctantly, voluntarily admitted to consensual sexual
misconduct with minor.
11. Criminal Law.
Videotaped interview of defendant by police was admissible, in prosecution for
sexual assault and indecent exposure, because defendant was not in custody for
Miranda purposes when he gave statement to police, and defendant's confession during
interrogation was voluntary.
12. Criminal Law.
Evidence of prior bad acts is not admissible to prove the character of a person in
order to show that he acted in conformity therewith; however, prior bad act evidence
may be admissible for other purposes, such as to show motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident. NRS
48.045(2).
13. Criminal Law.
The improper admission of bad act evidence is common grounds for reversal. NRS
48.045(2).
14. Criminal Law.
A presumption of inadmissibility attaches to all prior bad act evidence. To overcome
the presumption, the prosecutor must request a hearing and establish that {1) prior
bad act is relevant to the 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.
........................................
121 Nev. 184, 187 (2005) Rosky v. State
ing and establish that (1) prior bad act is relevant to the 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. NRS 48.045(2).
15. Criminal Law.
Trial court's determination of whether to admit or exclude prior bad acts evidence
will not be disturbed on appeal absent manifest error.
16. Criminal Law.
The common scheme or plan exception to the rule against the admissibility of prior
bad acts evidence requires that both the prior bad act and the charged crime be an
integral part of an overarching plan explicitly conceived and executed by defendant.
The test is not whether the other offense has certain elements in common with the
crime charged, but whether it tends to establish a preconceived plan that resulted in the
commission of that crime. NRS 48.045(2).
17. Criminal Law.
Admission of prior bad acts evidence, i.e., that defendant had fondled and digitally
penetrated a 12-year-old girl, as evidence of a common scheme or plan, was abuse of
discretion, in prosecution for sexual assault and indecent exposure because charged
offense and prior bad act were not part of single, preconceived overarching plan that
resulted in improper sexual contact with alleged victim in instant case; crimes were
independent of one another, and neither could be planned until each victim came within
reach; and prior bad act had taken place some eight years before instant event. NRS
48.045(2).
18. Criminal Law.
Modus operandi evidence falls within identity exception to rule governing
admissibility of prior bad acts evidence; generally, modus operandi evidence is proper
in situations where a positive identification of the perpetrator has not been made, and
the offered evidence establishes a signature crime so clear as to establish the identity of
the person on trial. NRS 48.045(2).
19. Criminal Law.
Admission of prior bad acts evidence, i.e., that defendant had fondled and digitally
penetrated a 12-year-old girl, as evidence of modus operandi, was abuse of discretion,
in prosecution for sexual assault and indecent exposure, because defendant's identity
was not at issue during trial, given that alleged victim clearly identified him in court on
multiple occasions and police had no doubt that defendant was proper suspect, and
defendant admitted to his interactions with victim, so that probative value of evidence
was not substantially outweighed by danger of unfair prejudice. NRS 48.045(2).
20. Criminal Law.
Prior bad acts evidence, i.e., that defendant had fondled and digitally penetrated a
12-year-old girl, was not admissible to prove intent or motive under rule governing
admissibility of prior bad acts evidence, in prosecution for sexual assault and indecent
exposure, because probative value of evidence was substantially outweighed by danger
of unfair prejudice. NRS 48.045(2).
21. Criminal Law.
Trial court's limiting instructions concerning prior bad acts evidence, i.e., that
defendant had fondled and digitally penetrated a 12-year-old girl, were deficient, in that
two instructions given during trial failed to mention modus operandi as one of the
other uses of the evidence under rule governing admissibility of prior bad acts
evidence, in prosecution for sexual assault and indecent exposure.
........................................
121 Nev. 184, 188 (2005) Rosky v. State
governing admissibility of prior bad acts evidence, in prosecution for sexual assault and
indecent exposure. NRS 48.045(2).
22. Criminal Law.
Error in admitting prior bad acts evidence, i.e., that defendant had fondled and
digitally penetrated a 12-year-old girl, combined with State's opening statement that
evidence against defendant would show that case concerned two victims separated by
time and distance, and deficient limiting instruction concerning prior bad acts
evidence, improperly placed defendant's character at issue by suggesting that defendant
had acted in conformity with a propensity to molest young women, in prosecution for
sexual assault and indecent exposure. NRS 48.045(2).
23. Criminal Law.
Errors in admitting prior bad acts evidence, i.e., that defendant had fondled and
evidence were harmless with respect to conviction for indecent exposure, as review of
defendant's videotaped statement revealed that defendant essentially confessed to
indecent exposure. NRS 48.045(2).
24. Criminal Law.
Errors in the admission of evidence under statute governing admissibility of prior
bad acts evidence are subject to a harmless error review. NRS 48.045(2).
25. Criminal Law.
Errors in admitting prior bad acts evidence, i.e., that defendant had fondled and
evidence, were not harmless with respect to conviction for sexual assault because
although defendant effectively confessed to commission of a statutory sexual seduction,
which included consensual sexual congress between an adult and a minor under the age
of 16 years, he did not confess to nonconsensual sexual assault, consent issue had been
litigated through defendant's videotaped statement and alleged victim's testimony, and
defendant's statement was in clear conflict with victim's testimony on that very point.
NRS 48.045(2).
26. Criminal Law.
Court may properly give a flight instruction if the State presents evidence of flight
and the record supports the conclusion that the defendant fled with consciousness of
guilt and to evade arrest.
27. Criminal Law.
Flight instruction was proper, in prosecution for sexual assault and indecent
exposure, because testimony of court personnel concerning defendant's failure to
appear, the bench warrant transcripts, and several of defendant's post-extradition taped
jailhouse telephone conversations provided substantial evidence that defendant fled to
Mexico to avoid prosecution, and taped telephone conversations indicated that, while
he was in Mexico, defendant considered assuming a different identity and planned to
abscond to Brazil where he could not be extradited.
........................................
121 Nev. 184, 189 (2005) Rosky v. State
OPINION
Appellant John Rosky was convicted in district court of sexual assault and indecent
exposure.
1
On appeal, Rosky asserts that the district court committed reversible error by
denying his motion to suppress a pre-arrest videotaped statement he made to investigators, by
admitting prior bad act testimony, and by instructing the jury on flight. We conclude that the
district court committed no error in the admission of Rosky's videotaped statement to
detectives and in the giving of its flight instruction. However, we conclude that the admission
of prior bad act testimony as proof of a common plan or scheme or modus operandi under
NRS 48.045(2), combined with improper limiting instructions and the State's improper
remarks during its opening statement, compels reversal of Rosky's sexual assault conviction.
These errors, however, are harmless with respect to the conviction for indecent exposure. We
therefore affirm the judgment of conviction of indecent exposure, but we reverse the
judgment of conviction of sexual assault and remand for a new trial on that charge.
DISCUSSION
Admission of videotaped statement
In January 2000, as part of a sexual assault investigation concerning a 13-year-old female,
CJW, five police officers executed a search warrant at Rosky's apartment. Two of the officers
eventually drove Rosky to a police substation for questioning, but did not formally place him
under arrest. Approximately 1 hours into a videotaped interview, Rosky admitted to a brief
consensual act of sexual intercourse with CJW. Rosky moved to suppress the interview
because the officers failed to administer Miranda
2
warnings. The district court concluded
that Miranda did not apply because the statements were elicited in a noncustodial setting. It
further concluded that the statements were voluntary.
____________________

1
The district court sentenced Rosky to the Nevada State Prison for life with the possibility of parole after a
minimum of 20 years on the sexual assault count and a concurrent term of 1 year in the Washoe County Jail on
the indecent exposure count. Rosky received credit for 53 days of time served, and the district court ordered
Rosky to pay a $25 administrative assessment, a $150 DNA testing fee and reimbursement to the Washoe
County Public Defender's Office in the amount of $500 for legal fees. The court also imposed a special condition
of lifetime supervision in the event of parole.

2
Miranda v. Arizona, 384 U.S. 436 (1966).
........................................
121 Nev. 184, 190 (2005) Rosky v. State
concluded that the statements were voluntary. Rosky argues on appeal that these
determinations are erroneous and require reversal.
Standards of review
[Headnote 1]
Our prior cases have not consistently stated this court's standard of review of a district
court's in custody determination for purposes of Miranda.
3
Further, we have previously
applied a highly deferential substantial evidence standard in reviewing the ultimate
question of the voluntariness of a defendant's confession.
4
Following the United States
Supreme Court's pronouncements in Thompson v. Keohane
5
and Miller v. Fenton
6
on these
issues, we clarify that a trial court's custody and voluntariness determinations present mixed
questions of law and fact subject to this court's de novo review.
7

[Headnote 2]
The proper inquiry requires a two-step analysis. The district court's purely historical
factual findings pertaining to the scene- and action-setting circumstances surrounding an
interrogation is entitled to deference and will be reviewed for clear error. However, the
district court's ultimate determination of whether a person was in custody and whether a
statement was voluntary will be reviewed de novo. Under Thompson and Miller, these
decisions retain a uniquely legal dimension,'
8
requiring the application of the
controlling legal standard to the historical facts.
9
We therefore overrule our prior case law
to the extent that it has applied more deferential standards of direct appellate review
than the Supreme Court's pronouncements in these contexts.
____________________

3
Compare Proferes v. State, 116 Nev. 1136, 1138, 13 P.3d 955, 956 (2000) (the district court's findings in a
suppression hearing will be upheld unless this court is definitely and firmly convinced that the district court
erred), with Mitchell v. State, 114 Nev. 1417, 1423, 971 P.2d 813, 817 (1998) (a defendant's constitutional
entitlement to Miranda warnings is a question of law reviewed de novo; however, a district court's determination
of whether a defendant is in custody will not be disturbed where substantial evidence supports the
determination). See also Alward v. State, 112 Nev. 141, 154, 912 P.2d 243, 252 (1996).

4
See, e.g., Allan v. State, 118 Nev. 19, 23-24, 38 P.3d 175, 178 (2002) (A district court's determination that
a confession is voluntary will not be disturbed on appeal if it is supported by substantial evidence.).

5
516 U.S. 99 (1995).

6
474 U.S. 104 (1985).

7
Thompson, 516 U.S. at 112-13; Miller, 474 U.S. at 112-18; see also U.S. v. Axsom, 289 F.3d 496, 499-500
(8th Cir. 2002); U.S. v. Kim, 292 F.3d 969, 973 (9th Cir. 2002); U.S. v. Huerta, 239 F.3d 865, 871 (7th Cir.
2001); McMorran v. State, 118 Nev. 379, 383, 46 P.3d 81, 84 (2002) (stating this court reviews the lawfulness
of a search de novo because such a review requires consideration of both factual circumstances and legal
issues).

8
Thompson, 516 U.S. at 112 (quoting Miller, 474 U.S. at 116).

9
Id.
........................................
121 Nev. 184, 191 (2005) Rosky v. State
overrule our prior case law to the extent that it has applied more deferential standards of
direct appellate review than the Supreme Court's pronouncements in these contexts.
10

For this standard of review to function properly, trial courts must exercise their
responsibility to make factual findings when ruling on motions to suppress.
11
As one state
court has explained:
Reviewing courts should not be required to surmise what factual findings that the trial
court made. Instead, the trial court should make clear any factual findings upon which it
is relying. It is only through this synergy between the trial and reviewing courts that
appellate courts can develop a uniform body of precedent to guide law enforcement
officers in their determination of whether their actions may violate the constitution.
12

To facilitate proper appellate review, we advise district courts to clearly set forth the factual
findings relied upon in resolving suppression motions.
Custody under Miranda
[Headnotes 3, 4]
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.
13
Custody for Miranda purposes means a formal arrest or
restraint on freedom of movement of the degree associated with a formal arrest.
14
If there is
no formal arrest, the pertinent inquiry is whether a reasonable person in the suspect's position
would feel at liberty to terminate the interrogation and leave.
15
A court must answer this
question by taking an objective look at all of the circumstances surrounding the
interrogation.
16
The United States Supreme Court has recently indicated that a suspect's
prior history with law enforcement has no bearing on the objective determination of
whether the suspect is in custody for Miranda purposes, although this factor may be
relevant in deciding whether a confession is voluntary.
____________________

10
See, e.g., Allan, 118 Nev. at 23-24, 38 P.3d at 178; Proferes, 116 Nev. at 1138, 13 P.3d at 956; Mitchell,
114 Nev. at 1423, 971 P.2d at 817; Alward, 112 Nev. at 154, 912 P.2d at 252.

11
In re G.O., 727 N.E.2d 1003, 1010 (Ill. 2000).

12
Id.

13
State v. Taylor, 114 Nev. 1071, 1081, 968 P.2d 315, 323 (1998).

14
Alward, 112 Nev. at 154, 912 P.2d at 252.

15
Thompson, 516 U.S. at 112; see also Alward, 112 Nev. at 154, 912 P.2d at 252 (stating the pertinent
inquiry focuses on how a reasonable man in the suspect's position would have understood his situation'
(quoting Berkemer v. McCarty, 468 U.S. 420, 442 (1984))).

16
Stansbury v. California, 511 U.S. 318, 322 (1994).
........................................
121 Nev. 184, 192 (2005) Rosky v. State
jective determination of whether the suspect is in custody for Miranda purposes,
17
although
this factor may be relevant in deciding whether a confession is voluntary.
18

[Headnote 5]
In Alward v. State, this court listed several factors pertinent to the objective custody
determination: (1) the site of the interrogation, (2) whether the investigation has focused on
the subject, (3) whether the objective indicia of arrest are present, and (4) the length and form
of questioning.
19
Here, it is undisputed that the detectives interrogated Rosky in a police
substation and that the investigation was focused solely upon him. However, as the State
correctly notes, this court has previously found interrogations to be noncustodial when
suspects voluntarily accompanied officers to the police station, understood that they were not
under arrest and voluntarily responded to police questioning.
20
But, because no one factor is
dispositive,
21
we turn to an independent analysis of Alward's third and fourth factors, indicia
of arrest and length and form of questioning.
In State v. Taylor, this court provided several objective indicia of arrest:
(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.
22

The district court determined that the objective indicia of arrest leaned toward noncustodial
interrogation. We agree.
____________________

17
Yarborough v. Alvarado, 541 U.S. 642, 666 (2004) (decided in the context of habeas corpus review).

18
See Lynumn v. Illinois, 372 U.S. 528, 534 (1963).

19
112 Nev. at 155, 912 P.2d at 252.

20
See Silva v. State, 113 Nev. 1365, 1369-70, 951 P.2d 591, 594 (1997); accord Rowbottom v. State, 105
Nev. 472, 480, 779 P.2d 934, 939 (1989).

21
Alward, 112 Nev. at 154, 912 P.2d at 252.

22
114 Nev. at 1082 n.1, 968 P.2d at 323 n.1. Rosky also argues that the district court should have considered
his alleged intoxication as part of the objective custody analysis. However, his briefs cite no authority for this
proposition, and our research reveals none.
........................................
121 Nev. 184, 193 (2005) Rosky v. State
[Headnote 6]
Rosky was not under formal arrest and the detectives informed him that his participation
was voluntary. They also advised him that he was free to leave at any time. Rosky was not
handcuffed, could have moved freely about during questioning and voluntarily responded to
the inquiries. Further, while the interview lasted over two hours, Rosky could have called a
break during the questioning and in fact did take an unaccompanied ten-minute break outside
of the station at the suggestion of one of the detectives. Upon returning from the break,
detectives once again informed Rosky that he was not under arrest and asked if he still
wanted to talk to them. Rosky continued talking to detectives and eventually admitted to
consensual intercourse with CJW, involving only slight penetration. While the detectives
used mild forms of deception during the taped statement, confronted Rosky with their belief
that he was guilty and arrested Rosky after the interview, our review of the videotaped
statement reveals no use of strong arm or impermissibly coercive tactics. In fact, the
interrogation techniques used were highly professional in their execution. These facts militate
against indicia of arrest.
We also conclude that the length and form of questioning depicted on the tape confirm that
Rosky was not in custody when he ultimately admitted to consensual sex with CJW.
Voluntariness
[Headnotes 7-9]
Rosky also contends that, due to his intoxication and deception used by the detectives, his
statement was involuntarily given. Unlike the objective custody analysis, the voluntariness
analysis involves a subjective element as it logically depends on the accused's characteristics.
23
In this context, the prosecution has the burden of proving by a preponderance of the
evidence that the statement was voluntary,
24
i.e., that the defendant's will was [not]
overborne.
25
[A] confession is involuntary if it was coerced by physical intimidation or
psychological pressure.
26
Several factors are relevant in deciding whether a suspect's
statements are voluntary: [t]he 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.
____________________

23
See Yarborough, 541 U.S. at 667-68 (recognizing that subjective inquiry that applies to voluntariness
determination does not apply to custody determination).

24
See Lego v. Twomey, 404 U.S. 477, 489 (1972).

25
Lynumn, 372 U.S. at 534.

26
Brust v. State, 108 Nev. 872, 874, 839 P.2d 1300, 1301 (1992).
........................................
121 Nev. 184, 194 (2005) Rosky v. State
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.'
27
A suspect's prior experience with law enforcement is also a
relevant consideration.
28

[Headnote 10]
We conclude that Rosky's pre-arrest statements to police were voluntarily given. First,
when asked if he was too intoxicated to be interviewed, Rosky clearly stated that oh yeah,
I'm coherent, I'm fine.
29
Second, the slight subterfuges used to elicit Rosky's confession
were appropriate. Third, in its totality, the videotape of the interrogation indicates that Rosky
tried to deflect the accusations, clearly attempted to use semantical dodges to mislead the
detectives, and ultimately, albeit reluctantly, voluntarily admitted to consensual sexual
misconduct with CJW. Accordingly, we conclude that the interrogating officers did not
overbear Rosky's will.
[Headnote 11]
In light of the above, and applying the standards of review set forth in Thompson v.
Keohane
30
and Miller v. Fenton,
31
we conclude that Rosky was not in custody for Miranda
purposes when he gave his statement to police and that the resulting confession was
voluntarily given. Accordingly, the district court properly admitted the videotaped interview
into evidence.
Prior bad acts
[Headnotes 12, 13]
Evidence of prior bad acts is not admissible to prove the character of a person in order to
show that he acted in conformity therewith.
32
However, prior bad act evidence may be
admissible for other purposes, such as to show motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.
33
The improper admission of bad
act evidence is common grounds for reversal.
____________________

27
Alward, 112 Nev. at 155, 912 P.2d at 252 (quoting Passama v. State, 103 Nev. 212, 214, 735 P.2d 321,
323 (1987)).

28
See Lynumn, 372 U.S. at 534 (considering defendant's lack of experience with the criminal law in
determining voluntariness of confession).

29
See Kirksey v. State, 112 Nev. 980, 992, 923 P.2d 1102, 1110 (1996) (stating that a confession is
inadmissible based upon intoxication only if the accused is intoxicated to the extent of being incapable of
understanding the meaning of his or her comments).

30
516 U.S. 99 (1995).

31
474 U.S. 104 (1985).

32
NRS 48.045(2).

33
Id.; see Richmond v. State, 118 Nev. 924, 932, 59 P.3d 1249, 1254 (2002).
........................................
121 Nev. 184, 195 (2005) Rosky v. State
grounds for reversal.
34
As we stated in Braunstein v. State, [p]rior bad act evidence forces
the accused to defend himself against vague and unsubstantiated charges and may result in a
conviction because the jury believes the defendant to be a bad person.
35

[Headnotes 14, 15]
A presumption of inadmissibility attaches to all prior bad act evidence.
36
In order to
overcome the presumption, the prosecutor must request a hearing
37
and establish, under
Tinch v. State, that (1) the [prior bad act] 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.
38
The trial court's
determination of whether to admit or exclude such evidence will not be disturbed on appeal
absent manifest error.
39
However, [t]his court has generally held inadmissible prior acts
that are remote in time and involve conduct different from the charged conduct.
40

As a result of two separate Petrocelli hearings, the district court ultimately admitted
evidence that, some 10 years previous, Rosky fondled and digitally penetrated a 12-year-old
girl, JLB, in California. The district court ruled the prior bad act admissible as proof of a
common scheme or plan and modus operandi. At trial, the district court gave limiting
instructions to the jury concerning the limited use of the bad act evidence on 3 occasions: (1)
after JLB's mother testified on direct examination, (2) after JLB testified on direct
examination, and (3) during jury instructions. These instructions, however, did not mirror the
Petrocelli rulings because, after both JLB and her mother testified on direct examination, the
district court instructed the jury that the evidence was only relevant to show a common
scheme or plan.
41
On neither occasion did the district court mention the use of such
evidence to show modus operandi.
____________________

34

35
Id.

36
Tavares v. State, 117 Nev. 725, 731, 30 P.3d 1128, 1131 (2001).

37
See Petrocelli v. State, 101 Nev. 46, 51-52, 692 P.2d 503, 507 (1985).

38
113 Nev. 1170, 1176, 946 P.2d 1061, 1064-65 (1997); see also Tavares, 117 Nev. at 731, 30 P.3d at 1131
( It is as much [a prosecutor's] 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.' (quoting Berger v. United States,
295 U.S. 78, 88 (1935))).

39
Walker v. State, 116 Nev. 442, 446, 997 P.2d 803, 806 (2000).

40
Braunstein, 118 Nev. at 73, 40 P.3d at 417.

41
After JLB's mother testified on direct examination, the district court stated:
[T]his is not testimony elicited to prove Mr. Rosky's character or that he acted consistent with any part of
this type of character, but it is admitted solely for the purpose of the state attempting to prove a common
scheme or plan, so it's for a limited purpose.
........................................
121 Nev. 184, 196 (2005) Rosky v. State
district court mention the use of such evidence to show modus operandi. Ultimately, jury
instruction 37 directed the jury to consider the bad act evidence for the purpose of proving
the defendant's common scheme or plan or his modus operandi and for no other purpose[s].
Common scheme or plan
[Headnote 16]
The common scheme or plan exception to the rule against the admissibility of
character/propensity evidence requires that both the prior bad act and the charged crime be an
integral part of an overarching plan explicitly conceived and executed by the defendant.'
42
The test is not whether the other offense has certain elements in common with the
crime charged, but whether it tends to establish a preconceived plan which resulted in the
commission of that crime. '
43
In fact, as this court noted in Richmond v. State, even a
sexual assault perpetrated in the same location and manner a month before the assault at issue
may not establish a common plan.
44

[Headnote 17]
We cannot conclude that the instant offense and the prior bad acts were part of a single
preconceived overarching plan that resulted in improper sexual contact with CJW. These
crimes were independent of one another, and neither could be planned until each victim came
within reach. Finally, the prior bad act took place some eight years before the instant event.
We therefore conclude that the district court abused its discretion in admitting evidence of
Rosky's prior bad acts as evidence of a common scheme or plan.
Modus operandi
[Headnote 18]
As this court explained in Mortensen v. State, modus operandi evidence falls within the
identity exception to NRS 48.045(2).
45

____________________
After JLB testified on direct examination, the district judge stated:
You may not consider this testimony as proof of Mr. Rosky's character or that he acted in
conformance therewith with regard to the incidents allegedly occurring in Reno. The State is only
allowed to bring in this testimony to establish a common scheme or plan.

42
Richmond, 118 Nev. at 933, 59 P.3d at 1255 (quoting 1 McCormick on Evidence 190, at 661 (John W.
Strong ed., 5th ed. 1999)).

43
Id. (quoting Nester v. State of Nevada, 75 Nev. 41, 47, 334 P.2d 524, 527 (1959) (quoting 1 John Henry
Wigmore, Wigmore on Evidence 300 (2d ed. 1923))).

44
Id. at 934, 59 P.3d at 1255.

45
115 Nev. 273, 280-81, 986 P.2d 1105, 1110 (1999).
........................................
121 Nev. 184, 197 (2005) Rosky v. State
Generally, modus operandi evidence is proper in situations where a positive identification of
the perpetrator has not been made, and the offered evidence establishes a signature crime so
clear as to establish the identity of the person on trial.
46

[Headnote 19]
Rosky's identity was not at issue during the trial. CJW clearly identified him in court on
multiple occasions and the police had no doubt that Rosky was the proper suspect. Going
further, Rosky admitted in his statement to his interactions with CJW. Thus, under the third
prejudice/probative value prong of Tinch, we conclude that the district court abused its
discretion in allowing the jury to consider the prior bad act with JLB as evidence of modus
operandi.
[Headnotes 20-22]
As discussed above, the prior bad act was not relevant under either the common scheme or
plan or the modus operandi exceptions to NRS 48.045(2). We further note that the prior bad
act evidence was not admissible to prove intent or motive under NRS 48.045(2) because the
evidence likewise did not satisfy the third prong of Tinch.
47
JLB's testimony improperly
bolstered the prosecution's relatively weak case in support of the sexual assault charges at
issue and involved events remote in time to the allegations involving CJW. As discussed
below, Rosky did not confess to nonconsensual sexual misconduct, i.e., sexual assault, with
CJW. And, as noted, the district court's limiting instructions were deficient in their content.
48

Most importantly, the State argued in its opening statement that the evidence [against
Rosky] will show that this is really a case of two victims separated by time and distance. We
conclude that, when combined with the prosecutor's opening statement, the cautionary
instructions left the evidence with limited probative value, to wit: that Rosky acted in
conformity with a propensity for sexual aberration, here, the molestation of young
women.
____________________

46
Id. at 280, 986 P.2d at 1105.

47
See 113 Nev. at 1176, 946 P.2d at 1064-65.

48
See Tavares, 117 Nev. at 733, 30 P.3d at 1133 (holding that trial court must give the limiting instruction at
least twice: (1) immediately before the introduction of the evidence and (2) at the end of trial). Here, the two
instructions given during the trial failed to mention modus operandi as one of the other uses of the evidence
under NRS 48.045(2).
The State also argues that the prior bad act evidence was relevant to show knowledge. We disagree. See
Dougherty v. State, 86 Nev. 507, 509, 471 P.2d 212, 213 (1970) (stating that if the prosecution can establish
knowledge without reference to a prior criminal act, the prejudicial effect of the bad act evidence outweighs its
probative value). We further note that the district court never instructed the jury that the JLB evidence was
relevant to show Rosky knew or should have known that CJW was incapable of resisting the nature of Rosky's
conduct. See Tavares, 117 Nev. at 733, 30 P.3d at 1133.
........................................
121 Nev. 184, 198 (2005) Rosky v. State
to wit: that Rosky acted in conformity with a propensity for sexual aberration, here, the
molestation of young women.
49
Thus, the bad act testimony improperly placed Rosky's
character at issue.
[Headnotes 23, 24]
Errors in the admission of evidence under NRS 48.045(2) are subject to a harmless error
review.
50
Our review of the videotaped statement reveals that, among other admissions,
Rosky essentially confessed to indecent exposure. Therefore, we conclude that the above
errors are harmless beyond a reasonable doubt with respect to the conviction of indecent
exposure. We therefore affirm the judgment of conviction of indecent exposure.
[Headnote 25]
We cannot, however, on this record, conclude that the district court's errors were harmless
with regard to Rosky's sexual assault conviction. First, although Rosky also effectively
confessed to the commission of a statutory sexual seduction,
51
which includes consensual
sexual congress between an adult and a minor under the age of 16 years, he did not confess to
forcible or otherwise nonconsensual sexual assault. Second, he was charged with sexual
assault, not statutory sexual seduction. Third, the consent issue was litigated through Rosky's
videotaped statement and CJW's testimony,
52
and Rosky's statement is in clear conflict with
CJW's testimony on that very point. And fourth, the consent issue was central to the State's
prosecution for sexual assault rather than the less severe offense of statutory sexual seduction.
Thus, in this case, overwhelming evidence does not support the sexual assault conviction.
Accordingly, the erroneous introduction of the highly prejudicial evidence concerning JLB
was not harmless beyond a reasonable doubt. We therefore reverse Rosky's sexual assault
conviction and remand for a new trial on that charge.
Flight instruction
Prior to trial, Rosky was released on bail, failed to appear and a bench warrant was issued
for his arrest. Authorities eventually located Rosky in Mexico and successfully obtained
extradition. At trial, the court instructed the jury on flight.
____________________

49
See Braunstein, 118 Nev. at 75, 40 P.3d at 418 (renouncing the legal proposition stated in McMichael v.
State, 94 Nev. 184, 189, 577 P.2d 398, 401 (1978), that evidence showing an accused possesses a propensity for
sexual aberration is relevant to the accused's intent); see also Richmond, 118 Nev. at 936, 59 P.3d at 1257
(Maupin, J., concurring and dissenting).

50
See Richmond, 118 Nev. at 934, 59 P.3d at 1255-56.

51
See NRS 200.364; NRS 200.368.

52
Rosky did not testify at trial.
........................................
121 Nev. 184, 199 (2005) Rosky v. State
trial, the court instructed the jury on flight. Citing no Nevada or federal authority, Rosky
argues that the district court should not have given a flight instruction over the objection of
defense counsel.
[Headnotes 26, 27]
We conclude that Rosky's argument is without merit. First, under Nevada law, a district
court may properly give a flight instruction if the State presents evidence of flight and the
record supports the conclusion that the defendant fled with consciousness of guilt and to
evade arrest.
53
Second, the testimony of court personnel concerning Rosky's failure to
appear, the bench warrant transcripts, and several of Rosky's post-extradition taped jailhouse
telephone conversations provided substantial evidence that Rosky fled to Mexico to avoid
prosecution. Third, the taped telephone conversations indicate that, while he was in Mexico,
Rosky considered assuming a different identity and planned to abscond to Brazil where he
could not be extradited. We find these conversations to be sufficient for a jury to infer
consciousness of guilt, and thus, the district court committed no error in its flight
instructions to the jury.
54
Accordingly, given the proper evidentiary predicate, the district
court may again instruct the jury on remand concerning Rosky's flight to Mexico.
CONCLUSION
The district court erroneously admitted prior bad act evidence to show a common plan or
scheme and as evidence of modus operandi. This error was harmless as to the indecent
exposure conviction. However, overwhelming evidence does not support Rosky's conviction
for sexual assault. Therefore, we affirm the judgment of conviction of indecent exposure,
reverse the judgment of conviction of sexual assault and remand this matter to the district
court for proceedings consistent with this opinion.
____________________

53
See Walker v. State, 113 Nev. 853, 870-71, 944 P.2d 762, 773 (1997).

54
Rosky also cites the Oklahoma Criminal Appeals decision in Mitchell v. State, 876 P.2d 682 (Okla. Crim.
App. 1993), and argues that giving a flight instruction is improper if the defendant does not refute the state's
allegation of flight. We reject this argument, noting that subsequent Oklahoma decisions have clarified that the
rule in Mitchell was an interpretation and application of state law and does not relate to any constitutional right.
Richie v. State, 908 P.2d 268, 277 (Okla. Crim. App. 1995).
____________
........................................
121 Nev. 200, 200 (2005) Hymon v. State
RODERICK LAMAR HYMON, Appellant, v. THE STATE
No. 41378
May 26, 2005 111 P.3d 1092
Appeal from a judgment of conviction, upon jury verdict, of robbery with the use of a
deadly weapon, larceny from the person, and assault with a deadly weapon and from an
adjudication of habitual criminality. Eighth Judicial District Court, Clark County; John S.
McGroarty, Judge.
The supreme court, Hardesty, J., held that: (1) district court's failure to hold hearing before
ordering defendant to wear stun belt was harmless error, and (2) district court properly
sentenced defendant as a habitual criminal.
Affirmed.
Michael H. Schwarz, Las Vegas, for Appellant.
Tufteland, Chief Deputy District Attorney, and Noreen C. Nyikos, Deputy District Attorney,
1. Criminal Law.
District courts are allowed sufficient discretion to determine whether to physically
restrain a defendant during the guilt phase of a trial, but in making that determination,
the district court must carefully balance the defendant's constitutional rights with the
security risk that the defendant poses, and the defendant should not be restrained except
as a last resort.
2. Criminal Law.
A criminal defendant has the right to appear before his jurors clad in the apparel of
an innocent person.
3. Criminal Law.
Use of a stun belt as a security device during a criminal trial poses the risk of
interfering with a defendant's Sixth Amendment right to confer with counsel because
the fear of receiving a painful and humiliating shock for any gesture that could be
perceived as threatening likely chills a defendant's inclination to make any movements
during trial, including those movements necessary for effective communication with
counsel. U.S. Const. amend. 6.
4. Constitutional Law; Criminal Law.
Use of a stun belt as a security device during a criminal trial may have an adverse
impact on a defendant's Sixth Amendment and due process rights to be present at trial
and to participate in his defense because wearing a stun belt is a considerable
impediment to a defendant's ability to follow the proceedings and take an active interest
in the presentation of his case. U.S. Const. amends. 6, 14.
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121 Nev. 200, 201 (2005) Hymon v. State
5. Criminal Law.
Use of a stun belt as a security device during a criminal trial may adversely affect a
defendant's privilege of becoming a competent witness and testifying in his own behalf
because a stun belt likely increases the anxiety that a witness normally feels upon
having to testify, which may affect the defendant's demeanor on the stand.
6. Criminal Law.
Decision to use a stun belt as a security device during a criminal trial is subjected to
close judicial scrutiny.
7. Criminal Law.
A district court must conduct a hearing and determine whether an essential state
interest, such as special security needs relating to the protection of the courtroom and
its occupants or escape risks specific to the defendant on trial, is served by compelling a
defendant to wear a stun belt as a security device during a criminal trial. As part of this
determination, the district court must consider less restrictive means of restraint.
8. Criminal Law.
For purposes of determining whether essential state interest is served by compelling
a defendant to wear a stun belt as a security device during a criminal trial, a district
court must: (1) make factual findings regarding the belt's operation, (2) address the
criteria for activating the stun belt, (3) address the possibility of accidental discharge,
(4) inquire into the belt's potential adverse psychological effects, and (5) consider the
health of the individual defendant.
9. Criminal Law.
A district court's rationale in compelling a defendant to wear a stun belt as a security
device during a criminal trial must be placed on the record to enable the supreme court
to determine if the use of the stun belt was an abuse of discretion.
10. Criminal Law.
Decision to compel a defendant to wear a stun belt as a security device during a
criminal trial must be made by a district court, not by law enforcement officers.
11. Criminal Law.
Use of physical restraints in courtroom is subject to close judicial, not law
enforcement, scrutiny.
12. Criminal Law.
It is the duty of a district court, not correctional officers, to make the affirmative
determination, in conformance with constitutional standards, to order the physical
restraint of a defendant in the courtroom.
13. Criminal Law.
When it is clear beyond a reasonable doubt that a rational jury would have found the
defendant guilty absent an error, the error is harmless.
14. Criminal Law.
District court's error in failing to disclose letter in which defendant threatened judge,
which served as reason that court ordered defendant to wear stun belt during guilt phase
of robbery trial, was harmless; defendant's remedy upon being informed of
communication would have been to move to disqualify judge, and defendant did not do
so upon learning of communication, and even if he had, judge was not required to
recuse himself after receiving threat from defendant. NRS 1.235.
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121 Nev. 200, 202 (2005) Hymon v. State
15. Criminal Law.
District court's failure to hold hearing before ordering defendant, as a result of his
threat to kill judge, to wear remote-controlled electronic stun belt during guilt phase of
robbery trial was harmless error; defendant did not claim that belt implicated his
constitutional rights, court instructed jury that belt was standard security procedure, and
any prejudice resulting from jury learning of belt was caused by defendant's own
actions, since jury would not have known that defendant was wearing belt if defendant,
who was representing himself, had not opened his clothing and revealed belt during his
opening statement.
16. Criminal Law.
Federal and Nevada Constitutions guarantee a defendant the right to
self-representation. Const. art. 1, 8; U.S. Const. amend. 6.
17. Criminal Law.
Denial of the right to self-representation is per se reversible error. U.S. Const.
amend. 6.
18. Criminal Law.
Before allowing a defendant to waive counsel and represent himself, a trial court
must ensure that the defendant is competent and that the waiver of counsel is knowing,
voluntary, and intelligent. U.S. Const. amend. 6.
19. Criminal Law.
The competency to stand trial is the same competency needed to waive the right to
20. Criminal Law.
Once a defendant is deemed competent to stand trial and to waive counsel, the next
inquiry is whether the waiver is knowing, voluntary and intelligent. U.S. Const. amend.
6.
21. Criminal Law.
When a defendant seeks to waive his right to counsel, a determination that he is
competent to stand trial is not enough; the waiver must also be intelligent and voluntary
before it can be accepted. U.S. Const. amend. 6.
22. Criminal Law.
A court should conduct a Faretta canvass to apprise a defendant fully of the risks of
self-representation and of the nature of the charged crime so that the defendant's
decision to waive counsel is made with a clear comprehension of the attendant risks.
U.S. Const. amend. 6; SCR 253(3).
23. Criminal Law.
Even the omission of a Faretta canvass is not reversible error if it appears from the
whole record that the defendant knew his rights and insisted upon representing himself.
U.S. Const. amend. 6; SCR 253(3).
24. Criminal Law.
The supreme court will give deference to a district court's decision to allow a
defendant to waive his right to counsel. U.S. Const. amend. 6.
25. Criminal Law.
District court did not abuse its discretion by allowing defendant to exercise his
constitutional right to represent himself after conducting two thorough Faretta
canvasses, in prosecution for robbery, larceny, and assault, because court adequately
inquired into defendant's mental health; record demonstrated that defendant had
significant legal knowledge of crimes with which he was charged and had significant
similar criminal experience; court adequately inquired into defendant's knowledge
regarding elements of offenses; and record indicated that sentences were explained
to defendant and that defendant understood his possible defenses.
........................................
121 Nev. 200, 203 (2005) Hymon v. State
crimes with which he was charged and had significant similar criminal experience;
court adequately inquired into defendant's knowledge regarding elements of offenses;
and record indicated that sentences were explained to defendant and that defendant
understood his possible defenses. U.S. Const. amend. 6; SCR 253(3).
26. Criminal Law.
A defendant may be denied the right to represent himself if a physical or mental
impairment, even if not enough to render the defendant incompetent to stand trial,
renders the defendant unable to abide by rules of procedure or protocol. U.S. Const.
amend. 6; SCR 253(3).
27. Criminal Law.
The right to defend is given directly to the accused; for it is he who suffers the
consequences if the defense fails.
28. Criminal Law.
The standard of competency for a defendant to choose his own defense is the same
level of competency needed to stand trial.
District court properly sentenced defendant as a habitual criminal, even though court
did not state that defendant's prior judgments of conviction had been admitted into
evidence, in prosecution for robbery with the use of a deadly weapon, larceny from a
person, and assault with a deadly weapon, because, although it was unclear whether
certified copies of defendant's judgments of conviction were admitted into evidence
since court did not specifically state that they were, documents were received into
evidence; parties argued them; and based on certified copies of defendant's judgments
of conviction, court determined that defendant qualified as habitual criminal. NRS
207.016(3).
For defendant to be sentenced as a habitual criminal, State must prove defendant's
prior convictions beyond a reasonable doubt.
OPINION
During the guilt phase of the trial, appellant Roderick Lamar Hymon, who was
representing himself, was required to wear an electronic stun belt as a result of his threat to
kill the trial judge. On appeal, we address under what circumstances a defendant in a criminal
trial may be required, as a security measure, to wear a remote-controlled electronic stun belt.
FACTS
On April 8, 2001, Betty Crisman was alone in the lobby area of Chick's Tire & Auto
Repair in Las Vegas when Hymon entered and walked to the counter. Hymon suddenly turned
around and grabbed Crisman's purse.
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121 Nev. 200, 204 (2005) Hymon v. State
grabbed Crisman's purse. Following a brief struggle, Hymon gained control of the purse and
ran out the door. Crisman screamed that Hymon had stolen her purse.
Two of Chick's mechanics, Clyde Estabillo and Stanley Red Turner, were standing in
the garage just on the other side of the lobby door and heard Crisman's scream. They saw
Hymon running from the lobby with a purse under his arm and chased Hymon, catching him
when he fell on the curb. Hymon stood up, swinging a four- to six-inch long pocketknife at
his pursuers. Estabillo and Turner backed away, allowing Hymon to escape over a nearby
fence.
Estabillo located two police officers, who caught and arrested Hymon. Estabillo and
Crisman identified Hymon at the scene.
Hymon requested to represent himself in the district court proceeding. A few days after
Hymon's request, the district court conducted a Faretta
1
canvass. The district court
questioned Hymon on the topics listed in SCR 253 but omitted a question regarding whether
Hymon understood the possible penalties or punishments. Hymon gave appropriate responses
to all of the questions. Subsequently, the district court concluded that Hymon was competent
to waive his right to counsel and he was doing so freely, voluntarily and knowingly. The
district court appointed standby counsel.
A few months later, the prosecutor and standby counsel told the district court that Hymon
was being uncooperative, and they were having problems communicating with him. Hymon
became very agitated, and the district court revoked Hymon's right to represent himself and
appointed new counsel.
Hymon's counsel eventually requested a psychological evaluation to determine Hymon's
competence to stand trial. Hymon was removed from the courtroom after an unruly outburst.
The district court ordered a psychological evaluation, but Hymon refused to see the
psychologist. The psychologist recommended that Hymon be declared incompetent until a
complete evaluation could be performed.
Hymon then moved to dismiss his counsel. The district court ordered another
psychological evaluation. Several months later, Lake's Crossing declared Hymon competent
to stand trial, but it noted that Hymon had an antisocial personality disorder.
At calendar call on November 27, 2002, Hymon claimed that he was being represented
against his will and denied his right to self-representation. Hymon's counsel informed the
court that he had attempted to see Hymon several times, but Hymon refused to meet. The
district court continued the hearing and, upon reconvening, conducted another Faretta
canvass.
____________________

1
Faretta v. California, 422 U.S. 806 (1975).
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121 Nev. 200, 205 (2005) Hymon v. State
The district court again questioned Hymon from the list in SCR 253. Hymon gave
appropriate responses to all of the questions, but the district court was concerned with
Hymon's understanding of his available defenses. Hymon stated that one of the main reasons
he wanted to represent himself was because his counsel would not present the defense that
Hymon wanted. Hymon explained that while the State had sufficient evidence to prove that
he committed the robbery, his rights were violated in the justice court. Hymon argued that the
jury should be informed of his constitutional rights, and he stated that he would argue that he
had been denied due process and should be acquitted. The district court stated that Hymon
was not articulating a viable defense. Finally, after much discussion, the district court stated
that under SCR 253(4), it could not in good conscience rubber-stamp these findings. The
district court stated that it could not allow Hymon to represent himself. However, after an
unrecorded bench conference, the district court stated, on the record, that this court has said
that if the defendant is competent to stand trial, then the defendant must be allowed to
represent himself. Accordingly, the district court allowed Hymon to represent himself but
appointed standby counsel.
The jury was selected without incident on December 2, 2002. At some point during the
day, before the jury returned to the courtroom, the district court sought confirmation that
Hymon was not cuffed or in shackles. The corrections officer responded that Hymon was not,
but he was wearing a stun belt. The district court responded, He's been good. You want to
keep him in the [stun] belt? The corrections officer's reply was not audible, but the district
court responded, All right, and Hymon remained in the belt.
During his opening statements to the jury, Hymon focused on the violation of his rights
during all of the proceedings. He opened his clothes and revealed the stun belt. Hymon told
the jury that the district court placed him in the belt and if he does something that the bailiff
does not like, he will be electrocuted. Hymon claimed that the district court was not impartial
because it would not allow Hymon to present evidence.
At the end of the day and outside the jury's presence, the district court made a record of
why it ordered Hymon to wear the stun belt. The district court stated that it received a copy of
a letter that Hymon had written to the Civil Rights Volunteers of the Nevada Bar Association.
The letter requested that the Civil Rights Volunteers make the district court judge recuse
himself. The letter stated, If I have to, I will murder him. A copy of the letter was provided
to the district court. The district court told Hymon that this direct threat caused the district
court to order Hymon to wear the belt. Hymon complained that the district court did not hold
a hearing before ordering him to wear the belt. The district court responded that it need not
hold a hearing upon receiving such a threat.
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121 Nev. 200, 206 (2005) Hymon v. State
sponded that it need not hold a hearing upon receiving such a threat.
The next day, the State requested that the district court explain the belt to the jury. Hymon
admitted to sending the letter; however, he again complained about the lack of a hearing.
Hymon stated that the district court was not following the rules, and he complained that if he
did anything combative, the belt would blow him up. The district court admitted that it should
have shown Hymon the letter first. When the jury was brought in, the district court instructed
the jury that the stun belt was a standard security procedure and that they should not draw any
inferences from it concerning the defendant's character or propensity for violence.
After the jury returned a guilty verdict, Hymon requested counsel for sentencing, and the
district court appointed the attorney who had served as standby counsel. The State advised the
district court it had certified copies of Hymon's prior convictions. Hymon objected, claiming
that some of the convictions could not be used for habitual criminal status and the State failed
to previously provide him with copies. Hymon became hostile, and the district court had him
removed from the courtroom.
Sentencing was continued two days later. The prosecutor stated, I have in my hand the
certified copies, and for the record, I have a certified copy of [five of Hymon's prior
convictions]. May I approach, Judge, and have them marked? The district court consented.
Hymon questioned the number of prior convictions. The State provided Hymon with another
copy of the convictions, and the district court trailed the proceedings so that Hymon could
review them. Upon resuming the proceedings, Hymon successfully argued that one of the
convictions was not valid for habitual criminal status, leaving four valid convictions. The
district court found Hymon to be a habitual criminal. However, the State never requested to
have the judgments of conviction admitted, and the district court never stated that they were
admitted.
DISCUSSION
On appeal, Hymon argues that the district court: (1) should have promptly disclosed that it
received a copy of Hymon's letter and conducted a hearing before requiring him to wear a
stun belt, (2) abused its discretion by allowing Hymon to represent himself after performing
an inadequate Faretta canvass, and (3) erred by sentencing Hymon as a habitual criminal
when the judgments of conviction were not admitted into evidence.
2

____________________

2
We conclude that Hymon's other arguments are without merit. First, there is sufficient evidence to show that
Hymon committed the assault with a dangerous and deadly weapon. The four- to six-inch pocketknife that
Hymon used against Estabillo and Turner falls within the definition of deadly
........................................
121 Nev. 200, 207 (2005) Hymon v. State
Stun belt
We take this opportunity to explain under what circumstances the district court may
compel a defendant to wear a stun belt during the guilt phase of a trial.
A stun belt is a means of prisoner restraint. It is an electronic device that is secured around
the prisoner's waist, arm or leg. It is generally worn beneath the defendant's shirt or jacket and
is not visible to the jury. The belt, which may be activated remotely, delivers a high voltage
electrical current throughout the defendant's body.
3
The record in this case does not address
how activation of a stun belt, like that Hymon was required to wear, might affect the person
wearing it. However, numerous cases provide a detailed discussion. These cases indicate that
activation may cause incapacitation, severe pain, uncontrolled defecation or urination,
muscular weakness, heartbeat irregularities or seizures.
4
In some cases, accidental activation
has occurred.
5

[Headnote 1]
District courts are allowed sufficient discretion to determine whether to physically restrain
a defendant during the guilt phase of a trial.
6
In making this determination, the district court
must carefully balance the defendant's constitutional rights with the security risk that the
defendant poses. A defendant should not be restrained except as a last resort.
7

[Headnote 2]
Restraining a defendant during trial raises several constitutional concerns. A criminal
defendant clearly has the right . . . to appear before his jurors clad in the apparel of an
innocent person.
8
The sight of physical restraints may have a significant effect on the jury
by eroding the presumption of innocence, which is an integral part of the defendant's
right to a fair trial.
____________________
weapon in NRS 193.165. Second, we conclude that there is sufficient evidence to support Hymon's convictions
for robbery and larceny. Third, we conclude that Hymon's argument regarding ineffective assistance of counsel
must be raised in the district court by a post-conviction petition for a writ of habeas corpus. Feazell v. State, 111
Nev. 1446, 1449, 906 P.2d 727, 729 (1995). Finally, since Hymon never sought relief below for the justice
court's bailiff's alleged threat to tape his mouth shut, we conclude that this issue has not been properly preserved
for appeal.

3
See Gonzalez v. Pliler, 341 F.3d 897, 899 (9th Cir. 2003) (describing how a stun belt works).

4
Id.

5
Id.

6
Illinois v. Allen, 397 U.S. 337, 343 (1970); McGervey v. State, 114 Nev. 460, 463, 958 P.2d 1203, 1205-06
(1998).

7
Allen, 397 U.S. at 344.

8
Grooms v. State, 96 Nev. 142, 144, 605 P.2d 1145, 1146 (1980) (citations omitted).
........................................
121 Nev. 200, 208 (2005) Hymon v. State
on the jury by eroding the presumption of innocence, which is an integral part of the
defendant's right to a fair trial.
9
Notably, the United States Supreme Court recently held that
the Constitution forbids the use of visible shackles during the penalty phase of a capital
proceeding, as well as during the guilt phase, unless the use is justified by an essential state
interest, such as courtroom security that is specific to the defendant on trial.
10
However, this
is less of a concern in the case of stun belts, as opposed to the more traditional forms of
restraint such as handcuffs or shackles, since stun belts can be concealed beneath the
defendant's clothes. Nevertheless, other constitutional concerns may be elevated by the use of
a stun belt.
[Headnote 3]
A stun belt poses the risk of interfering with the defendant's Sixth Amendment right to
confer with counsel.
11
The fear of receiving a painful and humiliating shock for any gesture
that could be perceived as threatening likely chills a defendant's inclination to make any
movements during trialincluding those movements necessary for effective communication
with counsel.
12

[Headnote 4]
Another problem with a stun belt is its potentially adverse effect on the defendant's Sixth
Amendment and due process rights to be present at trial and to participate in his defense.
13
The stun belt is a considerable impediment to a defendant's ability to follow the proceedings
and take an active interest in the presentation of his case.
14
It is reasonable to assume that
much of a defendant's focus and attention when wearing one of these devices is occupied by
anxiety over the possible triggering of the belt.
15

[Headnote 5]
A stun belt may also adversely affect the defendant's privilege of becoming a competent
witness and testifying in his own behalf.
16
A stun belt likely increases the anxiety that a
witness normally feels upon having to testify, which may affect the defendant's demeanor on
the stand.
____________________

9
Gonzalez, 341 F.3d at 899-900; U.S. v. Durham, 287 F.3d 1297, 1304 (11th Cir. 2002); Dickson v. State,
108 Nev. 1, 3, 822 P.2d 1122, 1124 (1992).

10
Deck v. Missouri, 544 U.S. 622, 624 (2005).

11
Durham, 287 F.3d at 1305.

12
Id.

13
Id. at 1305-06.

14
Id. at 1306.

15
Id.

16
Gonzalez, 341 F.3d at 900 (quotation marks and citation omitted).
........................................
121 Nev. 200, 209 (2005) Hymon v. State
demeanor on the stand.
17
Since many criminal trials rest on the credibility of the witnesses,
the impact of the stun belt's effect on the defendant's testimony may be significant.
All of these concerns may be elevated in the case of a defendant who is representing
himself. A self-representing defendant must intently focus on the proceedings so that he does
not miss an issue or a possible objection. The stun belt may cause the defendant concern
regarding voicing a vehement objection or actively cross-examining a witness, and it may
distract the defendant's attention from the proceedings. Further, a self-represented defendant
must be afforded the same freedom of movement within the well of the trial court as that
enjoyed by the prosecutor.
[Headnotes 6-12]
It is for these reasons that the decision to use a stun belt is subjected to close judicial
scrutiny.
18
We conclude, therefore, that the district court must conduct a hearing and
determine whether an essential state interest, such as special security needs relating to the
protection of the courtroom and its occupants or escape risks specific to the defendant on
trial, is served by compelling the defendant to wear a stun belt.
19
As part of this
determination, the district court must consider less restrictive means of restraint.
20
Additionally, the district court must: (1) make factual findings regarding the belt's operation,
(2) address the criteria for activating the stun belt, (3) address the possibility of accidental
discharge, (4) inquire into the belt's potential adverse psychological effects, and (5) consider
the health of the individual defendant.
21
The district court's rationale must be placed on the
record to enable this court to determine if the use of the stun belt was an abuse of discretion.
22
Furthermore, the decision must be made by the district court, not by law enforcement
officers.
23
The use of physical restraints is subject to close judicial, not law enforcement,
scrutiny. It is the duty of the [district] court, not correctional officers, to make the affirmative
determination, in conformance with constitutional standards, to order the physical restraint of
a defendant in the courtroom.
24

____________________

17
Id. at 901.

18
Id.; Durham, 287 F.3d at 1304.

19
Gonzalez, 341 F.3d at 901; Durham, 287 F.3d at 1307; see also Deck, 544 U.S. at 633.

20
Gonzalez, 341 F.3d at 901.

21
Durham, 287 F.3d at 1307; People v. Mar, 52 P.3d 95, 97 (Cal. 2002).

22
Durham, 287 F.3d at 1307.

23
Gonzalez, 341 F.3d at 902; Mar, 52 P.3d at 105.

24
Gonzalez, 341 F.3d at 902.
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121 Nev. 200, 210 (2005) Hymon v. State
[Headnote 13]
In order for the error in the trial process alleged by Hymon to be reversible, this court must
conclude that it was not harmless beyond a reasonable doubt.
25
When it is clear beyond a
reasonable doubt that a rational jury would have found the defendant guilty absent the error,
the error is harmless.
26

[Headnote 14]
On appeal, Hymon focuses on the district court's failure to hold a hearing to disclose that it
received a copy of Hymon's letter. Hymon argues that the district court violated NCJC Canon
3B(7), which prohibits the district court from considering third-party communications
regarding a pending case. Hymon alleges that the district court was prejudiced against him
because of the letter. We note that the district court did have an obligation to promptly
disclose this third-party communication to Hymon and the State. Nevertheless, we conclude
that the district court's error is harmless because Hymon's remedy upon being informed of the
communication would have been to move to disqualify the district court judge, pursuant to
NRS 1.235. Hymon did not do so upon learning of the communication, and even if he had, a
district court judge is not required to recuse himself after receiving a threat from the
defendant.
27

[Headnote 15]
Further, we believe the focus should be, as Hymon argued below, on the district court's
failure to hold a hearing on the potential use of the stun belt. In this case, we conclude that the
district court's failure to hold a hearing before ordering Hymon to wear a stun belt was
harmless. Hymon claims that the jury, upon learning of the belt, must have believed that
Hymon was being forced to wear it because he was dangerous and could not be trusted to
conduct himself properly before the court. Hymon does not claim, however, that the belt
affected his demeanor during the trial or that it implicated his constitutional rights.
____________________

25
Manley v. State, 115 Nev. 114, 122-23, 979 P.2d 703, 708 (1999).

26
Allred v. State, 120 Nev. 410, 415, 92 P.3d 1246, 1250 (2004).

27
See Mayberry v. Pennsylvania, 400 U.S. 455, 463 (1971) ([W]e do not say that the more vicious the
attack on the judge the less qualified he is to act. A judge cannot be driven out of a case.); Standing Committee
v. Yagman, 55 F.3d 1430, 1443-44 (9th Cir. 1995) (It has long been established, however, that a party cannot
force a judge to recuse himself by engaging in personal attacks on the judge . . . .); Wilks v. Israel, 627 F.2d 32,
37 (7th Cir. 1980) (To permit [a deliberate attack] to cause a new trial before a new judge would encourage
unruly courtroom behavior and attacks on the trial judge and would greatly disrupt judicial administration.);
accord U.S. v. Malmsberry, 222 F. Supp. 2d 1345, 1349-50 (M.D. Fla. 2002); Smith v. District Court for Fourth
Judicial Dist., 629 P.2d 1055, 1057 (Colo. 1981); State v. Brown, 825 P.2d 482, 489 (Idaho 1992); State v.
Prater, 583 So. 2d 520, 527-28 (La. Ct. App. 1991); State v. Bilal, 893 P.2d 674, 675-77 (Wash. Ct. App.
1995).
........................................
121 Nev. 200, 211 (2005) Hymon v. State
however, that the belt affected his demeanor during the trial or that it implicated his
constitutional rights.
Furthermore, the district court instructed the jury that the stun belt was a standard security
procedure and that they should not draw any inferences from it concerning the defendant's
character or propensity for violence. We must presume that the jury followed that instruction.
28
Finally, if any prejudice resulted from the jury learning of the stun belt, it was caused by
Hymon's own actions. If Hymon had not opened his clothing during his opening statement,
the jury would never have known that Hymon was wearing a stun belt.
A review of the trial transcripts indicates that, while the district court sought input from
the corrections officer regarding whether Hymon should continue to wear the belt, the district
court ultimately made the decision to keep Hymon in the belt.
The record also reveals that Hymon posed a substantial security risk in the courtroom. On
several occasions, Hymon had to be removed from the courtroom due to an outburst or
uncontrollable behavior. Furthermore, Hymon's letter, which he admits authoring, contained a
direct threat to the district court judge who was sitting on the case. A direct threat to the life
of the judge or the court's staff constitutes a sufficient state interest to warrant the use of
restraints, such as a stun belt, in the courtroom. Therefore, we conclude that the record
sufficiently demonstrates that an essential state interest was served by compelling Hymon to
wear a stun belt and that the district court's failure to hold a hearing constitutes harmless
error.
Faretta canvass
Hymon contends that the district court abused its discretion by failing to conduct a
specific, penetrating and comprehensive Faretta canvass before granting Hymon the right to
represent himself. Hymon argues that the district court failed to adequately inquire into four
of the areas mentioned in SCR 253(3): Hymon's mental health, his understanding of the
elements of the crimes, his understanding of the punishments and total possible sentence, and
his understanding of the possible pleas and defenses available. The State counters that the
district court conducted two complete and detailed Faretta canvasses, after which the district
court found that Hymon was competent to stand trial and that he was waiving his right to
counsel freely and voluntarily.
____________________

28
See Lisle v. State, 113 Nev. 540, 558, 937 P.2d 473, 484 (1997) (There is a presumption that jurors follow
jury instructions.), clarified on other grounds, 114 Nev. 221, 954 P.2d 744 (1998).
........................................
121 Nev. 200, 212 (2005) Hymon v. State
[Headnotes 16-21]
The United States and Nevada Constitutions guarantee a defendant the right to
self-representation.
29
Denial of that right is per se reversible error.
30
However, before
allowing a defendant to waive counsel and represent himself, the trial court must ensure that
the defendant is competent and that the waiver of counsel is knowing, voluntary, and
intelligent.
31
The competency to stand trial is the same competency needed to waive the right
to counsel.
32
Once a defendant is deemed competent, the next inquiry is whether the waiver
of counsel is knowing, voluntary and intelligent.
33
[W]hen a defendant seeks to waive his
right to counsel, a determination that he is competent to stand trial is not enough; the waiver
must also be intelligent and voluntary before it can be accepted.
34

[Headnote 22]
The court should conduct a Faretta canvass to apprise the defendant fully of the risks of
self-representation and of the nature of the charged crime so that the defendant's decision is
made with a clear comprehension of the attendant risks.'
35
SCR 253(2) states that during
the Faretta canvass the district court should inform the defendant of some of the dangers,
disadvantages and consequences of self-representation and lists specific warnings that the
district court should offer. SCR 253(3) states that the district court's canvass may include
questions about the defendant personally and about the defendant's knowledge and
understanding of the proceedings against him. Finally, SCR 253(4) states that the district
court shall make findings on the record concerning the defendant's competency to waive
counsel and whether the defendant is waiving his right freely, voluntarily and knowingly.
[Headnote 23]
This court has rejected the necessity of a mechanical performance of a Faretta canvass.
Even the omission of a canvass is not reversible error if it appears from the whole record that
the defendant knew his rights and insisted upon representing himself.
____________________

29
Wayne v. State, 100 Nev. 582, 584, 691 P.2d 414, 415 (1984).

30
McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984).

31
Faretta, 422 U.S. at 835; see also Godinez v. Moran, 509 U.S. 389, 400-01 (1993).

32
Godinez, 509 U.S. at 399.

33
Johnson v. State, 117 Nev. 153, 164, 17 P.3d 1008, 1016 (2001).

34
Godinez, 509 U.S. at 402.

35
Johnson, 117 Nev. at 164, 17 P.3d at 1016 (citing Tanksley v. State, 113 Nev. 997, 1001, 946 P.2d 148,
150 (1997) (quoting Graves v. State, 112 Nev. 118, 124, 912 P.2d 234, 238 (1996))).
........................................
121 Nev. 200, 213 (2005) Hymon v. State
dant knew his rights and insisted upon representing himself.'
36
In Graves v. State, we
explained:
To the extent that any of our prior cases hint that specific matters should be part of a
canvass that go beyond the general requirements of Faretta, we note that those specific
matters are not constitutionally required for a valid waiver where it is apparent from the
record that the defendant was aware of the dangers and disadvantages of
self-representation.
37

[Headnote 24]
This court will give deference to the district court's decision to allow the defendant to
waive his right to counsel.
38
Through face-to-face interaction in the courtroom, the trial
judges are much more competent to judge a defendant's understanding than this court. The
cold record is a poor substitute for demeanor observation.
39

[Headnote 25]
First, Hymon contends that the district court abused its discretion by allowing Hymon to
represent himself, knowing that: (1) it previously ordered Hymon to undergo a psychological
evaluation, (2) Lake's Crossing diagnosed Hymon as having an antisocial personality
disorder, and (3) Hymon was unable to maintain his decorum in the courtroom. The State
contends that there was never any indication that Hymon was mentally incompetent.
[Headnote 26]
SCR 253(3)(c) states that the district court's canvass may include inquiry into the
defendant's mental health history. A defendant may be denied the right to represent himself if
a physical or mental impairment, even if not enough to render the defendant incompetent to
stand trial, renders the defendant unable to abide by rules of procedure or protocol.
40

During the Faretta canvasses, the district court inquired into Hymon's mental health and
Hymon responded that he was sane and had never been treated for any sort of mental illness.
The record indicates that the district court ordered the psychological evaluation because
Hymon was not cooperating with his counsel and refused to see the first psychologist. Lake's
Crossing indicated that Hymon was in good mental health, despite having an antisocial
personality disorder.
____________________

36
Graves, 112 Nev. at 125, 912 P.2d at 238 (quoting Wayne, 100 Nev. at 585, 691 P.2d at 416).

37
Id. at 125, 912 P.2d at 238-39.

38
Id. at 124, 912 P.2d at 238.

39
Id.

40
Johnson, 117 Nev. at 166-67, 17 P.3d at 1017.
........................................
121 Nev. 200, 214 (2005) Hymon v. State
that Hymon was in good mental health, despite having an antisocial personality disorder. The
record shows that Hymon was capable of abiding by the rules of procedure and protocol and
was able to use them to his advantage when appropriate. Accordingly, we conclude that the
district court adequately inquired into Hymon's mental health when performing the Faretta
canvass.
Second, Hymon contends that while he answered that he knew the elements of the offenses
that he was charged with, he could not have stated them upon further inquiry. SCR 253(3)(f)
states that the district court's canvass may include an inquiry into the [d]efendant's
understanding of the elements of each crime and lesser included or related offenses.
Hymon told the district court that he had attended approximately eleven preliminary
hearings and six trials, including one for robbery with use of a deadly weapon, and had done a
lot of legal reading while in prison. We conclude that the record repeatedly demonstrates that
Hymon had significant legal knowledge of the crimes with which he was charged and had
significant similar criminal experience. The district court adequately inquired into Hymon's
knowledge regarding the elements of the offenses.
Third, Hymon argues that he did not understand that he could be sentenced as a habitual
criminal and receive up to five life sentences. SCR 253(3)(g) states that the district court's
canvass may include an inquiry into the [d]efendant's understanding of the possible penalties
or punishments, and the total possible sentence the defendant could receive. The record
indicates that the sentences were explained several times to Hymon, and he independently
filed a motion for discovery under the habitual criminal act.
Finally, Hymon contends that the district court failed to adequately inquire into his
understanding of the possible defenses. Hymon indicated that he erroneously wished to base
his defense on alleged violations of his constitutional rights, and he intended to do so by
calling various court officials to testify regarding the relevant law.
[Headnotes 27, 28]
SCR 253(3)(h) states that the district court's canvass may include an inquiry into the
[d]efendant's understanding of the pleas and defenses which may be available. The right to
defend is given directly to the accused; for it is he who suffers the consequences if the
defense fails.
41
The standard of competency for a defendant to choose his own defense is
the same level of competency needed to stand trial.
42
The law requires that the defendant be
competent and that the waiver is knowing, voluntary and intelligent.
____________________

41
Faretta, 422 U.S. at 819-20.

42
Johnson, 117 Nev. at 164, 17 P.3d at 1015.
........................................
121 Nev. 200, 215 (2005) Hymon v. State
dant be competent and that the waiver is knowing, voluntary and intelligent.
We agree that the record seems to indicate that the district court was under the mistaken
impression that if the defendant is competent to stand trial, then no further inquiry is required
in regards to whether the waiver is knowing, voluntary and intelligent. However, we conclude
that the record indicates that Hymon understood his possible defenses. In an attempt to rebut
the essential elements of the crimes, Hymon competently cross-examined the witnesses,
presented jury instructions and argued that the State failed to establish its case. These
maneuvers demonstrate that Hymon understood and was capable of pursuing his viable
defenses.
Accordingly, the record demonstrates that the district court conducted a specific,
penetrating and comprehensive Faretta canvass. Furthermore, the record supports that
Hymon was competent to waive his right to counsel and that his waiver was knowing,
voluntary and intelligent.
Habitual criminality
[Headnote 29]
Hymon argues that the district court erred by sentencing him as a habitual criminal
because the certified copies of his judgments of conviction were not properly admitted into
evidence. Hymon contends that the convictions were not before the court because, while they
were introduced and marked, the district court never admitted them.
[Headnote 30]
If a defendant charged pursuant to NRS 207.010, 207.012 or 207.014 pleads guilty to or
is found guilty of the primary offense but denies any previous conviction charged, the
court shall determine the issue of the previous conviction after hearing all relevant
evidence presented on the issue by the prosecution and the defendant.
For the defendant to be sentenced as a habitual criminal, the State must prove the defendant's
prior convictions beyond a reasonable doubt.
43
[A] certified copy of a felony conviction is
prima facie evidence of conviction of a prior felony.
44

We conclude that Hymon's argument is without merit. While the better practice is for the
district court to clearly enunciate that evidence has been admitted, other courts have
recognized that the failure to do so is not fatal.
____________________

43
Hollander v. State, 82 Nev. 345, 349-50, 418 P.2d 802, 804 (1966).

44
NRS 207.016(5).
........................................
121 Nev. 200, 216 (2005) Hymon v. State
idence has been admitted, other courts have recognized that the failure to do so is not fatal.
45
It is not indispensable that an exhibit be offered and admitted in evidence by any precise
words.'
46

In this case, it is unclear whether the certified copies of Hymon's judgments of conviction
were admitted into evidence because the district court did not specifically state that they were.
Nevertheless, the documents were received into evidence, the parties argued them, and based
on certified copies of Hymon's judgments of conviction, the district court determined that
Hymon qualified as a habitual criminal. The copies were marked. The State presented Hymon
with copies, and the district court trailed the proceedings so that Hymon could review them.
Upon reconvening, Hymon not only objected to the evidence, but he also successfully argued
against the validity of one of the convictions. The district court clearly considered the
documents when it sentenced Hymon as a habitual criminal. The vault exhibit form shows
that four certified copies of judgments of conviction were offered and admitted. Furthermore,
on appeal, Hymon does not dispute the validity of the four judgments of conviction.
Accordingly, the district court did not err by determining that Hymon qualified as a habitual
criminal and sentencing Hymon as such.
CONCLUSION
We conclude that the district court's failure to hold a hearing before ordering Hymon to
wear a stun belt constitutes harmless error. However, we note that, in the future, the district
courts must hold a hearing in accordance with the guidelines established in this opinion
before ordering a defendant to wear a stun belt. Additionally, the district court did not abuse
its discretion by allowing Hymon to exercise his constitutional right to represent himself after
conducting two thorough Faretta canvasses. Finally, we conclude that, even though the
district court did not state that Hymon's prior judgments of conviction had been admitted
into evidence, the district court did not err by sentencing Hymon as a habitual criminal.
Accordingly, we affirm Hymon's convictions for robbery with the use of a deadly weapon,
larceny from a person and assault with a deadly weapon and his sentences under the habitual
criminal statute.
____________________

45
See Zimmerman v. Chicago Bd. of Trade, 360 F.3d 612, 622 (7th Cir. 2004); Morris v. State, 477 A.2d
1206, 1216 (Md. Ct. Spec. App. 1984); Com. v. Nicolella, 452 A.2d 1055, 1056 (Pa. Super. Ct. 1982); Gee v.
Lewisville Memorial Hosp., Inc., 849 S.W.2d 458, 461 (Tex. Ct. App. 1993).

46
Zimmerman, 360 F.3d at 622 (quoting Hastings v. Reynolds Metals Co., 165 F.2d 484, 486 (7th Cir.
1947)).
____________
........................................
121 Nev. 217, 217 (2005) Matter of Harrison Living Trust
In the Matter of the THEDA HARRISON LIVING TRUST Dated June 21, 1991, and as
Amended and Restated on December 17, 1991, and as Amended on January 6, 1992, and
December 2, 1992.
MICHELE TERIANO, Appellant, v. NEVADA STATE BANK, Respondent.
No. 41275
June 9, 2005 112 P.3d 1058
Appeal from a district court order denying a motion to set aside a trust distribution order as
void. Eighth Judicial District Court, Clark County; Gene T. Porter, Judge.
Trust beneficiary petitioned for an order surcharging trustee for breach of fiduciary duty in
distributing assets according to court order that trustee knew was void. The district court
denied the petition. Beneficiary appealed. The supreme court, Hardesty, J., held that trust
beneficiary was equitably estopped from setting aside void judgment for failure to bring
petition within reasonable time; overruling Garcia v. Ideal Supply Co., 110 Nev. 493, 874
P.2d 752 (1994).
Affirmed.
Glen J. Lerner & Associates and Paul D. Powell, Las Vegas, for Appellant.
Jolley Urga Wirth Woodbury & Standish and R. Gardner Jolley and L. Christopher Rose,
Las Vegas, for Respondent.
1. Courts.
If the language of a court rule is clear and unambiguous, the court must conclude
that the plain meaning of the rule was intended and enforce the rule as written.
2. Trusts.
Trust beneficiary was equitably estopped from seeking damages from trustee by
bringing petition to surcharge trustee for distribution of assets by order that trustee
knew was void nearly a year after the order, which was not within a reasonable time;
overruling Garcia v. Ideal Supply Co., 110 Nev. 493, 874 P.2d 752 (1994). NRCP
60(b)(4).
3. Estoppel.
Lack of diligence in taking an action that raises equitable estoppel in response to the
action is generally a factual issue for the district court's consideration.
4. Estoppel.
When the facts regarding lack of diligence are undisputed or when only one
inference can be drawn from the facts, the existence of equitable estoppel becomes a
question of law.
........................................
5. Estoppel.
Equitable estoppel functions to prevent the assertion of legal rights that in equity and
good conscience should not be available due to a party's conduct.
6. Estoppel.
The four elements of equitable estoppel are: (1) the party to be estopped must be
apprised of the true facts; (2) he must intend that his conduct shall be acted upon, or
must so act that the party asserting estoppel has the right to believe it was so intended;
(3) the party asserting the estoppel must be ignorant of the true state of facts; and (4) he
must have relied to his detriment on the conduct of the party to be estopped.
Before Becker, C. J., Rose and Hardesty, JJ.
OPINION
In this appeal, we consider whether petitions to challenge void judgments pursuant to
NRCP 60(b)(4)
1
may be denied in exceptional circumstances. Because NRCP 60(b)
expressly requires filing petitions within a reasonable time, we conclude that district courts
may consider lack of diligence, including equitable estoppel principles, to deny relief from a
void judgment.
FACTS
In June 1991, Theda Harrison established the Theda Harrison Living Trust. Michele
Teriano was named the principal beneficiary receiving Harrison's substantial assets, jewelry
and personal property. Teriano's distribution included stocks valued at $700,000, jewelry
valued at $111,000 and personal property with an unknown value. Terry Marsala, the other
beneficiary, was to receive $100,000 and Harrison's home furnishings.
Harrison died in September 2000 and left, among other assets, a collection of valuable
paintings. Trust trustee, Wells Fargo, retained counsel to render an opinion interpreting the
terms personal property and home furnishings for the purpose of determining which
beneficiary would receive Harrison's paintings. Counsel opined that the term home
furnishings included the paintings. Before Wells Fargo could distribute the Trust, Teriano
substituted Nevada State Bank (NSB) as the new trustee.
Given the dispute over the paintings, NSB petitioned the court for instruction before
distributing the Trust assets. Both beneficiaries of the Trust were sent notice of the
scheduled hearing; however, Teriano's notice was sent to an incorrect address.
____________________

1
NRCP 60 was amended, effective January 1, 2005. When Teriano moved to set aside the district court's
order, the provision regarding void judgments was contained in subsection (b)(3). The provision regarding void
judgments is now NRCP 60(b)(4).
........................................
ies of the Trust were sent notice of the scheduled hearing; however, Teriano's notice was sent
to an incorrect address. The probate court ruled that the paintings were home furnishings
and directed that they be distributed to Marsala.
Upon learning of the probate court's order, Teriano's attorney immediately notified Teriano
of the distribution order. However, Teriano claims she did not receive notice of the probate
court's ruling until two months after the hearing was held. The attorney who drafted the Trust
requested that NSB's counsel seek reconsideration of the home furnishings decision. The
drafting attorney prepared and signed the petition for reconsideration. He also provided an
affidavit where he testified that Harrison declared to him that the paintings were to be
considered personal property.
Teriano advised NSB that she did not receive notice of the first hearing. NSB advised
Teriano that a notice of the hearing on the petition for reconsideration would be given, but the
second notice was also sent to an incorrect address, and Teriano did not receive notice of that
hearing either. The attorney who drafted the Trust did not receive notice of or attend the
second hearing. The probate court denied the petition for reconsideration because the drafting
attorney failed to appear.
Following the probate court's denial of the motion for reconsideration, Teriano retained
new counsel, who prepared and filed an order denying the motion for reconsideration.
Teriano's new counsel also filed a notice of entry of order denying the petition for
reconsideration and copied all counsel.
NSB questioned Teriano's intention to challenge the probate court's order and advised
Teriano that it would proceed with the distribution of the entire Trust. More than thirty days
after Teriano's written notice of the order's entry, NSB distributed $100,000 and the paintings
to Marsala and the remaining Trust property and Trust jewelry to Teriano. Marsala later sold
the paintings.
More than a year after the distribution of Teriano's Trust property, Teriano filed a petition
for an order surcharging trustee NSB for breach of fiduciary duty, or in the alternative, to
vacate as void the court's order finding that the paintings were home furnishings. A hearing
was held on Teriano's petition, with both parties agreeing that Teriano had not received notice
of the probate hearing in which the probate court decided the distribution of the paintings.
The district court determined that Teriano had accepted property pursuant to the probate
court order and was estopped from challenging the trust distribution order because she waited
eighteen months to file the petition. Therefore, the district court denied Teriano's petition to
surcharge NSB for breach of fiduciary duty and to vacate the probate court order. This appeal
followed.
........................................
DISCUSSION
Void judgments, due diligence and equitable estoppel
NRCP 60(b) provides that the court may relieve a party or a party's legal representative
from a final judgment, order, or proceeding . . . (4) [if] the judgment is void. The rule further
provides that the motion shall be made within a reasonable time.
2

The standard to be applied in reviewing orders denying NRCP 60(b)(4) motions has thus
far been unclear. In Garcia v. Ideal Supply Co., this court held that there is no question of
discretion on the part of the court when a motion is made under [NRCP 60(b)(4)].'
3
The
Garcia court further noted that there is no time limit on an attack on a judgment as void. . .
. [E]ven the requirement that the motion be made within a reasonable time . . . cannot be
enforced' under NRCP 60(b)(4) motions.
4

However, in contrast, this court, four days after the decision in Garcia, held in Deal v.
Baines that a party would not be permitted to challenge the validity of a judgment under
NRCP 60(b)(4) when that party was guilty of an unexplained and unreasonable delay.
5
In
Deal, the defendant moved to vacate a judgment after a two-year delay on the grounds that he
was not present at trial and the trial took place beyond the five-year mandatory dismissal
period of NRCP 41. This court stated, [I]t was unreasonable to wait nearly two years to file a
motion under Rule [60(b)(4)].
6

Most state and federal courts interpreting provisions equivalent to NRCP 60(b)(4) have
held that there is no time limit for motions to vacate void judgments.
7
For instance, the Ninth
Circuit has stated, [I]f a judgment is void, a motion to set it aside may be brought at any
time.
8
But some courts have acknowledged that relief from a void judgment or order may
be denied in exceptional circumstances.
____________________

2
NRCP 60(b) (emphasis added).

3
110 Nev. 493, 495, 874 P.2d 752, 753 (1994) (quoting 11 Charles A. Wright & Arthur R. Miller, Federal
Practice & Procedure 2862 (1973)).

4
Id.

5
110 Nev. 509, 512, 874 P.2d 775, 777-78 (1994).

6
Id.

7
See U.S. v. One Toshiba Color Television, 213 F.3d 147, 157 (3d Cir. 2000) (stating that nearly
overwhelming authority exists for the proposition that there are no time limits with regards to a challenge to a
void judgment); Hertz Corp. v. Alamo Rent-A-Car, Inc., 16 F.3d 1126, 1130 (11th Cir. 1994) (observing that
the First, Fifth, Seventh, Tenth and D.C. Circuits hold that Rule 60(b)(4) motions are not subject to a
reasonable-time limitation); Ex Parte Full Circle Distribution, L.L.C., 883 So. 2d 638, 642-43 (Ala. 2003)
(collecting federal and state cases that impose no time limit); Fisher Systems Leasing v. J & J Gunsmithing, 21
P.3d 946, 951 n.4 (Idaho Ct. App. 2001) (recognizing that many other jurisdictions have severely relaxed or
completely done away with the reasonable time' requirement as to Rule 60(b)(4) motions).

8
In re Center Wholesale, Inc., 759 F.2d 1440, 1448 (9th Cir 1985).
........................................
lief from a void judgment or order may be denied in exceptional circumstances.
9
However,
those courts did not articulate the grounds for exceptional circumstances, and the source of
the exceptional circumstances doctrine, Moore's Federal Practice, no longer adheres to the
doctrine.
10
We further note that the majority rule permits an attack on a void judgment at any
time, but a minority of courts have recognized that lack of diligence may preclude relief.
11

Garcia and the majority position disregard the express language of NRCP 60(b), which
requires such motions to be made within a reasonable time. They rely on the following
commentary by Professors Wright and Miller:
Necessarily a motion under this part of the rule differs markedly from motions under
the other clauses of Rule 60(b). There is no question of discretion on the part of the
court when a motion is under Rule 60(b)(4). Nor is there any requirement, as there
usually is when default judgments are attacked under Rule 60(b), that the moving party
show that he has a meritorious defense. Either a judgment is void or it is valid.
Determining which it is may well present a difficult question, but when that question is
resolved, the court must act accordingly.
By the same token, there is no time limit on an attack on a judgment as void. . . .
[E]ven the requirement that the motion be made within a reasonable time, which
seems literally to apply . . . cannot be enforced with regard to this class of motion.
12

As the commentators recognize, however, the rule's language does not exclude challenges to
void judgments from the reasonable-time requirement.
13

____________________

9
Bludworth Bond Shipyard, Inc. v. M/V Caribbean Wind, 841 F.2d 646, 649 n.6 (5th Cir. 1988); Pacurar v.
Hernly, 611 F.2d 179, 181 (7th Cir. 1979). See generally McDaniel v. U.S. Fidelity & Guar. Co., 478 S.E.2d
868, 870-71 n.1 (S.C. Ct. App. 1996) (compiling federal and state cases).

10
See 12 Moore's Federal Practice 60.44[5][c] (3d ed. 2004); Bludworth, 841 F.2d at 649 n.6.

11
E.g., Corathers v. Facemire, 404 S.E.2d 769 (W. Va. 1991) (motion filed twenty-eight years after
judgment entered); McDaniel, 478 S.E.2d at 870 (concluding the court is bound to follow the reasonable-time
requirement in Rule 60(b)(4)).

12
11 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure 2862, at 322-24 (2d ed. 1995)
(footnotes omitted).

13
Id. at 324 (stating that the requirement that the motion be made within a reasonable time,' which seems
literally to apply to motions under Rule 60(b)(4), cannot be enforced).
........................................
[Headnote 1]
If the language of a court rule is clear and unambiguous, the court must conclude that the
plain meaning of the rule was intended and enforce the rule as written.
14
This court has
previously declined to formulate exceptions to the plain language of a rule.
15

[Headnote 2]
While Garcia previously recognized that motions to set aside void judgments are not
subject to a time limit, we confirm that courts retain the discretion to apply lack of diligence
principles to NRCP 60(b)(4) void judgment challenges. To the extent that Garcia precludes
any consideration of lack of diligence, it is overruled.
We recognize that judgments, once found to be void, should generally be set aside. But we
see no reason to ignore the express language of a rule that requires the district courts to
consider the timeliness of a motion to set aside a void judgment when determining whether
exceptional circumstances, such as lack of diligence or equitable estoppel, exist to justify
denying the motion. The reasonableness of the time taken to set aside such judgments is an
important factor in such cases.
[Headnotes 3, 4]
Lack of diligence is generally a factual issue for the district court's consideration.
16
Whether the party seeking to establish equitable estoppel has met his or her burden is also
generally a question of fact.
17
But when the facts are undisputed or when only one inference
can be drawn from the facts, then the existence of equitable estoppel becomes a question of
law.
18
The decision to apply equitable estoppel is committed to the district court's sound
discretion, and the court's decision is therefore reviewed under an abuse of discretion
standard.
19

____________________

14
Anheuser Busch v. Industrial Claim Office, 28 P.3d 969, 970 (Colo. Ct. App. 2001); Hill v. Sacka, 666
N.W.2d 282, 287 (Mich. Ct. App. 2003) (applying plain meaning rule to statutory construction).

15
Prostack v. Lowden, 96 Nev. 230, 231, 606 P.2d 1099, 1100 (1980).

16
McDaniel, 478 S.E.2d at 870 (stating that whether a Rule 60(b)(4) motion is brought within a reasonable
time is a matter addressed to the trial judge's sound discretion); Perry v. Kroger Stores, 741 S.W.2d 533 (Tex.
App. 1987) (discussing lack of diligence in service of process context).

17
See Breliant v. Preferred Equities Corp., 112 Nev. 663, 674, 918 P.2d 314, 321 (1996) (stating that burden
of proving equitable estoppel is on party asserting estoppel); Sword v. Sweet, 92 P.3d 492, 499 (Idaho 2004)
(recognizing that whether laches, a species of equitable estoppel, may apply is primarily a fact question);
Hawthorne Trust v. Maine Sav. Bank, 618 A.2d 828, 831 (N.H. 1992) (noting that existence of equitable
estoppel is fact question).

18
See, e.g., Nugent v. Slaght, 638 N.W.2d 594, 602 (Wis. Ct. App. 2001).

19
Sword, 92 P.3d at 499; Nugent, 638 N.W.2d at 602; Thompson v. Bd. of Cty. Com'rs of Sublette, 34 P.3d
278, 280 (Wyo. 2001).
........................................
[Headnotes 5, 6]
Equitable estoppel functions to prevent the assertion of legal rights that in equity and
good conscience should not be available due to a party's conduct.
20
This court has
previously established the four elements of equitable estoppel:
(1) the party to be estopped must be apprised of the true facts; (2) he must intend that
his conduct shall be acted upon, or must so act that the party asserting estoppel has the
right to believe it was so intended; (3) the party asserting the estoppel must be ignorant
of the true state of facts; (4) he must have relied to his detriment on the conduct of the
party to be estopped.
21

Among other things, silence can raise an estoppel quite as effectively as can words.
22

Although the district court did not specifically make formal findings with respect to the
four elements of equitable estoppel, it determined that Teriano should be estopped from
asserting a lack of notice. In this case, the facts were undisputed; consequently, the existence
of equitable estoppel is a question of law, which we review de novo.
23
Additionally, if
express findings are lacking, we may imply findings when, as in this case, the evidence
clearly supports the district court's conclusion.
24

Here, instead of challenging the probate court's oral denial of the reconsideration petition,
Teriano's counsel filed a proposed order and notice of entry of order denying the
reconsideration petition. This order propelled distribution of Trust assets to Teriano, which
she enjoyed for more than a year before filing her petition. Given that Teriano's attorney
drafted and filed the written order denying reconsideration, the Trustee could reasonably
assume Teriano would not challenge the distribution order and, therefore, distributed the
Trust assets in accordance with the order.
____________________

20
Topaz Mutual Co. v. Marsh, 108 Nev. 845, 853, 839 P.2d 606, 611 (1992) (citing United Brotherhood v.
Dahnke, 102 Nev. 20, 22, 714 P.2d 177, 178-79 (1986)).

21
Cheqer, Inc. v. Painters & Decorators, 98 Nev. 609, 614, 655 P.2d 996, 998-99 (1982).

22
Id. at 614, 655 P.2d at 998-99.

23
See, e.g., Clark County v. Sun State Properties, 119 Nev. 329, 72 P.3d 954 (2003). In cases where facts are
disputed, the decision to apply equitable estoppel is committed to the district court's sound discretion, and the
court's decision is therefore reviewed under an abuse of discretion standard. Sword v. Sweet, 92 P.3d 492, 499
(Idaho 2004); Nugent v. Slaght, 638 N.W.2d 594, 602 (Wis. Ct. App. 2001); Thompson v. Bd. of Cty. Com'rs of
Sublette, 34 P.3d 278, 280 (Wyo. 2001).

24
Hannam v. Brown, 114 Nev. 350, 357, 956 P.2d 794, 799 (1998).
........................................
We conclude that under these circumstances, the district court did not abuse its discretion
in finding that Teriano unreasonably delayed filing a petition to set aside a void judgment,
and in applying equitable estoppel to Teriano's petition. She did not appeal the initial probate
court order, although she learned of the ruling promptly after the hearing. She did nothing to
prevent the distribution of the paintings that occurred in late 2001. Instead, Teriano's
attorneys filed an order and notice of entry of order, which effectively confirmed the
distribution. Teriano did not file her NRCP 60(b) petition, arguing that the paintings should
have gone to her, until eighteen months after the probate hearing and more than a year after
the distribution of all the Trust property. Before Teriano filed her Rule 60(b) petition, NSB
justifiably relied on the distribution order and distributed the paintings to Marsala who later
sold them. Teriano had the advice of two counsel, knew of the notice defects, and consciously
decided to accept her share of the Trust assets rather than objecting to the distribution of the
paintings to Marsala. The findings of lack of diligence and application of equitable estoppel
are proper, and the district court did not err in denying Teriano's petition under NRCP
60(b)(4) to set aside as void the distribution order.
Breach of fiduciary duty
Teriano claims that the district court erred in denying her petition to surcharge NSB for
breach of fiduciary duty, arguing that a trustee has a fiduciary duty to provide notice to a trust
beneficiary and that NSB breached that duty by repeatedly mailing her notice to an incorrect
address.
Because NSB was acting in accordance with an order this court has deemed beyond
challenge, we conclude that there is no breach of fiduciary duty for which NSB could be
surcharged. We conclude that the district court properly denied Teriano's motion to surcharge.
CONCLUSION
We conclude that the district court did not err in denying Teriano's motion under NRCP
60(b)(4) to set aside as void its previous order. We recognize that there is no time limit to
challenge a judgment as void. However, NRCP 60(b) specifically provides that motions to
challenge orders as void must be made within a reasonable time. Therefore, courts may deny
motions to set aside void judgments when there exist exceptional circumstances such as a
lack of diligence or when equitable estoppel principles apply. Under the circumstances of this
case, the district court's decision to deny the motion to set aside was proper.
........................................
to deny the motion to set aside was proper. We also conclude that the district court did not err
in denying Teriano's petition to surcharge NSB. Accordingly, we affirm the district court's
order.
Becker, C. J., and Rose, J., concur.
____________
121 Nev. 225, 225 (2005) State v. Dist. Ct. (Riker)
THE STATE OF NEVADA, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, in and for THE COUNTY OF CLARK, and THE
HONORABLE MICHAEL CHERRY, District Judge, Respondents, and DAVID
ROBERT RIKER, Real Party in Interest.
No. 44108
June 9, 2005 112 P.3d 1070
Original petition by the State for a writ of prohibition or mandamus.
State petitioned for a writ of prohibition or mandamus ordering the district court to vacate
its order and to dismiss defendant's habeas petition as procedurally barred. The supreme court
held that district court had a duty to consider whether defendant's post-conviction petition
claims were procedurally barred.
Petition granted in part.
[Rehearing denied September 14, 2005]
Steven S. Owens, Chief Deputy District Attorney, Clark County, for Petitioner.
Franny A. Forsman, Federal Public Defender, and Michael Pescetta, Assistant Federal
Public Defender, Las Vegas, for Real Party in Interest.
1. Mandamus; Prohibition.
The supreme court considers whether judicial economy and sound judicial
administration militate for or against issuing either a writ of mandamus or prohibition.
Mandamus and prohibition are extraordinary remedies, and the decision to entertain
a petition lies within the supreme court's discretion.
The purpose of a writ of mandamus or prohibition is not simply to correct errors.
4. Habeas Corpus.
Application of the statutory procedural default rules to post-conviction habeas
petitions is mandatory.
........................................
5. Habeas Corpus.
To avoid dismissal of a successive habeas petition, a defendant must plead and
prove specific facts that demonstrate good cause for his failure to present claims before
or for presenting claims again and actual prejudice; he cannot rely on conclusory claims
for relief but must provide supporting specific factual allegations that if true would
entitle him to relief. NRS 34.810(3).
6. Habeas Corpus.
A defendant is not entitled to an evidentiary hearing on a habeas petition if the
record belies or repels the allegations.
7. Habeas Corpus.
To show good cause for a successive habeas petition, defendant must demonstrate
that an impediment external to the defense prevented him from complying with
procedural rules.
8. Habeas Corpus.
Actual prejudice requires defendant, who files a successive post-conviction habeas
petition to show not merely that the errors at his trial created a possibility of prejudice,
but that they worked to his actual and substantial disadvantage, infecting his entire trial
with error of constitutional dimensions.
9. Habeas Corpus.
Absent a showing of good cause to excuse procedural default in filing a successive
post-conviction habeas petition, the court will consider a claim only if the petitioner
demonstrates that failure to consider it will result in a fundamental miscarriage of
justice.
10. Criminal Law.
The law of a prior appeal is the law of the case in later proceedings in which the
facts are substantially the same; this doctrine cannot be avoided by more detailed and
precisely focused argument.
11. Habeas Corpus; Mandamus.
Given the untimely and successive nature of defendant's post-conviction habeas
petition, the district court had a duty to consider whether any or all of his claims were
procedurally barred and the court's failure to make such a determination constituted an
arbitrary and unreasonable exercise of discretion so as to warrant mandamus relief.
NRS 34.726, 34.800, 34.810.
12. Habeas Corpus.
While defendant's claims in his second post-conviction habeas petition that his first
post-conviction counsel was ineffective in regards to his first petition were not subject
to procedural default for failure to raise them in prior proceedings, his claims of
ineffective counsel did not make his second petition immune from other procedural
default, such as untimeliness. NRS 34.726, 34.800, 34.810.
13. Criminal Law.
A court need not discuss or decide every potential basis for its decision as long as
one ground sufficient for the decision exists.
14. Habeas Corpus.
Court's conclusion in a case that one procedural bar precludes relief on a
post-conviction habeas petition carries no implication regarding the potential
applicability of other procedural bars.
1

____________________

1
The Honorable Michael L. Douglas, Justice, voluntarily recused himself from participation in the decision
of this matter.
........................................
OPINION
Per Curiam:
This is an original petition by the State for a writ of prohibition or mandamus. The
underlying proceeding in the district court involves an untimely and successive
post-conviction habeas petition filed by David Robert Riker, the real party in interest here.
The State contends that the claims raised in Riker's petition are procedurally barred and the
district court abused its discretion or exceeded its jurisdiction in ordering an evidentiary
hearing on the merits of the claims. The State seeks a writ ordering the district court to vacate
its order and to dismiss Riker's habeas petition as procedurally barred.
For the last year and a half this court has been burdened with an increasing number of
petitions by the State seeking our extraordinary intervention in post-conviction habeas
proceedings. These petitions ask this court to compel district courts to impose procedural bars
against post-conviction habeas claims. We have granted relief in some of these cases, and we
determine that some relief is appropriate here. However, we emphasize that mandamus or
prohibition is an extraordinary remedy, not a means for routine correction of error, and
accordingly set forth some guidance on the narrow circumstances under which that remedy
may be appropriate regarding post-conviction procedural bars. We also address some claims
that Riker makes in attacking this court's general application of post-conviction procedural
default rules.
FACTS
In 1992, Riker and Richard Allan Walker were charged with murder and robbery, both
with the use of a deadly weapon, in the stabbing death of Kevin Marble in Las Vegas.
2

Riker initially entered a plea of not guilty. In November 1992, Riker told his attorney that
he wanted to plead guilty to both charges. Four doctors of psychology or psychiatry evaluated
Riker to determine his competency. All concluded that he was able to assist his counsel,
though one believed that Riker's depression rendered him incapable of rationally entering a
guilty plea. In August 1993, the district court thoroughly canvassed Riker regarding his desire
to plead guilty and then accepted Riker's guilty plea. In September 1993, Riker underwent
another psychological evaluation. The examining doctor concluded that Riker wanted to
commit suicide but was competent to aid and consult with his attorney. Later that month,
Riker moved to withdraw his guilty plea.
____________________

2
Riker v. State, 111 Nev. 1316, 1318, 905 P.2d 706, 707 (1995); Walker v. State, 113 Nev. 853, 858-59, 944
P.2d 762, 765-66 (1997).
........................................
that month, Riker moved to withdraw his guilty plea. The district court denied the motion.
In February 1994, a three-judge panel conducted a penalty hearing. The panel found one
aggravating circumstance: the murder occurred during the commission of a robbery, and
Riker killed the victim. The panel found two mitigating circumstances: Riker was only 20 at
the time of the murder, and he had a history of mental disturbance. The three judges decided
that the aggravating circumstance outweighed the mitigating circumstances and returned a
death sentence. This court affirmed Riker's judgment of conviction and sentence in November
1995.
3

In the meantime, Walker went to trial, and in June 1994 a jury convicted him of
first-degree murder with use of a deadly weapon and robbery with use of a deadly weapon.
He received two consecutive sentences of life without the possibility of parole.
4

Riker filed a post-conviction petition for a writ of habeas corpus in November 1996. The
district court filed an order denying the petition in January 1998, and this court dismissed
Riker's appeal in December 1998. Riker filed a habeas petition with the federal district court
in October 1999. That court stayed the proceedings to allow Riker to exhaust all of his claims
in state court.
Riker filed a second post-conviction habeas petition in state court in March 2003, alleging
23 grounds for relief. The State moved to dismiss the petition, arguing that it was barred
procedurally. Riker filed an opposition to the State's motion with over 800 pages of exhibits
in support. He contended that the procedural rules could not be applied against him due to
the discretionary and arbitrary application of those rules. In January 2004, Riker filed a
motion for leave to conduct discovery accompanied by nearly 1400 pages of exhibits. The
exhibits included 47 subpoenas, 55 letters requesting discovery, and 65 other documents. The
State filed an opposition to the discovery motion.
In June 2004, Riker filed an amended habeas petition of more than 220 pages, raising 30
more claims for relief. Accompanying the amended petition were more than 1000 pages of
exhibits. In addition, more than two dozen exhibits were filed under seal. The same day,
Riker also filed a motion seeking a protective order which would keep under seal his
responses to discovery requests by the State. He wanted the order to apply to materials
allegedly protected by the attorney-client privilege or work-product doctrine and to stay in
effect as long as his murder trial in California was pending.
____________________

3
Riker, 111 Nev. 1316, 905 P.2d 706.

4
Walker, 113 Nev. at 858, 944 P.2d at 765-66.
........................................
ing.
5
The State filed an opposition to Riker's motion and moved to strike his amended
petition.
The district court held a hearing on the various pending matters in August 2004 and
decided to grant an evidentiary hearing:
Well I've read everything and to me, I'm going to certainly allow an evidentiary
hearing. I think it's only right at this stage as thenow the equivalent of being the trial
judge now on this case, it's back to me. I want to make as complete a record as possible
in the District Court. Reason being, is I know where this is going to go. It's a death
penalty case. It's going to go to the Supreme Court. I don't want them to remand it to me
if they affirmif I deny the post-conviction relief after all the hearing and everything
and then it's affirmed by the Supreme Court. It's going to go into Federal Court. I don't
want to see it again. I mean that's why I wantmaybe it's selfish on my part, but I want
to get as much done here so that I'm through with it.
And the only way to do that is to allow the Federal Public Defender to pursue the
post-conviction relief on the basis of ineffective assistance of counsel.
Later in the hearing the following exchange occurred among counsel for the State, the district
court, and Riker's counsel.
Mr. Owens: On the ordering of an evidentiary hearing, you're aware that on the first
Petition for Post-Conviction an evidentiary hearing was denied and that was upheld on
appeal. It seems to me we're taking a step back. If it was denied earlier, why would we
now want to grant some several years later
The Court: Because it's a different judge. I view the death penalty case much
differently than some of my other jurists. I know that's just the chance you guys take
when you come to this department. I'm the one who had a guy get death two weeks ago.
And I know what it's like. So I mean I sentenced a guy to death and he got death.
Mr. Pescetta: I would say, your Honor, you know rather than simply rely on that, that
there is an enormous amount of material outside the record on appeal that is before this
court now that wasn't in the first Habeas Corpus Petition and so whatever record the
Nevada Supreme Court upheld the denial of an evidentiary hearing on in the first
proceeding, the facts are wholly different at this point in the record before your
Honor.
____________________

5
Apparently, Riker and Walker are facing trial for the April 1992 murder of John Phippin in Blythe,
California. Cf. Riker, 111 Nev. at 1318, 905 P.2d at 707.
........................................
of an evidentiary hearing on in the first proceeding, the facts are wholly different at this
point in the record before your Honor.
The Court: Well not only that, Ijust my own experience in this, with two people,
two of my former clients on death row . . . . I know how important it is that a proper
record be made in the trial court. And that's what I'm trying to do. I just want to make a
proper record. If I've expanded it a little bit, I don't think it's going to hurt because when
we go into Federal Court on this, and you guys are going to go into Federal Court,
there's no doubt, and Mr. Pescetta's not going to let this stop at the Supreme Court. And
even if I deny it and the Supreme Court affirms my denial, it's going to go into the
Federal District Court. And I want to make sure that I'm finished with it. That I've
exhausted . . . whatever State remedies there are and that there's a full record. So there's
no remand back to Judge Cherry to conduct further evidentiary hearings. So I'll give
you that opportunity.
In a written order entered on September 29, 2004, the court denied the State's motions to
dismiss the habeas petition and to strike the amended petition, granted Riker's motions for a
protective order and for leave to conduct discovery, and granted an evidentiary hearing on
Riker's claims of ineffective assistance of post-conviction counsel.
DISCUSSION
Post-conviction procedural default rules and extraordinary intervention by this court
The State contends that the district court abused its discretion or acted in excess of its
jurisdiction in three ways: in ordering an evidentiary hearing to review issues on the merits
even though numerous procedural defaults exist and no good cause has been shown to excuse
those defaults; in allowing Riker to conduct discovery to explore issues that should have been
dismissed; and in granting Riker a protective order allowing him to keep claims for relief and
exhibits under seal for an indefinite period of time. The State asks this court to issue a writ of
prohibition or mandamus to the district court ordering that court to vacate its order of
September 29, 2004, and dismiss Riker's second post-conviction habeas petition as
procedurally barred. We conclude that the operative question is whether Riker's claims are
procedurally barred and that the district court abused its discretion in not considering the
applicable procedural default rules to decide this question. Therefore, we grant the State's
petition in part and direct the district court to consider and apply the appropriate rules and
decide whether Riker's claims are procedurally barred.
........................................
Pertinent legal standards
[Headnotes 1-3]
This court may issue a writ of mandamus to compel the performance of an act which the
law requires as a duty resulting from an office, trust, or station or to control a manifest abuse
of or arbitrary or capricious exercise of discretion.
6
We may issue a writ of prohibition to
arrest the proceedings of any tribunal exercising judicial functions in excess of its
jurisdiction.
7
Neither writ issues where the petitioner has a plain, speedy, and adequate
remedy in the ordinary course of law.
8
This court considers whether judicial economy and
sound judicial administration militate for or against issuing either writ.
9
Mandamus and
prohibition are extraordinary remedies, and the decision to entertain a petition lies within the
discretion of this court.
10
The purpose of neither writ is simply to correct errors.
11

[Headnote 4]
Application of the statutory procedural default rules to post-conviction habeas petitions is
mandatory.
12
Habeas corpus petitions that are filed many years after conviction are an
unreasonable burden on the criminal justice system. The necessity for a workable system
dictates that there must exist a time when a criminal conviction is final.
13

The procedural rules pertinent to this case appear to be the following. NRS 34.726(1)
provides in part that absent a showing of good cause for delay, a petition challenging the
validity of a judgment or sentence must be filed within one year after this court issues its
remittitur on direct appeal.
14
Riker filed his instant petition almost 8 years after this court
decided his direct appeal. To show good cause for the delay, he must demonstrate that it
was not his fault and that dismissal of the petition will unduly prejudice him.
____________________

6
See NRS 34.160; Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981).

7
See NRS 34.320; Hickey v. District Court, 105 Nev. 729, 731, 782 P.2d 1336, 1338 (1989).

8
See NRS 34.170; NRS 34.330; Hickey, 105 Nev. at 731, 782 P.2d at 1338.

9
See State v. Babayan, 106 Nev. 155, 175-76, 787 P.2d 805, 819 (1990).

10
Hickey, 105 Nev. at 731, 782 P.2d at 1338.

11
See, e.g., State of Nevada v. Dist. Ct., 116 Nev. 127, 133, 994 P.2d 692, 696 (2000); Goicoechea v.
District Court, 96 Nev. 287, 289-90, 607 P.2d 1140, 1141 (1980).

12
State v. Haberstroh, 119 Nev. 173, 180, 69 P.3d 676, 681 (2003).

13
Groesbeck v. Warden, 100 Nev. 259, 261, 679 P.2d 1268, 1269 (1984).

14
See Pellegrini v. State, 117 Nev. 860, 874-75, 34 P.3d 519, 529 (2001). In cases where the petitioner's
conviction preceded the enactment of NRS 34.726, the one-year filing period extends from January 1, 1993, the
effective date of NRS 34.726. Id.
........................................
good cause for the delay, he must demonstrate that it was not his fault and that dismissal of
the petition will unduly prejudice him.
15

[Headnotes 5, 6]
NRS 34.810(1)(a) provides that a post-conviction habeas petition must be dismissed if
[t]he petitioner's conviction was upon a plea of guilty and the petition is not based upon an
allegation that the plea was involuntarily or unknowingly entered or that the plea was entered
without effective assistance of counsel. NRS 34.810(2) provides that a second or successive
petition must be dismissed if it fails to allege new or different grounds for relief and . . . the
prior determination was on the merits or, if new and different grounds are alleged, . . . the
failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the
writ. To avoid dismissal, Riker must plead and prove specific facts that demonstrate good
cause for his failure to present claims before or for presenting claims again and actual
prejudice.
16
He cannot rely on conclusory claims for relief but must provide supporting
specific factual allegations that if true would entitle him to relief.
17
And he is not entitled to
an evidentiary hearing if the record belies or repels the allegations.
18

[Headnotes 7-9]
To show good cause, Riker must demonstrate that an impediment external to the defense
prevented him from complying with procedural rules.
19
Actual prejudice requires him to
show not merely that the errors at his trial created a possibility of prejudice, but that they
worked to his actual and substantial disadvantage, infecting his entire trial with error of
constitutional dimensions.
20
Absent a showing of good cause to excuse procedural default,
the court will consider a claim only if the petitioner demonstrates that failure to consider it
will result in a fundamental miscarriage of justice.
21

[Headnote 10]
Furthermore, the law of a prior appeal is the law of the case in later proceedings in which
the facts are substantially the same; this doctrine cannot be avoided by more detailed and
precisely focused argument.
____________________

15
NRS 34.726(1).

16
NRS 34.810(3).

17

18
Id.

19
See Crump v. Warden, 113 Nev. 293, 302, 934 P.2d 247, 252 (1997).

20
United States v. Frady, 456 U.S. 152, 170 (1982); see also Hogan v. Warden, 109 Nev. 952, 960, 860 P.2d
710, 716 (1993).

21
See Mazzan v. Warden, 112 Nev. 838, 842, 921 P.2d 920, 922 (1996).
........................................
doctrine cannot be avoided by more detailed and precisely focused argument.
22

Finally, NRS 34.800(1) provides that a court may dismiss a petition if delay in its filing
either prejudices the State in responding to the petition, unless the petitioner shows that the
petition is based upon grounds of which he could not have had knowledge by the exercise of
reasonable diligence before the prejudice arose, or prejudices the State in its ability to
conduct a retrial of the petitioner, unless the petitioner demonstrates that a fundamental
miscarriage of justice has occurred. If the pertinent period of delay exceeds five years, as in
this case, it leads to a rebuttable presumption of prejudice to the State.
23

The narrow circumstances in which extraordinary intervention is appropriate; the
relief appropriate in this case
[Headnote 11]
We begin our analysis by stressing that extraordinary relief is not warranted for routine
correction of errors that a district court may make. Such relief is not in order, for example,
where a district court has considered the applicable procedural default rules, applied them to a
post-conviction habeas petition, and concluded that claims are not procedurally barred. That
the State, or even this court, might disagree with the district court's conclusion is not a reason
to seek extraordinary relief as long as the district court has made a reasonable effort to follow
the applicable law regarding procedural default. Even if a district court errs, consistent
application of procedural default rules in this state can be maintained by our review of the
matter on appeal from the district court's final resolution of a petition.
However, the statutory rules regarding procedural default are mandatory and cannot be
ignored when properly raised by the State. Therefore, in a case where it is clear that the
district court has disregarded the applicable law and failed to decide the issue of procedural
default or decided the issue by applying clearly incorrect legal standards, extraordinary relief
is likely warranted. In this case, the district court disregarded the applicable law and invoked
incorrect standards in rejecting the State's assertions of procedural default. But we do not
ourselves decide the question of procedural default, as the State requests; rather, we direct the
district court to assess the record and Riker's specific claims, consider and apply the
appropriate rules of procedural default, and decide in a written order whether claims are
procedurally barred.
____________________

22
See Hall v. State, 91 Nev. 314, 315-16, 535 P.2d 797, 798-99 (1975).

23
NRS 34.800(2).
........................................
Given the untimely and successive nature of Riker's petition, the district court had a duty
imposed by law to consider whether any or all of Riker's claims were barred under NRS
34.726, NRS 34.810, NRS 34.800, or the law of the case previously pronounced by this court.
The district court, however, did not refer to or apply these legal standards in granting the
evidentiary hearing. It cited concerns which, while understandable, are not controlling. The
district court considered itself the equivalent of . . . the trial judge and consequently wanted
to make as complete a record as possible. This is an incorrect basis for an evidentiary
hearing. Once a defendant has pleaded guilty, as long as the validity of the plea is recognized,
he is not entitled to a trial or a hearing comparable in scope to a trial.
24
The district court also
repeatedly expressed the aim of thoroughly considering and deciding Riker's case in order not
to see it again. Though an appropriate goal in regard to cognizable issues, this consideration
does not nullify procedural default rules. The district court stated further that an evidentiary
hearing would be granted because it was a different judge and view[ed] the death penalty
case much differently than some of my other jurists. I know that's just the chance you guys
take when you come to this department. Again, although serious and careful consideration of
death penalty cases is always required, the fact that a habeas petitioner faces a death sentence
does not somehow lessen the effect of procedural bars. Nor should the temperament and
particular concerns of a district judge determine whether the bars will be given effect.
None of the factors discussed by the district court permitted it to disregard the question of
the applicability of the procedural default rules. We conclude that mandamus relief is
appropriate here because determining whether procedural bars apply to an untimely or
successive habeas petition is an act which the law requires of the district court and that court's
failure to make this determination here constituted an arbitrary and unreasonable exercise of
discretion. Also, the State has no plain, speedy, and adequate remedy in the ordinary course
of law for this abuse of discretion. Particularly in this case where the claims are so numerous
and the requests for discovery so extensive, judicial economy and sound judicial
administration militate for granting relief: determining the applicability of procedural bars
may eliminate the need for or narrow the scope of any discovery or evidentiary hearing.
____________________

24
See NRS 34.810(1) (requiring dismissal of a petition if the petitioner pleaded guilty unless the petition
alleges that the plea was involuntary or unknowing or was entered without effective assistance of counsel);
Tollett v. Henderson, 411 U.S. 258, 267 (1973) ([A] guilty plea represents a break in the chain of events which
has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he
is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating
to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.).
........................................
discovery so extensive, judicial economy and sound judicial administration militate for
granting relief: determining the applicability of procedural bars may eliminate the need for or
narrow the scope of any discovery or evidentiary hearing.
Criticism of this court's general application of procedural default rules
We are returning this matter to the district court for it to assess the record, to determine the
pertinent facts, and to decide the applicability of the procedural default rules to Riker's
specific claims. But in his answer, Riker presents certain issues that extend beyond the facts
of this case and raise questions of law which are appropriate for our resolution.
25

[Headnote 12]
First, Riker asserts that his first post-conviction habeas counsel was appointed to represent
him pursuant to statutory mandate and that this gave him the right to effective assistance by
that counsel. He therefore concludes that under Crump v. Warden
26
his claims that his first
post-conviction counsel was ineffective conclusively establish cause for this second
post-conviction petition. This overstates the holding in Crump, where we concluded that such
claims were not subject to procedural default under NRS 34.810(1)(b) for failure to raise
them in prior proceedings.
27
Crump does not stand for the proposition that claims of
ineffective first post-conviction counsel are immune to other procedural default, e.g.,
untimeliness under NRS 34.726 or NRS 34.800. As we have explained elsewhere,
A claim of ineffective assistance of counsel may also excuse a procedural default if
counsel was so ineffective as to violate the Sixth Amendment. However, in order to
constitute adequate cause, the ineffective assistance of counsel claim itself must not be
procedurally defaulted. In other words, a petitioner must demonstrate cause for raising
the ineffective assistance of counsel claim in an untimely fashion.
28

____________________

25
In presenting these issues, Riker refers to a number of this court's unpublished orders. Our unpublished
orders do not constitute precedent, and a party cannot cite them as legal authority. See SCR 123 (providing two
exceptions not applicable here). In this case, we have considered and discussed these orders not as legal
precedent but only to determine if they support factually Riker's allegations.

26
113 Nev. at 303-04, 934 P.2d at 253.

27
Id. at 304-05, 934 P.2d at 254.

28
Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 (2003) (footnotes omitted).
........................................
Riker also argues that procedural default rules cannot be applied to his case because in
other cases this court has disregarded the bars or has applied them inconsistently. We accept
neither Riker's premise that we regularly disregard the bars nor his conclusion that disregard
or inconsistency on our part would excuse his own procedural default. First, any prior
inconsistent application of statutory default rules would not provide a basis for this court to
ignore the rules, which are mandatory, as we explained in Pellegrini v. State.
29
Second, we
flatly reject the claim that this court at its discretion ignores procedural default rules.
30
Riker
offers a number of flawed, misleading, and irrelevant arguments to back his position that this
court has exercised complete discretion to address constitutional claims, when an adequate
record is presented to resolve them, at any stage of the proceedings, despite the default rules
contained in [NRS] 34.726, 34.800, and 34.810.
To begin with, Riker criticizes this court's consideration of unpreserved error on direct
appeal and equates such consideration with a failure to respect procedural bars in
post-conviction proceedings. This equation is utterly without merit. Unpreserved error on
direct appeal is not subject to procedural bars or anything equivalent to such bars; on the
contrary, statutes grant this court the discretion to consider unpreserved errors or even require
the court, in some cases, to consider such errors. NRS 178.602 expressly provides this court
with the discretion on direct appeal to consider plain error despite a failure to preserve the
issue at trial or to raise the issue on appeal.
31
As we have explained before, this plain-error
rule applies only on direct appeal and does not create a procedural bar exception in any
habeas proceeding.
32
Furthermore, in direct appeals of death sentences, NRS 177.055(2)
specifically requires this court to review on the record, among other things, [w]hether the
sentence of death was imposed under the influence of passion, prejudice or any arbitrary
factor.
Thus, when Riker cites Butler v. State,
33
a recent direct appeal where this court applied
NRS 177.055(2), he is wrong that the decision has any bearing on the consistency of our
application of post-conviction procedural default rules, and he is wrong that it involved this
court's exercise of unwarranted discretion. Butler and this court's other dispositions on direct
appeal cited by Riker are of absolutely no relevance to the issue of consistent application
of post-conviction procedural bars.
____________________

29
117 Nev. at 879-80, 34 P.3d at 532.

30
See id. at 879-86, 34 P.3d at 532-36.

31
NRS 178.602 provides: Plain errors or defects affecting substantial rights may be noticed although they
were not brought to the attention of the court.

32
Pellegrini, 117 Nev. at 884, 34 P.3d at 535.

33
120 Nev. 879, 900, 102 P.3d 71, 85 (2004).
........................................
of absolutely no relevance to the issue of consistent application of post-conviction procedural
bars.
34
Similarly irrelevant is Riker's criticism of this court's treatment of jurisdictional
challenges.
35
Nor is Riker's position supported by this court's occasional use of standard
footnotes stating that no relief is warranted based on proper person submissions.
36

Riker also mischaracterizes many of our decisions in an effort to defend the ruling below.
For example, he contends that we ignored procedural bars in Bennett v. State, from which he
quotes the following: [w]ithout expressly addressing the remaining procedural bases for the
dismissal of Bennett's petition, we therefore choose to reach the merits of Bennett's
contentions.
37
The full context of this quoted material demonstrates that we did not ignore
the procedural bars but addressed Bennett's claims within the framework of those bars:
Although there appears to be merit to the State's insistence that Bennett has not
demonstrated good cause for failing to raise certain issues in prior proceedings and for
revisiting issues that have already been decided by this court, whether Bennett can show
cause for doing so is related to his ineffective assistance of counsel allegations.
Furthermore, whether Bennett can show prejudice from the dismissal of his petition is
intricately related to the merits of his claims. Without expressly addressing the
remaining procedural bases for the dismissal of Bennett's petition, we therefore choose
to reach the merits of Bennett's contentions, which are clearly lacking for the most part
and, in terms of those allegations of arguable merit, do not otherwise warrant a new
penalty hearing.
38

____________________

34
E.g., Lane v. State, 110 Nev. 1156, 881 P.2d 1358 (1994), overruled by Leslie v. Warden, 118 Nev. 773,
59 P.3d 440 (2002); Powell v. State, 108 Nev. 700, 838 P.2d 921 (1992), vacated, 511 U.S. 79 (1994); Lord v.
State, 107 Nev. 28, 806 P.2d 548 (1991).

35
Riker's criticism is baseless as well. In Jones v. State, we did not rule that the requirement of subject matter
jurisdiction is waivable; rather, we ruled in Jones's first post-conviction proceeding that by pleading guilty he
had conceded the facts establishing such jurisdiction. Docket No. 24497 (Order Dismissing Appeal, August 28,
1996). And in a later proceeding, we ruled that the issue of jurisdiction was settled under the doctrine of the law
of the case. Jones v. Warden, Docket No. 39091 (Order of Affirmance, December 19, 2002).

36
Riker cites specifically Baeta v. State, Docket No. 37524 (Order of Affirmance, November 2, 2001), and
Wilson v. State, Docket No. 29802 (Order Dismissing Appeal, April 9, 1998).

37
111 Nev. 1099, 1103, 901 P.2d 676, 679 (1995) (emphasis added by Riker).

38
Id. (emphasis added).
........................................
According to Riker, in Ford v. Warden
39
we addressed a claim of direct appeal error
raised for the first time in a second post-conviction proceeding without discussing or applying
default rules. Actually, in that case we noted Ford's request that we revisit the evidence in her
case and modify her sentence, but we perceive[d] no basis for reconsidering our previous
holding and declined to do so.
40
Our denial of Ford's request simply upheld the law of the
case and in no way infringed any procedural bars.
In a 15-page order in Jones v. Warden,
41
we ruled that the claims in a successive
post-conviction habeas petition were procedurally barred. In the final paragraph of the order,
we rejected Jones's challenges to his three-judge sentencing procedure, including one under
Ring v. Arizona.
42
We stated that [e]ven assuming Ring's recent date provides appellant
with good cause for failing to raise it in an earlier proceeding, we conclude that appellant
suffered no prejudice; we then concluded that appellant's other grounds for challenging the
three-judge sentencing panel are meritless.
43
Based on this final sentence, Riker concludes
that we ignored applicable procedural bars. This conclusion is unjustified. In the context of
our application of the procedural bars throughout the order, meritless indicated the
appellant's failure to show prejudice and did not signify that we abruptly chose to dispense
with the procedural bars and decide these final claims directly on the merits. The same
essential analysis applies to Bejarano v. Warden,
44
and Riker's characterization of that
opinion as disregarding procedural default rules is also incorrect.
[Headnotes 13, 14]
Riker maintains that a number of other decisions by this court support his position that we
apply procedural default rules inconsistently, but under scrutiny the support fails to
materialize. He cites several of our orders that dismissed appeals after applying the doctrine
of the law of the case, which is compatible with the statutory procedural bars, not inconsistent
with them as Riker appears to suggest.
45
Even more puzzling, Riker cites as instances of
inconsistency dispositions in which we have expressly enforced statutory procedural bars
and denied relief.
____________________

39
111 Nev. 872, 901 P.2d 123 (1995).

40
Id. at 886-87, 901 P.2d at 132.

41
Docket No. 39091 (Order of Affirmance, December 19, 2002).

42
536 U.S. 584 (2002).

43
Jones, Docket No. 39091, at 14-15 (footnote omitted).

44
112 Nev. 1466, 1471 n.2, 929 P.2d 922, 926 n.2 (1996).

45
See, e.g., Williams v. Warden, Docket No. 29084 (Order Dismissing Appeal, August 29, 1997) (also
applying procedural bar to new claims); Rogers v. Warden, Docket No. 22858 (Order Dismissing Appeal, May
28, 1993); Williams v. State, Docket No. 20732 (Order Dismissing Appeal, July 18, 1990).
........................................
sistency dispositions in which we have expressly enforced statutory procedural bars and
denied relief.
46
Apparently, he reasons that in denying relief to a petitioner on the basis of
one procedural bar without discussing the possible application of another procedural bar, this
court has asserted discretion to disregard the procedural bars. He does not make this
reasoning explicit, nor does he offer any authority for it. It is, of course, a frivolous claim. A
court need not discuss or decide every potential basis for its decision as long as one ground
sufficient for the decision exists.
47
This proposition is fundamental to legal analysis and
judicial economy, as well as simple logic. Thus, our conclusion in a case that one procedural
bar precludes relief carries no implication regarding the potential applicability of other
procedural bars.
Riker contends that our order in O'Neill v. State
48
flouts NRS 34.800(2) by not addressing
laches and the presumption of prejudice to the State set forth in that statute. However, that
statute requires the State to specifically plead laches and prejudice. Nor is it likely such a
pleading would have gained relief given our determination that O'Neill had established cause
and prejudice under NRS 34.726 for the untimely filing of his petition.
Riker's contentions regarding several other of our decisions are also incorrect. He asserts
that in Farmer v. Director
49
we addressed the merits of two claims even though they were
not raised on direct appeal: whether the guilty plea was involuntary and whether the
aggravating circumstances were insufficient. But these questions were not procedurally
barred. The voluntariness of a guilty plea is an appropriate claim in a first post-conviction
habeas petition, and the challenge to the aggravating circumstances was a basis for a
claim of ineffective assistance of counsel, also appropriately raised.
____________________

46
Milligan v. Warden, Docket No. 37845 (Order of Affirmance, July 24, 2002); Riley v. State, Docket No.
33750 (Order Dismissing Appeal, November 19, 1999); Ybarra v. Warden, Docket No. 32762 (Order
Dismissing Appeal, July 6, 1999); Wilson v. State, Docket No. 29802 (Order Dismissing Appeal, April 9, 1998);
Farmer v. State, Docket No. 29120 (Order Dismissing Appeal, November 20, 1997); Sechrest v. State, Docket
No. 29170 (Order Dismissing Appeal, November 20, 1997); Nevius v. Warden, Docket Nos. 29027 & 29028
(Order Dismissing Appeal and Denying Petition, October 9, 1996). Riker also cites Koerner v. Grigas, 328 F.3d
1039, 1043-44 (9th Cir. 2003), which describes this court's affirmance of a dismissal of a successive petition.

47
See, e.g., Thomas v. State, 120 Nev. 37, 48, 83 P.3d 818, 825 (2004) (We need not decide whether this
failure [by counsel to challenge improper remarks by the prosecutor] was prejudicial since we have already
determined that a new penalty hearing is necessary.); Allan v. State, 118 Nev. 19, 26, 38 P.3d 175, 179 (2002)
(In light of this conclusion [that the district court erroneously ruled that the appellant could be impeached with
his confession], we need not reach [appellant's] other contentions.).

48
Docket No. 39143 (Order of Reversal and Remand, December 18, 2002).

49
Docket No. 18052 (Order Dismissing Appeal, March 31, 1988).
........................................
petition, and the challenge to the aggravating circumstances was a basis for a claim of
ineffective assistance of counsel, also appropriately raised.
50
Riker asserts that in Farmer v.
State
51
we addressed a claim of improper admission of victim impact evidence on the merits
despite procedural default. He is incorrect. Farmer claimed ineffective assistance of counsel,
and we concluded that he failed to demonstrate prejudice. The claim was appropriately raised
because a statute mandated appointment of counsel for Farmer in his first post-conviction
petition in 1986.
52
Riker also criticizes this court for not requiring the petitioner to file
another petition and plead cause in Feazell v. State, but we did not disregard procedural
default in that case; rather, we expressly addressed the issue, applying NRS 34.810(1)(b)(3)
and concluding that cause existed and prejudice resulted.
53
And the claim we addressed in
denying rehearing in Nevius v. Warden
54
was not procedurally barred because it arose only
after the original habeas petition was filed. Although the claim should not have been raised
for the first time on rehearing, we considered it in the interest of judicial economy and
rejected it.
Riker also cites decisions by this court dating to the 1970s and even earlier. Such early
decisions are irrelevant to the question of consistent application of the procedural bars
because, as we explained in Pellegrini, the pertinent statutory law (and our own caselaw
concerning the treatment of ineffective assistance of counsel) evolved over the years and did
not establish the current rigorous, comprehensive procedural bars until the mid-1980s.
55

Riker claims that this court has issued contradictory decisions as to whether a petitioner
can demonstrate cause to excuse a procedural default. He asserts generally that this court's
decision-making is inconsistent in various cases in various ways, but he fails to deal with the
specific facts of those cases and the distinctions in our rulings. For example, he states that in
State v. Haberstroh
56
this court construed a stipulation in a post-conviction habeas
proceeding as establishing cause under the procedural default rules.
____________________

50
See NRS 34.810(1)(a); Kirksey v. State, 112 Nev. 980, 999, 923 P.2d 1102, 1114 (1996) (Where the
defendant has pleaded guilty, the only claims that may be raised thereafter are those involving the voluntariness
of the plea itself and the effectiveness of counsel.).

51
Docket No. 22562 (Order Dismissing Appeal, February 20, 1992).

52
See 1987 Nev. Stat., ch. 539, 42, at 1230; Crump, 113 Nev. at 303, 934 P.2d at 253 ([A] petitioner who
has counsel appointed by statutory mandate is entitled to effective assistance of that counsel.).

53
Docket No. 37789 (Order Affirming in Part and Vacating in Part, November 14, 2002).

54
Docket Nos. 29027 & 29028 (Order Denying Rehearing, July 17, 1998).

55
117 Nev. at 870-72, 883, 886, 34 P.3d at 526-27, 534, 536.

56
119 Nev. 173, 69 P.3d 676.
........................................
court construed a stipulation in a post-conviction habeas proceeding as establishing cause
under the procedural default rules. He claims that we acted inconsistently in Sullivan v. State,
57
refusing to recognize cause despite the parties' stipulation that a habeas petition was
timely. The cases, however, are readily distinguishable. Haberstroh involved a successive
habeas petition, and the parties stipulated to allow resolution of some of the issues on the
merits.
58
We held that parties in a post-conviction habeas proceeding cannot stipulate to
disregard the procedural default rules, but we realized that Haberstroh had in good faith
relied upon the stipulation and did not present evidence or argument in regard to cause for
raising his claims.
59
In order to decide the appeal while still complying with the relevant
procedural bars, we treated the stipulation as establishing the facts to show cause to raise the
relevant claims but allowing consideration of the claims' merits only to determine the
question of prejudice.
60
The basis for our approach was the recognition that [p]arties can
stipulate to the facts but not to the law.
61
The stipulation in Sullivan ran afoul of this same
proposition. In that case, we concluded that the parties' stipulationthat a supplemental
habeas petition was timely simply because it was filed within one year of the entry of an
amended judgment of convictionwas incorrect as a matter of law.
62
[T]he one-year
statutory time limit did not automatically restart for Sullivan's post-conviction claims simply
because the district court entered the amended judgment of conviction.
63
Since Sullivan's
claims were not related to and did not contest the clerical correction contained in the
amended judgment of conviction, entry of the amended judgment did not provide good
cause to excuse the untimely filing of his petition.
64
There is no conflict between this holding
and Haberstroh.
65

____________________

57
120 Nev. 537, 96 P.3d 761 (2004).

58
119 Nev. at 180, 69 P.3d at 681.

59
Id. at 181, 69 P.3d at 681.

60
Id. at 181, 69 P.3d at 681-82 (footnote omitted).

61
Id. at 181 n.8, 69 P.3d at 681 n.8.

62
Sullivan, 120 Nev. at 540-41, 96 P.3d at 763-65.

63
Id. at 541, 96 P.3d at 764.

64
Id. at 541-42, 96 P.3d at 765.

65
Riker also claims that Doleman v. State, Docket No. 33424 (Order Dismissing Appeal, March 17, 2000), is
inconsistent with Haberstroh. Doleman was a direct appeal of an amended judgment of conviction imposing a
new sentence. It involved a stipulation allowing Doleman to raise an issue that did not pertain to the amended
judgment; in our order, we explained that the issue was not appropriately raised but clarified that we had
previously rejected it as lacking merit. To the extent that Doleman bears any resemblance to Haberstroh, there
is, again, no conflict.
........................................
Riker also suggests that this court's determination in Stevens v. State,
66
that Stevens had
established cause for filing an untimely petition, contradicts Crump v. Warden.
67
However,
our order in Stevens in no way conflicts with our opinion in Crump. We concluded that
Stevens should have been appointed counsel in his first petition and that under the extremely
unusual circumstances presented in this case, good cause existed for his failure to file a
timely second habeas petition.
68
We recognized that appointment of counsel was not
automatic under the pertinent statute but concluded, among other things, that the district court
had erred by failing to consider Stevens's request for counsel given that Stevens was under a
penalty of death and had alleged an arguably colorable ineffective assistance of counsel claim
in his first petition.
69
In Crump we held simply that a petitioner who has counsel appointed
by statutory mandate is entitled to effective assistance of that counsel.
70
Crump does not
mean, as Riker apparently assumes, that without such a mandate a court's failure to appoint
counsel cannot provide good cause for procedural default.
We end with Riker's reliance on caselaw that after our 2001 decision in Pellegrini clearly
lacks the authority attributed to it. The answer filed on Riker's behalf cites our decision in Hill
v. State
71
as an instance of our ignoring procedural bars, but in Pellegrini we discussed the
facts underlying Hill and explained that it did not offend the procedural default rules because
the district court improperly had failed to appoint counsel for Hill in dismissing his first
post-conviction petition.
72
Riker's answer simply ignores Pellegrini's discussion of Hill.
Even more troubling, it cites our 1974 decision in Warden v. Lischko
73
for the proposition
that a district court has the discretionary power to rule on a barred claim. Yet in Pellegrini we
not only explained that the procedural bar for waiver in 1974 was far less stringent than the
current bar; we expressly overruled Lischko in regard to the proposition for which the answer
cites it.
74

____________________

66
Docket No. 24138 (Order of Remand, July 8, 1994).

67
113 Nev. 293, 934 P.2d 247.

68
Stevens, Docket No. 24138, at 3.

69
Id. at 4.

70
113 Nev. at 303, 934 P.2d at 253.

71
114 Nev. 169, 953 P.2d 1077 (1998).

72
Pellegrini, 117 Nev. at 885, 34 P.3d at 536. For the same reason, our order disposing of Hill's first
post-conviction petition, which Riker cites separately, also does not support Riker's position. Hill v. State,
Docket No. 18253 (Order Dismissing Appeal, June 29, 1987).

73
90 Nev. 221, 523 P.2d 6 (1974), overruled by Pellegrini, 117 Nev. at 886, 34 P.3d at 536. He also cites
Krewson v. Warden, 96 Nev. 886, 620 P.2d 859 (1980), which invokes Lischko.

74
Pellegrini, 117 Nev. at 886, 34 P.3d at 536.
........................................
CONCLUSION
We grant the State's petition in part and direct the clerk of this court to issue a writ of
mandamus that directs the district court to vacate its order of September 29, 2004, which
denied the State's motions to dismiss the habeas petition and strike the amended petition,
granted Riker's motions for a protective order and leave to conduct discovery, and granted an
evidentiary hearing. The writ shall also direct the district court, consistently with this opinion,
to assess the record and determine the pertinent facts, consider and apply the appropriate rules
of procedural default to Riker's specific claims, and issue a written order that sets forth, with
suitable findings and conclusions, which, if any, claims are procedurally barred and which, if
any, are not. If the district court concludes that all the claims are barred, it shall issue its order
as a final one.
75
If it concludes that any claims are not barred, it shall conduct further
proceedings in this matter as appropriate.
76
We hereby also vacate the stay imposed by our
order of November 12, 2004.
____________
121 Nev. 243, 243 (2005) Weiner v. Beatty
STEVEN WEINER, Appellant, v. THOMAS D. BEATTY, Esq., Respondent.
No. 39605
June 9, 2005* 116 P.3d 829
Appeal from a district court order granting summary judgment in a legal malpractice
action. Eighth Judicial District Court, Clark County; Valorie Vega, Judge.
Principal filed suit against school administrators' union and against attorney who was hired
by union to represent principal during investigative interview and subsequent arbitration
hearing, and who was simultaneously retained by school district to represent school district's
assistant general counsel in a separate federal law suit. The district court granted attorney's
summary judgment motion, and principal appealed. The supreme court, Hardesty, J., held that
principal could not bring legal malpractice claim against attorney but rather had to pursue
claim against union for breach of duty of fair representation.
____________________

75
See NRS 34.830.

76
In his answer to the State's petition, Riker also argues that our recent decision in McConnell v. State, 120
Nev. 1043, 102 P.3d 606 (2004), applies, invalidating the one aggravating circumstance found in his case.
Because this issue has not been presented to the district court or addressed by the State, we do not consider it
here.
*Reporter's Note: The court issued its decision in this matter on June 9, 2005. The opinion printed here is the
corrected opinion issued on August 8, 2005.
........................................
Affirmed.
Kossack Law Offices and Robert J. Kossack, Las Vegas, for Appellant.
Laxalt & Nomura, Ltd., and Bruce R. Laxalt and Kerry Zachariasen Malone, Reno, for
Respondent.
Appellate court reviews a district court's decision to grant summary judgment de
novo.
2. Judgment.
Summary judgment is appropriate when, after a review of the record viewed in the
light most favorable to the nonmoving party, there are no genuine issues of material
fact and the moving party is entitled to judgment as a matter of law.
3. Judgment.
In determining whether summary judgment is proper, the nonmoving party is
entitled to have the evidence and all reasonable inferences accepted as true.
4. Attorney and Client; Labor and Employment.
Public-employee union member does not have an independent claim for legal
malpractice against an attorney provided by his union, but instead, union member's
remedy lies in an action against the union for breach of the duty of fair representation
under the Employee-Management Relations Act (EMRA). NRS Chapter 288.
School principal did not have legal malpractice claim against attorney who was hired
by union to represent principal during investigative interview and subsequent
arbitration hearing, and who simultaneously represented school district's general
counsel in separate suit, but rather principal was required to pursue action against the
union for breach of the duty of fair representation under the Employee-Management
Relations Act (EMRA) because representation arose out of collective bargaining
agreement, and attorney was considered an arm of the union. NRS Chapter 288.
The duty of fair representation governs the relationship between union members and
union representatives. NRS Chapter 288.
When a collective bargaining agreement is in place, the union and its bargaining
representatives owe a duty of fair representation to its members. NRS Chapter 288.
The duty of fair representation requires that when the union represents or negotiates
on behalf of a union member, it must conduct itself in a manner that is not arbitrary,
discriminatory, or in bad faith. NRS Chapter 288.
If the union's conduct is deemed to be within the duty of fair representation, liability
will not lie against the union for acts undertaken in representing a union member.
........................................
OPINION
1

In this appeal, we consider whether a public-employee union member has an independent
claim for legal malpractice against an attorney provided by his union. We conclude that state
labor law should be interpreted consistently with federal labor law, which bars legal
malpractice claims against lawyers supplied by unions. A union member's remedy lies in an
action against the union for breach of the duty of fair representation.
FACTUAL AND PROCEDURAL HISTORY
Dr. Steven Weiner worked for the Clark County School District (CCSD) from 1973 until
his termination in 1997.
In October 1996, Weiner was suspended from his employment as a principal at Robinson
Middle School. Weiner was a member of the Clark County Association of School
Administrators (CCASA), a recognized employee organization
2
or union for school
administrators. The collective bargaining agreement between CCASA and CCSD provided
that an employee under investigation was entitled to union representation. Although Weiner
had the option to retain his own personal counsel, he requested assistance from CCASA in his
quest for reinstatement.
CCASA hired and paid attorney Thomas D. Beatty to represent Weiner during the
investigative interview and subsequent arbitration hearing. CCSD was represented in the
arbitration by its general counsel C.W. Hoffman, Jr. After three days of hearings, the
arbitrator concluded that CCSD had just cause to terminate Weiner.
Unbeknownst to Weiner, Beatty was simultaneously retained by CCSD to represent
CCSD's assistant general counsel in a separate, federal law suit.
Weiner filed a state court action against CCASA and then against Beatty individually for
malpractice. The cases were consolidated, and Beatty sought summary judgment. The district
court concluded that section 301(b) of the Labor Management Relations {Taft-Hartley) Act
preempted Weiner's claim.
____________________

1
This corrected opinion is issued in place of the opinion filed June 9, 2005.

2
NRS 288.040 defines an employee organization as an organization of any kind having as one of its
purposes improvement of the terms and conditions of employment of local government employees.
........................................
(Taft-Hartley) Act
3
preempted Weiner's claim. The district court also determined that a
lawyer representing a collective bargaining organization or union, who argues on behalf of an
individual union member, cannot be sued by that member for malpractice. Consequently, the
district court granted Beatty's summary judgment motion. Weiner then appealed.
4

DISCUSSION
[Headnotes 1-3]
This court reviews a district court's decision to grant summary judgment de novo.
5
Summary judgment is appropriate when, after a review of the record viewed in the light most
favorable to the nonmoving party, there are no genuine issues of material fact and the moving
party is entitled to judgment as a matter of law.
6
In determining whether summary judgment
is proper, the nonmoving party is entitled to have the evidence and all reasonable inferences
accepted as true.
7

Weiner filed a malpractice action against Beatty under state law. The district court
determined that federal law preempted the state law malpractice claim because under federal
law, a union member cannot sue the union attorney for malpractice.
8
Rather, the union
member must sue the union itself for breach of the duty of fair representation.
9

Federal labor law interpreting Taft-Hartley section 301(b) protects individual union
members, agents and representatives from civil liability, so long as their conduct and actions
are within the purview of the collective bargaining agreement.
10
In Atkinson v.
____________________

3
29 U.S.C. 185 (2000).

4
Weiner and CCASA subsequently stipulated to dismiss Weiner's appeal against CCASA.

5
Walker v. American Bankers Ins., 108 Nev. 533, 536, 836 P.2d 59, 61 (1992).

6
Medallion Dev. v. Converse Consultants, 113 Nev. 27, 31, 930 P.2d 115, 118 (1997).

7
Id.

8
Peterson v. Kennedy, 771 F.2d 1244, 1259 (9th Cir. 1985).

9
Id.

10
See Complete Auto Transit, Inc. v. Reis, 451 U.S. 401 (1981) (holding union members participating in
wildcat strike cannot be held individually liable for violating no-strike clause of collective bargaining
agreement, whether or not the union participated in or authorized the illegality); Atkinson v. Sinclair Refining
Co., 370 U.S. 238 (1962) (barring employer from suing certain union members individually in their capacity as
agents of the union for alleged involvement in a strike in violation of the collective bargaining agreement);
Hardline Elec. v. Intern. Broth. of Elec. Workers, 680 F.2d 622 (9th Cir. 1982)
........................................
Sinclair Refining Co., the United States Supreme Court held that union officers and
employees are not individually liable for acts performed under the banner of collective
bargaining.
11
The Atkinson Court emphasized specifically that the policy of holding only the
union liable cannot be evaded or truncated by the simple device of suing union agents or
members, whether in contract or tort, or both, in a separate count or in a separate action for
damages.
12

Additionally, the vast majority of courts have determined that an attorney hired by a union
to defend a union member covered under a collective bargaining agreement is an agent of the
union.
13
Therefore, a state law malpractice claim will not lie.
A leading case is the Ninth Circuit Court of Appeals decision in Peterson v. Kennedy.
14
In
Peterson, the court reasoned that a union provides a service to the member when it furnishes
legal counsel,
15
the attorney-client relationship exists between the union and the attorney,
16
and a different standard of care governs union liability and claims for legal malpractice.
____________________
(following Complete Auto Transit, Inc. by stipulation of the parties); United Steelwkrs. of America v. Lorain,
Etc., 616 F.2d 919 (6th Cir. 1980) (holding that employer cannot maintain action against union officers and staff
representatives in alleged illegal strike involving arbitrable issues); Universal Communications Corporation v.
Burns, 449 F.2d 691 (5th Cir. 1971) (holding that television station cannot sue union official for attempting to
induce political candidates to boycott station by falsely telling candidates that other stations were unionized);
Williams v. Pacific Maritime Association, 421 F.2d 1287 (9th Cir. 1970) (holding that union members are not
permitted to sue individual union officers and executive officials of defendant union); Suwanchai v.
International Broth. of Elec. Workers, 528 F. Supp. 851 (D.N.H. 1981) (determining that union official was
immune under section 301 in action against union and official for breach of duty of fair representation in failing
to timely file or properly present grievance); Balestreri v. Western Carloading, 530 F. Supp. 825 (N.D. Cal.
1980) (holding that in ex-employee's action against union and its business agent for failure to adequately
represent plaintiff regarding his discharge for fighting, union agent is immune under section 301); Henry v.
Radio Station KSAN, 374 F. Supp. 260 (N.D. Cal. 1974) (holding that employees could not sue union business
agent individually for inadequate representation in dispute with employer regarding alleged race discrimination).

11
370 U.S. at 249.

12
Id.

13
E.g., Peterson, 771 F.2d at 1257-60; Montplaisir v. Leighton, 875 F.2d 1, 5-7 (1st Cir. 1989); Best v.
Rome, 858 F. Supp. 271, 274 (D. Mass. 1994); Mamorella v. Derkasch, 716 N.Y.S.2d 211, 213 (App. Div.
2000); Sellers v. Doe, 650 N.E.2d 485, 487-88 (Ohio Ct. App. 1994); Collins v. Lefkowitz, 584 N.E.2d 64, 65
(Ohio Ct. App. 1990) (holding that an attorney who is handling a labor grievance under a collective bargaining
agreement has not entered into an attorney-client relationship with the union member).

14
771 F.2d 1244.

15
Id. at 1258.

16
Id.
........................................
claims for legal malpractice.
17
Therefore, the court held that both in-house and outside
counsel were an arm of the union.
18
Accordingly, the court concluded that counsel were also
protected by the rule set forth in Atkinson that union officers and employees are immune from
personal liability for acts undertaken as union representatives.
19

[Headnotes 4, 5]
Weiner contends, however, that the collective bargaining agreement between CCASA and
CCSD falls outside the scope of federal labor law because he was employed by a political
subdivision of Nevada.
In pertinent part, federal labor statutes provide, The term employer' includes any person
acting as an agent of an employer, directly or indirectly, but shall not include . . . any State or
political subdivision thereof.
20
For purposes of this provision, political subdivisions are
entities that are either . . . created directly by the state, so as to constitute departments or
administrative arms of the government, or . . . administered by individuals who are
responsible to public officials or to the general electorate.'
21
Under the federal labor
statutes' express terms, then, they do not govern employees of political subdivisions of the
state.
22

As the CCSD is a political subdivision of the State of Nevada,
23
the federal labor statutes
do not apply directly to the CCSD or its employees. Instead, because the CCSD is a local
government employer
24
and Weiner is a local government employee,
25
the Nevada
Employee-Management Relations Act (EMRA)
26
governs this case.
The EMRA is silent on the issue of immunity from personal liability for union officers and
employees for acts undertaken as union representatives. We note, however, that by enacting
the EMRA, the Legislature "intended to apply principles similar to those of the NLRA to its
public employers."
____________________

17
Id. at 1259.

18
Id. at 1258.

19
Id.

20
29 U.S.C. 152(2) (2000); id. 142(3).

21
Chaparro-Febus v. Local 1575, 983 F.2d 325, 329 (1st Cir. 1992) (quoting NLRB v. Natural Gas Utility
District, 402 U.S. 600, 604-05 (1971)).

22
N.A.A.C.P., Detroit Branch v. DPOA, 821 F.2d 328, 331-32 (6th Cir. 1987).

23
NRS 386.010(2) (Each county school district created by this chapter is hereby declared to be a political
subdivision of the State of Nevada whose purpose is to administer the state system of public education.).

24
NRS 288.060 (defining local government employer as any political subdivision of this State or any
public or quasi-public corporation organized under the laws of this State and includes, without limitation, . . .
school districts).

25
NRS 288.050 (defining local government employee as any person employed by a local government
employer).

26
NRS Chapter 288.
........................................
EMRA, the Legislature intended to apply principles similar to those of the NLRA to its
public employers.
27
We have held that precedent interpreting the federal statutes is
persuasive in interpreting the EMRA.
28
Further, we recognized in Cone v. Nevada Service
Employees Union that local government employee organizations are subject to the duty of fair
representation.
29
And, we determined in Rosequist v. International Ass'n of Firefighters that
fair representation of an employee by a union involving the implementation of the terms of a
collective bargaining agreement is a right arising under the [EMRA] and the failure of a
union to fairly represent an employee interferes with that right.
30

[Headnotes 6-9]
We take this opportunity to further address the scope of the duty of fair representation
under the EMRA. We agree with federal law that the duty of fair representation governs the
relationship between union members and union representatives.
31
When a collective
bargaining agreement is in place, the union and its bargaining representatives owe a duty of
fair representation to its members.
32
The duty of fair representation requires that when the
union represents or negotiates on behalf of a union member, it must conduct itself in a
manner that is not arbitrary, discriminatory, or in bad faith.
33
If the union's conduct is
deemed to be within the duty of fair representation, liability will not lie against the union for
acts undertaken in representing a union member.
34

In examining a union's fair representation duty, other states have embraced federal labor
law, holding that when a union furnishes an employee with legal counsel, it provides a
service to the member.
35
For that reason, given the union's duty of fair representation, the
union is ultimately responsible to the employee for any deficiency in the performance of the
legal service.
36

____________________

27
Truckee Meadows v. Int'l Firefighters, 109 Nev. 367, 374, 849 P.2d 343, 348 (1993).

28
See id. at 375-76, 849 P.2d at 348-49.

29
116 Nev. 473, 479, 998 P.2d 1178, 1182 (2000); see also NRS 288.140(1); NRS 288.270(2).

30
118 Nev. 444, 449, 49 P.3d 651, 653 (2002).

31
Steelworkers v. Rawson, 495 U.S. 362, 372 (1990).

32
Marquez v. Screen Actors, 525 U.S. 33, 44 (1998).

33
Vaca v. Sipes, 386 U.S. 171, 190 (1967).

34
Id.

35
Mamorella, 716 N.Y.S.2d at 213; Sellers, 650 N.E.2d at 487; Collins, 584 N.E.2d at 65.

36
Id.
........................................
In considering the scope of the fair representation duty, a majority of courts have
concluded that a rule imposing personal liability on public-employee union agents would be
inconsistent with the standard of conduct required of the union.
37
Union agents should not be
held to a negligence standard of care, when the union for whom they work is liable only if its
representation is arbitrary, discriminatory, or in bad faith.
38
We agree with these courts,
and further, we see no reason to adopt a rule imposing malpractice liability on union lawyers
representing public employees, when the same lawyer would have no liability under federal
labor law representing a nonpublic-employee union member.
Accordingly, we conclude that the EMRA should be interpreted consistently with the
federal labor statutes, which bar legal malpractice claims against lawyers supplied by the
union.
39

Beatty's representation of Weiner arose out of the collective bargaining agreement between
CCASA and CCSD, as Beatty was appointed counsel for a grievance covered by the
collective bargaining agreement. CCASA paid Beatty. Weiner accepted the service provided
by his union and declined the opportunity to retain his own personal attorney. Therefore,
Weiner's claim directly implicates the union's duty of fair representation under the EMRA.
Under the rule in Peterson, Beatty is considered an arm of the union. As an arm of the union,
Beatty is protected from a malpractice suit stemming from this representation, for the union is
the sole source of recovery.
CONCLUSION
We conclude that when a union provides an attorney to represent a union member in a
matter related to a collective bargaining agreement, that attorney is an agent of the union. As
an agent of the union, the attorney is not susceptible to a malpractice claim; rather, a claim by
the union member will only lie against the union itself based on a breach of the duty of fair
representation. Accordingly, we affirm the district court's order granting summary judgment
in favor of respondent Beatty.
Becker, C. J., Rose, Maupin, Gibbons, Douglas and Parraguirre, JJ., concur.
____________________

37
Peterson, 771 F.2d at 1259; Best, 858 F. Supp. at 275.

38
Vaca, 386 U.S. at 190.

39
By this rule, we express no opinion concerning a union attorney's ethical obligations to a grievant as that
issue is not before us.
____________
........................................
121 Nev. 251, 251 (2005) Towbin Dodge, LLC v. Dist. Ct.
TOWBIN DODGE, LLC, a Nevada Limited Liability Company; TOWBIN JEEP EAGLE,
LLC, a Nevada Limited Liability Company TOWBIN NISSAN, INC., a Nevada
Corporation; and TOWBIN AUTOMOTIVE, INC., Doing Business as TOWBIN
INFINITY, Petitioners, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for THE COUNTY OF CLARK, and THE
HONORABLE KATHY A. HARDCASTLE, District Judge, Respondents, and
OVERLAND FINANCIAL SERVICES, LLC, an Arizona Corporation; MAPFS
CORP., a Suspended California Corporation; MICHAEL MACKENZIE, Trustee of
MAPFS, a Suspended California Corporation; FEDERATED FUNDING, INC., an
Unknown Entity; ROBERT DIXON, Individually; and HELLER FINANCIAL, INC.,
a Delaware Corporation, Real Parties in Interest.
No. 43750
June 9, 2005 112 P.3d 1063
Original petition for a writ of mandamus or prohibition challenging a district court order
that struck an affidavit of bias and prejudice as untimely and seeking disqualification of a
district judge.
After trial judge had heard and ruled upon several pretrial motions, plaintiffs filed
statutory affidavit of bias and prejudice, alleging that trial judge's ruling in separate case
involving plaintiffs' counsel, in which case another attorney asserted attorney's lien on
contingent fee earned by counsel, necessarily implied that trial judge found plaintiffs' counsel
to be not credible. The district court struck the affidavit as untimely but granted a temporary
stay. Plaintiffs petitioned for writ of mandamus or prohibition. The supreme court held that:
(1) trial judge had authority to consider timeliness of plaintiffs' statutory affidavit of bias and
prejudice; (2) statutory exception to general deadline for filing affidavit of bias and prejudice
was inapplicable to plaintiffs' case, overruling Matter of Parental Rights as to Oren, 113 Nev.
594, 939 P.2d 1039 (1997); and (3) plaintiffs could file motion to disqualify based on Nevada
Code of Judicial Conduct, alleging judge's impartiality might reasonably be questioned,
overruling PETA v. Bobby Berosini, Ltd., 111 Nev. 431, 894 P.2d 337 (1995).
Petition denied.
R. Clay Hendrix, Las Vegas, for Petitioners.
........................................
Allf, Paustain & Szostek and Nancy L. Allf and Timothy P. Thomas, Las Vegas, for Real
Parties in Interest Overland Financial Services, LLC, MAPFS Corp., and Michael
MacKenzie.
Santoro, Driggs, Walch, Kearney, Johnson & Thompson and Richard F. Holley and Oliver
J. Pancheri, Las Vegas, for Real Party in Interest Heller Financial, Inc.
1. Mandamus.
A writ of mandamus is available to compel the performance of an act that the law
requires as a duty resulting from an office, trust, or station, or to control an arbitrary or
capricious exercise of discretion. NRS 34.160.
2. Mandamus.
Mandamus is an extraordinary remedy, and it is within the discretion of the supreme
court to determine if a petition for writ of mandamus will be considered.
3. Mandamus.
A petition for a writ of mandamus is the appropriate vehicle to seek disqualification
of a judge.
4. Judges.
District court judge had authority to consider the timeliness of plaintiffs' statutory
affidavit of bias and prejudice, which sought disqualification of the judge. NRS 1.235.
5. Judges.
Statutory exception to general statutory rule that affidavit of bias and prejudice must
be filed against judge before hearing on any pretrial matter, under which exception
affidavit of bias and prejudice can be filed based on newly discovered grounds for
disqualification before jury is empaneled, evidence is taken, or any ruling is made at
trial, did not apply, where trial judge had been assigned to the case before deadline for
filing affidavit of bias and prejudice under statutory general rule; overruling Matter of
Parental Rights as to Oren, 113 Nev. 594, 939 P.2d 1039 (1997). NRS 1.235(1), (2).
6. Judges.
If new grounds for a judge's disqualification are discovered after the time limits have
passed for filing a statutory affidavit of bias and prejudice, then a party may file a
motion to disqualify based on the Nevada Code of Judicial Conduct (NCJC), alleging
the judge's impartiality might reasonably be questioned, as soon as possible after
becoming aware of the new information; overruling PETA v. Bobby Berosini, Ltd., 111
Nev. 431, 894 P.2d 337 (1995). NRS 1.235; NCJC Canon 3E.
7. Judges.
A motion to disqualify a judge, based on the Nevada Code of Judicial Conduct
(NCJC), must set forth facts and reasons sufficient to cause a reasonable person to
question the judge's impartiality, and the challenged judge may contradict the motion's
allegations, but the motion must be referred to another judge. NRS 1.235; NCJC Canon
3E.
8. Mandamus.
Plaintiffs had adequate remedy at law, in form of motion to disqualify based on
Nevada Code of Judicial Conduct (NCJC) alleging trial judge's impartiality might
reasonably be questioned, and thus, plaintiffs were not entitled to writ of mandamus
after trial judge dismissed, as untimely, statutory affidavit of bias and prejudice.
........................................
were not entitled to writ of mandamus after trial judge dismissed, as untimely, statutory
affidavit of bias and prejudice. NRS 1.235; NCJC Canon 3E.
OPINION
Per Curiam:
In this petition, we consider whether an affidavit to disqualify a district judge, filed after
contested pretrial matters were heard but almost immediately after the alleged basis for
disqualification was discovered, was timely. NRS 1.235 sets forth the procedure for
disqualifying district judges and requires that an affidavit be filed at least twenty days before
trial or at least three days before any contested pretrial matter is heard. We conclude that the
statute must be enforced as written. But when new grounds for disqualification are discovered
after the statutory time has passed, the Nevada Code of Judicial Conduct provides an
additional, independent basis for seeking disqualification through a motion under the
governing court rules. Accordingly, since petitioners filed a statutory affidavit, not a motion
under the Nevada Code of Judicial Conduct, their affidavit was untimely, and we deny the
petition.
FACTS
Attorney R. Clay Hendrix represents the petitioners, plaintiffs in the underlying district
court case, Towbin Dodge, LLC, et al. v. Overland Financial Services, LLC, et al. (the
Towbin case). The Towbin case is assigned to respondent Chief Judge Kathy A. Hardcastle.
Petitioners concede that Judge Hardcastle heard and ruled upon several pretrial motions in the
Towbin case before they moved to disqualify the judge on August 3, 2004.
Hendrix also represented a plaintiff in another case before Judge Hardcastle, styled Benoy
v. Fitzgeralds Las Vegas, Inc. (the Benoy case). The Benoy case involved different parties and
was unrelated to the Towbin case. Hendrix began working on the Benoy case while employed
at the Law Offices of Richard McKnight, P.C. Hendrix then left to start his own firm, and he
states that the termination of his relationship with McKnight was less than cordial.
McKnight filed an attorney's lien in the Benoy case.
Upon learning that the Benoy case had settled, McKnight filed a motion to adjudicate the
attorney's lien. The hearing on this motion took place before Judge Hardcastle on August 2,
2004. At the hearing, McKnight represented that when Hendrix left McKnight's employ, they
had orally agreed to equally split any contingency fees on files Hendrix took with him.
........................................
employ, they had orally agreed to equally split any contingency fees on files Hendrix took
with him. Hendrix disputed McKnight's representation and stated that no agreement had been
reached. Hendrix further contended that the only work he performed on the Benoy case while
employed with McKnight was drafting one demand letter and a simple complaint. According
to Hendrix, he performed virtually all of the work on the matter after terminating his
relationship with McKnight. At the hearing, Judge Hardcastle ruled that the contingency fee
in the Benoy case should be split equally between Hendrix and McKnight.
The next day, August 3, 2004, petitioners filed an affidavit of bias and prejudice under
NRS 1.235 in the Towbin case, seeking to disqualify Judge Hardcastle. Petitioners assert that
by ruling as she did, Judge Hardcastle necessarily found Hendrix to be not credible, and thus
she is biased against him.
On August 4, 2004, Judge Hardcastle struck the affidavit as untimely, stating that she had
heard and ruled on many pre-trial motions in this case. But she granted a temporary stay so
that petitioners could file a writ petition with this court.
Petitioners filed the instant petition, which challenges Judge Hardcastle's order striking the
affidavit. Petitioners also ask this court to consider the merits of their request and to
disqualify Judge Hardcastle. We granted a stay and directed the real parties in interest to file
an answer to the petition. Real parties in interest Overland Financial, MAPFS Corp., Michael
MacKenzie and Heller Financial filed timely answers. The remaining real parties in interest
did not respond to our order.
DISCUSSION
[Headnotes 1-3]
A writ of mandamus is available to compel the performance of an act that the law requires
as a duty resulting from an office, trust or station,
1
or to control an arbitrary or capricious
exercise of discretion.
2
A writ of mandamus will not issue, however, if petitioner has a plain,
speedy and adequate remedy in the ordinary course of law.
3
Further, mandamus is an
extraordinary remedy, and it is within the discretion of this court to determine if a petition
will be considered.
4
We have previously noted that a petition for a writ of mandamus is the
appropriate vehicle to seek disqualification of a judge.
____________________

1
See NRS 34.160.

2
See Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981).

3
NRS 34.170.

4
Poulos v. District Court, 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982); see also Smith v. District Court,
107 Nev. 674, 677, 818 P.2d 849, 851 (1991).
........................................
mandamus is the appropriate vehicle to seek disqualification of a judge.
5

[Headnote 4]
Nevada has two statutes governing disqualification of district court judges. NRS 1.230
lists substantive grounds for disqualification, and NRS 1.235 sets forth a procedure for
disqualifying district court judges. Hendrix first argues that Judge Hardcastle lacked authority
to consider the affidavit's timeliness. The real parties in interest assert that our case law
interpreting SCR 48.1, governing peremptory challenges against judges, supports the district
court's exercise of jurisdiction to consider the timeliness of an affidavit of bias and prejudice.
In Jacobson v. Manfredi,
6
we approved a district judge's actions in evaluating the
timeliness of an affidavit, although we did not explicitly address the judge's authority to do
so.
7
Similarly, we have expressly held that a district judge may consider the timeliness of a
peremptory challenge under SCR 48.1.
8
Accordingly, we conclude that Judge Hardcastle
properly considered the timeliness issue.
[Headnote 5]
Petitioners and the real parties in interest base their arguments concerning the timeliness of
petitioners' affidavit on different parts of NRS 1.235. The statute provides, with emphasis
added:
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.
Except as provided in subsections 2 and 3, the affidavit must be filed:
(a) Not less than 20 days before the date set for trial or hearing of the case; or
(b) Not less than 3 days before the date set for the hearing of any pretrial matter.
2. Except as otherwise provided in this subsection and subsection 3, if a case is not
assigned to a judge before the time required under subsection 1 for filing the
affidavit, the affidavit must be filed:
____________________

5
City of Sparks v. District Court, 112 Nev. 952, 954, 920 P.2d 1014, 1015-16 (1996).

6
100 Nev. 226, 679 P.2d 251 (1984).

7
Id. at 230, 679 P.2d at 253-54.

8
See Nevada Pay TV v. District Court, 102 Nev. 203, 205, 719 P.2d 797, 798 (1986).
........................................
time required under subsection 1 for filing the affidavit, the affidavit must be filed:
(a) Within 10 days after the party or his attorney is notified that the case has been
assigned to a judge;
(b) Before the hearing of any pretrial matter; or
(c) Before the jury is empaneled, evidence taken or any ruling made in the trial or
hearing, whichever occurs first. If the facts upon which disqualification of the judge is
sought are not known to the party before he is notified of the assignment of the judge or
before any pretrial hearing is held, the affidavit may be filed not later than the
commencement of the trial or hearing of the case.
Hendrix argues that the emphasized language applies to his affidavit. Since his affidavit
was based solely on the events that occurred at the August 2 hearing in the Benoy case and
was promptly filed the next day, Hendrix maintains that it was timely. The district court
applied subsection 1 of the statute, which provides that an affidavit is untimely if the
challenged judge has already ruled on disputed issues.
Hendrix's argument concerning the language in subsection 2 is flawed, because subsection
2 applies only when a judge is not assigned until after subsection 1's time for filing an
affidavit has passed. Here, Judge Hardcastle was assigned to the case well within the time
required by subsection 1, and so the exception in subsection 2 for newly discovered grounds
does not apply. Consequently, Judge Hardcastle correctly concluded that the affidavit was
untimely, as she had ruled on contested pretrial matters.
9

Subsection 1 provides no remedy for situations such as this one, when grounds for
disqualification are discovered only after the time periods in subsection 1 have passed. Here,
Hendrix's affidavit was based solely on the events that occurred at the August 2 hearing, and
the affidavit was promptly filed the next day. Clearly, then, the alleged basis for
disqualification was not known, and could not reasonably have been known, in time to meet
the deadlines under NRS 1.235(1). Our case law discussing judicial disqualification is of
limited assistance, because we have generally held that a particular affidavit or motion was
both untimely and lacked merit,
10
or we have concluded that the affidavit or motion was
both timely {or excused on an equitable basis) and meritorious.
____________________

9
See Valladares v. District Court, 112 Nev. 79, 83-84, 910 P.2d 256, 259-60 (1996) (holding that the
affidavit must be filed before the earlier of twenty days before trial or three days before any contested pretrial
matter).

10
See City of Sparks, 112 Nev. at 954, 920 P.2d at 1016; Snyder v. Viani, 112 Nev. 568, 916 P.2d 170
(1996); Valladares, 112 Nev. 79, 910 P.2d 256; Whitehead v. Comm'n on Jud. Discipline, 110 Nev. 380,
422-29, 873 P.2d 946, 972-77 (1994); Brown v. F.S.L.I.C., 105 Nev. 409, 777 P.2d 361 (1989);
........................................
was both timely (or excused on an equitable basis) and meritorious.
11
For example, in
Valladares v. District Court,
12
we held that an affidavit of bias and prejudice was untimely
when it was filed eight minutes before an arraignment. But we nevertheless also considered
the affidavit's merits, and we concluded that the petitioner had not established disqualifying
bias or prejudice. In contrast, in Matter of Parental Rights as to Oren,
13
we held that an
affidavit filed after trial had already begun was timely because it was filed promptly after
appellant discovered grounds for disqualification, and we then held that disqualification was
required.
Nevertheless, one prior case, PETA v. Bobby Berosini, Ltd.,
14
provides a basis for seeking
judicial disqualification when grounds are discovered beyond the time limits of NRS 1.235.
We held in PETA that the Nevada Code of Judicial Conduct (NCJC) sets forth not only
ethical requirements for judges, but can also provide a substantive basis for judicial
disqualification. NCJC Canon 3E specifically sets forth grounds for disqualification, and
provides in pertinent part:
CANON 3
A judge shall perform the duties of judicial office impartially and diligently.
. . . .
E. Disqualification.
(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;
(b) the judge served as a lawyer in the matter in controversy, or a lawyer with whom
the judge previously practiced law served during such association as a lawyer
concerning the matter, or the judge has been a material witness concerning it;
(c) the judge knows that he or she, individually or as a fiduciary, or the judge's
spouse, parent or child wherever residing, or any other member of the judge's family
residing in the judge's household, has an economic interest in the subject matter in
controversy or in a party to the proceeding or has any other more than de minimis
interest that could be substantially affected by the proceeding;
____________________
Ainsworth v. Combined Ins. Co., 105 Nev. 237, 774 P.2d 1003 (1989), modified on other grounds by Powers v.
United Servs. Auto. Ass'n, 114 Nev. 690, 962 P.2d 596 (1998); Jacobson, 100 Nev. at 229-31, 679 P.2d at
253-54.

11
See Matter of Parental Rights as to Oren, 113 Nev. 594, 939 P.2d 1039 (1997); PETA v. Bobby Berosini,
Ltd., 111 Nev. 431, 894 P.2d 337 (1995).

12
112 Nev. 79, 910 P.2d 256.

13
113 Nev. 594, 939 P.2d 1039.

14
111 Nev. at 435, 894 P.2d at 340.
........................................
matter in controversy or in a party to the proceeding or has any other more than de
minimis interest that could be substantially affected by the proceeding;
(d) the judge or the judge's spouse, or a person within the third degree of relationship
to either of them, or the spouse of such a person:
(i) is a party to the proceeding, or an officer, director or trustee of a party;
(ii) is acting as a lawyer in the proceeding;
(iii) is known by the judge to have a more than de minimis interest that could be
substantially affected by the proceeding;
(iv) is to the judge's knowledge likely to be a material witness in the proceeding.
(e) Reserved.
(f) the judge, while a judge or a candidate for judicial office, has made a public
statement that commits, or appears to commit, the judge with respect to
(i) an issue in the proceeding; or
(ii) the controversy in the proceeding.
In PETA, we did not set forth any procedural mechanism for seeking disqualification based
on the NCJC. Instead, we analogized to NRAP 35 (concerning disqualification of supreme
court justices) and considered the PETA respondents' motion on its merits.
15
Of particular
pertinence to this case, we did not specify any procedure to be followed at the district court
level, because PETA concerned a motion to disqualify a district judge sitting as a substitute
justice of this court. We take this opportunity to clarify the procedure to be followed when a
party seeks to disqualify a district judge, and we look to federal practice for guidance.
Federal law contains two separate, independent methods for seeking a judge's
disqualification. 28 U.S.C. 144
16
bears similarities to both NRS 1.235 and SCR 48.1,
which governs peremptory challenges. Like NRS 1.235, 144 applies specifically to the
district court and requires the party seeking to disqualify a judge to file an affidavit
setting forth the facts and reasons supporting the allegation of bias.
____________________

15
Id. at 433 n.2, 894 P.2d at 338 n.2.

16
28 U.S.C. 144 (2000) provides:
Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit
that the judge before whom the matter is pending has a personal bias or prejudice either against him or in
favor of any adverse party, such judge shall proceed no further therein, but another judge shall be
assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall
be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or
good cause shall be shown for failure to file it within such time. A party may file only one such affidavit
in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good
faith.
........................................
trict court and requires the party seeking to disqualify a judge to file an affidavit setting forth
the facts and reasons supporting the allegation of bias. But unlike NRS 1.235, which permits
the challenged judge to respond, and which requires another judge to determine whether
actual or implied bias or prejudice exists, 144 operates like SCR 48.1, in that the matter is
automatically transferred to another judge.
17

The other federal statute concerning judicial disqualification, 28 U.S.C. 455, is
substantially similar to NCJC Canon 3E.
18
Like Canon 3E, 455 applies to all justices and
judges, and it contains no procedural mechanism for enforcement.
19
Nevertheless, the
federal courts follow a procedure whereby a party may move to disqualify a federal judge
based on the grounds listed in 455.
____________________

17
See SCR 48.1(2).

18
28 U.S.C. 455 (2000) provides, in pertinent part:
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any
proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed
evidentiary facts concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom
he previously practiced law served during such association as a lawyer concerning the matter, or the
judge or such lawyer has been a material witness concerning it;
(3) Where he has served in governmental employment and in such capacity participated as counsel,
adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of
the particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his
household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or
any other interest that could be substantially affected by the outcome of the proceeding;
(5) He or his spouse, or a person within the third degree of relationship to either of them, or the
spouse of such a person:
(i) Is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be substantially affected by the
outcome of the proceeding;
(iv) Is to the judge's knowledge likely to be a material witness in the proceeding.
(c) A judge should inform himself about his personal and fiduciary financial interests, and make a
reasonable effort to inform himself about the personal financial interests of his spouse and minor children
residing in his household.

19
See 28 U.S.C. 455 (2000); see also U.S. v. Tucker, 78 F.3d 1313, 1324 (8th Cir. 1996); Lindsey v. City of
Beaufort, 911 F. Supp. 962, 967 (D.S.C. 1995); see generally 12 James Wm. Moore, Moore's Federal Practice
63.60-63.63 (3d ed. 2005).
........................................
eral courts follow a procedure whereby a party may move to disqualify a federal judge based
on the grounds listed in 455.
20
The federal courts have generally required that such motions
be filed as soon as possible after the moving party learns of the grounds for disqualification.
21
Additionally, the motion should allege facts demonstrating that the judge's impartiality
might reasonably be questioned.
22
The motion's allegations are not deemed to be true and
may be controverted by the challenged judge.
23
Finally, the challenged judge may elect to
decide the motion or to refer the motion to another judge.
24

[Headnotes 6, 7]
We conclude that the federal procedure provides a convenient method for enforcing Canon
3E in situations when NRS 1.235 does not apply. Thus, if new grounds for a judge's
disqualification are discovered after the time limits in NRS 1.235(1) have passed, then a party
may file a motion to disqualify based on Canon 3E as soon as possible after becoming aware
of the new information. The motion must set forth facts and reasons sufficient to cause a
reasonable person to question the judge's impartiality, and the challenged judge may
contradict the motion's allegations. We deviate from federal practice in one respect, however.
While the federal procedure permits the challenged judge to hear the motion, we share the
concerns identified by some federal courts when the challenged judge decides the motion.
25
Thus, the motion must be referred to another judge. To the extent that our opinion in PETA
suggests that motions under the NCJC must meet timelines contained in other provisions,
such as NRS 1.235 or NRAP 35, it is overruled.
____________________

20
See Lindsey, 911 F. Supp. at 967.

21
See Travelers Ins. Co. v. Liljeberg Enterprises, Inc., 38 F.3d 1404, 1410 (5th Cir. 1994) (holding that party
seeking disqualification must do so at the earliest moment after knowledge of facts demonstrating a basis for
disqualification); U.S. v. Owens, 902 F.2d 1154, 1155 (4th Cir. 1990) (stating that [t]imeliness is an essential
element of a recusal motion); see also E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1295 (9th Cir.
1992) (denying motion for disqualification as untimely, but declining to adopt per se rule).

22
NCJC Canon 3E(1); see also PETA, 111 Nev. at 436, 894 P.2d at 340 (setting forth test for determining
whether a judge should be disqualified); Lindsey, 911 F. Supp. at 967 n.4 (stating that a motion to disqualify
under 455 must state facts and reasons sufficient to show that a reasonable person would harbor doubts about
the judge's impartiality).

23
See United States v. Balistrieri, 779 F.2d 1191, 1202 (7th Cir. 1985); Mass. School of Law at Andover v.
Amer. Bar Ass'n, 872 F. Supp. 1346, 1349 (E.D. Pa. 1994).

24
See El Fenix de Puerto Rico v. The M/Y Johanny, 36 F.3d 136, 142 n.8 (1st Cir. 1994); U.S. v. Craig, 853
F. Supp. 1413, 1415 (S.D. Fla. 1994).

25
See, e.g., In re Bernard, 31 F.3d 842, 843 (9th Cir. 1994).
........................................
overruled.
26
Similarly, our decision in Matter of Parental Rights as to Oren is overruled to
the extent that it held the disqualification affidavit in that case timely under NRS 1.235.
27

[Headnote 8]
Writ relief is not warranted in this instance because petitioners have an adequate remedy at
law in the form of a motion to disqualify based on the Code of Judicial Conduct, as set forth
in this opinion. Accordingly, we deny the petition.
28

____________
121 Nev. 261, 261 (2005) Village Builders 96 v. U.S. Laboratories
VILLAGE BUILDERS 96, L.P., a California Limited Partnership, Appellant, v. U.S.
LABORATORIES, INC., a Delaware Corporation; and TESTING ENGINEERS OF
NEVADA, INC., a Delaware Corporation, fka BUENA ENGINEERS, INC.,
Respondents.
No. 40950
VILLAGE BUILDERS 96, L.P., a California Limited Partnership, Appellant, v. U.S.
LABORATORIES, INC., a Delaware Corporation; and TESTING ENGINEERS OF
NEVADA, INC., a Delaware Corporation, fka BUENA ENGINEERS, INC.,
Respondents.
No. 41420
June 9, 2005 112 P.3d 1082
Consolidated appeals from an order, certified as final under NRCP 54(b), granting
summary judgment and an order awarding costs. Eighth Judicial District Court, Clark
County; Kathy A. Hardcastle, Judge.
Customer sued successor corporation for negligence of predecessor after successor
purchased the predecessor's assets. The district court granted summary judgment for
defendants on grounds that there was no successor liability. Customer appealed. On
consolidated appeals, the supreme court, Rose, J., held that: (1) successor was not liable
under de facto merger exception, (2) successor was not liable under mere continuation
exception, and (3) successor was not entitled to costs award without memorandum verifying
the costs.
____________________

26
See 111 Nev. at 433 n.2, 894 P.2d at 338 n.2.

27
See 113 Nev. at 598-99, 939 P.2d at 1042.

28
We make no comment on the merits of Hendrix's disqualification request.
........................................
Santoro, Driggs, Walch, Kearney, Johnson & Thompson and Kirby C. Gruchow Jr. and
Gregory J. Walch, Las Vegas, for Appellant.
Lewis Brisbois Bisgaard & Smith, LLP, and Michael M. Edwards and Sheri M. Schwartz,
Las Vegas, for Respondents.
District court's grant of summary judgment is reviewed de novo.
2. Judgment.
A summary judgment motion is properly granted when no genuine issue of material
fact exists and the moving party is entitled to judgment as a matter of law.
3. Judgment.
In ruling on a summary judgment motion, district court must construe all of the
pleadings and evidence in the light most favorable to the nonmoving party.
4. Judgment.
To overcome summary judgment on a successor corporation liability claim, the
plaintiff bears the initial burden of presenting evidence to establish that the general rule
that a successor corporation is not liable for the acts of its predecessor does not apply.
5. Corporations.
It is the general rule that when one corporation sells all of its assets to another
corporation the purchaser is not liable for the debts of the seller.
6. Corporations.
Exceptions to the general rule that a successor corporation is not liable for the debts
of the seller upon an asset purchase transaction are: (1) where the purchaser expressly
or impliedly agrees to assume such debts, (2) where the transaction is really a
consolidation or a merger, (3) when the purchasing corporation is merely a continuation
of the selling corporation, and (4) where the transaction was fraudulently made in order
to escape liability for such debts.
7. Corporations.
The de facto merger exception permits courts to hold the purchaser of a business's
assets liable for the seller corporation's conduct when the parties have essentially
achieved the result of a merger although they do not meet the statutory requirements for
a de jure merger.
8. Corporations.
To determine whether there has been a de facto merger in a sale of assets that
renders the successor corporation liable for the debts of the seller, courts apply a
four-factor test and consider: (1) whether there is a continuation of the enterprise, (2)
whether there is a continuity of shareholders, (3) whether the seller corporation ceased
its ordinary business operations, and (4) whether the purchasing corporation assumed
the seller's obligations.
9. Corporations.
The four factors of the de facto merger doctrinecontinuity of operations,
continuity of shareholders, seller continued to exist, purchaser assuming seller's
obligationare weighed equally in determining whether a successor is liable for the
debts of the seller corporation after a purchase of assets.
........................................
successor is liable for the debts of the seller corporation after a purchase of assets.
10. Corporations.
Successor corporation was not liable for debts of seller under the de facto merger
exception to rule that successor is not liable for debts of seller, even though there was
continuity of operations by retaining the same personnel and management and
successor assumed seller's obligations for rent, customer and vendor contracts, and right
to receivables; selling shareholder did not receive shares in successor as part of
transaction, and selling business continued to exist after the asset sale.
11. Corporations.
A plaintiff must meet the following two requirements to justify bringing a sale of
assets within the purview of the mere continuation exception to the general rule that a
successor is not liable for the debts of the seller corporation after a sale of assets: (1)
only one corporation remains after the transfer of assets, and (2) there is an identity of
stock, stockholders, and directors between the two corporations.
12. Corporations.
Successor corporation was not liable for seller corporation's debts under mere
continuation exception to general rule that successor is not liable after purchase of
assets because seller continued to exist after the sale, seller's shareholder only
purchased a small amount of successor's stock on the open market, and although
shareholder continued to manage corporation, he was not an officer or director of
purchaser.
A district court's decision regarding an award of costs will not be overturned absent
a finding that the district court abused its discretion.
14. Costs.
On a motion for an award of costs, costs must be interpreted to mean actual costs
that are also reasonable, rather than a reasonable estimate or calculation of such costs
based upon administrative convenience.
15. Corporations.
Corporation, as prevailing party in action by customer to hold successor corporation
liable for predecessor's debts, was not entitled to award of costs without memorandum
that verified costs and stated that they were necessarily incurred. NRS 18.110.
OPINION
These cases involve the applicability of the general rule against finding a successor
corporation liable for the acts of its predecessor and the exceptions to the rule and the
appropriateness of an award of costs.
While this court has adopted the general rule that a successor is not liable for the acts of its
predecessor and has recognized the rule's exceptions, we have yet to address the parameters
of those exceptions under Nevada law. We now clarify the requirements that a plaintiff must
meet to have a successor corporation held liable under the de facto merger and mere
continuation exceptions to the general rule.
........................................
a plaintiff must meet to have a successor corporation held liable under the de facto merger
and mere continuation exceptions to the general rule. We decline to expand the mere
continuation exception by adopting the continuity of the enterprise exception urged by
appellant. We do conclude, however, that neither of the exceptions applies in the instant case;
as a result, the district court ruled correctly on the issue of summary judgment, and we affirm
the district court's order. Nevertheless, we conclude that the district court abused its discretion
in awarding costs to respondent U.S. Laboratories, Inc. (U.S. Labs) in the absence of a
verified memorandum of costs. Accordingly, we reverse the district court's order awarding
costs to U.S. Labs.
FACTS AND PROCEDURAL BACKGROUND
Ray Brannen formed Buena Nevada in September of 1995. Buena Nevada performed
geotechnical engineering, environmental consulting work, construction inspection, and
materials testing. At first, Brannen remained the sole shareholder of the corporation, but
eventually he sold shares of the corporation to other investors. Brannen served as the
chairman of the corporation's Board of Directors.
In December 1996, Brannen encountered financial difficulties and, as a result, sold Buena
Nevada to Geofon, Inc., which purchased 100 percent of Buena Nevada's shares. The new
company was named Buena Engineers, Inc., a Division of Geofon, Inc. (Buena Geofon). As
part of the sales agreement, Brannen reserved the right to repurchase the shares of Buena
Geofon. Importantly, Brannen never acted as a shareholder, officer, or director of Buena
Geofon. Nevertheless, the Secretary of State's filings listed Brannen as president, secretary,
and treasurer of Buena Geofon as of July 22, 1998. Brannen, however, testified in his
deposition that after December 30, 1999, he did not perform any of those roles in Buena
Geofon. Brannen admitted, however, that he acted as Buena Geofon's manager after the sale.
In his testimony, Brannen stated that Buena Geofon's chief executive officer, Alex Khan,
made all of the major decisions concerning the company's activities and most of the minor
ones as well. Brannen compared his position and authority in Buena Geofon to that of a
Jack-In-The-Box manager but with less authority. Despite this representation by Brannen,
Paul Davis, a Buena Geofon employee, testified that Brannen was authorized to enter into
contracts on behalf of Buena Geofon. Geofon owned Buena Geofon until May 1999, when it
sold the company back to Brannen, pursuant to his right of repurchase, so that Brannen could
sell the company to respondent U.S. Labs.
........................................
In 1997, before Brannen purchased Buena Geofon and sold it to U.S. Labs, Buena Geofon
submitted a proposal to appellant Village Builders, L.P. (Village) to perform an
environmental site assessment (ESA) on property in Clark County, Nevada (the property).
This property had an existing car wash and gas station facility on the premises. Village
intended to purchase all rights in the property contingent upon a favorable ESA.
The proposal submitted by Buena Geofon was signed by Alex Khan as chief executive
officer of Buena Geofon. The proposal was also signed by the chief executive officer of
Geofon, Inc. Among other tasks, Buena Geofon proposed to drill three borings near the
underground storage tanks (USTs) to gather samples and check for the presence of petroleum
hydrocarbons. Village hired Buena Geofon to perform the tasks outlined in the proposal.
After completing the tasks, Buena Geofon submitted a report to Village documenting the
results. The report stated that the ESA revealed only one recognized condition in connection
with the property and no evidence of leaks or spills from the USTs. Additionally, the report
stated that the USTs had recently passed tank tightness tests and therefore complied with
applicable regulations. After receiving the report, Village purchased the property in
September 1998 for approximately $2.8 million.
Village alleges that in December 1998 it discovered hydrocarbon contamination at the
property and immediately notified the Nevada Division of Environmental Protection (NDEP)
as required under Nevada law. NDEP acknowledged Village's notification and directed
Village to clean up the contaminated soil and ground water at the property. Subsequently,
Village alerted Buena Geofon about the discovery, and consequently, between March 3 and
March 5, 1999, Buena Geofon drilled and constructed three monitoring wells to evaluate the
extent of the property's contamination.
On April 30, 1999, less than three weeks before Brannen purchased Buena Geofon and
sold it to U.S. Labs, Buena Geofon submitted a Detailed On-Site Characterization Report
to NDEP that recommended installing a monitoring well, sampling ground water, monitoring
water evaluations, and preparing a corrective action plan to clean up the property. After
performing tests at the site, Buena Geofon submitted proposals on March 2, 1999, and March
23, 1999, to perform the clean-up work required by NDEP. NDEP approved the proposals,
and Village hired Buena Geofon to clean up the property.
During the period when Village and Buena Geofon learned of the contamination on the
property, Brannen began negotiating with U.S. Labs, which wished to purchase Buena
Geofon. To achieve the sale, Brannen negotiated with Alex Khan to repurchase all of Buena
Geofon's outstanding shares.
........................................
Buena Geofon's outstanding shares. At the same time, Brannen negotiated an asset purchase
agreement with Don Alford, U.S. Labs' executive vice president, which would result in the
sale of all of Buena Geofon's assets to U.S. Labs, but which specifically excluded the sale of
the company's stock. Dickerson Wright, the chief executive officer of U.S. Labs, also
participated in the negotiations.
To conclude the deal, Brannen bought all of Buena Geofon's stock, thereby resuming
ownership of the company known as Buena Nevada. Subsequently, Brannen sold all of Buena
Nevada's assets and good will to U.S. Labs, excepting any stock. The asset purchase was
completed on May 18, 1999, with an Asset Purchase Agreement (APA) between Buena
Nevada, Brannen, U.S. Labs, and Buena Engineers, Inc., a Delaware Corporation (Buena
Delaware), a company specifically formed to hold Buena Nevada's assets.
The APA identified the assets purchased by U.S. Labs as: personal property, personal
property leases, phone numbers, certain contracts, computer software, trade rights, the Buena
Engineers, Inc., name, customer lists, and good will. The APA also contained clauses
assuming and limiting specific liabilities. After the sale, Buena Nevada continued to exist as a
corporate entity until an ongoing lawsuit was settled; however, the company did not engage in
any business activity.
The asset purchase was a cash transaction. While the APA provided that Brannen would
receive 3,333 shares of U.S. Labs stock, Brannen never received that stock because he elected
to receive $14,000, the cash value of the stock, instead. Brannen did, however, use this cash
to purchase U.S. Labs stock.
In addition, after completing the agreement and transferring ownership, U.S. Labs hired
many of Buena Geofon's employees to work for Buena Delaware, including Brannen. Buena
Delaware also continued to utilize the same facilities and company logo after the sale and
continued to offer geotechnical services and Phase I testing. Moreover, after the sale, Buena
Delaware never altered the contracts it obtained under the APA, which included Buena
Nevada's lease, its vendor and customer contracts, and the right to collect receivables,
including those generated by the contract with Village for clean-up work on the property.
Meanwhile, in August 1999, Village filed an action seeking to recover its clean-up costs
against the former property operators. In July 2002, after it discovered that U.S. Labs had
purchased all of Buena Nevada's assets and good will in 1999, Village submitted an amended
complaint and brought breach of contract, negligence, and negligence per se claims against
U.S. Labs.
........................................
U.S. Labs moved to dismiss Village's claims and contended that the APA expressly stated
which liabilities Village would assume. U.S. Labs argued that under the APA, it was not
liable for Village's clean-up costs as Buena's successor and that, therefore, U.S. Labs and
Buena Delaware were not proper parties to the litigation. In response, Village argued that
U.S. Labs and Buena Delaware were proper parties to the suit based upon the doctrine of
successor liability.
The district court treated U.S. Labs' motion to dismiss as a motion for summary judgment.
The district court also ordered further discovery on the limited issue of successor liability,
giving Village a period of sixty days to conduct discovery on the issue. The trial court granted
U.S. Labs' motion for summary judgment, determining as a matter of law that U.S. Labs was
not liable under a theory of successor liability.
U.S. Labs and Buena Delaware then filed a motion for attorney fees and costs. The district
court awarded $3,108 in costs and denied the motion for attorney fees. Village also appealed
from the order awarding costs.
DISCUSSION
Successor liability
[Headnotes 1-4]
We review a district court's grant of summary judgment de novo.
1
A summary judgment
motion is properly granted when no genuine issue of material fact exists and the moving party
is entitled to judgment as a matter of law.
2
The district court must construe all of the
pleadings and evidence in the light most favorable to the nonmoving party.
3
Additionally,
in order to overcome summary judgment on a successor liability claim, the plaintiff bears the
initial burden of presenting evidence to establish that the general rule that a successor
corporation is not liable for the acts of its predecessor does not apply.
4

To determine whether a plaintiff has met this initial burden, courts should engage in
fact-specific, case-by-case analysis of the factors necessary to establish an exception to the
general rule precluding liability.
5
If the plaintiff fails to make a prima facie showing of
successor liability, summary judgment is appropriate.
____________________

1
Pressler v. City of Reno, 118 Nev. 506, 509, 50 P.3d 1096, 1098 (2002).

2
Id.

3
Id. at 510, 50 P.3d at 1099.

4
Dayton v. Peck, Stow and Wilcox Co. (Pexto), 739 F.2d 690, 692 (1st Cir. 1984); see also Verhein v. South
Bend Lathe, Inc., 448 F. Supp. 259, 260-61 (E.D. Wis. 1978), aff'd, 598 F.2d 1061 (7th Cir. 1979).

5
See Sweatland v. Park Corp., 587 N.Y.S.2d 54, 56 (App. Div. 1992).
........................................
ing of successor liability, summary judgment is appropriate.
6
However, if the plaintiff sets
forth facts sufficient to establish a prima facie case of successor liability under one of the
exceptions, the issue becomes one of fact, which must be determined by the jury.
[Headnotes 5, 6]
As this court has previously noted in Lamb v. Leroy Corp., it is the general rule that when
one corporation sells all of its assets to another corporation the purchaser is not liable for the
debts of the seller.
7
In that case, we identified four well recognized exceptions to the
general rule:
(1) where the purchaser expressly or impliedly agrees to assume such debts; (2) where
the transaction is really a consolidation or a merger; (3) when the purchasing
corporation is merely a continuation of the selling corporation; and (4) where the
transaction was fraudulently made in order to escape liability for such debts.
8

Here, Village maintains that two of the exceptions applythe de facto merger exception and
the mere continuation exception. Village also urges this court to adopt an expanded version of
the mere continuation exception known as the continuity of the enterprise exception, which
we decline to do. However, because this court has yet to delineate the specific requirements
necessary to demonstrate a claim under either the de facto merger exception or the mere
continuation exception, we necessarily set forth those requirements now.
De facto merger exception
[Headnotes 7, 8]
The de facto merger exception permits courts to hold the purchaser of a business's assets
liable for the seller corporation's conduct when the parties have essentially achieved the result
of a merger although they do not meet the statutory requirements for a de jure merger.
____________________

6
See Ryan, Beck & Co., LLC. v. Fakih, 268 F. Supp. 2d 210, 229 (E.D.N.Y. 2003); Brandywine Realty Trust
v. Blodnick, Blodnick & Zelin, 772 N.Y.S.2d 602, 602-03 (App. Div. 2004); see also Vancheri v. GNLV Corp.,
105 Nev. 417, 420, 777 P.2d 366, 368 (1989) (A prima facie case is defined as sufficiency of evidence in order
to send the question to the jury. The question of sufficiency of the evidence does not turn on whether the trier of
fact will make the desired finding. (citation omitted)); cf. Gladstone v. Stuart Cinemas, Inc., 878 A.2d 214, 219
(Vt. 2005).

7
85 Nev. 276, 279, 454 P.2d 24, 26-27 (1969) (citing West Texas Refining & D. Co. v. Commissioner of Int.
Rev., 68 F.2d 77 (10th Cir. 1933); Ozan Lumber Co. v. Davis Sewing Mach. Co., 284 F. 161 (D. Del. 1922)).

8
Id. at 279, 454 P.2d at 27 (citing West Texas Refining & D. Co., 68 F.2d at 77).
........................................
de jure merger.
9
To determine whether there has been a de facto merger, courts apply a
four-factor test and consider: (1) whether there is a continuation of the enterprise, (2) whether
there is a continuity of shareholders, (3) whether the seller corporation ceased its ordinary
business operations, and (4) whether the purchasing corporation assumed the seller's
obligations.
10
We now adopt this test as the proper analysis to determine the existence of a
de facto merger.
At the outset, we note that courts take varying approaches to weighing the four factors. For
instance, some courts give great weight to the question of whether the consideration given by
the seller consists of shares of the seller's own stock.
11
These courts emphasize this
requirement because when two companies merge, the shareholders of the seller become
shareholders of the buyer. As a result, these individuals share in the successor corporation's
profits making it just to attach the seller's liabilities to the buyer to avoid any inequity that
might result from allowing a shareholder to shed liability but retain profit.
12
However, when
this factor is not present these courts have concluded that sound policy does not support
imposing the predecessor's liabilities upon the successor when it has already paid a
substantial price for the assets of the predecessor.'
13

[Headnote 9]
In contrast, other courts have determined that the factors should be weighed equally, and
therefore no single factor is either necessary or sufficient to establish a de facto merger.
____________________

9
Kleen Laundry & Dry Cleaning v. Total Waste Mgt., 817 F. Supp. 225, 230 (D.N.H. 1993) [hereinafter
Kleen Laundry I].

10
Keller v. Clark Equipment Co., 715 F.2d 1280, 1291 (8th Cir. 1983) (citing Atlas Tool Co., Inc. v. C.I.R.,
614 F.2d 860, 870-71 (3d Cir. 1980)); Sylvester Bros. Dev. Co. v. Burlington Northern, 772 F. Supp. 443,
447-48 (D. Minn. 1990); Kleen Laundry I, 817 F. Supp. at 230; Ulanet v. D'Artagnan, Inc., 170 F. Supp. 2d
356, 358 (E.D.N.Y. 2001).

11
E.g., Louisiana-Pacific Corp. v. Asarco, Inc., 909 F.2d 1260, 1264 (9th Cir. 1990), overruled on other
grounds by Atchison, Topeka & Santa Fe Ry. v. Brown & Bryant, 132 F.3d 1295 (9th Cir. 1997); Arnold
Graphics Indus. v. Independent Agent Ctr., 775 F.2d 38, 42 (2d Cir. 1985); Leannais v. Cincinnati, Inc., 565
F.2d 437, 439-40 (7th Cir. 1977); Taylor v. Atlas Safety Equip. Co., Inc., 808 F. Supp. 1246, 1252 (E.D. Va.
1992); Ray v. Alad Corp., 560 P.2d 3, 7 (Cal. 1977); Manh Hung Nguyen v. Johnson Mach. & Press, 433
N.E.2d 1104, 1106-07 (Ill. App. Ct. 1982) (noting that under corporate principles an absence of this factor
would negate a finding of de facto merger); Hamaker v. Kenwel-Jackson Mach., Inc., 387 N.W.2d 515, 519
(S.D. 1986); Fox v. Sunmaster Products, Inc., 821 P.2d 502, 507 (Wash. Ct. App. 1991).

12
Nguyen, 433 N.E.2d at 1110.

13
Kaleta v. Whittaker Corp., 583 N.E.2d 567, 571 (Ill. App. Ct. 1991) (quoting Nguyen, 433 N.E.2d at
1111).
........................................
essary or sufficient to establish a de facto merger.'
14
This approach is more reasonable
because it properly balances the successor corporation's rights to be free from liabilities
incurred by its predecessor, with the important interest involved in ensuring that ongoing
businesses are not able to avoid liability by transferring their assets to another corporation
that continues to operate profitably as virtually the same entity.
15
We conclude that this
approach is consistent with the principles underlying the de facto merger exception, which is
a judge-made rule that rests on general equitable principles.
16
The New York appellate
court in Sweatland v. Park Corp. noted that:
Public policy considerations dictate that, at least in the context of tort liability, courts
have flexibility in determining whether a transaction constitutes a de facto merger.
While factors such as shareholder and management continuity will be evidence that a
de facto merger has occurred (see, Ladjevardian v. Laidlaw-Coggeshall, Inc., 431 F.
Supp. 834), those factors alone should not be determinative.
17

This rationale is persuasive, and therefore we will weigh equally all of the factors to
determine if a plaintiff established a prima facie case for de facto merger.
Continuity of the enterprise
[Headnote 10]
The first factor is whether there is a continuation of the enterprise. To determine whether
there is a continuation of the enterprise, courts generally look to whether there is a
continuity of management, personnel, physical location, assets and general business
operations' between the purchaser and the seller.
18
Here, the facts demonstrate that this
factor is met.
First and foremost, Buena Delaware hired Brannen, who founded Buena Nevada and
served as a manager with Buena Geofon, to be a manager in the newly formed corporation.
Additionally, U.S.
____________________

14
Kleen Laundry I, 817 F. Supp. at 230-31 (quoting In re Acushnet River & New Bedford Harbor, 712 F.
Supp. 1010, 1015 (D. Mass. 1989)); see also Klumpp v. Bandit Industries, Inc., 113 F. Supp. 2d 567, 572
(W.D.N.Y. 2000); Cargill v. Beaver Coal & Oil Co., 676 N.E.2d 815, 818 (Mass. 1997); Turner v. Bituminous
Cas. Co., 244 N.W.2d 873, 880 (Mich. 1976); Harashe v. Flintkote Co., 848 S.W.2d 506, 509 (Mo. Ct. App.
1993).

15
See Sweatland, 587 N.Y.S.2d at 56 (discussing the policy considerations that led to development of de
facto merger exception).

16
In re Acushnet River, 712 F. Supp. at 1015.

17
587 N.Y.S.2d at 56.

18
Kleen Laundry I, 817 F. Supp. at 230 (quoting In re Acushnet River, 712 F. Supp. at 1015).
........................................
ally, U.S. Labs hired most of the employees of Buena Geofon to work for Buena Delaware
after the completion of the sale. These employees included: Paul Davis, second in charge of
the office; Tasha Harris, the billings and collections manager; and Carol Sweet, manager of
environmental projects. Notably, these persons retained similar positions to those that they
held with Buena Nevada.
In fact, retention of these individuals comports with U.S. Labs' stated policy goals in
acquiring companies. On its website, U.S. Labs stated specifically that when deciding
whether to purchase a company's assets, a primary consideration is the quality of
management and the necessity that key personnel remain on board. U.S. Labs also stated,
[I]f we acquire a stand alone operation, that company must have a management team
thoroughly committed to going forward with us. We conclude that these facts are sufficient
to demonstrate continuity in management and personnel.
Furthermore, Buena Delaware continued to do business at the same physical location
utilized by Buena Nevada and to use Buena Nevada's letterhead three weeks after the
completion of the sale. Importantly, Buena Delaware failed to change the logos on the
company's trucks, windows, and doors until February 2000. In addition, the company
continued to operate in much the same manner, offering the same services to many of the
same clients, until it purchased Stewart Environmental in January 2000 and added Phase II
and Phase III environmental services. Considering these facts, we conclude that Village has
sufficiently demonstrated this factor under the test that we adopt today.
Continuity of shareholders
The second factor is whether there is a continuity of shareholders. Village argues that there
is a continuity of shareholders. We disagree.
A review of the purchase agreement reveals that Brannen would receive 3,333 shares of
U.S. Labs stock as consideration for Buena Nevada's assets, in addition to the monetary
consideration of $300,000. The parties failed to complete the transaction as set forth in the
agreement; instead, Brannen received $14,000 cash in lieu of stock and then proceeded to use
that cash to purchase 3,333 shares of U.S. Labs stock on the open market.
We conclude that this transfer of stock is not sufficient to demonstrate continuity between
the shareholders of Buena Nevada and those of U.S. Labs for two reasons. First, we note that
the amount of stock transferred was not substantial. Second, and most importantly, we note
that Brannen did not purchase and has never owned any Buena Delaware stock.
Consequently, we conclude that there is no continuity of shareholders in this case.
........................................
Cessation of ordinary business operation
The third factor is whether the seller corporation continued to exist after the sale of assets.
19
Some courts have determined that when a seller of assets continues to exist after the sale of
assets to the successor corporation, there is no de facto merger.
20
U.S. Labs urges this court
to adopt this view. We refuse to do so; rather, we view this as a factor to be equally weighed
to determine whether a de facto merger occurred in a given case.
Here, the evidence demonstrates that this factor was not met in the instant case because
Buena Nevada continued to exist after the asset purchase. After the asset purchase, Brannen
changed the name of the seller corporation and maintained it as a corporate entity pending
resolution of an outstanding lawsuit. In Tucker v. Paxson Machine Co., the Eighth Circuit
determined that a similar set of facts precluded a finding of de facto merger.
21
In fact, at least
two courts have concluded that there was no de facto merger when the seller corporation
continued to exist but did not engage in any business operations.
22
In Schumacher v.
Richards Shear Co., the court rejected an assertion of successor liability when the
predecessor continued to exist as a distinct, albeit meager, entity.
23
In Gavette v. The
Warner & Swasey Co., the court concluded that de facto merger did not lie because the seller
corporation continued to exist at least transcendentally for one year.
24

Likewise, in the instant case, the seller, Buena Nevada, continued to exist after it sold all
of its assets to U.S. Labs. Therefore, it was amenable to suit during that period of time. As a
result, we conclude that the facts simply do not support Village's contention that this factor is
met.
Assumption of those obligations necessary for normal business operations
The final factor is whether the purchasing corporation assumed the seller's obligations.
Village contends that under the APA's provisions, U.S.
____________________

19
Ulanet, 170 F. Supp. 2d at 358; Kleen Laundry I, 817 F. Supp. at 230; Sylvester Bros. Dev. Co., 772 F.
Supp. at 447-48.

20
E.g., Tucker v. Paxson Machine Co., 645 F.2d 620, 622 n.6 (8th Cir. 1981) (affirming district court's
conclusion that a de facto merger did not exist because the predecessor continued to exist after the sale);
Schumacher v. Richards Shear Co., Inc., 451 N.E.2d 195, 198 (N.Y. 1983); Gavette v. The Warner & Swasey
Co., No. 90-CV-217 GLS, 1999 WL 118438, at *5 (N.D.N.Y. March 5, 1999).

21
645 F.2d at 622.

22
Schumacher, 451 N.E.2d at 198; Gavette, 1999 WL 118438, at *5.

23
451 N.E.2d at 198.

24
1999 WL 118438, at *5.
........................................
visions, U.S. Labs assumed the obligations necessary for the newly formed Buena Delaware
to carry out Buena Nevada's normal business operations. The record supports that contention.
Moreover, U.S. Labs' own corporate policy suggests that the assumption of those obligations
was part and parcel of its national acquisition strategy. On its website, U.S. Labs stated that
its national acquisition strategy was to permit a newly acquired company to continue as
before without changing the name, personnel or operational policies. Notably, the APA's
terms reflect this policy.
Those terms aptly demonstrate that after the sale, Buena Delaware acquired all those rights
and obligations necessary to operate the business. The obligations assumed included Buena
Nevada's lease, its vendor and customer contracts, and the right to collect receivables,
including those generated by Village during the clean-up work on the property. U.S. Labs also
acquired Buena Nevada's phone numbers, computer software, sales and promotional
literature, and trade rights under the APA. Additionally, U.S. Labs assumed liability in
specifically delineated contracts, the personal property leases, and all licensing agreements
relating to trade rights. However, under the APA, U.S. Labs expressly stated that it would not
assume liability for litigation matters instituted after the closing of the sale but arising out of
actions that occurred before the sale. Nevertheless, we conclude that the facts in this case
demonstrate a prima facie case that U.S. Labs assumed the obligations necessary to continue
the normal business operations of Buena Nevada after the sale.
As previously noted, we will weigh all four of the factors of de facto merger equally to
determine whether the exception should be applied in any given case. In this case, we
conclude that prima facie evidence showed continuity of the enterprise and that U.S. Labs
assumed those obligations necessary to continue the normal operations of the business.
However, we also conclude that there was no continuity of shareholders and that Buena
Nevada continued to exist after the sale of its assets, making it amenable to suit for some time
after the sale. Under these facts, we conclude that Village has failed to demonstrate the
existence of a de facto merger. The record shows that Brannen had no personal relationships
with anyone at U.S. Labs before the APA negotiations. Additionally, U.S. Labs provided
adequate consideration for the assets, negating any argument that the sale was a sham
intended to shelter Buena Nevada from liability while allowing it to operate profitably in its
new form. Therefore, we conclude that a de facto merger does not exist when only two of the
four factors exist, and we affirm the district court's decision to grant summary judgment in
favor of U.S. Labs on this issue.
........................................
Mere continuation exception
The test for mere continuation
[Headnote 11]
Historically, a plaintiff must meet the following two requirements to justify bringing a sale
of assets within the purview of the mere continuation exception to the general rule: (1) only
one corporation remains after the transfer of assets; and (2) there is an identity of stock,
stockholders, and directors between the two corporations.
25
Village urges this court to adopt
a more expansive interpretation of the mere continuation exception known as the continuity
of the enterprise doctrine. The more expansive interpretation that Village advocates uses
eight factors to determine if the exception is met. Those factors include:
(1) retention of the same employees;
(2) retention of the same supervisory personnel;
(3) retention of the same production facilities in the same location;
(4) production of the same product;
(5) retention of the same name;
(6) continuity of the assets;
(7) continuity of general business operations; and
(8) whether the successor holds itself out as the continuation of the previous enterprise.
26

We decline to adopt this more expansive test in cases similar to the one at bar.
Importantly, we note that most of the courts addressing this issue have limited the application
of the doctrine to cases involving claims of products liability and Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA) violations.
27
Indeed,
the New Hampshire Supreme Court declined to adopt the expanded doctrine in a contract or
tort context, stating that it is grounded upon public policies that are not applicable to
traditional commercial and contract law, which are governed by predictability of results and
the intentions of the parties.
28

Courts have adopted the expanded doctrine in the limited circumstance of products
liability because they recognized that sound public policy favors the protection of the public
against dangerous products.
____________________

25
U.S. v. Carolina Transformer Co., 978 F.2d 832, 838 (4th Cir. 1992).

26
Kleen Laundry & Dry Clng. v. Total Waste Management, 867 F. Supp. 1136, 1140 (D.N.H. 1994) (quoting
Kleen Laundry I, 817 F. Supp. at 231) (citations omitted) [hereinafter Kleen Laundry II].

27
E.g., id. (CERCLA claim); Kleen Laundry I, 817 F. Supp. 225 (CERCLA claim); Savage Arms, Inc. v.
Western Auto Supply Co, 18 P.3d 49, 55-56 (Alaska 2001) (products liability); Alad, 560 P.2d 3 (products
liability).

28
Bielagus v. EMRE of New Hampshire Corp., 826 A.2d 559, 569 (N.H. 2003).
........................................
public policy favors the protection of the public against dangerous products.
29
Likewise,
courts have opined that a more expansive rule is justified in CERCLA cases in order to
protect the taxpayer from the expenses incurred in remedying the pollution.
30
We will leave
the consideration of this exception in CERCLA and products liability claims for another day.
The instant case involves a claim of general negligence. Village did not assert a CERCLA
claim against U.S. Labs or Buena Delaware. Therefore, public policy does not justify the
application of such an exception in the instant case.
More importantly, we are persuaded by the fact that [t]he trend in other jurisdictions
appears to be away from the expansion of successor liability and in favor of retaining the
traditional rule on non-liability.
31
As a result, we elect to follow the general rule and require
that the two traditional factors must be met to assert a claim of successor liability under the
mere continuation exception.
Application of the mere continuation exception
[Headnote 12]
One federal district court has opined that [t]he gravamen of the mere continuation'
exception is the continuation of corporate control and ownership, rather than continuation of
business operations.
32
Many courts have likewise concluded that the key inquiry in
resolving this issue is whether there exists a continuation of the corporate entity.
33
We agree.
For that reason, it is impossible in the instant case to conclude that Village has asserted a
prima facie case for the mere continuation exception.
Importantly, Village cannot establish that only one corporation existed after the sale. As
discussed above, both Buena Nevada and Buena Geofon continued to exist after the sale of
assets to U.S. Labs. In addition, Village has failed to demonstrate that there exists an identity
of stock, stockholders or directors between Buena Nevada on the one hand and U.S. Labs and
Buena Delaware on the other. Brannen purchased only a negligible amount of U.S. Labs
stock, which we have already concluded is insufficient to demonstrate prima facie evidence
of continuity of stock.
____________________

29
Roll v. Tracor, Inc., 140 F. Supp. 2d 1073, 1083 (D. Nev. 2001); Alad, 560 P.2d at 9.

30
Carolina Transformer, 978 F.2d at 840.

31
MBII v. PSI, 89 Cal. Rptr. 2d 778, 781 (Ct. App. 1999) (internal quotation marks omitted).

32
East Prairie R-2 School Dist. v. U.S. Gypsum Co., 813 F. Supp. 1396, 1400 (E.D. Mo. 1993) (citing
Tucker, 645 F.2d at 625-26).

33
E.g., Tucker, 645 F.2d at 625-26; Parson v. Roper Whitney, Inc., 586 F. Supp. 1447, 1450 (W.D. Wis.
1984); Weaver v. Nash Intern., Inc., 562 F. Supp. 860, 863 (S.D. Iowa 1983).
........................................
strate prima facie evidence of continuity of stock. Additionally, Brannen was made president
of Buena Delaware, but did not serve as an officer or director of U.S. Labs, the purchasing
corporation. Therefore, we conclude that the facts in this case are insufficient to establish a
common or substantially similar ownership between the selling and purchasing corporation.
As a result, Village has failed to show that either requirement for establishing the mere
continuation exception has been met. Accordingly, we conclude that the district court
properly granted U.S. Labs' motion for summary judgment because no exception to the
general rule of successor nonliability will lie under this particular set of facts.
The district court's award of costs
Village also contends that the district court erred in awarding U.S. Labs costs because U.S.
Labs failed to file a verified memorandum of costs. Instead, U.S. Labs filed a motion for
attorney fees and costs, which Village argues is insufficient to satisfy the requirements of
NRS 18.110(1). We agree.
[Headnotes 13, 14]
A district court's decision regarding an award of costs will not be overturned absent a
finding that the district court abused its discretion.
34
NRS 18.020(3) states that costs must be
allowed to the prevailing party against any adverse party against whom judgment is rendered
in an action for the recovery of money or damages, where the plaintiff seeks to recover more
than $2,500. Under NRS 18.110(1), a prevailing party must submit:
a memorandum of the items of his costs in the action or proceeding, which
memorandum must be verified by the oath of the party, or his attorney or agent, or by
the clerk of his attorney, stating that to the best of his knowledge and belief the items
are correct, and that the costs have been necessarily incurred in the action or
proceeding.
In addition, NRS 18.110(1) dictates that this verified memorandum must be filed within five
days after the entry of judgment unless the court grants extra time. This court has determined,
however, that the five-day period is not jurisdictional and the district court has discretion to
reach the merits of an untimely motion for costs and expert witness fees.
35
Costs must be
interpreted to mean actual costs that are also reasonable, rather than a reasonable
estimate or calculation of such costs based upon administrative convenience."
____________________

34
U.S. Design & Constr. v. I.B.E.W. Local 357, 118 Nev. 458, 462, 50 P.3d 170, 172 (2002); Parodi v.
Budetti, 115 Nev. 236, 240, 984 P.2d 172, 174 (1999).

35
Eberle v. State ex rel. Redfield Trust, 108 Nev. 587, 590, 836 P.2d 67, 69 (1992).
........................................
actual costs that are also reasonable, rather than a reasonable estimate or calculation of such
costs based upon administrative convenience.
36

[Headnote 15]
U.S. Labs contends that because the motion was actually filed early, in between the time
when the district court granted summary judgment and when it entered the judgment, it meets
the requirements of NRS 18.110. Furthermore, U.S. Labs contends that the costs requested in
the instant case do not require additional documentation to justify their reasonableness. U.S.
Labs does not deny that it did not provide documentation as to the requested costs, nor does
U.S. Labs deny that it failed to verify the motion. Instead, U.S. Labs contends that because its
counsel signed the motion under NRCP 11, which certified that the pleading was well
grounded in fact, verification was not required, and in any event, there are no cases
overturning an award for failure to provide verification. We disagree.
In Gibellini v. Klindt,
37
this court addressed a situation, similar to the one in the instant
case, where the district court awarded costs for photocopying, telephoning, and postage
expenses. In that case, the prevailing party based its estimate of costs on the law firm's
customary practice of charging four percent of the client's total billable charges for such
expenses.
38
The court determined that the district court abused its discretion because there
was no indication that the costs involved were actually incurred by the prevailing party.
39
Likewise, in Bobby Berosini, Ltd. v. PETA, this court determined that the district court
abused its discretion because it granted an award of costs based upon the prevailing party's
submission of itemized materials that did not show how the costs were necessary to and
incurred in the present action.
40

This case is factually analogous to the aforementioned cases. Here, U.S. Labs contends
that submission of an itemization is sufficient because the costs claimed here do not require
additional documentation to justify their reasonableness. U.S. Labs argues further that
[t]hose moving for costs should not be required to provide justifying documentation for each
copy made or each call placed to substantiate the reason for the copy or call when the overall
amount is obviously reasonable. This argument is unpersuasive because such documentation
is precisely what is required under Nevada law to ensure that the costs awarded are only
those costs actually incurred.
____________________

36
Gibellini v. Klindt, 110 Nev. 1201, 1206, 885 P.2d 540, 543 (1994).

37
110 Nev. 1201, 885 P.2d 540.

38
Id. at 1205, 885 P.2d at 543.

39
Id. at 1205-06, 885 P.2d at 543.

40
114 Nev. 1348, 1352, 871 P.2d 383, 386 (1998).
........................................
under Nevada law to ensure that the costs awarded are only those costs actually incurred.
Once such documentation is provided, it is then up to the district court to determine if the
amount spent is reasonable. Accordingly, the district court improperly awarded costs.
CONCLUSION
We now adopt the traditional rule to determine whether the exception of de facto merger
exists. We conclude that the factors considered should be weighed equally. In addition, we
decline to adopt an expansive rule for determining whether the mere continuation exception
applies. Instead, we adopt the traditional rule used by courts to determine if the mere
continuation exception applies. Here, we conclude that Village failed to demonstrate a prima
facie case for either of these two exceptions. Accordingly, we affirm the district court order
granting summary judgment in favor of U.S. Labs.
We do conclude, however, that the district court abused its discretion by awarding costs to
U.S. Labs in the absence of a verified memorandum of costs showing that U.S. Labs' costs
were actually incurred. Accordingly, we reverse the district court order awarding costs to U.S.
Labs.
Becker, C. J., Maupin, Gibbons, Douglas, Hardesty and Parraguirre, JJ., concur.
____________
121 Nev. 278, 278 (2005) Grover C. Dils Med. Ctr. v. Menditto
GROVER C. DILS MEDICAL CENTER, Appellant, v. DALE
MENDITTO and OLSTEN HEALTH SERVICES, Respondents.
No. 41732
June 9, 2005 112 P.3d 1093
compensation case. Eighth Judicial District Court, Clark County; Lee A. Gates, Judge.
The supreme court held that remand was necessary to determine if claimant's previous
injury was aggravated or if it reoccurred.
Reversed and remanded with instructions.
Moran & Associates and Jill M. Lynne, Las Vegas, for Appellant.
Craig P. Kenny & Associates and Kathryn N. Potvin, Las Vegas, for Respondent
Menditto.
........................................
Santoro, Driggs, Walch, Kearney, Johnson & Thompson and Javier A. Arguello, Las
Vegas, for Respondent Olsten Health Services.
In the context of an appeal from a district court order denying a petition for judicial
review of an administrative decision, the supreme court examines the administrative
decision for clear error or abuse of discretion.
While the supreme court independently reviews purely legal determinations in
reviewing an agency decision, the appeals officer's fact-based conclusions of law are
entitled to deference and will not be disturbed if they are supported by substantial
evidence; substantial evidence is that which a reasonable person might accept as
adequate to support a conclusion.
The supreme court in reviewing an agency decision will not substitute its judgment
for that of the appeals officer as to issues of credibility or the weight of the evidence.
In reviewing an agency decision, the supreme court's review is limited to the record
before the appeals officer.
In successive injury/successive employer cases, the last injurious exposure rule
places full liability upon the carrier covering the risk at the time of the most recent
injury or aggravation of a prior injury that bears even a slight causal relation to the
disability; but if the subsequent injury is merely a recurrence of the first, and does not
contribute even slightly to the causation of the disabling condition, the carrier covering
the risk at the time of the original injury remains liable for the subsequent injury.
Under the last injurious exposure rule, a new work-related injury or an aggravation
of the prior injury is the responsibility of the most recent employer, whereas a mere
recurrence remains the responsibility of the former employer.
An aggravation under the last injurious exposure rule is the result of a specific,
intervening work-related trauma, amounting to an injury or accident under workers'
compensation law, that independently contributes to the subsequent disabling
condition. NRS 616A.030, 616A.265(1).
To be considered an aggravation for purposes of the last injurious exposure rule, the
subsequent work-related injury must amount to more than merely the result of the
natural progression of the preexisting disease or condition, which becomes increasingly
painful with the performance of normal work duties; instead, when symptoms of an
original injury persist and when no specific incident can independently explain the
worsened condition, the condition is a recurrence of the original injury.
When determining whether a workers' compensation claimant with an ongoing
condition suffered an aggravation under the last injurious exposure rule, the fact-finder
should be concerned with whether the subsequent incident caused the original condition
to worsen physically, not merely whether it merely caused additional pain to manifest
itself.
........................................
Generally, because an injury is a subjective condition, an expert opinion is required
to establish a causal connection between the incident or injury and disability for
purposes of determining if a workers' compensation claimant's injury was aggravated by
a successive injury.
Evidence that a work-related injury merely worsened is not sufficient to prove
aggravation.
Appeals officer based her conclusion that workers' compensation claimant's injury
constituted an aggravation of her previous work-related injury rather than a
reoccurrence of the injury on legally inconsistent medical evidence, and thus, remand
was necessary for a determination as to whether the injury was an aggravation of the
previous injury, for which claimant's current employer would be responsible, or if it
was a reoccurrence of the previous injury, for which her previous employer would be
responsible, where the evidence in the record indicated that claimant continued to suffer
symptoms of her previous injury before and during the subsequent work incidents.
In ongoing symptoms cases, the mere increased severity or exacerbation of
symptoms, without more, is not sudden or unforeseen and does not constitute objective
symptoms of an injury under Nevada's workers' compensation law.
OPINION
Per Curiam:
In this appeal, we examine the last injurious exposure rule, which links workers'
compensation liability with the employment that last contributed to the causation of a
subsequent disabling condition. Primarily, the parties dispute whether the claimant's most
recent disabling condition is, under the rule, the result of a work-related aggravation and
thus the most recent employer's responsibility, or merely a recurrence of her previous
injuries, which remains the former employer's responsibility. This opinion clarifies the
standards for determining whether a subsequent condition is an aggravation or a
recurrence under the rule: an aggravation is the result of a specific, intervening
work-related trauma, amounting to an injury or accident under workers' compensation
law, that independently contributes to the subsequent disabling condition; a recurrence
occurs when no specific incident can independently explain the worsened condition.
FACTS
In January 1997, while employed by respondent Olsten Health Services, respondent Dale
Menditto was involved in a work-related automobile accident; her subsequent workers'
compensation claim was accepted, and she received treatment for her injuries.
........................................
automobile accident; her subsequent workers' compensation claim was accepted, and she
received treatment for her injuries. Thereafter, Menditto reported continued headaches and
neck pain and intermittent numbness in her hands. A physician noted that Menditto's cervical
spine discs protruded and were marked by mild spondylosis and spurring anteriorly at C4-5,
C5-6 and C6-7. The physician related Menditto's symptoms to cervical radiculopathy. In the
following months, Menditto complained multiple times of neck and low back pain, sensations
of burning, and numbness. Menditto's doctors noted that her C5-6 disc protrusion could be
causing some of her complaints. Even so, the doctors discovered no other objective findings,
and despite Menditto's persisting symptoms, they recommended a full-duty work release. In
June 1997, Olsten notified Menditto that her claim would be closed.
During the years following claim closure, Menditto occasionally sought medical assistance
for similar symptoms. In 1998, Dr. Farhana Kamal diagnosed Menditto with chronic neck and
back pain. In November 1998 and November 1999, Menditto obtained x-rays of her neck and
back. The x-rays showed a decrease in the lumbosacral disc space because of mild
degenerative changes or normal variant. In September and December 2000, respectively,
Menditto reported to Dr. Kamal and another physician that she felt pain in the lower spine,
burning hands and feet, and total numbness. She complained of feeling pain all over in
late December 2000.
A March 15, 2001 medical report, from Dr. Kamal, indicates that Menditto had a two-year
history of backaches and that she continued to feel pain in the low back that radiated to both
legs, numbness in her arms and hands, and swelling. The report further notes that Menditto
had experienced increasing pain since the 1997 accident.
Dr. Scott A. Parry also saw Menditto for neck and back pain in March 2001. Dr. Parry's
report indicates that her troubles began with the 1997 accident; his impression was cervical
and lumbar radiculopathy status post whiplash type injury four years ago. On April 13, 2001,
an MRI was obtained of Menditto's neck and back. Upon its review, Dr. Parry noted that
Menditto had a bulging disc at C4-5 and C5-6 and fairly moderate to severe degenerative
disk disease at the lumbosacral junction. His diagnosis remained the same. Months later, in
response to questions posed by Menditto's attorney, Dr. Parry stated that Menditto
experienced an exacerbation of her symptoms in February of 2001 and that any pain she
had in the cervical lumbar region in 2001 was likely a reaggravation of a pre-existing
condition . . . . [N]early 100%[ ] would be attributable to the pre-existing condition that was a
result of the 1997 industrial accident.
........................................
Meanwhile, Menditto changed employers; she began working for appellant Grover C. Dils
Medical Center (Dils Medical) on November 10, 1999. On February 12, 2001, in the context
of providing CPR to a patient, Menditto maintained a straddling position for an extended
period. Later, on April 25, 2001, Menditto helped lift and maneuver an obese patient who had
fallen out of bed. Shortly thereafter, in May 2001, Menditto's painful physical condition
caused her to stop working. She subsequently signed a notice of injury form, asserting that
her actions during the February CPR incident had hurt her back and neck, and that she had
injured her back and spine during the April lifting incident.
Menditto continued to seek relief from various physicians. In May 2001, three doctors
examined Menditto. Essentially, they all opined that Menditto's symptoms arose from her
1997 injuries and had since grown worse. The doctors noted that, according to Menditto, she
had returned to her pre-accident baseline within several months after the accident, and she
began reexperiencing back pain and other symptoms two to eight weeks earlier. One doctor,
however, noted that he did not have available the 1997 medical records. Although another
doctor suggested that Menditto's 1997 pain had subsided except for intermittent,
nondebilitating pain, he also noted progressive neck difficulties since the 1997 accident, with
radiating pain and constant headaches. The doctors found that Menditto had recently
suffered a recurrence of her symptoms, which had been aggravated by her occupation as
a nurse. Two of the doctors never specifically mentioned the February CPR or April lifting
incidents; the other doctor stated only months later that Menditto had sustained a
re-aggravation of her neck and lower back pain in a work accident in February.
In June 2001, another doctor, Dr. Dale G. Stott, reported that after the 1997 accident,
Menditto underwent therapy and was able to return to work, but that she once again
developed neck pain with a recurrence of symptoms including numbness . . . and burning
during the February CPR incident, and she sustained pain in the lower back during the April
lifting incident. He stated that, although Menditto recovered from her 1997 injuries, she
suffered recurrences of pain in the process of working, due to her C4-5 cervical disc
herniation/cervical radiculopathy and lumbar degenerative disc disease.
Dr. Kamal signed the June 2001 workers' compensation claim form for cervical disc
herniation and degenerative lumbar disc disease, directly connecting the claims to Menditto's
employment by checking the appropriate box and writing aggravated at work. He also
noted that Menditto's symptoms began with the 1997 accident and had been aggravated by
recent injury. But he also wrote on a physician's certificate that the date Menditto's condition
commenced was "unknown."
........................................
menced was unknown. Dr. Kamal additionally penned a June 2001 letter in which he noted
that Menditto was under his care for problems originating from the 1997 accident, that an
(unidentified) MRI showed that her disc herniation had worsened, and that the aggravated
condition required reopening of the 1997 claim.
Dils Medical's insurer denied Menditto's claim; consequently, Menditto requested Olsten
to reopen the 1997 claim. Olsten also denied her request, and Menditto administratively
appealed both Dils Medical's and Olsten's determinations. At the administrative hearing, the
above evidence was submitted to the appeals officer. Menditto also testified as to the
progressively worsening nature of her post-accident pain, which apparently increased, but did
not change, with her work duties, but she was unable to recall anything that she had done that
specifically caused the worsened pain. She also admitted that she had catered some of her
statements to the doctors, overplaying the two incidents, and that at least one of the doctors'
reports incorrectly indicated that her pain had subsided and did not interfere with her daily
functions.
The appeals officer, however, found that Menditto's testimony at the hearing was not
credible and instead purported to rely on the recitation of facts contained within the early
medical reporting. The appeals officer concluded that Menditto's condition had worsened
since claim closure and had been aggravated by the February and April 2001 work-related
incidents. Therefore, the appeals officer determined that Dils Medical is responsible for
Menditto's claim under the last injurious exposure rule. The district court denied Dils
Medical's subsequent petition for judicial review, and Dils Medical appeals.
DISCUSSION
[Headnotes 1-4]
In the context of an appeal from a district court order denying a petition for judicial review
of an administrative decision, this court examines the administrative decision for clear error
or abuse of discretion.
1
While we independently review purely legal determinations, the
appeals officer's fact-based conclusions of law are entitled to deference and will not be
disturbed if they are supported by substantial evidence. Substantial evidence is that which a
reasonable person might accept as adequate to support a conclusion.'
2
Nor will this court
substitute its judgment for that of the appeals officer as to issues of credibility or the weight
of the evidence.
____________________

1
Construction Indus. v. Chalue, 119 Nev. 348, 352, 74 P.3d 595, 597 (2003) (citations omitted).

2
Ayala v. Caesars Palace, 119 Nev. 232, 235, 71 P.3d 490, 491-92 (2003) (quoting SIIS v. Montoya, 109
Nev. 1029, 1032, 862 P.2d 1197, 1199 (1993)).
........................................
officer as to issues of credibility or the weight of the evidence.
3
Our review is limited to the
record before the appeals officer.
4

Here, the appeals officer's determination that Menditto's 1997 industrial condition had
physically worsened, warranting additional compensation, is clearly supported by substantial
evidence. Consequently, the main issue on appeal is whether the appeals officer properly held
Menditto's subsequent employer, Dils Medical, instead of her previous employer, Olsten,
responsible for Menditto's worsened condition under the last injurious exposure rule.
The last injurious exposure rule
[Headnotes 5, 6]
In successive injury/successive employer cases, the last injurious exposure rule places full
liability upon the carrier covering the risk at the time of the most recent injury or aggravation
of a prior injury that bears even a slight causal relation to the disability.
5
But if the
subsequent injury is merely a recurrence of the first, and does not contribute even slightly to
the causation of the disabling condition, the [carrier] covering the risk at the time of the
original injury remains liable for the subsequent injury.
6
Thus, determining which employer
will be held liable for a subsequent injurious condition depends on whether the subsequent
injury is characterized as a new injury, an aggravation of a prior industrial injury, or a
recurrence of a prior industrial injury, as defined under the rule.
7
A new injury or an
aggravation of the prior injury is the responsibility of the most recent employer. A mere
recurrence remains the responsibility of the former employer.
The appeals officer's characterization of the injury, in light of the facts, medical evidence
and circumstances, is a fact-based conclusion of law entitled to deference.
8
In this instance,
no party contends, and no evidence demonstrates, that Menditto's most recent disabling
condition is unrelated to her 1997 accident or was contributed to by a new and separate
injury. Accordingly, the subsequent injury must be characterized under the last injurious
exposure rule as either an aggravation or a recurrence of Menditto's previous injuries.
Although a claimant's condition will have worsened in either instance, the two terms are
not synonymous under the rule.
____________________

3
Chalue, 119 Nev. at 352, 74 P.3d at 597.

4
Ayala, 119 Nev. at 235, 71 P.3d at 491.

5
Las Vegas Hous. Auth. v. Root, 116 Nev. 864, 869, 8 P.3d 143, 146 (2000).

6
Id.

7
Id.

8
See SIIS v. Swinney, 103 Nev. 17, 20, 731 P.2d 359, 361 (1987).
........................................
have worsened in either instance, the two terms are not synonymous under the rule. Rather,
characterizing the subsequent injury requires the fact-finder to also consider whether the
subsequent injury in any way augmented the underlying cause of the disabling condition. And
when, as here, a claimant's original symptoms persist at the time of a subsequent injury,
determining whether the subsequent injury contributed to the disabling condition's causation
is necessarily more difficult.
Other courts have grappled with this issue. The Delaware Supreme Court, in Standard
Distributing Co. v. Nally,
9
rejected the proposition that any work-related event or episode
that results in disability constitutes an aggravation under the last injurious exposure rule.
The court recognized that the fact-finder must focus equally on the causation factor since
compensability for the new condition depends on its relationship to a new work-connected
accident.'
10
Therefore, it stated, the question is not whether the employee's pain or other
symptoms have returned but whether there has been a new injury or worsening of a previous
injury attributable to an untoward event.
11

And in Rumford Press v. Travelers Insurance Co.,
12
the New Hampshire Supreme Court
upheld the characterization of a subsequent back injury as a recurrence under the last
injurious exposure rule because the subsequent injury, incurred while lifting an object at
work, was not a separate and independent cause of the claimant's disability. In that case,
expert testimony demonstrated that the claimant's original disability had never reached a
medically stable condition, but rather had continued to progressively degenerate, as
experienced by the claimant in occasional aggravations or flare-ups.'
13
The court noted a
difference between the aggravation of a stabilized condition and the recurrence, or
worsening or exacerbation, of an existing condition, and it concluded that an aggravation is
established when the evidence demonstrates that the second incident produced results that
are not only tied to the disability but have intervened to the extent that they [are] an
independent cause of the disability.
14

____________________

9
630 A.2d 640, 643 (Del. 1993).

10
Id. at 645 (quoting DiSabatino & Sons, Inc. v. Facciolo, 306 A.2d 716, 719 (Del. 1973)). The need to
establish a second accident or event, beyond the normal duties of employment, is a continuing requirement in
order to shift liability from the first carrier who bears responsibility for the effect of the original injury. Id. at
646.

11
Id. at 645.

12
480 A.2d 162 (N.H. 1984).

13
Id. at 164.

14
Id. at 165.
........................................
Similarly, in Titus v. Sioux Valley Hospital,
15
the South Dakota Supreme Court also
likened a recurrence to the continuation or worsening of a previous industrial injury: The
question is not whether later employment contributed to [the] disability, but whether it
contributed to the causation of [the] disability. Accordingly, the court concluded that an
aggravation occurs when a second injury independently contributes to the cause of the final
disability (an independent aggravation), but a recurrence is found when symptoms of the
first injury persist and there is no specific incident that can independently explain the second
onset of symptoms.
16

[Headnotes 7, 8]
Although this court has not explicitly distinguished the terms aggravation and
recurrence in this context,
17
we similarly deduced, when distinguishing between a newly
developed injury and an aggravation in Hayes v. SIIS,
18
that an aggravation . . . would be
the result of a subsequent, intervening injury or cause that caused [the injury] to be put into a
worse condition than it was put into by the [previous] accident. Like the Titus court, and
consistent with our discussion in Hayes, we recognize that an aggravation under the last
injurious exposure rule is the result of a specific, intervening work-related trauma, amounting
to an injury or accident under workers' compensation law,
19
that independently
contributes to the subsequent disabling condition.
____________________

15
658 N.W.2d 388, 391 (S.D. 2003).

16
Id.

17
See generally Root, 116 Nev. at 869-70, 8 P.3d at 147 (determining that the evidence demonstrated an
aggravation rather than a recurrence but not explicitly distinguishing between the two terms); Collett Electric v.
Dubovik, 112 Nev. 193, 911 P.2d 1192 (1996) (same); Swinney, 103 Nev. at 20, 731 P.2d at 361 (same).

18
114 Nev. 1340, 1343, 971 P.2d 1257, 1259 (1998); see also NRS 616C.160.

19
See NRS 616A.030 (defining accident as an unexpected or unforeseen event happening suddenly and
violently, . . . producing at the time objective symptoms of an injury); NRS 616A.265(1) (defining injury as
a sudden and tangible happening of a traumatic nature, producing an immediate or prompt result which is
established by medical evidence); see also Swinney, 103 Nev. at 20, 731 P.2d at 361. Additional support for the
last injurious exposure rule's injury or accident prerequisite is found in NRS 616C.015(1), which requires an
employee to provide the employer with written notice of any work-related injury as soon as practicable, but
within 7 days after the accident, and NRS 616C.025, which provides that, with certain exceptions, an injured
employee is barred from receiving workers' compensation if NRS 616C.015 is not complied with. When a
subsequent incident results in an injury or accident, the timing requirements (and any exceptions) appropriately
apply as if the subsequent injury were a new claim. However, when an injury progressively worsens, it is
difficult to immediately attribute that worsening to any specific incident, and the seven-day deadline is
inapplicable. See generally NRS 616C.390 (governing claim reopening).
........................................
ently contributes to the subsequent disabling condition.
20
Thus, to be considered an
aggravation, the subsequent injury must amount to more than merely the result of the natural
progression of the preexisting disease or condition,
21
which becomes increasingly painful
with the performance of normal work duties. Instead, when symptoms of an original injury
persist and when no specific incident can independently explain the worsened condition, the
condition is a recurrence of the original injury.
22

[Headnotes 9-11]
Finally, determining which employer is liable in successive industrial injury cases requires
that aggravation and recurrence be distinguished in the legal sense, not just the medical
sense.
23
As the Nally court noted, from a medical standpoint, opining physicians are more
concerned with symptomatology than causation, and may[, as here,] use the term[s
recurrence' and aggravation'] interchangeably in diagnosis.
24
Nevertheless, when
determining whether a claimant with an ongoing condition suffered an aggravation under
the last injurious exposure rule, the fact-finder should be concerned with whether the
subsequent incident caused the original condition to worsen physically, not merely whether it
merely caused additional pain to manifest itself.
25
And generally, "[b]ecause an injury is a
subjective condition, an expert opinion is required to establish a causal connection
between the incident or injury and disability."
____________________

20
See also Root, 116 Nev. at 869, 8 P.3d at 146 (likening the aggravation of a prior injury to a new injury);
Swinney, 103 Nev. at 20-21, 731 P.2d at 361 (recognizing that an aggravation finding is supported by
evidence that the claimant's previous condition improved after surgery, the claimant received no medical
treatment for over a year prior to the second episode, and the second episode rose to the level of an injury or
accident).

21
SIIS v. Kelly, 99 Nev. 774, 776, 671 P.2d 29, 30 (1983), superseded by statute, NRS 616C.175.

22
See Burks, Inc. v. Blanchard, 531 S.W.2d 465, 467 (Ark. 1976) (affirming a finding of recurrence when
normal working, stooping and bending activities precipitated the anticipated return of back pain, even though
an injury did indeed occur); Crowe v. Jeld-Wen, 712 P.2d 145, 149 (Or. Ct. App. 1985) (concluding that the
claimant's subsequent employment had not contributed to her back disability, since she merely experienced
continuing symptoms and increased pain from her original injury when she engaged in continued activity).

23
Nally, 630 A.2d at 645.

24
Id.

25
United Methodist Senior Services v. Ice, 749 So. 2d 1227, 1231, 1232 (Miss. Ct. App. 1999) (recognizing
that determining whether an injury has been aggravated under the last injurious exposure rule calls for an actual
worsening of the injury, not merely an analysis of the ebb and flow of symptoms: [p]ain is a symptom of an
injury; that the pain worsens with certain activity does not mean the activity is increasing the injury but only that
the activity is painful as a result of the injury); Matter of Compensation of Wills, 650 P.2d 109, 109 (Or. Ct.
App. 1982) (stating that the resolution [of subsequent employer responsibility] depends on whether the second
of two injuries . . . worsened the underlying condition or merely aggravated [the] symptoms).
........................................
[b]ecause an injury is a subjective condition, an expert opinion is required to establish a
causal connection between the incident or injury and disability.
26
Evidence that an injury
merely worsened is not sufficient to prove aggravation.
27

Here, the appeals officer based her conclusion on our discussion in Collett Electric v.
Dubovik.
28
In Collett, the claimant occasionally experienced hand-numbness symptoms
while working for his previous employer; however, he was able to alternate tasks so that the
problem did not significantly interfere with his work. The claimant then switched employers
and, although the new work activities were similar to those at his previous employment, the
conditions were substantially harsher and the work was more strenuous. Within a few weeks,
the claimant's symptoms had increased to the point that he could no longer work, and he was
diagnosed with cumulative trauma nerve entrapment syndrome.
29
Noting that the claim had
been treated as an occupational disease case, we determined that the previous employer was
improperly held responsible for the claimant's condition because, under the last injurious
exposure rule in occupational disease cases, the most recent employer is held responsible if
its workplace environment could have been a contributory cause of the disease. We then went
on to note that treating Collett as an injury case would not have made a difference because the
evidence demonstrated that the most recent employment's conditions actually did contribute
significantly to the causation of the disabling condition. Therefore, the claimant's disability
could not have been considered a recurrence.
30

Collett does not stand for the proposition that any work-related incident that results in
increased symptoms necessarily contributes to the causation of a disabling condition, and it is
distinguishable from the present case. Unlike the Collett claimant, Menditto was not
diagnosed with a cumulative trauma injury, where each additional trauma caused by
increasingly difficult work conditions would necessarily independently explain the
condition's worsening.
____________________

26
Truck Ins. Exchange v. CNA, 624 N.W.2d 705, 709 (S.D. 2001).

27
Id. at 711; see also Matter of Compensation of Perdue, 631 P.2d 346, 348-49 (Or. Ct. App. 1981) (holding
the previous employer liable when the claimant's previous symptoms persisted and no evidence demonstrated
that he had sustained additional trauma, but only a sudden aggravation of symptoms, worse than the first time,
suggesting that his chronic back sprain ha[d] worsened and might now limit his ability to work to some extent);
Town of Hudson v. Wynott, 522 A.2d 974, 978 (N.H. 1986) (Although there are situations in which a
fact-finder may ignore uncontradicted medical testimony and rely on lay testimony and his own inferences, . . .
[t]he causation of a back injury of this nature is a matter properly within the province of medical experts.
(citation omitted)).

28
112 Nev. 193, 911 P.2d 1192 (1996).

29
Id. at 195, 911 P.2d at 1194.

30
Id. at 198, 911 P.2d at 1196.
........................................
tional trauma caused by increasingly difficult work conditions would necessarily
independently explain the condition's worsening. In Collett, once it was shown that the
claimant's subsequent workplace environment caused additional trauma, that employment
necessarily contributed to the causation of his underlying, cumulative condition.
31
Although
Menditto's employment with Dils Medical could have physically exacerbated her condition,
the worsening of her type of underlying injury was not necessarily caused by the Dils Medical
employment; instead, the evidence indicates that Menditto's 1997 injury continued to worsen
independently of her Dils Medical employment.
[Headnote 12]
The appeals officer concluded that the factual details recited in the early medical reporting
were the most reliable. The early medical reports, however, indicate that Menditto continued
to suffer from symptoms of her cervical and lumbar injuries, suggesting that those injuries
had not completely resolved. Even though no additional treatment was recommended in 1997,
Menditto reported to doctors in 1998, 1999, and 2000 for similar symptoms. And although
some doctors later indicated that Menditto felt that her pain had somewhat abated since the
1997 accident, many of those doctors' reports at the same time recognize the ongoing nature
and progressive worsening of her 1997 condition. At the least, those medical reports establish
that Menditto began to reexperience symptoms at some point before the February CPR
incident at Dils Medical. Moreover, many of the later reports reflecting Menditto's abatement
statements are inconsistent with the early medical reporting found more reliable by the
appeals officer; some were even made before the doctors had reviewed the 1997 medical
evidence. Although the reports might indicate that Menditto's symptoms increased with
continued work, evidence that Menditto complained of similar symptoms before the February
CPR incident should not be ignored. Although this court will not disturb determinations of
credibility, since the record's evidence indicates that Menditto continued to suffer from
symptoms relating to the 1997 injuries before and during the February and April 2001
incidents, we note that any indication in the appeals officer's decision that Menditto's
1997 injuries had completely resolved appears inconsistent with the appeals officer's
reliance on the early medical reporting.
____________________

31
See Titus, 658 N.W.2d at 390 (noting that, when a disability develops gradually, or when it comes as a
result of a succession of accidents, the insurance carrier covering the risk at the time of the most recent injury . . .
is usually liable for the entire compensation' (quoting St. Luke's Midland Regional v. Kennedy, 653 N.W.2d
880, 885 (S.D. 2002))); cf. Travelers Ins. Exchange, 624 N.W.2d at 711 (holding, under test reiterated in Titus,
the first of several employers liable for claimant's repetitive work activity disability because the disability was
already in place at time claimant left the risk and there was no medical evidence demonstrating that the
subsequent continued activity contributed even slightly to the cause of disability).
........................................
and during the February and April 2001 incidents, we note that any indication in the appeals
officer's decision that Menditto's 1997 injuries had completely resolved appears inconsistent
with the appeals officer's reliance on the early medical reporting.
Finally, we note that the appeals officer appears to have relied on several doctors' reports
using the term aggravation in connection with Menditto's most recent symptoms. However,
although some of Menditto's physicians used the term aggravation in connection with her
work activities, others used the term recurrence and some used both terms; it appears in all
cases that the doctors were referring to the appearance of symptoms, rather than to Menditto's
actual physical condition. And many of the physicians merely noted that Menditto had
indicated that the February and April incidents aggravated her prior back injury. Clearly,
Menditto's use of the term aggravation to describe her symptoms does not conclusively
establish medical causation. In addition, the April 13, 2001 MRI appears to be the most recent
MRI available; therefore, any suggestion that Menditto's worsened condition, as evidenced in
the MRI, can be attributed to the April 25 incident is suspect. As a result, it appears that the
appeals officer based her conclusions on legally inconsistent medical evidence.
[Headnote 13]
Accordingly, as we have now clarified the standards for determining whether a subsequent
condition is an aggravation or a recurrence under the last injurious exposure rule, and
because the appeals officer apparently relied upon evidence inconsistent with her conclusions,
we conclude that this matter should be remanded for a new determination of whether the
medical evidence establishes that the February CPR and/or April lifting incidents
aggravated Menditto's back and neck condition, or whether Menditto suffered a mere
recurrence. In making the new determination, the appeals officer should consider whether
the record contains any medical evidence demonstrating that the two incidents constituted
injuries or accidents as defined by Nevada workers' compensation law or whether
Menditto merely suffered progressively worsening symptoms. We reiterate that, in ongoing
symptoms cases, the mere increased severity or exacerbation of symptoms, without more, is
not sudden or unforeseen and does not constitute objective symptoms of an injury
under Nevada's workers' compensation law.
And even if either of the two incidents constituted an injury or accident, the appeals officer
should consider whether evidence in the record demonstrates that these incidents
independently contributed to Menditto's final disabling condition. Thus, the appeals officer
must determine whether any evidence sufficiently connects Menditto's work at Dils Medical
with anything more than Menditto's continued or increased symptoms.
........................................
Menditto's work at Dils Medical with anything more than Menditto's continued or increased
symptoms. If the evidence demonstrates that the Dils Medical incidents amounted to injuries
or accidents and independently contributed to Menditto's subsequent disabling condition,
responsibility for Menditto's claim lies with Dils Medical; otherwise, if no specific incident
can independently explain her worsened condition, Menditto's condition is a mere
recurrence, and Olsten must be held liable.
Finally, Dils Medical alternatively argues that Menditto's notification of injury was
untimely. We note that, although the timeliness issue was raised during the hearing before the
appeals officer, the appeals officer's original determination failed to address this issue. If,
when rendering a new determination, the appeals officer determines that Menditto's
subsequent condition is an aggravation, the appeals officer's new determination should also
address Dils Medical's timeliness argument.
32

CONCLUSION
Under the last injurious exposure rule, an aggravation is established when medical
evidence demonstrates that a specific subsequent work-related incident, amounting to an
injury or accident, independently contributed to the final disabling condition. In this instance,
the appeals officer's determination was based on inapplicable decisional law and inconsistent
evidence. Accordingly, we reverse the district court's order denying Dils Medical's petition
for judicial review, and we remand this matter to the district court with instructions to grant
the petition and to direct the appeals officer to render a new determination regarding which
employer is responsible for Menditto's claim under the last injurious exposure rule, in light of
this opinion.
Maupin, J., concurring:
I concur in the majority analysis of the last injurious exposure rule. This latest
articulation of the rule clarifies one aspect of a very complex statutory framework for
compensating injured Nevada workers.
1
I write separately to note my concern over the
evolution of that framework, and to urge that the Nevada Legislature commence a
reexamination of it.
In Las Vegas Housing Authority v. Root,
2
we idealistically observed that [t]he last
injurious exposure rule . . . frees the employee from the burden of allocating responsibility for
his disability and forestalls any determination regarding which employment was the
'primary cause' of a work-related disease or injury."
____________________

32
See supra note 19.

1
Here, NRS 616C.390.

2
116 Nev. 864, 8 P.3d 143 (2000).
........................................
ity and forestalls any determination regarding which employment was the primary cause' of a
work-related disease or injury.
3
If the case currently before us has any meaning at all, the
last injurious exposure rule has done nothing of the kind. In short, this claimant's burden
has been considerable.
The complicated analytical exercise performed by the majority in this matter typifies our
recent attempts at interpreting the Nevada Industrial Insurance Act.
4
Such descriptives as
last injurious exposure and primary causation are themselves demonstrative of the many
obscure concepts that permeate this legislation. In short, the current statutory scheme has so
evolved that workers' compensation claims have become dances upon the heads of pins,
choreographed in hyper-technical jargon. The resulting systemic difficulties affect virtually
all of the participants in the claims process: employers, insurers, claims administrators, expert
witnesses, administrative law judges, and most importantly, injured workers.
Many of the current legislative formulations for compensating injured workers came about
in response to a fiscal crisis that developed in the late 1980s and early 1990s. To address the
crisis in part, the 1993 Legislature enacted NRS 616A.010(2), which abrogated the previous
common-law rule requiring broad or liberal construction of the Nevada Industrial Insurance
Act in favor of injured or disabled employees. This provision was calculated to neutralize
the rules of interpretation of the Nevada Industrial Insurance Act, has governed our decision
making process up to the present, and was implicitly applied in the instant case.
Unfortunately, as the complex analytics of the majority in this matter demonstrate, the
neutrality rule provides precious little guidance to administrative law judges charged with
deciphering confusing fact patterns and medical issues. Certainly, on remand, the
administrative tribunal will find that the neutrality doctrine will, in opposition to its
common-law predecessor, muddle rather than facilitate the ultimate resolution of this
particular claim. In my view, this rule of interpretation, in its relation to an already complex
statutory scheme, has created an atmosphere in which our workers' compensation claims
process often becomes more about principle than about the people involved.
I want to stress that the problems exemplified by this case are not the fault of any
functionary or participant in the workers' compensation claims process.
____________________

3
Id. at 869, 8 P.3d at 146.

4
See, e.g., Ayala v. Caesars Palace, 119 Nev. 232, 71 P.3d 490 (2003); Construction Indus. v. Chalue, 119
Nev. 348, 74 P.3d 595 (2003); McClanahan v. Raley's, Inc., 117 Nev. 921, 34 P.3d 573 (2001); SIIS v. Engel,
114 Nev. 1372, 971 P.2d 793 (1998); Rosser v. SIIS, 113 Nev. 1125, 946 P.2d 185 (1997); SIIS v. Bokelman,
113 Nev. 1116, 946 P.2d 179 (1997).
........................................
sation claims process. These problems are likewise not the fault of the authors and proponents
of the 1993 legislative amendments, who were tasked with salvaging a financially-strapped
system for compensating injured workers. To me, it is time to look again at ways to upgrade
the fairness of this very important program.
Because our role is limited to interpreting the Nevada Industrial Insurance Act, we must
await intervention by the Legislature to address these issues. I take this opportunity to express
my hope that the Legislature will commence a process of reevaluation of the Nevada workers'
compensation system at the earliest possible time.
____________
121 Nev. 293, 293 (2005) Fiegehen v. State
CHRISTOPHER FIEGEHEN, Appellant, v. THE STATE
No. 42088
June 9, 2005 113 P.3d 305
Appeal from a judgment of conviction, upon a jury verdict, of murder with the use of a
deadly weapon, attempted murder with the use of a deadly weapon, and invasion of the home
while in possession of a firearm or other deadly weapon. Ninth Judicial District Court,
Douglas County; David R. Gamble, Judge.
The supreme court held that: (1) jury's failure to specify whether murder was in first or
second degree did not render verdict nullity, (2) evidence was sufficient to support conviction
for home invasion, and (3) any error in failure to give limiting instruction with respect to
knives discovered upon defendant's arrest was harmless.
Affirmed.
Richard F. Cornell, Reno; Law Offices of Richard W. Young and Richard W. Young, Reno,
for Appellant.
Brian Sandoval, Attorney General, Carson City; Scott W. Doyle, District Attorney, and
Mark B. Jackson, Deputy District Attorney, Douglas County, for Respondent.
1. Homicide.
Jury's failure to specifically designate whether murder was of first or second degree
did not render verdict a nullity because jury found that murder was perpetrated in the
course of burglary and home invasion, which constitutes felony murder, and felony
murder is first-degree murder as a matter of law. NRS 200.030(3).
........................................
2. Criminal Law.
A reviewing court is reluctant to interfere with strategic, tactical decisions of a
defendant and his counsel respecting how the defense case should be presented to the
jury, especially where the proof in support of such a theory is deficient.
3. Criminal Law; Homicide.
In all murder cases, the trial courts should provide verdict forms requiring the jury to
specify the degree of murder, but where it can be clearly discerned by reference only to
the verdict that the jury found first-degree felony murder as a matter of law, the verdict
satisfies the statutory requirement that the verdict designate the degree of guilt. NRS
200.030(3).
4. Trespass.
Victim's testimony that she walked into master bedroom of her home to investigate
noise she heard on deck, and that she turned when she heard someone call her name and
was shot in chest, together with evidence that doors accessing master bedroom had
been fractured and wooden frame had been damaged, that live and expended rounds of
ammunition were found inside residence, and that telephone line had been cut, was
sufficient to show that defendant had forcibly entered residence without permission of
owner, as required to support conviction for home invasion. NRS 205.067(1).
5. Criminal Law.
It is for the jury to determine the weight and credibility to give conflicting testimony,
and the supreme court will not disturb the jury's verdict where substantial evidence
supports the verdict.
6. Criminal Law.
Any possible error in failure to give limiting instruction with respect to knives in
defendant's possession at time of arrest in Indiana was harmless, in trial for murder,
attempted murder, and other crimes, in view of overwhelming evidence of defendant's
guilt.
1

OPINION
A jury found appellant Christopher Fiegehen guilty of murder with the use of a deadly
weapon, attempted murder with the use of a deadly weapon, burglary while in possession of a
deadly weapon, and invasion of the home while in possession of a deadly weapon.
2

____________________

1
This appeal was orally argued before a panel of this court on October 20, 2004. Subsequently, the panel
transferred the appeal to the en banc court for decision on the record, the briefs, and the tape recording of the
oral argument. Thereafter, The Honorable Robert Rose, Justice, voluntarily recused himself from participation in
the decision of this matter.

2
Upon the State's motion prior to sentencing, the district court dismissed the count of burglary while in
possession of a deadly weapon as redundant to the home invasion count.
........................................
The jury was not instructed that, under NRS 200.030(3), if it found Fiegehen guilty of
murder, it was required to designate whether the murder was of the first or second degree.
Consequently, the jury's verdict did not specifically designate whether Fiegehen committed
murder of the first or second degree. In resolving this appeal, we have revisited this court's
precedent holding that such a verdict renders a murder conviction fatally defective and a
nullity. We conclude that where, as here, the verdict as a whole unequivocally establishes a
finding of felony murder, the verdict satisfies the command of NRS 200.030(3) because
felony murder is first-degree murder as a matter of law. We further conclude that Fiegehen's
remaining assignments of error do not warrant reversal, and we affirm the judgment of
conviction in its entirety.
FACTS
In the early morning hours of February 10, 2002, an intruder entered the Douglas County
residence of Alan and Lorelle Chorkey, killed Alan and shot Lorelle twice in the chest. At
approximately 5:00 a.m. that morning, Lorelle placed a 911 call. She reported to the
dispatcher that she had been shot and that her husband was on the back deck of their home
fighting with an intruder. Within minutes, the 911 connection went dead. The dispatcher was
unable to reestablish contact and alerted Sheriff's and medical personnel to the call. Sheriff's
deputies arrived at the Chorkey residence shortly thereafter and found Lorelle alive, lying on
the floor in a pool of blood. The telephone line nearby had been cut. Alan's body was
discovered on an elevated deck on the southeast corner of the residence. The pathologist who
conducted the postmortem examination concluded that Alan bled to death after his jugular
vein and carotid artery had been severed by a sharp instrument.
Evidence discovered during the ensuing investigation implicated Fiegehen as the primary
suspect. Authorities were unable to locate him, however, because he abruptly fled Nevada on
the day of the crime. Nearly two months later, on April 9, 2002, he was stopped and
questioned by police officers in Vincennes, Indiana, where he was apprehended after a
routine check revealed an outstanding warrant for his arrest in Nevada for homicide. He was
eventually returned to Nevada to face criminal charges.
On July 22, 2002, the State filed a criminal information charging Fiegehen with murder
with the use of a deadly weapon, attempted murder with the use of a deadly weapon, burglary
while in possession of a deadly weapon, and home invasion while in possession of a deadly
weapon. The information alleged that Fiegehen committed the murder: {1) with malice
aforethought by means of a willful, deliberate and premeditated killing; {2) in the
perpetration or attempted perpetration of a burglary; or {3) in the perpetration or
attempted perpetration of a home invasion.
........................................
committed the murder: (1) with malice aforethought by means of a willful, deliberate and
premeditated killing; (2) in the perpetration or attempted perpetration of a burglary; or (3) in
the perpetration or attempted perpetration of a home invasion.
On June 23, 2003, the parties filed a stipulation in which Fiegehen waived his right to a
separate penalty hearing before the jury if he was found guilty of first-degree murder and
agreed to have the sentence imposed by the district court. The jury trial commenced on the
same day.
The State presented abundant, overwhelming evidence at trial establishing that Fiegehen
was the assailant. For example, Lorelle testified that she was absolutely positive that
Fiegehen was the intruder who shot her. In addition, the State presented evidence establishing
that a knife and dark colored baseball cap discovered at the crime scene next to Alan's body
both belonged to Fiegehen. Analysis of the sweatband of the cap and blood on the knife
disclosed DNA consistent with Fiegehen's DNA profile. DNA analysis also established that
blood found in Fiegehen's Ford Mustang was consistent with Alan's DNA profile to a
statistical probability greater than 1 in 500 billion.
Lorelle's daughter, Alane Dockstader, testified that although she resided at the Chorkeys'
house, she was not home on the morning her parents were attacked. She explained that she
had ended a dating relationship with Fiegehen a month or two before the attack, but Fiegehen
had continued to contact her in attempts to rekindle the relationship. In January 2002, she
became frightened and obtained a temporary protective order against him. The night before
the attack on her parents, however, she met Fiegehen in Carson City and told him she had
started dating another man. After spending several hours with Fiegehen, she left him around
midnight to meet her new boyfriend at a friend's home, where she remained until about noon
the following day. She then returned to the Chorkey residence to discover that her parents had
been attacked earlier that morning. Alane also testified that Fiegehen called her on her cell
phone numerous times after they parted that night, questioning her about her whereabouts and
urging her to meet him again. During one such conversation, they screamed and fought.
Although he continued to call, Alane did not answer his subsequent calls.
Fiegehen's cell phone records established that he called her cell phone ten times between
midnight and 1 a.m. on February 10, 2002. At 6:39 a.m. that morning, Fiegehen called his
father and left a voice mail at his father's place of employment. His father testified that
Fiegehen left the message: Dad, I love you. You've treated me great. Take care of my dogs
and cats.
........................................
At trial, Alane identified the knife and baseball cap that were discovered at the crime scene
as belonging to Fiegehen. Testimony also established that Fiegehen had purchased a .357
caliber pistol at a gun show. Crime scene investigators discovered spent .357 shell casings at
the Chorkeys' home. Additionally, live .357 cartridges were found in the glove compartment
of Fiegehen's car, as well as at the crime scene. A firearms expert testified that all of the
cartridges appear to have been remanufactured, were of the same style and variety, and were
hollow point copper jacket .357 bullets.
One of the officers who apprehended Fiegehen in Indiana testified that Fiegehen remarked
at the time of his arrest: You're going to be famous, and You don't know who you have in
custody. The officer also testified that Fiegehen was in possession of three knives at the time
he was apprehended. A deputy sheriff at the Indiana jail where Fiegehen was briefly
incarcerated testified that, upon delivering Nevada extradition papers to him, Fiegehen stated:
It must be for the two people I killed out there.
The theory of the defense was simply that Fiegehen did not commit the crimes charged; his
trial counsel argued for a complete acquittal. Fiegehen testified that when he entered the
victims' residence that morning, he discovered Lorelle already wounded and covered with
blood. When she told him to check on her husband, he located Alan lying on the floor
unresponsive, and from what [he] could tell, it seemed like he was deceased. Fiegehen
claimed that he then returned to his car to locate his cell phone and call 911, saw emergency
vehicles arriving, and drove away from the scene to return to Carson City.
Neither party presented a theory of the case that specifically implicated second-degree
murder or sought jury instructions pertaining to second-degree murder. The instructions
advised the jury only on the State's three alternative theories of first-degree murder and
contained no mention of second-degree murder. The jury was further instructed:
All verdicts returned in this case must be unanimous. In considering Count I, murder
with the use of a deadly weapon, the State has alleged three alternative theories of
first-degree murder.
You do not have to agree on the theory of murder in the first degree, it is sufficient
that each of you find beyond a reasonable doubt that the murder, under any one of the
three theories, was murder of the first degree.
The jury began its deliberations on the afternoon of July 14, 2003, and returned its verdict
the following afternoon. The jury simply found Fiegehen guilty of murder with the use of a
deadly weapon, a category A felony in violation of Sections 200.010, 200.030, and
193.165 of the Nevada Revised Statutes."
........................................
weapon, a category A felony in violation of Sections 200.010, 200.030, and 193.165 of the
Nevada Revised Statutes. The jury also found Fiegehen guilty of attempted murder with the
use of a firearm, burglary while in possession of a firearm or other deadly weapon, and
invasion of the home while in possession of a firearm or other deadly weapon.
In response to a request by defense counsel, the jury was polled, and all of the jurors
simply confirmed that they were in agreement with the verdicts that were read. There was no
objection or further discussion of the efficacy of the verdict at that time.
On the morning of the scheduled sentencing hearing, well after the jury had been
discharged, defense counsel orally requested the district court to declare the verdict on the
murder count void because it failed to designate the degree of murder. The district court
denied the motion, conceding that its decision was based on the totality of the circumstances.
Before sentencing, however, the district court granted the State's motion to set aside the
verdict respecting the burglary as redundant to the home invasion verdict. The district court
then sentenced Fiegehen to serve two consecutive terms of life in the Nevada State Prison
without the possibility of parole for murder (a sentence consistent with a finding of
first-degree murder), two consecutive terms of 90-240 months for attempted murder with the
use of a deadly weapon, and a term of 72-180 months for home invasion while in possession
of a deadly weapon. The district court ordered all terms to be served consecutively. This
appeal followed.
DISCUSSION
The validity of the jury's verdict
[Headnote 1]
Fiegehen contends that the murder conviction in this case is invalid, and he correctly
observes that Nevada law unequivocally provides that a jury's failure to designate the degree
of murder in its verdict renders a murder conviction fatally defective and a nullity. NRS
200.030(3) provides: The jury before whom any person indicted for murder is tried shall, if
they find him guilty thereof, designate by their verdict whether he is guilty of murder of the
first or second degree. Additionally, in a consistent line of cases dating back to 1875, this
court has held that under this statutory directive, an uncorrected failure to designate the
degree of murder in the verdict renders the verdict a nullity.
3

____________________

3
Sellers v. State, 108 Nev. 1017, 843 P.2d 362 (1992); State v. Loveless, 62 Nev. 17, 25, 136 P.2d 236, 240
(1943); State v. Lindsey, 19 Nev. 47, 5 P. 822 (1885); State of Nevada v. Rover, 10 Nev. 388 (1875).
........................................
Fiegehen also correctly contends that, contrary to Nevada precedent, the district court
considered the totality of the circumstances in denying the motion to set aside the murder
verdict. In Sellers v. State, for example, this court rejected the State's arguments that the
courts can assess the validity of such a defective verdict by reference to the indictment or
information, the jury instructions, the totality of circumstances, or by conjecture or
anything of the kind.'
4
This court observed:
The jury is required to designate in its verdict whether the defendant is guilty of
murder of the first or second degree. NRS 200.030(3). The designation of the degree of
guilt in a murder verdict is as indispensable as a finding of guilt in general. The district
court is not free to consider the totality of the circumstances to decide the degree of
murder where the jury omits the degree from the verdict. A fact, by statute made
essential to the efficacy of the judgment, is missing from the verdict and cannot be
imported into it by reference to the information or by conjecture or anything of the
kind. Therefore, we reject the state's argument that the district court could have
declared the original verdict to be for first degree murder based on the totality of the
circumstances.
5

In Loveless v. State, this court also specifically rejected the argument that such a defect in
the verdict can be waived by a defendant's failure to object or request that the jury designate
the murder as first or second degree.
6
Loveless explained that the requirement to designate
the degree of murder is not a mere matter of procedure that the legislature has prescribed,
but a substantive law commanding an unequivocal act of the jury as part of the trial of one
charged with murder.
7
Where the jury fails to designate the degree, the court reasoned, the
defendant has not had the full benefit of a jury trial and [t]he fundamental right to a jury
trial cannot be waived in a case amounting to a felony so long as the accused has joined issue
on the charge.
8
The court went on:
The facts necessary to show guilt in a murder case, as well as the degree of guilt, must
be judicially ascertained in the mode prescribed by law before any judgment can be
rendered. It is not within the power of the accused, or his counsel, to consent to
another mode.
____________________

4
108 Nev. at 1019, 843 P.2d at 364 (quoting Loveless, 62 Nev. at 22, 136 P.2d at 238).

5
Id. at 1018-19, 843 P.2d at 364 (quoting Loveless, 62 Nev. at 22, 136 P.2d at 238).

6
62 Nev. at 23-29, 136 P.2d at 239-41.

7
Id. at 25, 136 P.2d at 239-40.

8
Id. at 25, 136 P.2d at 240.
........................................
not within the power of the accused, or his counsel, to consent to another mode.
9

The State argues, on the other hand, that this court's more recent holding in Graham v.
State
10
provides a sound basis to reexamine and abandon the rigid and formalistic
application of NRS 200.030(3) as interpreted in Loveless and Sellers. In Graham, this court
explained that certain categories of first-degree murder only require proof that the murder was
committed with malice (or in the case of felony murder, with the intent to commit the
enumerated felony). At the time Graham was charged, these types of murder were those
perpetrated by means of poison, lying in wait, child abuse
11
or torture, those committed in
the perpetration of certain enumerated felonies, and those committed to avoid arrest or to
effect an escape from custody. Graham observed that these types of murders are legislatively
deemed to be murder of the first degree.
12

Graham further explained:
The only subcategory of first-degree murder not so specifically defined is that
accomplished by willful, deliberate and premeditated killing, referred to in the second
phrase of NRS 200.030(1)(a). To sustain a conviction under this subcategory of
first-degree murder, proof of willfulness, deliberation, and premeditation . . . must be
established. Failure to establish such proof renders the offense murder in the second
degree.
By contrast, when an enumerated first-degree murder is charged . . . the presence or
absence of deliberation and premeditation is of no consequence. Such murders do not
fall within the category of murder that can be reduced in degree by failure to prove
deliberation and premeditation. . . .
We therefore hold that it is unnecessary to instruct juries on deliberation,
premeditation, and second-degree murder when proofs in the case can only support a
theory of guilt described within one of the specifically enumerated categories set forth
in NRS 200.030(1).
13

____________________

9
Id. at 26, 136 P.2d at 240.

10
116 Nev. 23, 992 P.2d 255 (2000).

11
Graham was charged under the former version of NRS 200.030(1)(a), which defined first-degree murder as
a murder perpetrated by means of poison, lying in wait, torture or child abuse, or any other kind of willful,
deliberate and premeditated killing. In 1999, the Legislature amended NRS 200.030(1) by removing child
abuse from subsection (1)(a) and placing it in subsection (1)(b), the subsection defining felony murder. This
amendment effectively made murder committed in the perpetration of child abuse a category of first-degree
felony murder.

12
116 Nev. at 28, 992 P.2d at 258.

13
Id. at 28-29, 992 P.2d at 257-58. Notably, Graham was charged by information with murder solely on the
theory that he committed first-degree mur-
........................................
Graham also specifically renounced lenity' as a separate basis for giving instructions on
murder of the second degree.
14
Graham noted:
Of course, in any case where there is evidence supporting either first- or second-degree
murder, a jury is entitled to extend lenity and convict of the lesser offense. While juries
may not be instructed on this issue, convictions rendered on this basis, in accord with
our prior decisions, may be upheld.
15

The State appropriately cites Graham as a starting point for a reexamination of our
precedent addressing NRS 200.030(3). Graham emphasized and concluded that
second-degree murder is not an option where a defendant is charged solely with first-degree
murder under a theory alleging either felony murder or murder committed by one of the
means enumerated in NRS 200.030(1)(a) and the theory and proofs presented at trial do not
implicate second-degree murder.
[Headnote 2]
Under the Graham rationale, and in light of the theory of the defense presented by
Fiegehen below, we conclude that he was not entitled to a second-degree murder instruction
with respect to the two alternative theories of first-degree felony murder. We further reject
Fiegehen's contention that, despite the defense strategy to forego a theory of defense
implicating second-degree murder and to not seek instructions on such a theory, the trial court
was nonetheless required to instruct on second-degree murder simply because the State
alleged in the alternative that Fiegehen committed a willful, deliberate, premeditated killing.
This court is reluctant to interfere with strategic, tactical decisions of a defendant and his
counsel respecting how the defense case should be presented to the jury, especially where the
proof in support of such a theory is deficient.
16

More importantly, here, in addition to a finding of murder, the jury clearly found that
appellant committed the predicate felonies underlying the first-degree felony murder theories.
Thus, the jury unquestionably found appellant guilty of first-degree felony murder as a matter
of law. As we observed in Graham, such a murder does not fall within the category of
murder that can be reduced by the jury to second-degree murder.
____________________
der by means of child abuse. Unlike the information filed against Fiegehen, the State did not allege in the
alternative that Graham committed a willful, deliberate and premeditated first-degree murder.

14
Id. at 31 n.8, 992 P.2d at 260 n.8 (citing State v. Lindsey, 19 Nev. 47, 5 P. 822 (1885)).

15
Id.

16
We do not hold, however, that the district court was precluded from giving an instruction on second-degree
murder.
........................................
does not fall within the category of murder that can be reduced by the jury to second-degree
murder. Therefore, in this case it was unnecessary for the court below to evaluate the totality
of the circumstances in determining the efficacy of the verdict. A finding of first-degree
felony murder can be clearly and confidently discerned solely from the jury's verdict as a
matter of law.
Accordingly, we conclude that reversing the conviction based on the jury's failure to
expressly include the words first-degree murder in its verdict would merely elevate form
over substance in this case. Given the jury's separate findings of guilt on the charges of
murder, burglary, and home invasion, the fact that the jury found first-degree felony murder,
as a matter of law, is not subject to any serious conjecture or speculation. Consequently, we
clarify our prior precedent and hold that where, as here, the verdict itself establishes a finding
of first-degree murder as a matter of law, the verdict satisfies the dictates of NRS 200.030(1).
Our conclusion in this respect finds support in the holdings of other jurisdictions. In
People v. Mendoza, for example, the California Supreme Court construed the California
Penal Code, overturned contrary prior precedent, and upheld a first-degree felony murder
conviction based on a verdict that failed to expressly designate the degree of murder.
17
The
court concluded that because the defendants in that case had not been convicted of a crime
which is distinguished into degrees within the meaning of the California Penal Code, the
requirement in the code that the jury specify the degree of murder did not apply.
18
The court
further concluded that the trial court's failure to instruct the jury on offenses other than
first-degree felony murder or on the differences between the degrees of murder did not violate
the code or the defendants' right to have a jury determine questions of fact. Although the
statute and theory of the prosecution at issue in Mendoza differ from those involved in the
instant case, the reasoning of Mendoza supports our conclusion that reversal is not warranted
in this case.
Unlike the instant case, the prosecution's only murder theory in Mendoza was that the
defendants committed first-degree felony murder during the perpetration of a burglary and
robbery.
____________________

17
4 P.3d 265 (Cal. 2000). Notably, Mendoza overruled People v. McDonald, 690 P.2d 709 (Cal. 1984),
which held that the California code did indeed require the jury to designate the degree of the murder in a
first-degree felony-murder prosecution, and its failure to do so rendered the verdict by operation of law a verdict
of second-degree murder.

18
As Mendoza explains: Under [California] Penal Code section 1157, [w]henever a defendant is convicted
of a crime . . . which is distinguished into degrees,' the trier of fact must find the degree of the crime . . . of
which he is guilty. Upon the failure of the [trier of fact] to so determine, the degree of the crime . . . of which the
defendant is guilty, shall be deemed to be of the lesser degree.' 4 P.3d at 269 (footnote omitted).
........................................
murder during the perpetration of a burglary and robbery.
19
The defendants did not argue or
request instructions on any other theory of murder. No instructions were given on malice
aforethought, premeditation or deliberation, and the instructions did not mention any form of
criminal homicide other than first-degree felony murder. The verdict forms also did not give
the jury the option to convict of second-degree murder or any other form of homicide.
20
The
jury returned verdicts finding both defendants guilty of the offense charged in Count I, i.e.,
first-degree felony murder, but the jury did not specify that its verdicts were for first-degree
murder.
Similar to this court's analysis in Graham, the Mendoza opinion first noted that in
California, there are no degrees of felony murder. [A]s a matter of law, a conviction for a
killing committed during a robbery or burglary can only be a conviction for first degree
murder.
21
Mendoza further observed:
[W]here, as here, the trial court correctly instructs the jury only on first degree felony
murder and to find the defendant either not guilty or guilty of first degree murder,
section 1157 does not apply. Under these circumstances, as a matter of law, the only
crime of which a defendant may be convicted is first degree murder, and the question of
degree is not before the jury to make. . . . Thus, a defendant convicted under these
circumstances has not, under the plain and commonsense meaning of section 1157,
been convicted of a crime . . . which is distinguished into degrees.
22

Thus, Mendoza concludes that the jury need not specify the degree of murder where: (1) the
prosecution's only murder theory is felony murder, which is first-degree murder as a matter of
law; (2) the trial court properly instructed the jury to return either an acquittal or a conviction
of first-degree murder; and (3) the jury finds the defendant guilty of felony murder.
23

We acknowledge that in the instant case, the State alleged and argued a theory of willful,
deliberate, premeditated first-degree murder, as well as alternate theories of first-degree
felony murder. Moreover, Nevada's statute differs markedly from section 1157 of the
California Penal Code. Section 1157 requires the jury to find the degree of any crime which
is distinguished into degrees.
____________________

19
Mendoza's co-defendant conceded his guilt of the substantive charges. Id. at 271.

20
Id. at 269-70.

21
Id. at 274.

22
Id. at 275.

23
Id. at 269.
........................................
NRS 200.030(3), on the other hand, requires a jury before whom any person indicted for
murder is tried to designate that the defendant is guilty of first- or second-degree murder.
(Emphasis added.) The Nevada provision applies specifically to jury trials where a defendant
is charged with murder, and does not expressly exclude any charge of murder that cannot
be distinguished by operation of law into murder of the first or second degree.
Nonetheless, we find the analysis in Mendoza helpful in distinguishing the instant case
from the cases addressed in our prior precedent. As noted above, the jury found Fiegehen
guilty of an unspecified degree of murder, burglary, and home invasion, all arising out of the
same factual transactions and occurrences. Although it is possible that some jurors may have
found that Fiegehen committed a willful, deliberate, premeditated murder, or even a
second-degree murder because they were unable to find willfulness, deliberation or
premeditation, it is unassailable that each juror nonetheless found that a murder of some kind
was committed. By also returning guilty verdicts on the burglary and home invasion counts,
we can confidently conclude that all of the jurors found that a murder was committed during
the perpetration of a burglary and home invasion. Under NRS 200.030(1)(b), such a murder is
by definition first-degree murder. Based on the entire verdict, therefore, we have no difficulty
in concluding as a matter of law that the jury's verdict quite clearly found that Fiegehen
committed first-degree felony murder. In such a case, requiring the jury's verdict to
specifically designate a finding of first-degree murder is not only dispensable, but redundant.
Our decision today is also consistent with the California Supreme Court decision in People
v. San Nicolas, which held that where the jury did not expressly state that it convicted the
defendant of first-degree murder, but did specify in its verdict that it found a willful,
deliberate, premeditated killing, [t]here is no logical reason to compel the fact finder to
articulate a numerical degree when, by definition, first degree [murder]' and [willful,
deliberate, and premeditated killing]' are one and the same thing.
24
Other courts as well
have held that, despite statutory provisions requiring specification in the verdict of the degree
of murder, verdicts that failed to do so were not void if only one degree of murder could have
been returned.
25

____________________

24
101 P.3d 509, 524 (Cal. 2004) (quoting People v. Goodwin, 249 Cal. Rptr. 430 (Ct. App. 1988)).

25
See Gaines v. Leverette, 266 S.E.2d 451 (W. Va. 1980) (although it is always preferable that the jury
comply with the statute and specify the degree, if there can be only one degree of murder based on the proof and
instructions, the court would not void a verdict because it did not specify the degree);
........................................
[Headnote 3]
We emphasize that our holding today is narrow and limited. We continue to adhere to our
prior precedent precluding analysis of the totality of the circumstances in evaluating the
validity of a murder verdict that fails to designate the degree. In all murder cases, the trial
courts should provide verdict forms requiring the jury to specify the degree of murder. But
where, as here, it can be clearly discerned by reference only to the verdict itself that the jury
found first-degree felony murder as a matter of law, we conclude that the verdict satisfies the
requirements of NRS 200.030(3).
Remaining contentions
[Headnote 4]
Fiegehen next contends that the State presented insufficient evidence to support the jury's
finding of guilt on the charge of home invasion. We disagree.
26
Our review of the record
reveals sufficient evidence to establish guilt beyond a reasonable doubt as determined by a
rational trier of fact.
27

In relevant part, NRS 205.067(1) provides that a person is guilty of home invasion when
the person forcibly enters an inhabited dwelling without permission of the owner. NRS
205.067(5)(a) defines the term forcibly enters as entry of an inhabited dwelling involving
any act of physical force resulting in damage to the structure. Lorelle Chorkey testified that
she got out of bed and walked into the master bathroom to investigate after she heard
something jumping onto the deck located off the master bathroom. Upon entering the
bathroom, she heard someone call her name, as she turned, she was shot in the chest. She saw
three flashes and then saw Fiegehen standing in front of her.
Additionally, a forensic investigator who examined the crime scene testified that he found
evidence of a forced entry into the home. He explained that glass in the double set of wood
framed doors accessing the master bathroom from the rear deck had been fractured and
the wooden frame of the door had also been damaged.
____________________
Buchanan v. State, 488 S.W.2d 724 (Tenn. 1973) (although statute required the jury to ascertain in its verdict
the degree of murder, the court held in a post-conviction proceeding that jury's express finding in verdict of
murder perpetrated in commission of a robbery satisfied the statute because the language of verdict described
murder in the first degree); Briggs v. State, 501 S.W.2d 831 (Tenn. Crim. App. 1973) (citing to Buchanan in
rejecting a post-conviction claim that verdict was void for failure to specify degree of murder where verdict
specified defendants were found guilty of murder in perpetration of a robbery).

26
Because we conclude that this contention is without merit, we also reject Fiegehen's contention that the
first-degree murder verdict must be set aside because the State failed to prove felony murder based on that
predicate felony.

27
See Wilkins v. State, 96 Nev. 367, 609 P.2d 309 (1980); see also Origel-Candido v. State, 114 Nev. 378,
381, 956 P.2d 1378, 1380 (1998).
........................................
doors accessing the master bathroom from the rear deck had been fractured and the wooden
frame of the door had also been damaged. He further explained that the damage could have
been caused by bullets. Other evidence found inside the residence, including live and
expended rounds of ammunition and a severed telephone line support a finding that Fiegehen
entered the dwelling.
[Headnote 5]
The jury could have reasonably inferred from the evidence presented that Fiegehen was
guilty of home invasion. It is for the jury to determine the weight and credibility to give
conflicting testimony, and we will not disturb the jury's verdict where, as here, substantial
evidence supports the verdict.
28

[Headnote 6]
Despite his trial counsel's failure to object, Fiegehen also contends that the district court
committed plain, reversible error by admitting and by failing to give a limiting instruction
respecting the evidence that he was in possession of three knives at the time he was
apprehended in Indiana.
29
In light of the overwhelming evidence of Fiegehen's guilt, we
conclude that the error, if any, had no substantial or injurious effect or influence on the jury's
verdict.
30

CONCLUSION
We conclude that the jury's failure to designate in its verdict that it found Fiegehen guilty
of first-degree murder does not render the verdict void. The verdict at issue here satisfies the
requirements of NRS 200.030(3) because the jury's separate findings of guilt on the charges
of murder, burglary, and home invasion together establish a finding of first-degree felony
murder as a matter of law. We also reject Fiegehen's remaining contentions. Accordingly, we
affirm the judgment of conviction in its entirety.
Becker, C. J., Maupin, Douglas, Hardesty and Parraguirre, JJ., concur.
____________________

28
See Bolden v. State, 97 Nev. 71, 624 P.2d 20 (1981); see also McNair v. State, 108 Nev. 53, 56, 825 P.2d
571, 573 (1992).

29
See Tavares v. State, 117 Nev. 725, 30 P.3d 1128 (2001).

30
Id. at 732, 30 P.3d at 1132 (citing Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
____________
........................................
121 Nev. 307, 307 (2005) Pope v. Motel 6
JUANITA H. POPE, Appellant, v. MOTEL 6, Respondent.
No. 37771
June 23, 2005 114 P.3d 277
Proper person appeal from a district court order that granted summary judgment in an
employment discrimination and defamation case. Seventh Judicial District Court, White Pine
County; Dan L. Papez, Judge.
Former employee brought action against motel employer for employment discrimination
based on race or national origin, retaliatory discharge, defamation, and intentional infliction
of emotional distress. The district court entered summary judgment in employer's favor, and
employee appealed. The supreme court, Hardesty, J., held that: (1) employee was required to
exhaust administrative remedies for discrimination claims that were not related to claims in
proceedings before Nevada Equal Rights Commission; (2) employee could not recover for
retaliatory discharge based on husband engaging in protected activity; (3) employer's
statements to police accusing employee and employee's husband of theft and writing
threatening letters were subject to qualified privilege, receding from K-Mart Corporation v.
Washington, 109 Nev. 1180, 866 P.2d 274 (1993); (4) evidence was insufficient to show that
employer's complaint to police was made with actual malice; and (5) fact issue remained
whether manager's communications to upper management accusing employee of theft and
writing threatening letters were entitled to intracorporate communications privilege.
Juanita H. Pope, Ely, in Proper Person.
Erickson Thorpe & Swainston, Ltd., and John A. Aberasturi, Reno; Hunton & Williams
and Michael F. Marino and Shawn Patrick Regan, New York, New York, for Respondent.
The supreme court reviews a district court's decision to grant summary judgment de
novo.
2. Judgment.
Summary judgment is appropriate when, after a review of the record viewed in the
light most favorable to the nonmoving party, there are no genuine issues of material
fact and the moving party is entitled to judgment as a matter of law.
3. Judgment.
In determining whether summary judgment is proper, the nonmoving party is
entitled to have the evidence and all reasonable inferences accepted as true.
........................................
121 Nev. 307, 308 (2005) Pope v. Motel 6
4. Civil Rights.
The exhaustion of administrative remedies prerequisite for filing discrimination
claims in district court can be excused if the Nevada Equal Rights Commission fails to
act within a reasonable time and the complainant faces a statute of limitations deadline
or an irretrievable loss of evidence. NRS 613.420.
5. Civil Rights.
If an employee alleging discrimination later files a district court action, she may only
expand her discrimination action to include allegations of other discrimination if the
new claims are reasonably related to the allegations of the administrative charge. NRS
613.420.
6. Civil Rights.
New employment discrimination claims in a complaint are not like or reasonably
related to allegations in an administrative charge, for purposes of determining whether
the employee could include the new claims with those for which the employee has
exhausted his administrative remedies, unless a factual relationship exists between
them. NRS 613.420.
7. Civil Rights.
An employee who brings unrelated claims in the district court without first
presenting them to Nevada Equal Rights Commission has failed to exhaust her
administrative remedies, thus subjecting those claims to dismissal. NRS 613.420.
8. Civil Rights.
Former employee's claims of discrimination based on race or national origin were
not like or related to retaliatory discharge claims brought before Nevada Equal Rights
Commission and thus were subject to dismissal for failure to exhaust administrative
remedies; retaliatory discharge claim was based solely on allegation that employee was
terminated after employee's husband brought his own discrimination claim and did not
raise issue of race or national origin in any capacity. NRS 613.420.
9. Civil Rights.
Former employee could not recover for retaliatory discharge based on claim that she
was told she would be terminated if employee's husband continued to pursue his own
discrimination claim against same employer, absent any showing that employee
participated in husband's claim or that employee herself engaged in protected activity
for which she was terminated. NRS 613.340(1).
10. Constitutional Law.
The preference for reading a statute according to its plain meaning is based on the
constitutional separation of powersCongress makes the law and the judiciary
interprets it. U.S. Const. art. 3, 1 et seq.
11. Statutes.
Courts generally assume that the best evidence of Congress's intent is what it says in
the texts of the statutes.
12. Statutes.
The court is bound to follow a statute's plain meaning when the language is
unambiguous.
A defamation claim requires demonstrating (1) a false and defamatory statement of
fact by the defendant concerning the plaintiff; (2) an unprivileged publication to a third
person; (3) fault, amounting to at least negligence; and (4) actual or presumed damages.
........................................
121 Nev. 307, 309 (2005) Pope v. Motel 6
Motel employer's statements to police that former employee and husband had stolen
items from motel and that employee and husband had written threatening letters to
manager were subject to qualified privilege, for purposes of employee's defamation
claim; receding from K-Mart Corporation v. Washington, 109 Nev. 1180, 866 P.2d 274
(1993).
Criminal complaint lodged by former employee's manager asserting that former
employee, employee's husband and another party were believed to have stolen items
from motel and written threatening letters was insufficient to establish that statements
were made with actual malice, as required to overcome qualified privilege with respect
to communications to police regarding criminal wrongdoing, in former employee's
defamation action, absent any showing that manager acted with reckless disregard for
veracity or with knowledge of falsity.
16. Judgment.
Genuine issue of material fact remained whether communications by former
employee's manager to upper management accusing employee of theft and writing
threatening letters were entitled to intracorporate communications privilege, thus
precluding summary judgment in former employee's action against employer for
defamation.
Defendant corporations in a defamation action bear the burden of alleging and
proving the existence of intracorporate privilege with respect to communications
between employees.
OPINION
This is a proper person appeal from a district court order granting summary judgment in an
employment discrimination and tort case that raises three issues of first impression: (1)
whether an employee who brings discrimination claims in the district court without first
presenting them to the administrative agency has failed to exhaust administrative remedies;
(2) whether NRS 613.340(1), Nevada's anti-retaliation statute, supports a retaliation claim
when a third party, and not the complaining party, has engaged in allegedly protected activity;
and (3) whether statements made to police before criminal proceedings are commenced
should be subject to an absolute privilege or only a qualified privilege.
We take this opportunity to clarify that a party cannot bring a state court claim for
employment discrimination unless that claim was first presented to the administrative agency
or is reasonably related to the administrative claims. Additionally, we conclude that NRS
613.340(1) does not support a retaliation claim when the individual claiming retaliation has
not personally engaged in protected activity.
........................................
121 Nev. 307, 310 (2005) Pope v. Motel 6
dividual claiming retaliation has not personally engaged in protected activity. Finally, we hold
that a qualified privilege applies to statements made to police before criminal proceedings are
initiated.
FACTS
Respondent Motel 6 hired appellant Juanita Pope on April 5, 1996, as a housekeeper.
Within several months, she was promoted to assistant head housekeeper and then to head
housekeeper. In Juanita's first fourteen months of employment, she was written up, warned,
and suspended twice for unsatisfactory job performance and tardiness. In June 1997, Motel 6
manager Victoria Inman verbally warned Juanita about spreading gossip to other employees.
At that time, Inman informed Juanita that as head housekeeper she was an important part of
management, and negative comments were inappropriate. Allegedly, Juanita continued to say
negative things about Inman and Motel 6 in general, and Inman terminated Juanita's
employment after consulting with Motel 6's regional human resources manager. In support of
Juanita's termination, Inman produced written statements from three employees, which
alleged that Juanita spoke poorly of Inman and Motel 6.
According to Juanita, following her termination, Inman falsely accused Juanita and her
husband Robert, also a former employee, of stealing several items from Motel 6 and writing
threatening letters to Inman. Juanita claims that Inman informed a Motel 6 area manager and
local police of the alleged theft and letters.
Subsequently, Juanita filed a charge of discrimination with the Nevada Equal Rights
Commission (NERC). Juanita's NERC charge asserted that she was terminated because
Robert had previously complained about a sexual harassment incident at Motel 6 and because
he had also filed a NERC charge after his termination that alleged retaliatory discharge.
Juanita, Robert, and a third former employee then filed a district court complaint, each
alleging several causes of action. In particular, Juanita brought the following claims: (1)
wrongful termination because of her race or national origin, (2) failure to promote because of
race or national origin, (3) retaliatory termination, (4) defamation, and (5) intentional
infliction of emotional distress.
1
After some pretrial discovery and a lengthy hearing, the
district court granted summary judgment to Motel 6 on all causes of action. Juanita appealed.
____________________

1
Juanita also alleged that the defendants acted with perversity and depravity, and deliberately subjected her
to cruel and unjust hardship in conscious disregard of her rights. This last claim for perversity and depravity is
not an independent cause of action, and plaintiffs' counsel offered no authority to the district court to support
such a cause of action.
........................................
121 Nev. 307, 311 (2005) Pope v. Motel 6
DISCUSSION
[Headnotes 1-3]
This court reviews a district court's decision to grant summary judgment de novo.
2
Summary judgment is appropriate when, after a review of the record viewed in the light most
favorable to the nonmoving party, there are no genuine issues of material fact and the moving
party is entitled to judgment as a matter of law.
3
In determining whether summary judgment
is proper, the nonmoving party is entitled to have the evidence and all reasonable inferences
accepted as true.
4

Racial discrimination
In its summary judgment motion, Motel 6 argued that Juanita did not exhaust her
administrative remedies before bringing her racial discrimination claim in district court
because her NERC complaint alleged only a claim for retaliatory discharge, not racial
discrimination.
[Headnote 4]
In light of the similarity between Title VII of the 1964 Civil Rights Act
5
and Nevada's
anti-discrimination statutes, we have previously looked to the federal courts for guidance in
discrimination cases.
6
Under NRS 613.330(1), it is an unlawful employment practice to
discharge any individual because of his or her race, color, sex, religion, sexual orientation,
age, disability or national origin. However, NRS 613.420 requires an employee alleging
employment discrimination to exhaust her administrative remedies by filing a complaint with
NERC before filing a district court action.
7
We have explained that the exhaustion of
administrative remedies is necessary to prevent the courts from being inundated with
frivolous claims.
8

____________________

2
Walker v. American Bankers Ins., 108 Nev. 533, 836 P.2d 59 (1992).

3
See Medallion Dev. v. Converse Consultants, 113 Nev. 27, 31, 930 P.2d 115, 118 (1997).

4
Id.

5
See 42 U.S.C. 2000e2000e-16 (2000).

6
See Copeland v. Desert Inn Hotel, 99 Nev. 823, 673 P.2d 490 (1983); Apeceche v. White Pine Co., 96 Nev.
723, 615 P.2d 975 (1980).

7
Palmer v. State Gaming Control Board, 106 Nev. 151, 153, 787 P.2d 803, 804 (1990) (holding that the
Nevada Legislature intended plaintiffs to administratively exhaust employment discrimination claims prior to
seeking redress in the district courts).

8
Id. The exhaustion requirement can be excused if NERC fails to act within a reasonable time and the
complainant faces a statute of limitations deadline or an irretrievable loss of evidence. Id.
........................................
121 Nev. 307, 312 (2005) Pope v. Motel 6
[Headnotes 5-7]
As the Ninth Circuit has recognized, if the employee alleging discrimination later files a
district court action, she may only expand her discrimination action to include allegations of
other discrimination if the new claims are reasonably related to the allegations of the
[administrative] charge.'
9
Claims in a complaint are not like or reasonably related to
allegations in an administrative charge unless a factual relationship exists between them.
10
Consequently, an employee who brings unrelated claims in the district court without first
presenting them to NERC has failed to exhaust her administrative remedies.
[Headnote 8]
Juanita's initial NERC charge was based on retaliatory discharge. She checked the box
indicating retaliation, but she did not check the corresponding boxes indicating race, sex, or
national origin discrimination. Further, her charge explained that she believed that she was
terminated because Robert filed a claim of discrimination and alleged that an employee in
Motel 6's corporate office told her that if Robert pursued his claim, she would be discharged.
Her charge does not mention race, sex, or national origin discrimination in any capacity.
Accordingly, Juanita's district court allegations that she was terminated because of her race
are not reasonably related to her charge of retaliation. Her retaliation charge is based on her
relationship to Robert and his actions, while her claim for race discrimination rests on
allegations that she was discharged solely based on her race or national origin. As a result,
Juanita failed to exhaust her administrative remedies, and the district court correctly granted
summary judgment on her racial discrimination claim.
Third-party retaliation
[Headnote 9]
An action for retaliatory discharge is founded on the proposition that because an employee
filed a complaint for some type of discrimination against the employer, she was discharged.
11
Juanita's retaliation claim is actually a third-party retaliation claim because she alleged
that Motel 6 retaliated against her due to Robert's activities, rather than her own.
____________________

9
Shah v. Mt. Zion Hospital & Medical Ctr., 642 F.2d 268, 271 (9th Cir. 1981) (involving a claim filed with
the EEOC alleging sex and national origin discrimination, where the employee attempted to expand his action at
trial to include claims of race, color, and religious discrimination) (quoting Oubichon v. North American
Rockwell Corporation, 482 F.2d 569, 571 (9th Cir. 1973)); see also Sitar v. Indiana Dept. of Transp., 344 F.3d
720 (7th Cir. 2003) (holding that sex discrimination and sex harassment claims were not reasonably related to an
EEOC retaliation charge).

10
See Harper v. Godfrey Co., 45 F.3d 143, 148 (7th Cir. 1995).

11
See NRS 613.340(1).
........................................
121 Nev. 307, 313 (2005) Pope v. Motel 6
cause she alleged that Motel 6 retaliated against her due to Robert's activities, rather than her
own.
12
We have not previously decided whether Nevada's anti-retaliation statute, NRS
613.340, supports a retaliation claim when the complaining party has not engaged in
protected activity.
NRS 613.340(1) states:
It is an unlawful employment practice for an employer to discriminate against any of his
employees or applicants for employment . . . because he has opposed any practice made
an unlawful employment practice by NRS 613.310 to 613.435, inclusive, or because he
has made a charge, testified, assisted or participated in any manner in an investigation,
proceeding or hearing under NRS 613.310 to 613.435, inclusive.
Similarly, Title VII makes it unlawful for an employer to discriminate against an employee
because he has opposed any practice made an unlawful employment practice by [Title VII],
or because he has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under [Title VII].
13

Federal appellate courts have concluded that Title VII's plain language precludes a
third-party retaliation claim because of the pronoun he, which applies only to parties
personally engaged in protected activity.
14
Additionally, in Smith v. Riceland Foods, Inc.,
15
the Eighth Circuit Court of Appeals opined that third-party retaliation claims are not
necessary to protect spouses or significant others because Title VII also prohibits employers
from retaliating against employees for assist[ing] or participat[ing] in any manner' in a
proceeding under Title VII.
16
The Riceland court reasoned that in most situations, a third
party will fall within Title VII's protection because she will have participated in some manner
in the Title VII proceeding.
17
The Riceland court also acknowledged that following anything
other than Title VII's plain meaning would create problems in deciding who qualifies for
protection under the statute.
18

____________________

12
See Fogleman v. Mercy Hosp., Inc., 283 F.3d 561 (3d Cir. 2002).

13
42 U.S.C. 2000e-3(a) (2000).

14
See Fogleman, 283 F.3d at 568; Smith v. Riceland Foods, Inc., 151 F.3d 813, 819 (8th Cir. 1998); Holt v.
JTM Industries, Inc., 89 F.3d 1224 (5th Cir. 1996); see also Horizon Holdings v. Genmar Holdings, 241 F.
Supp. 2d 1123 (D. Kan. 2002).

15
151 F.3d 813 (8th Cir. 1998).

16
Id. at 819.

17
Id.

18
Id. (citing Holt, 89 F.3d 1224 (concluding that deviating from the plain language of the Age Discrimination
in Employment Act would create line-
........................................
121 Nev. 307, 314 (2005) Pope v. Motel 6
[Headnotes 10, 11]
Unlike the federal appellate courts, some federal district courts have held that third-party
retaliation claims are actionable even when the party did not explicitly engage in protected
activity.
19
These courts have based their conclusion on the primary purpose of Title VII's
anti-retaliation provisionto ensure unfettered access to statutory remedial
mechanismsand have necessarily ignored the statute's plain language.
20
This policy
approach was soundly rejected by the Third Circuit Court of Appeals in Fogleman v. Mercy
Hospital, Inc.
21
Although the Fogleman court recognized the conflict between Title VII's
plain meaning and its general policy objectives, the court concluded that the statute had to be
read according to its plain meaning. To do otherwise would implicate the separation of
powers:
The preference for plain meaning is based on the constitutional separation of
powersCongress makes the law and the judiciary interprets it. In doing so we
generally assume that the best evidence of Congress's intent is what it says in the texts
of the statutes.
22

[Headnote 12]
Although we recognize that, as with Title VII, a conflict exists between NRS 613.340(1)'s
plain language and the statute's policy objectives, we are bound to follow a statute's plain
meaning when the language is unambiguous.
23
NRS 613.340(1), like Title VII, limits the
initiation of a retaliatory discrimination action to those individuals that have opposed an
unlawful employment practice or participated in any manner in a proceeding brought under
NRS 613.310 to 613.435. To ignore the plain meaning of NRS 613.340(1) would be an
impermissible judicial excursion into the legislature's domain. Therefore, to sustain a
retaliation action under NRS 613.340(1), the party bringing the action must have personally
engaged in activity protected by NRS 613.340(1).
Here, the record does not demonstrate that Juanita participated in Robert's NERC claim,
nor does it reveal any instance of Juanita opposing Motel 6's employment practices.
____________________
drawing problems)); see Fogleman, 283 F.3d at 567 (noting that a court's interpretation of Age Discrimination in
Employment Act is relevant to interpreting Title VII).

19
See, e.g., Gonzalez v. New York Dept. of Correct. Ser., 122 F. Supp. 2d 335, 346-47 (N.D.N.Y. 2000);
E.E.O.C. v. Nalbandian Sales, Inc., 36 F. Supp. 2d 1206 (E.D. Cal. 1998); De Medina v. Reinhardt, 444 F.
Supp. 573 (D.D.C. 1978).

20
Nalbandian Sales, 36 F. Supp. 2d at 1210.

21
283 F.3d 561.

22
Id. at 569.

23
State, Bus. & Indus. v. Granite Constr., 118 Nev. 83, 87, 40 P.3d 423, 426 (2002).
........................................
121 Nev. 307, 315 (2005) Pope v. Motel 6
opposing Motel 6's employment practices. Accordingly, Juanita did not engage in activity
protected by NRS 613.340(1), and the district court properly granted summary judgment to
Motel 6 on Juanita's third-party retaliation claim.
Defamation
[Headnote 13]
A defamation claim requires demonstrating (1) a false and defamatory statement of fact by
the defendant concerning the plaintiff; (2) an unprivileged publication to a third person; (3)
fault, amounting to at least negligence; and (4) actual or presumed damages.
24
Certain
classes of defamatory statements are, however, considered defamatory per se and actionable
without proof of damages.
25
A false statement involving the imputation of a crime has
historically been designated as defamatory per se.
26

Juanita's defamation claims centered on her allegations that Inman communicated to the
police and a Motel 6 area manager that Juanita and Robert had stolen several items from the
motel and that Juanita and Robert had written threatening letters to Inman. The district court
concluded that Inman's statements to the police were absolutely privileged and that Inman's
statements to the area manager were privileged as intracorporate communications and not
actionable.
Inman's statements to police
[Headnote 14]
We have not previously decided if defamatory statements made to police before the
initiation of criminal proceedings are absolutely privileged or enjoy only a qualified privilege.
On several occasions, we have recognized an absolute privilege for communications
published in the course of judicial proceedings, even when the statements are false or
malicious and are republished with the intent to harm another.
27
We have also extended an
absolute privilege to quasi-judicial proceedings, such as when a citizen filed a complaint with
an internal affairs bureau against a police officer.
28
Nevertheless, we have never directly
decided what type of privilege applies to communications with a police officer before
criminal proceedings are commenced.
____________________

24
Simpson v. Mars, Inc., 113 Nev. 188, 190, 929 P.2d 966, 967 (1997).

25
K-Mart Corporation v. Washington, 109 Nev. 1180, 1194, 866 P.2d 274, 282 (1993).

26
Id.

27
See, e.g., Sahara Gaming v. Culinary Workers, 115 Nev. 212, 984 P.2d 164 (1999); Circus Circus Hotels
v. Witherspoon, 99 Nev. 56, 657 P.2d 101 (1983); Knox v. Dick, 99 Nev. 514, 665 P.2d 267 (1983).

28
Lewis v. Benson, 101 Nev. 300, 701 P.2d 751 (1985).
........................................
121 Nev. 307, 316 (2005) Pope v. Motel 6
We previously addressed the issue in K-Mart Corporation v. Washington,
29
but failed to
clearly determine whether a qualified or absolute privilege applies. In that case, the plaintiff
claimed that K-Mart defamed him by falsely telling the police that he had stolen hair
products. We concluded that K-Mart's statements were subject to a qualified privilege granted
to merchants under former NRS 598.030, which applied when a person was reasonably
believed to have stolen the store's merchandise. Alternatively, we opined that [t]he
statements could be deemed communications preliminary to a judicial proceeding under
Restatement (Second) of Torts [section] 587 and therefore would be absolutely privileged if
made in good faith.
30
Accordingly, by employing a statutory qualified privilege but
suggesting that an absolute privilege might apply, K-Mart failed to answer whether a
qualified or absolute privilege operates in such instances.
Most jurisdictions that have considered this issue have concluded that communications
made to police before the initiation of criminal proceedings enjoy only a qualified privilege.
31
In so concluding, these courts have balanced an individual's right to enjoy a reputation
unimpaired by defamatory attacks against the public interest of free and full disclosure of
facts to the judicial, legislative, and executive departments of government.
32
Additionally,
courts adopting a qualified privilege have noted the distinction between statements made in
court and statements made to the police. As recognized by the Oregon Supreme Court in
DeLong v. Yu Enterprises, Inc.,
33
in court, individuals must be free to risk impugning the
reputations of others, in order to discharge public duties and protect individual rights, but
citizens making informal complaints to police should not enjoy blanket immunity from an
action; instead, such statements should receive protection only if they were made in good
faith, to discourage an abuse of the privilege.
____________________

29
109 Nev. 1180, 866 P.2d 274 (1993).

30
Id. at 1191, 866 P.2d at 282. In Sahara Gaming, 115 Nev. at 216-17, 984 P.2d at 166, we concluded that
an absolute privilege applies regardless of the lack of good faith.

31
Fridovich v. Fridovich, 598 So. 2d 65, 67 (Fla. 1992) (collecting cases); see also Newark Trust Company
v. Bruwer, 141 A.2d 615, 617 (Del. 1958); Indiana Nat. Bank v. Chapman, 482 N.E.2d 474, 479 (Ind. Ct. App.
1985); Cormier v. Blake, 198 So. 2d 139, 144 (La. Ct. App. 1967); Packard v. Central Maine Power Co., 477
A.2d 264, 268 (Me. 1984); Caldor v. Bowden, 625 A.2d 959, 968-69 (Md. 1993); DeLong v. Yu Enterprises,
Inc., 47 P.3d 8, 12 (Or. 2002). But see Starnes v. International Harvester Co., 539 N.E.2d 1372, 1374-75 (Ill.
App. Ct. 1989), abrogated on other grounds by Bryson v. News America Publications, Inc., 672 N.E.2d 1207
(Ill. 1996).

32
Fridovich, 598 So. 2d at 68.

33
47 P.3d at 11-12.
........................................
121 Nev. 307, 317 (2005) Pope v. Motel 6
Although a few jurisdictions have considered communications with police in aid of law
enforcement as an initial step in judicial proceedings and have therefore applied an absolute
privilege,
34
we agree with those courts that have adopted a qualified privilege. The
competing policies of safeguarding reputations and full disclosure are best served by a
qualified privilege. To the extent that we suggested in K-Mart that statements made to police
before the initiation of criminal proceedings could be deemed communications preliminary
to a judicial proceeding under the Restatement (Second) of Torts, section 587, we recede
from that premise.
Additionally, as other courts have recognized, a qualified privilege provides adequate
protection against frivolous lawsuits. Under a qualified privilege, the plaintiff must prove by
a preponderance of the evidence that the defendant abused the privilege by publishing the
defamatory communication with actual malice.
35
Actual malice is a stringent standard that is
proven by demonstrating that a statement is published with knowledge that it was false or
with reckless disregard for its veracity.
36

[Headnote 15]
Having concluded that a qualified privilege applies in this instance, we examine whether
Juanita produced any evidence that Inman's statements to the police were made with actual
malice. Juanita, in her opposition to Motel 6's summary judgment motion, supplied an
affidavit, which implies that Inman's statements to the police were untrue but does not state
that the statements were made with the knowledge that they were false.
In addition, the only evidence in the record of the alleged defamatory statement is a letter
from the police acknowledging that Inman lodged a complaint with them. The letter,
however, simply indicates that Inman informed the police that she suspected that Juanita and
Robert, and a third unrelated party, might be responsible for the problems at Motel 6. At
most, the letter and affidavit demonstrate that Inman indicated to the police her suspicion that
Juanita and Robert may have been responsible for the Motel 6 theft and the threatening
letters.
____________________

34
See Starnes, 539 N.E.2d at 1374-75; Hott v. Yarbrough, 245 S.W. 676 (Tex. Comm'n App. 1922) (holding
that letters written to a grand jury foreman and a county attorney, charging a violation of the criminal law and
asking that the matter be brought up before the grand jury, are absolutely privileged).

35
See Circus Circus Hotels v. Witherspoon, 99 Nev. 56, 62, 657 P.2d 101, 105 (1983); Bank of America
Nevada v. Bourdeau, 115 Nev. 263, 982 P.2d 474 (1999); Fridovich, 598 So. 2d at 69 (holding that the plaintiff
must establish that the defamatory statements were false and uttered with common law express malice).

36
........................................
121 Nev. 307, 318 (2005) Pope v. Motel 6
theft and the threatening letters. Suspicions of criminal wrongdoing are commonly expressed
to police, and often the suspicion is misplaced. Without more, the mere fact that an individual
informs police of possible criminal wrongdoing does not establish malice. To overcome the
qualified privilege, Juanita was required to establish that Inman acted with reckless disregard
for veracity or with knowledge of falsity.
37
She failed to do so.
As a qualified privilege applies to Inman's statements to the police and Juanita failed to
advance any evidence of malice, we conclude that the district court properly granted summary
judgment to Motel 6 on this issue.
Inman's statement to upper management
[Headnote 16]
As for Inman's statements to upper management, it appears that the district court
improperly relied on our decision in M & R Investment Co. v. Mandarino
38
for the
proposition that intracorporate communications cannot constitute publication. In M & R, we
held that a statement between two employees of a casino was not a publication for the
purposes of a defamation action.
39

[Headnote 17]
In Simpson v. Mars Inc.,
40
however, we revisited the issue of intracorporate
communications and concluded that while certain intracorporate communications are
privileged, any privileges are defenses and not part of the prima facie case.
41
As a result,
defendant corporations bear the burden of alleging and proving the privilege's existence.
42
We noted in Simpson that [t]he circumstances of the communication of the allegedly
defamatory material are uniquely within the knowledge of the corporation and its agents.
43
Because an intracorporate communication is only privileged if the communication occurs in
the regular course of the corporation's business, we held that it would be unfair to place the
burden on the plaintiff to plead and prove facts which are peculiarly within the knowledge of
the corporate defendant, such as the circumstances of intracorporate communications.
44

____________________

37
Id. at 722, 57 P.3d at 92-93.

38
103 Nev. 711, 748 P.2d 488 (1987).

39
Id. at 716, 748 P.2d at 491.

40
113 Nev. 188, 929 P.2d 966 (1997).

41
Id. at 191-92, 929 P.2d at 968. We note that M & R relied on our decision in Jones v. Golden Spike Corp.,
97 Nev. 24, 623 P.2d 970 (1981), which we explicitly overruled in Simpson.

42
Simpson, 113 Nev. at 192, 929 P.2d at 968.

43
Id. at 191, 929 P.2d at 968.

44
Id. at 192, 929 P.2d at 968.
........................................
121 Nev. 307, 319 (2005) Pope v. Motel 6
Accordingly, under Simpson, Motel 6 had the burden of alleging and proving the existence
of the privilege. Because Juanita alleged that Inman made defamatory statements to upper
management and supported her allegations with a third-party affidavit, which acknowledged
that the allegedly defamatory statement was made, Motel 6 had the burden of demonstrating
that the statement was privileged. Motel 6 neglected to do so, and thus summary judgment
was erroneous. Accordingly, we reverse on this narrow issue.
Motel 6's response
Motel 6 urges this court to affirm the district court's order on the alternative ground that
Juanita failed to produce any evidence of damages from the alleged defamatory statements.
Motel 6 acknowledges that the imputation of a crime may constitute defamation per se.
Nevertheless, Motel 6 argues that defamation per se only gives rise to a rebuttable
presumption of damages. Motel 6 did not raise this issue in the district court, and arguments
raised for the first time on appeal need not be considered on appeal.
45
Accordingly, we
decline to consider the issue at this time.
CONCLUSION
For the reasons stated in this opinion, we affirm the district court's order in part, but we
reverse that portion of the district court's order granting summary judgment on Juanita's claim
for defamation based on intracorporate communications. We remand this case for further
proceedings consistent with this opinion.
46

____________
121 Nev. 319, 319 (2005) Hantges v. City of Henderson
TOM HANTGES, Appellant/Cross-Respondent, v. CITY OF HENDERSON, a Municipal
Corporation, Respondent/Cross-Appellant.
No. 41094
June 23, 2005 113 P.3d 848
Appeal and cross-appeal from a district court order denying a petition for a writ of
mandamus. Eighth Judicial District Court, Clark County; Michael L. Douglas, Judge.
____________________

45
Dermody v. City of Reno, 113 Nev. 207, 211, 931 P.2d 1354, 1357 (1997).

46
Having reviewed the record, we conclude that the district court properly granted summary judgment to
Motel 6 on Juanita's claims for failure to promote and intentional infliction of emotional distress.
........................................
Citizen petitioned for writ of mandamus, challenging designation of an approved city
redevelopment area as blighted and asserting that members of the Redevelopment Agency
Advisory Commission had a conflict of interest. The district court denied the petition. Citizen
and city filed cross-appeals. The supreme court, Hardesty, J., held that: (1) citizen had
standing to contest redevelopment plan, (2) petition for writ of mandamus was untimely filed,
and (3) members' private interest in property subject to plan did not create a conflict of
interest.
Affirmed.
Harrison Kemp & Jones, LLP, and J. Randall Jones and Jennifer C. Popick, Las Vegas,
for Appellant/Cross-Respondent.
Rawlings Olson Cannon Gormley & Desruisseaux and James R. Olson, Las Vegas, for
Respondent/Cross-Appellant.
1. Municipal Corporations.
Citizen had standing to contest decision of city's redevelopment agency designating
certain land as blighted and thus eligible for redevelopment plan, under statute
governing limitations on actions to contest a redevelopment plan, even though statute
did not expressly address who could contest a redevelopment agency's findings, given
that statute had protective purpose and established law recognized a citizen's standing
to challenge land-use decisions. NRS 279.609.
2. Zoning and Planning.
Where a statute regarding land-use planning has a protective purpose, it is
interpreted to avoid meaningless or unreasonable results, and liberally construed in
order to effectuate the benefits intended to be obtained.
3. Mandamus.
Citizen's petition for writ of mandamus challenging redevelopment agency's
designation of certain property as blighted and eligible for redevelopment, made
more than 90 days after the city council approved the redevelopment plan, was
untimely, even though citizen asserted that redevelopment agency's approval of the
owner participation agreement (OPA) modified the plan and started a new 90-day
period to challenge the plan; OPA that did not materially alter or deviate from the plan
was not a formal amendment, but merely an agreement that effectuated the general
purpose of the plan. NRS 279.609(3).
Redevelopment agency advisory commission members' private interest in property
being considered for a city redevelopment plan did not create conflict of interest that
tainted the ultimate adoption of the plan by the city council; members of advisory
commission are not public officers subject to conflict of interest rules, and members
recused themselves from all discussion and voting on plan. NRS 281.4365.
........................................
OPINION
In this taxpayer mandamus action, we decide whether a citizen has standing to challenge
an agency's determination of blight for a redevelopment plan. Consistent with our prior
holdings granting citizens the right to challenge land-use decisions, we conclude that citizens
may also challenge the blight findings. We also take the opportunity to decide whether an
advisory commission decision must be overturned when members to the commission have an
alleged conflict of interest. Because the Nevada ethics statutes do not apply to advisory
committees and because the committee members recused themselves from any
decision-making, we conclude that there is no basis to overturn the actions of the
redevelopment agency in its adoption of the redevelopment plan.
Commerce Associates, LLC (Commerce), a Nevada corporation, purchased approximately
525 acres of partially developed property in Henderson, Nevada (Tuscany Property). Shortly
thereafter, Commerce requested the City of Henderson (Henderson) to designate the Tuscany
Property for redevelopment evaluation. Henderson adopted a resolution directing the City of
Henderson Redevelopment Agency (Redevelopment Agency) to evaluate the Tuscany
Property. During this time, Commerce and the Redevelopment Agency also drafted a
proposed Memorandum of Understanding (MOU), which memorialized an agreement
between Commerce and the Redevelopment Agency to jointly evaluate Tuscany Hills (the
525-acre Tuscany Property plus an additional 325 acres of surrounding property) for
designation as a redevelopment area. The Redevelopment Agency hired an independent
consultant to conduct a study of the proposed redevelopment area, and the consultant
concluded that Tuscany Hills was blighted.
The MOU between the Redevelopment Agency and Commerce was approved by the
Henderson Redevelopment Agency Advisory Commission (Advisory Commission), a
commission established to act in an advisory role to the Redevelopment Agency. During that
meeting, the Chairman of the Advisory Commission, Barry Fieldman, and member Robert
Unger recused themselves before the MOU was discussed. Fieldman and Unger were
members of both the Advisory Commission and Makena Entertainment, LLC, the managing
member of Commerce. During all subsequent voting by the Advisory Commission regarding
business with Commerce, Fieldman and Unger were not present.
........................................
by the Advisory Commission regarding business with Commerce, Fieldman and Unger were
not present.
The Tuscany Hills Redevelopment Plan (Redevelopment Plan) was approved by the
Redevelopment Agency in January 2001 and by the Henderson City Council (City Council) in
March 2001. Tom Hantges, a taxpayer and citizen of Henderson, Nevada, who later filed a
complaint for a writ of mandamus in this action, did not challenge the adoption of the
Redevelopment Plan or the findings of blight.
Approximately a year after the adoption of the Redevelopment Plan, the Owner
Participation Agreement (OPA) between Commerce and the Redevelopment Agency was
finalized and approved by the Advisory Commission. The OPA was forwarded to the City
Council and approved in April 2002. The purpose of the OPA is to effectuate the
Redevelopment Plan.
Approximately a month after the City Council approved the OPA, Hantges filed a writ
petition in the district court. Hantges challenged the OPA arguing that Tuscany Hills is not
blighted and asserting that a conflict of interest exists given Fieldman's and Unger's dual roles
on the Advisory Commission and in the managing member of Commerce. Henderson moved
to dismiss the petition on several grounds, including that Hantges lacked standing to
challenge the OPA. The district court dismissed the petition; however, the court later set aside
the dismissal with respect to Hantges' conflict of interest challenge. Subsequently, the court
concluded that no conflict of interest existed and denied the petition. This appeal followed.
DISCUSSION
Standing
[Headnotes 1, 2]
Henderson argues that this appeal and cross-appeal are moot because Hantges had no
standing to bring the underlying writ proceeding. NRS 279.609, however, provides for
actions questioning the validity of an agency's findings or determinations in connection with a
redevelopment plan. Although this statute does not expressly address who can contest the
agency findings, the statute has a protective purpose. We therefore interpret it to avoid
meaningless or unreasonable results, and . . . liberally construe[ ] [it] in order to effectuate
the benefits intended to be obtained.'
1
Consequently, contrary to Henderson's argument that
only property owners have standing under NRS 279.609 to challenge an agency's findings,
we conclude that the statute confers standing on citizens to challenge these findings as
well.
____________________

1
Edgington v. Edgington, 119 Nev. 577, 583, 80 P.3d 1282, 1287 (2003) (footnote omitted) (quoting Colello
v. Adminstrator, Real Est. Div., 100 Nev. 344, 347, 683 P.2d 15, 17 (1984)).
........................................
findings, we conclude that the statute confers standing on citizens to challenge these findings
as well. This conclusion is consistent with our prior rulings that citizens have standing to
challenge land-use decisions.
2

We therefore conclude that Hantges had citizen standing to question the redevelopment
plan decision and to bring his mandamus challenge. Because he was an aggrieved party in the
court below, standing is not now an issue on appeal.
3
We deny Henderson's motion to
dismiss this appeal.
4

Timeliness of the petition
Hantges also argues that the district court erred in finding that his mandamus challenge
was time-barred by NRS 279.609.
NRS 279.609(3) provides that [a]ny of the findings or determinations of the agency or the
legislative body in connection with [a redevelopment] plan, may only be brought after the
adoption of the plan or amendment or within 90 days after the date of adoption of the
ordinance adopting or amending the plan. This court has specifically held that a property
owner may not challenge a redevelopment plan's finding of blight after NRS 279.609's 90-day
deadline has expired.
5

[Headnote 3]
Here, the City Council voted to adopt the Redevelopment Plan in March 2001. Instead of
bringing a challenge within 90 days, Hantges filed a petition for a writ of mandamus in May
2002, almost a year after the 90-day deadline. Therefore, the district court did not err in
finding that Hantges' claim was time-barred.
Hantges attempts to avoid this time bar by arguing that the Redevelopment Agency's
approval of the OPA modified the Redevelopment Plan, and therefore started the statutory
90-day time frame anew.
NRS Chapter 279 allows municipalities to amend redevelopment plans and sets forth steps
to amend a plan. Amendments are required for actions that constitute a material deviation
from or that alter significantly the redevelopment plan.
6
In Las Vegas Downtown
Redevelopment v. Crockett, we held that while material deviations from a redevelopment
plan require formal amendment, mere administrative interpretations of the
redevelopment plan do not require a formal amendment.
____________________

2
See, e.g., City of Reno v. Goldwater, 92 Nev. 698, 700, 558 P.2d 532, 533 (1976).

3
See NRAP 3A(a).

4
We are unpersuaded by Henderson's additional bases for dismissal presented in the motion to dismiss.

5
Las Vegas Downtown Redev. Agency v. Pappas, 119 Nev. 429, 76 P.3d 1 (2003).

6
NRS 279.608(6).
........................................
deviations from a redevelopment plan require formal amendment, mere administrative
interpretations of the redevelopment plan do not require a formal amendment.
7
[R]edevelopment that is consistent with the redevelopment plan's express language or a
liberal construction of that language does not require plan amendment because there is no
deviation from or change to the plan's contours.
8

Here, the OPA does not materially alter or deviate from the Redevelopment Plan but rather
effectuates the general purposes of the plan; therefore, a formal amendment to the
Redevelopment Plan was not required. Because the OPA is not an amendment to the
Redevelopment Plan, any challenges to the OPA or the Redevelopment Plan must have been
brought within the initial 90-day period.
We therefore conclude the district court properly denied Hantges' petition for a writ of
mandamus because the petition sought to litigate the merits of the findings of blight, an issue
that was barred by the statute of limitations.
Conflict of interest
While we recognize that the petition was time-barred, we take this opportunity to discuss
the effects of a conflict of interest on members of advisory commissions within this state. In
his writ petition, Hantges argued that two members of the Advisory Commission, Barry
Fieldman and Robert Unger, maintained a direct interest in the OPA at the time the Advisory
Commission adopted the OPA, which he argues tainted the subsequent redevelopment plan
determinations. We conclude that the district court did not abuse its discretion in denying
Hantges' petition, based upon his assertion of a conflict of interest.
9

[Headnote 4]
First, we note that Fieldman and Unger were not involved in any manner in the approval of
the OPA. The December 2000 Advisory Commission meeting was held to discuss the MOU
between the Redevelopment Agency and Commerce, and Fieldman and Unger recused
themselves before the discussion began. During the public meeting to vote on approval of the
MOU, neither Unger nor Fieldman were present, and the vote passed. Similarly, the Advisory
Commission voted to approve the OPA with Commerce without the attendance of either
Unger or Fieldman. Based on our review of the record, it appears that neither Fieldman nor
Unger were present for any Advisory Commission discussions leading up to the vote on the
OPA or during any voting on the OPA.
____________________

7
117 Nev. 816, 827-28, 34 P.3d 553, 561 (2001).

8
Id. at 828, 34 P.3d at 561.

9
See DR Partners v. Bd. of County Comm'rs, 116 Nev. 616, 621, 6 P.3d 465, 468 (2000) (review of a district
court's decision to grant or deny a writ petition is for abuse of discretion).
........................................
ent for any Advisory Commission discussions leading up to the vote on the OPA or during
any voting on the OPA.
Moreover, even if Unger and Fieldman had been involved in the OPA or Redevelopment
Plan approval, their positions on the Advisory Commission would not taint the voting. NRS
281.411 through 281.581 create a statutory framework by which public officials may be held
accountable for actions taken despite a conflict of interest. The terms public officer and
public office are defined in NRS 281.4365, which states in relevant part:
2. Public officer does not include:
. . .
(c) Any member of a board, commission or other body whose function is advisory;
. . .
3. Public office does not include an office held by:
. . .
(b) Any member of a board, commission or other body whose function is advisory.
The function of the Advisory Commission is to act in an advisory capacity to the
Redevelopment Agency. The Commission does not possess legislative or fiscal power to bind
Henderson or the Agency, and its sole function is to make recommendations to the Agency.
Because its purpose is advisory, the Commission fits within the exception to the definition of
public officer in NRS 281.4365. Therefore, no member of the Advisory Commission is a
public officer for the purposes of NRS Chapter 281, and Hantges' conflict of interest
argument necessarily fails.
Courts that have considered similar conflict of interest issues have reached opposing
conclusions. In Chrobuck v. Snohomish County, the Washington Supreme Court held that an
appearance of impropriety in a land planning decision creates a deprivation of due process,
noting:
the members of the planning commission . . . must so far as practicable . . . be open
minded, objective, impartial, and free of entangling influences or the taint thereof. They
must be capable of hearing the weak voices as well as the strong. To permit otherwise
would impair the requisite public confidence in the integrity of the planning
commission and its hearing procedures.
10

The Chrobuck court concluded that a planning commission's denial of an opportunity for
counsel to cross-examine expert witnesses testifying at a commission hearing inescapably
cast an aura of improper influence, partiality and prejudgment over the proceedings
thereby creating and erecting the appearance of unfairness."
____________________

10
480 P.2d 489, 496 (Wash. 1971) (citation omitted).
........................................
improper influence, partiality and prejudgment over the proceedings thereby creating and
erecting the appearance of unfairness.
11
Similarly, in Stigall v. City of Taft, the California
Supreme Court concluded that a city council's award of a contract to a council member, who
had tendered his resignation just prior to the contract vote, had to be overturned despite the
council member's resignation.
12
The court recognized that the negotiations, discussions, and
planning which occur prior to a final decision are all part of the agreement and that conflict of
interest statutes are designed to apply to any situation that would preclude officials from
exercising absolute loyalty to the best interests of the city.
However, courts have also held that an alleged conflict can be cured by independent
review and approval of the possibly tainted decision. In a Hawaii case, Waikiki Resort Hotel
v. City & County of Honolulu, the issue was whether to invalidate an administrative appeal
board's building permit approval, given a board member's conflict of interest.
13
The plaintiff
in that case challenged the permit because one board member was also serving as the general
contractor to construct the building contemplated by the permit.
14
In affirming the grant of
the permit, the court recognized that with nine board members and unanimous board
approval, there were enough votes to support the decision even without the conflicted
member's vote; therefore, the court affirmed the board's actions.
15
Likewise, the Fifth Circuit
Court of Appeals has concluded that allegedly biased actions taken by a city can be cured by
the state legislature's independent review and approval.
16

In this case, the recusal of both Fieldman and Unger from any discussion or voting
precludes an appearance of impropriety or unfairness. Unlike the situation in Stigall, the
Commission considered the OPA multiple times, without the influence of Fieldman or Unger.
Further, the two commission members were not involved in any negotiations, discussions, or
planning involving the OPA or business between the Redevelopment Agency and Commerce.
More importantly, only the vote of the Redevelopment Agency, not the Advisory
Commission, could approve the OPA. Even when the Commission voted just to recommend
the OPA to the Redevelopment Agency for its final approval, Fieldman and Unger were not
on the Commission, and four of the six voting members voted in favor of recommending
the OPA to the Agency.
____________________

11
Id.

12
375 P.2d 289, 291 (Cal. 1962).

13
624 P.2d 1353 (Haw. 1981).

14
Id. at 1370.

15
Id. at 1370-71.

16
Green v. City of Stuart, 81 F.2d 968 (5th Cir. 1936).
........................................
on the Commission, and four of the six voting members voted in favor of recommending the
OPA to the Agency.
While we share the concerns expressed in Chrobuck and Stigall, we determine that it
would be impractical to overturn final board decisions when advisory board members have
alleged conflicts of interest, yet recuse themselves from any discussions or voting on the
matter. Citizen participation on advisory committees should be encouraged in our state, where
a likelihood exists that advisory committee members could have potential conflicts of
interest. Therefore, by expressing a conflict and recusing him or herself from any decision
making, voting, or discussions, an advisory committee member avoids the appearance of
impropriety. We do not reach the effect of a conflict of interest of a board member on a board
that has final approval authority.
The district court did not abuse its discretion in determining that Hantges failed to carry
his burden of proof that a conflict existed with the Advisory Commission at the time it
approved the OPA and in denying the petition on this basis. We affirm the district court's
order denying Hantges' petition for a writ of mandamus.
____________
121 Nev. 327, 327 (2005) Garcia v. State
RAMON JACOBO GARCIA, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 42403
June 23, 2005 113 P.3d 836
Appeal from a judgment of conviction upon a jury verdict of guilty on two counts of
burglary while in possession of a firearm, two counts of robbery with the use of a deadly
weapon, two counts of first-degree kidnapping with the use of a deadly weapon, one count of
conspiracy to commit burglary, one count of conspiracy to commit robbery, one count of
attempted robbery with the use of a deadly weapon, and three counts of false imprisonment
with the use of a deadly weapon. Eighth Judicial District Court, Clark County; Michael L.
Douglas, Judge.
The supreme court, Rose, J., held that: (1) directing victims to back room of store after
defendant attempted to rob them was part of and incidental to attempted robbery, and thus
defendant could not be convicted of false imprisonment; (2) evidence was sufficient to show
that movement of other victims was beyond that required for robbery and substantially
increased risk of harm, so as to support convictions for first-degree kidnapping; {3) trial
court acted within its discretion in denying defendant's motion for substitution of
court-appointed counsel; {4) evidence was sufficient to support conviction for conspiracy
to commit burglary; and {5) evidence was insufficient to support conviction for conspiracy
to commit robbery.
........................................
port convictions for first-degree kidnapping; (3) trial court acted within its discretion in
denying defendant's motion for substitution of court-appointed counsel; (4) evidence was
sufficient to support conviction for conspiracy to commit burglary; and (5) evidence was
insufficient to support conviction for conspiracy to commit robbery.
JoNell Thomas, Las Vegas, for Appellant.
Tufteland, Chief Deputy District Attorney, and Jerome T. Tao, Deputy District Attorney,
1. Criminal Law.
Directing victims to back room of store after defendant attempted to rob them was
part of and incidental to attempted robbery, and thus defendant could not be convicted
of false imprisonment; defendant did not tie up individuals but merely closed door and
attempted to lock them in room.
2. Kidnapping.
Evidence was sufficient to show that movement of victims was beyond that required
for robbery and substantially increased risk of harm, so as to support convictions for
first-degree kidnapping; defendant ordered victims outside building to back of truck,
where he held them for 15 minutes before taking them into office, ordering them to lie
facedown, and binding them with duct tape, after which defendant demanded money
from them. NRS 200.310(1).
3. Criminal Law.
When a party challenges the sufficiency of the evidence on appeal in a criminal case,
the standard of review is whether, viewing the evidence in a light favorable to the
prosecution, a reasonable jury could have been convinced of the defendant's guilt
beyond a reasonable doubt.
4. Criminal Law.
The supreme court will not set aside a guilty verdict unless it determines that no
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.
5. Kidnapping.
First-degree kidnapping is the willful seizing, confining, or carrying away of a live
person. NRS 200.310(1).
6. Kidnapping.
To meet the asportation requirement of first-degree kidnapping when robbery is also
charged, the movement of the victim must be over and above that required to complete
the associated crime and must substantially increase the risk of harm beyond that
necessarily present in the crime of robbery itself. NRS 200.310(1).
7. Criminal Law.
Trial court acted within its discretion in denying defendant's motion for substitution
of court-appointed counsel in robbery prosecution; irreconcilable conflict did not exist
between defendant and counsel, motion would have resulted in unnecessary
inconvenience and delay if granted, and trial court conducted adequate inquiry into
defendant's complaint against counsel.
........................................
would have resulted in unnecessary inconvenience and delay if granted, and trial court
conducted adequate inquiry into defendant's complaint against counsel. U.S. Const.
amend. 6.
8. Criminal Law.
A defendant in a criminal trial does not have an unlimited right to the substitution of
9. Criminal Law.
Absent a showing of sufficient cause, a defendant is not entitled to the substitution
of court-appointed counsel at public expense. U.S. Const. amend. 6.
10. Criminal Law.
When there is a complete collapse of the attorney-client relationship, a refusal to
substitute court-appointed counsel violates a defendant's Sixth Amendment rights. U.S.
Const. amend. 6.
11. Criminal Law.
When reviewing a trial court's denial of a motion for substitution of court-appointed
counsel, three factors to consider are (1) the extent of the conflict between the
defendant and his or her counsel, (2) the timeliness of the motion and the extent to
which it will result in inconvenience or delay, and (3) the adequacy of the court's
inquiry into the defendant's complaints.
12. Criminal Law.
The supreme court reviews a trial court's denial of a motion to substitute
court-appointed counsel for an abuse of discretion.
13. Criminal Law.
Irreconcilable conflict did not exist between defendant and his court-appointed
counsel, for purpose of determining whether defendant was entitled to substitution of
counsel, even though defendant claimed that counsel had not contacted him, where
counsel visited defendant on numerous occasions and agreed to provide defendant with
discovery documents as requested. U.S. Const. amend. 6.
14. Criminal Law.
Defendant's motion for substitution of court-appointed counsel would have resulted
in unnecessary inconvenience and delay if granted, for purpose of determining whether
defendant was entitled to substitution of counsel, even though motion was timely in
sense that it was filed before actual start of trial; defendant made no attempt during
months after counsel was appointed to notify trial court that there was conflict with
counsel, and defendant waited until eve of trial to file motion in open court, which
suggested dilatory motive. U.S. Const. amend. 6.
15. Criminal Law.
Trial court conducted adequate inquiry into defendant's complaint against
court-appointed counsel, for purpose of determining whether defendant was entitled to
substitution of counsel, even though trial court did not hold in camera hearing;
defendant filed motion for substitution of counsel in open court but refused to speak to
trial court regarding his apparent complaint that counsel would not leave discovery
material with him at jail, counsel noted that he had spoken with defendant and reviewed
material with him, and there was little need for in camera hearing, considering that
counsel addressed trial court on motion and agreed to resolve issues in due course. U.S.
Const. amend. 6.
Sixth Amendment right to confrontation is applicable to the states by the Fourteenth
Amendment. U.S. Const. amends. 6, 14.
........................................
17. Criminal Law.
Under the Sixth Amendment, a defendant is entitled to present any relevant evidence
and testimony at trial that someone other than the defendant committed the offense,
provided that such evidence is admissible. U.S. Const. amend. 6.
Fifth Amendment is applicable to the states via the Fourteenth Amendment. U.S.
Const. amends. 5, 14.
19. Double Jeopardy.
Double jeopardy protects a criminal defendant (1) from a subsequent prosecution
following a conviction on the charges, (2) from a subsequent prosecution following an
acquittal, and (3) from multiple punishments for the same offense in a single trial. U.S.
Const. amend. 5.
20. Conspiracy.
Evidence was sufficient to support conviction for conspiracy to commit burglary;
defendant and coconspirators agreed to enter store and commit larceny. NRS 199.480,
205.060.
21. Conspiracy.
Evidence was insufficient to support conviction for conspiracy to commit robbery,
even though defendant and coconspirators agreed to commit burglary of store where
robbery victim was present; nothing established separate and distinct agreement
between defendant and coconspirators to rob victim. NRS 199.480, 200.380.
OPINION
On appeal, Ramon Jacobo Garcia argues that his convictions should be reversed because
(1) the jury instruction on false imprisonment must include an asportation requirement, (2)
the State presented insufficient evidence to support a verdict on kidnapping and false
imprisonment, (3) the district court failed to hold a hearing on his motion to dismiss counsel,
(4) the statutory reasonable doubt instruction is unconstitutional, (5) the district court failed to
permit cross-examination of certain non-adverse witnesses, and (6) the convictions for
conspiracy to commit robbery and conspiracy to commit burglary violate the Double Jeopardy
Clause. We hold that when a person is charged with false imprisonment and a separate
associated offense, an additional instruction stating that the false imprisonment requires a
factual basis independent of the associated crime is required. Accordingly, Garcia's
convictions for false imprisonment must be set aside. However, we conclude that the State
presented sufficient evidence on the charges of kidnapping, that the district court did not
abuse its discretion in failing to hold a hearing on Garcia's motion to dismiss counsel, and
that the reasonable doubt instruction required by NRS 175.211 is not unconstitutional.
........................................
that the reasonable doubt instruction required by NRS 175.211 is not unconstitutional. In
addition, we conclude that the record is insufficient to establish that the district court erred by
not permitting Garcia to cross-examine non-adverse witnesses at trial. Finally, we conclude
that the evidence produced at trial is insufficient to support Garcia's conviction on the charge
of conspiracy to commit robbery at the Silver Dollar Store, and we reverse the district court's
judgment of conviction on that charge but affirm the conspiracy to commit burglary charge.
FACTS
Garcia, along with his brother Juan Garcia (Juan) and two other codefendants, Juan Cota
(Cota) and Juan Castaneda (Castaneda), was charged with multiple counts of robbery,
kidnapping, and other related offenses stemming from the robbery of four businesses in Clark
County, Nevada, between July 23 and July 31, 2001. Cota and Castaneda pleaded guilty
before trial pursuant to plea negotiations. Following a five-day jury trial, Garcia was
convicted on all 12 counts of robbery, attempted robbery, first-degree kidnapping, and
conspiracy stemming from his participation in two of the four incidents. He was sentenced to
serve a minimum of 26 years and a maximum of 4 consecutive life sentences in the Nevada
Department of Corrections, and ordered to pay restitution in the amount of $4,900.
On the afternoon of July 23, 2001, Garcia and one of his coconspirators entered the
automotive shop known as Fuel Injection Systems located at 642 North Main Street in Las
Vegas, Nevada. The two men discussed having their vehicle repaired and then watched a
soccer game while waiting for the remaining customers to leave. Garcia then pointed a
handgun at Fernando Lozada, the owner of Fuel Injection Systems, and Remsjao Barre, one
of his employees. Garcia ordered Lozada and Barre to the back of the store, told them to lie
down on their stomachs, and bound their hands with duct tape. Garcia and his accomplice
then demanded money from Lozada and Barre, who gave them $300. The two men then
ransacked the store and fled with more than $3,000, along with a cordless telephone handset
and a cellular telephone.
Initially, Lozada identified Garcia and his brother as suspects from a photographic lineup.
However, at trial Lozada testified that Garcia was the assailant, and he exonerated Garcia's
brother Juan. Barre also identified Garcia as the man who robbed them, testifying that he was
100% certain that Garcia was the man. A Las Vegas Metropolitan Police Department
(LVMPD) crime scene analyst testified that she was unable to obtain fingerprints from the
crime scene.
........................................
Following the Fuel Injection Systems robbery, two robberies occurred at Carniceria Los
Alamitos and B&H Radiators on July 26 and 27, 2001, with similar factual circumstances.
The victims in each incident identified Garcia's brother Juan as one of the gunmen. However,
Garcia was not identified as an assailant in either incident and was not charged in connection
with those robberies.
The fourth robbery occurred on July 31, 2001, at the Silver Dollar Family Discount Store,
located at 33 North 25th Street in Las Vegas, Nevada. As the owner, Darryl Stuckert, returned
to the store he noticed an older model white Cadillac at the far end of the parking lot. Inside
the store were Stuckert's wife and four Hispanic men. One was a customer, and the other
three participated in the robbery. Garcia pointed his gun at Mr. Stuckert, and one of his two
accomplices pointed a gun at the customer who was still in the store. Mrs. Stuckert set off
two alarms, one silent and the other audible. The men ordered Mrs. Stuckert to open the cash
register, but she refused. Garcia ordered all three victims into the back office and directed one
of his accomplices to grab the cash register. Garcia ordered Mr. Stuckert to turn off the alarm,
but when he was unable to do so, Garcia unsuccessfully attempted to disarm it by smashing
the keypad with his gun. Garcia and his two accomplices were in the store for approximately
three to four minutes. Before leaving, Garcia locked the Stuckerts and the remaining
customer in the back office by throwing the deadbolt on the security door from the outside.
Fortunately, the three were able to escape the office by way of a side door that was not
locked.
The police investigated all four incidents and learned that Garcia, his brother Juan, Cota,
and Castaneda might be involved in the crimes. The four men lived together in an apartment a
few blocks from the locations of the crimes. The police conducted a search of the
apartmentinitially pursuant to consent from Juan, and subsequently with a warrant. As a
result, the police recovered several items including the cordless telephone handset taken from
Fuel Injection Systems and the cash register from the Silver Dollar Family Discount Store.
At trial, Garcia's girlfriend, Kacey Nicole Mix (Mix), testified that she stayed in the
apartment with the four men and that they drove a white Cadillac matching the description
Mr. Stuckert provided. She testified that there were guns in the apartment and that the group
had a lot of money in their possession, although to her knowledge none of them maintained a
job. Witnesses from both the Fuel Injection Systems and Silver Dollar robberies identified
Garcia from the photographic lineup shown to them by the LVMPD. The police arrested all
four men and charged Garcia with crimes stemming from the Fuel Injection Systems and
Silver Dollar Discount Store robberies.
........................................
Before trial, on August 21, 2003, Garcia filed a proper person motion to dismiss counsel
and motion for appointment of alternate counsel. Garcia's motion was based on his attorney's
alleged failure to (1) communicate with him, (2) investigate, (3) discuss Garcia's being forced
into plea bargains on January 1, 2003, (4) address mistaken information regarding prior
felonies and the influence of this information on the plea negotiations, and (5) investigate and
use available resources to obtain a fair sentence. Garcia filed the motion in open court, but he
refused to speak to the court regarding the matter. Garcia's attorney, Joseph Sciscento,
explained to the court that he had visited Garcia at the jail and discussed the case through an
interpreter because Garcia speaks only Spanish. Sciscento noted that he had gone over the
discovery with Garcia, but that he had refused to leave the discovery information with Garcia
at the jail out of concern that another inmate would have to translate the information and
could then testify against him at trial. The district court denied Garcia's motion. Sciscento
noted his concerns and agreed to deliver all discovery to Garcia for his review.
Following trial, the jury convicted Garcia of the following crimes for his participation in
the Fuel Injection Systems incident: one count of burglary while in possession of a firearm,
two counts of robbery with the use of a deadly weapon for taking money from Fernando
Lozada and Remsjao Barre, and two counts of first-degree kidnapping with the use of a
deadly weapon also pertaining to Lozada and Barre.
For his actions in the Silver Dollar Store, the jury convicted Garcia of: one count of
conspiracy to commit burglary, one count of burglary while in possession of a firearm, one
count of conspiracy to commit robbery, one count of attempted robbery with the use of a
deadly weapon for attempting to take money from Darryl Stuckert, Marie Stuckert, and
Leonardo Jeminez, and three counts of false imprisonment with the use of a deadly weapon
also involving the Stuckerts and Jeminez.
DISCUSSION
Jury instruction on false imprisonment
[Headnote 1]
Garcia argues that his convictions for false imprisonment in the Silver Dollar robbery must
be reversed because the district court did not properly instruct the jury on the elements of the
offense. Garcia contends that to convict him of false imprisonment, the jury had to find that
the detention of the victims was not incidental to the robbery. Garcia concedes that false
imprisonment is a lesser-included offense of the crime of kidnapping, but he argues that
because some movement or confinement is inherent in any robbery, punishment for
robbery and false imprisonment in this case amounts to a double punishment not
contemplated by the Legislature.
........................................
because some movement or confinement is inherent in any robbery, punishment for robbery
and false imprisonment in this case amounts to a double punishment not contemplated by the
Legislature.
While Garcia makes a logical argument concerning the need for a companion instruction
to the instruction dealing with false imprisonment, he failed to offer a proposed instruction
informing the jury that the false imprisonment counts could not be based on facts that are
incidental to the charged robbery if a robbery conviction was returned. Failure to offer a
proposed instruction in this situation ordinarily waives the issue for appellate review.
1
However, we conclude that convicting Garcia on the attempted robbery charge and also on
the false imprisonment charges violates our directive in Jefferson v. State,
2
and we address
this issue as plain error.
In Jefferson, the defendant told a counter clerk that this [was] a stick up, went behind the
counter, and took money from the cash register. He then told the female clerk to go to the
back room where she was told to undress and lie on her stomach. The clerk did this, and the
defendant then covered her eyes with a piece of cloth and tied her hands and feet.
3
At trial,
the defendant was convicted of both robbery and second-degree kidnapping. On appeal, we
struck the conviction for second-degree kidnapping because the charge was based on facts
that were part of and incidental to the robbery conviction. Specifically we stated:
[W]e now hold that where a person has been charged with second degree [kidnapping]
and a separate, associated crime, the charge of second degree [kidnapping] will lie only
where the movement of the victim is over and above that required to complete the
associated crime charged.
Applying this test to the case at hand, we do not believe that bringing the victim
from the counter to the back room during the course of robbery constitutes movement
beyond that required in the robbery. Therefore, the conviction for second degree
[kidnapping] must be set aside.
4

We see no difference between the facts of the case at bar and the facts in Jefferson. Garcia
attempted to rob three individuals and then directed them to a back room. He did not tie them
up, but merely closed the door and attempted to lock them in. Following our holding in
Jefferson, we conclude that the facts that are the basis of the false imprisonment
convictions are part of and incidental to the conviction of attempting to rob the three
individuals taken to the back room.
____________________

1
McKenna v. State, 114 Nev. 1044, 1052, 968 P.2d 739, 745 (1998) (noting that the [f]ailure 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).

2
95 Nev. 577, 599 P.2d 1043 (1979).

3
Id. at 578, 599 P.2d at 1043.

4
Id. at 579-80, 599 P.2d at 1044 (citation omitted).
........................................
our holding in Jefferson, we conclude that the facts that are the basis of the false
imprisonment convictions are part of and incidental to the conviction of attempting to rob the
three individuals taken to the back room. Accordingly, the convictions for false imprisonment
must be reversed.
Sufficiency of the evidence on the kidnapping charges
[Headnote 2]
Garcia was convicted of two counts of first-degree kidnapping with the use of a deadly
weapon relating to the Fuel Injection Systems incident. Garcia argues that there is insufficient
evidence to support those convictions under this court's holding in Wright v. State because, to
convict a defendant of both robbery and kidnapping arising from the same criminal incident,
the State must show that the movement of the victim or victims was beyond that required to
complete the associated robbery.
5

[Headnotes 3, 4]
When a party challenges the sufficiency of the evidence on appeal in a criminal case, the
standard of review is whether, viewing the evidence in a light favorable to the prosecution, a
reasonable jury could have been convinced of the defendant's guilt beyond a reasonable
doubt.
6
This court will not set aside a guilty verdict unless it determines that no rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.
7

In Wright, this court held that when a defendant is convicted of first-degree kidnapping
and an associated offense, the kidnapping conviction will not stand if the movement of the
victim was incidental to the associated offense and did not increase the risk of harm to the
victim beyond that of the associated crime.
8
Garcia notes numerous cases with similar
factual circumstances to the present case where the State either elected not to charge the
defendants with kidnapping or where the jury did not return a guilty verdict.
9
Garcia fails,
however, to address either the legal standards applicable to kidnapping or how the evidence
was insufficient to meet those requirements.
____________________

5
94 Nev. 415, 417, 581 P.2d 442, 443 (1978).

6
Lay v. State, 110 Nev. 1189, 1192, 886 P.2d 448, 450 (1994); Hutchins v. State, 110 Nev. 103, 107-08, 867
P.2d 1136, 1139 (1994).

7
Jackson v. Virginia, 443 U.S. 307, 319 (1979), cited with approval in Koza v. State, 100 Nev. 245, 250,
681 P.2d 44, 47 (1984).

8
94 Nev. at 417-18, 581 P.2d at 443-44.

9
Garcia cites Servin v. State, 117 Nev. 775, 32 P.3d 1277 (2001) (placing a woman confined to a wheelchair
in a bathroom not charged as kidnapping); Mulder v. State, 116 Nev. 1, 5, 992 P.2d 845, 847-48 (2000)
(defendant not charged with kidnapping when victim was bound with duct tape before robbery and murder);
State v. LaPena, 114 Nev. 1159, 1161, 968 P.2d 750, 751
........................................
applicable to kidnapping or how the evidence was insufficient to meet those requirements.
[Headnotes 5, 6]
Under Nevada law, first-degree kidnapping is the willful seizing, confining, or carrying
away of a live person.
10
While the language of NRS 200.310(1) does not include an
asportation requirement, this court requires it when the kidnapping is incidental to an
associated offense, such as robbery, that inherently involves the restraint of the victim.
11
To
meet the asportation requirement when robbery is also charged, the movement of the victim
must be over and above that required to complete the associated crime and must substantially
increase the risk of harm beyond that necessarily present in the crime of robbery itself.
12

In the present case, the evidence presented at trial demonstrated that during the Fuel
Injection Systems burglary, Garcia ordered the two victims outside the building to the back of
a truck, where he held them for 15 minutes at gunpoint before finally taking them into the
office, ordering them to lie facedown, and binding them with duct tape. The jury was properly
instructed that the kidnapping offenses could not be incidental to the robberies. We conclude
that based on these facts there is sufficient evidence for a reasonable juror to conclude that
Garcia committed first-degree kidnapping during the Fuel Injection Systems robbery.
Failure to hold a hearing on Garcia's motion to dismiss counsel
[Headnote 7]
Garcia argues that the district court abused its discretion by failing to hold a hearing on his
motion to remove counsel, in violation of his Sixth Amendment rights. At the August 21,
2003, calendar call, just a few days before his trial was scheduled to begin, Garcia filed a
written motion in open court to dismiss his counsel and for the appointment of new
counsel.
____________________
(1998) (defendant not charged with kidnapping when defendant tied up the victim during a robbery); Barrett v.
State, 105 Nev. 361, 364, 775 P.2d 1276, 1278 (1989) (no kidnapping charges when victim was sprayed with
mace and tied up during associated robbery); and Collier v. State, 103 Nev. 563, 564, 747 P.2d 225, 225 (1987)
(kidnapping charges not filed in case where victim was tied up and left in supermarket cooler during robbery and
murder).

10
Ducksworth v. State, 113 Nev. 780, 793, 942 P.2d 157, 166 (1997). NRS 200.310(1) provides:
A person who willfully seizes, confines, inveigles, entices . . . conceals, kidnaps or carries away a
person by any means whatsoever with the intent to hold or detain, or who holds or detains, the person . . .
for the purpose of committing sexual assault, extortion or robbery upon or from the person . . . is guilty of
kidnapping in the first degree which is a category A felony.

11
Hutchins, 110 Nev. at 108, 867 P.2d at 1139-40.

12
Wright, 94 Nev. at 417-18, 581 P.2d at 443-44.
........................................
cia filed a written motion in open court to dismiss his counsel and for the appointment of new
counsel. Garcia sought removal of counsel for the following reasons: (1) failure to
communicate, including failure to visit him at the Clark County Detention Center; (2) failure
to investigate; (3) failure to discuss his being forced into a plea bargain; (4) failure to address
mistaken information regarding prior felonies and the influence of this information on his
plea negotiations; and (5) failure to investigate and use available resources to obtain a fair
sentence. We conclude that the district court did not abuse its discretion by denying Garcia's
motion.
[Headnotes 8-12]
This court recently addressed the issue of the district court's denial of a motion to
substitute counsel in Young v. State.
13
In that case, we noted that we have previously held
that [w]here a motion for new counsel is made considerably in advance of trial, the [district]
court may not summarily deny the motion but must adequately inquire into the defendant's
grounds for it.'
14
Initially, it is important to note that a defendant in a criminal trial does not
have an unlimited right to the substitution of counsel.
15
Absent a showing of sufficient cause,
a defendant is not entitled to the substitution of court-appointed counsel at public expense.
16
Nevertheless, when there is a complete collapse of the attorney-client relationship, the refusal
to substitute counsel violates a defendant's Sixth Amendment rights.
17
Young set forth three
factors to consider when reviewing a district court's denial of a motion for substitution of
counsel. The three factors are: (1) the extent of the conflict between the defendant and his or
her counsel, (2) the timeliness of the motion and the extent to which it will result in
inconvenience or delay, and (3) the adequacy of the court's inquiry into the defendant's
complaints.
18
We review the district court's denial of a motion to substitute counsel for an
abuse of discretion.
19

(A) The extent of the conflict
[Headnote 13]
In Young, the court noted that there was a significant breakdown between Young and his
attorney. On five occasions Young complained to the court regarding the issue, twice filing
a motion to substitute counsel and consistently complaining that his attorney had not
been to see him, a problem that continued even after the court ordered weekly visits.
____________________

13
120 Nev. 963, 102 P.3d 572 (2004).

14
Id. at 968, 102 P.3d at 576 (quoting Gallego v. State, 117 Nev. 348, 363, 23 P.3d 227, 237 (2001)).

15
Id.

16
Id.

17
Id. at 968-69, 102 P.3d at 576.

18
Id. at 968-71, 102 P.3d at 576-78.

19
Id. at 968, 102 P.3d at 576.
........................................
plained to the court regarding the issue, twice filing a motion to substitute counsel and
consistently complaining that his attorney had not been to see him, a problem that continued
even after the court ordered weekly visits. Here, Garcia's attorney, Joseph Sciscento,
explained to the court that he visited Garcia at the jail and discussed the case through an
interpreter, as Garcia speaks only Spanish. Sciscento noted that he had reviewed the
discovery with Garcia but that he had refused to leave the discovery information with Garcia
at the jail because of concerns that another inmate would have to translate the information
and could then potentially testify against Garcia at trial. However, after voicing his concerns,
Sciscento agreed to deliver the discovery to Garcia for his review.
The facts of this case are distinguishable from Young. Garcia, in his motion, stated that
since Sciscento's appointment as counsel he had not been to see Garcia or contacted him by
telephone. The record belies this statement. Sciscento was appointed to represent Garcia on
January 23, 2003, replacing Garcia's previous counsel because an unspecified disability
prevented him from continuing representation. On February 25, 2003, Sciscento represented
to the court that he had spoken to Garcia numerous times throughout the week regarding an
offered plea negotiation. Given that Sciscento visited Garcia on numerous occasions, and
because he agreed to provide Garcia the discovery documents as requested, we conclude that
no irreconcilable conflict existed between Garcia and his court-appointed counsel.
(B) Timeliness of the motion and extent of inconvenience or delay
[Headnote 14]
As noted, the defendant in Young made multiple motions to substitute counsel over the
course of the three months leading up to the date his trial was scheduled to begin. This court
noted that had the district court acted on Young's motion in a timely manner, the resulting
inconvenience and delay would have been minimal.
20
Moreover, the court noted that
Young's motion was not made in bad faith or to curtail the administration of justice.
21

Here, Garcia filed his motion in open court at the August 21, 2003, calendar call, just days
before his trial was set to begin. As noted above, Sciscento was appointed to represent Garcia
in January 2003, and in the ensuing months he spoke with the defendant regarding discovery
and plea negotiations. However, at no time did Garcia attempt to notify the court that there
was a conflict with his counsel. Garcia had months to express his concerns to his counsel and
the court, but he did not do so.
____________________

20
Id. at 970, 102 P.3d at 577.

21
Id.
........................................
and the court, but he did not do so. He waited until the eve of trial and filed his motion in
open courta fact suggestive of a dilatory motive. The record indicates that Garcia's motion,
although timely in the sense that it was filed before the actual start of the trial, would have
resulted in unnecessary inconvenience and delay, if granted.
(C) Adequacy of the district court's inquiry
[Headnote 15]
In Young, this court discussed at length the requirement that the district court must make
an adequate inquiry into the defendant's complaint.
22
The court in Young determined that, in
the face of Young's repeated attempts to raise the issue, the district court conducted an
abbreviated inquiry into his motion even though Young repeatedly expressed concern over
the lack of attorney-client communication and his attorney's complete failure to file any
pretrial motions or contact witnesses.
23
More importantly, Young's attorney had visited him
only one time in the ten weeks before trial, in direct violation of a court order to make weekly
visitations with the defendant.
24

Here, Garcia filed his motion seeking the substitution of counsel in open court, but refused
to speak to the court regarding the matter, stating, I just want to turn this paperwork into
you, I don't want to speak. I don't want to speak, I just want to turn this paperwork into you.
His attorney, Mr. Sciscento, noted that he had spoken with Garcia and reviewed the discovery
with him through an interpreter. Garcia's real concern appears to be that his attorney would
not leave the discovery with him at the jail.
We conclude that the court's inquiry, although limited, was adequate under the
circumstances. There was little need to perform an in camera hearing in this case, especially
considering that Garcia's attorney addressed the court on the motion and agreed to resolve the
issues in due course. As such, the district court did not abuse its discretion by failing to hold a
hearing regarding Garcia's motion to substitute counsel.
Constitutionality of NRS 175.211
Garcia argues that the statutory reasonable doubt instruction is unconstitutional.
25
At trial,
Garcia offered various alternative instructions.
____________________

22
Id. at 970-71, 102 P.3d at 577-78.

23
Id. at 971, 102 P.3d at 577.

24
Id. at 967, 971, 102 P.3d at 575, 577.

25
Jury instruction number 5 is taken verbatim from NRS 175.211(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
........................................
structions. However, in Nevada, the definition of reasonable doubt is specified by statute and,
under NRS 175.211(2), no other jury instruction on reasonable doubt is permitted. Garcia
concedes that this court has repeatedly rejected challenges to the constitutionality of this
particular instruction.
26
Nonetheless, Garcia notes that he is preserving the issue for federal
appeal and argues that we should now overrule our prior cases. We decline to do so.
Cross-examination of non-adverse witnesses
Garcia attempted to cross-examine witnesses called by the State to testify regarding the
incidents at Los Alamitos and B&H Radiators. The State objected, arguing that because
Garcia was not charged with any crimes related to their testimony, the Sixth Amendment
right to confrontation was inapplicable. The district court sustained the State's objection.
Garcia's counsel then argued that because he would not be permitted to cross-examine the
witnesses, the State could not charge Garcia based upon a generalized conspiracy theory
stemming from the criminal incidents at B&H Radiators and Los Alamitos. As a result, the
State amended the charges to alleviate Garcia's counsel's concerns and remove any inference
that Garcia conspired in either of these two crimes.
Garcia argues on appeal that the district court violated his Sixth Amendment rights by
refusing his request. Garcia concedes that he was not charged with any crimes arising from
these incidents and that the testimony of the witnesses related instead to his brother Juan's
participation in the criminal acts that were the subject of their testimony. Garcia argues,
however, that because his defense theory was that this was a case of mistaken identity and
that it was his brother Juan who committed the crimes on all four occasions, the district court
should have permitted him to elicit testimony at trial from all of the State's witnesses.
[Headnotes 16, 17]
The Sixth Amendment to the United States Constitution provides a criminal defendant
with the fundamental right to confront and cross-examine witnesses against him at trial.
____________________
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.

26
Browning v. State, 120 Nev. 347, 359, 91 P.3d 39, 48 (2004); Mason v. State, 118 Nev. 554, 558, 51 P.3d
521, 524 (2002); Noonan v. State, 115 Nev. 184, 189, 980 P.2d 637, 640 (1999); Leonard v. State, 114 Nev.
1196, 1209, 969 P.2d 288, 296 (1998); Middleton v. State, 114 Nev. 1089, 1111-12, 968 P.2d 296, 311 (1998);
Elvik v. State, 114 Nev. 883, 898, 965 P.2d 281, 291 (1998); Chambers v. State, 113 Nev. 974, 982-83, 944
P.2d 805, 810 (1997);
........................................
cross-examine witnesses against him at trial.
27
The Sixth Amendment right to confrontation
is applicable to the states by the Fourteenth Amendment.
28
In Chambers v. Mississippi, the
United States Supreme Court stated:
The right of an accused in a criminal trial to due process is, in essence, the right to a
fair opportunity to defend against the State's accusations. The rights to confront and
cross-examine witnesses and to call witnesses in one's own behalf have long been
recognized as essential to due process.
29

Thus, provided it is admissible, a defendant is entitled to present any relevant evidence and
testimony at trial that someone other than the defendant committed the offense.
30

However, in this case, no specific objection appears on the record regarding Garcia's
argument that cross-examination was necessary to elicit evidence that his brother committed
all of the offenses, nor did Garcia's counsel make an offer of proof as to the supposed
testimony that would be elicited at trial. Furthermore, Garcia did not reserve the right or
attempt to re-call these witnesses during his case in chief. Therefore, because the record does
not show that Garcia was prevented from eliciting testimony from these witnesses pertaining
to his theory of the case, we perceive no Sixth Amendment violation.
Double jeopardy
As a result of the incident at the Silver Dollar Discount Store, the State charged Garcia and
his codefendants with one count of conspiracy to commit burglary by entering the Silver
Dollar Store with intent to commit a larceny therein, and one count of conspiracy to commit
robbery for an alleged agreement to steal Leonardo Jeminez's wallet and money once inside
the store. The jury convicted Garcia on both counts. Garcia argues on appeal that these dual
convictions violate the Double Jeopardy Clause of the Fifth Amendment.
____________________
Evans v. State, 112 Nev. 1172, 1191, 926 P.2d 265, 277-78 (1996); Bollinger v. State, 111 Nev. 1110, 1114-15,
901 P.2d 671, 674 (1995); Milton v. State, 111 Nev. 1487, 1492, 908 P.2d 684, 687 (1995); Lord v. State, 107
Nev. 28, 38-40, 806 P.2d 548, 554-56 (1991); see also Ramirez v. Hatcher, 136 F.3d 1209 (9th Cir. 1998)
(upholding the constitutionality of NRS 175.211(1)).

27
U.S. Const. amend. VI (In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him . . . .); Chambers v. Mississippi, 410 U.S. 284, 294 (1973).

28
Pointer v. Texas, 380 U.S. 400, 403 (1965).

29
410 U.S. at 294.

30
Cf. id. at 302-03.
........................................
[Headnotes 18, 19]
The Double Jeopardy Clause has been interpreted to encompass three distinct functions.
31
Double jeopardy protects a criminal defendant (1) from a subsequent prosecution following a
conviction on the charges, (2) from a subsequent prosecution following an acquittal, and (3)
from multiple punishments for the same offense in a single trial.
32
Garcia seeks protection
under the third prong of double jeopardy protection.
In Braverman v. United States, the United States Supreme Court held that when there is a
single agreement to commit one or more crimes it is unconstitutional for a state to punish a
defendant for multiple crimes in violation of a single statute.
33
The Court stated that [t]he
one agreement cannot be taken to be several agreements and hence several conspiracies
because it envisages the violation of several statutes rather than one . . . . The single
agreement is the prohibited conspiracy, and however diverse its objects it violates but a single
statute.
34
In Braverman, as a result of the illicit manufacture and distribution of distilled
spirits, the defendants were charged with seven separate counts of conspiracy to violate seven
separate and distinct sections of the Internal Revenue Code.
35
However, as the Court noted,
all seven charges in that case stemmed in fact from a single agreement to act in violation of
the code.
36

The application of the Braverman rule is an issue of first impression in Nevada. In
Braverman, the issue arose because the government conceded that only a single agreement to
commit the offenses was proven by the evidence before the jury.
37
As the Braverman Court
noted, Where each of the counts of an indictment alleges a conspiracy to violate a different
penal statute, it may be proper to conclude .
____________________

31
The Double Jeopardy Clause provides, [N]or shall any person be subject for the same offence to be twice
put in jeopardy of life or limb. U.S. Const. amend V. The Fifth Amendment is applicable to the states via the
Fourteenth Amendment. See North Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled on other grounds
by Alabama v. Smith, 490 U.S. 794 (1989).

32
Pearce, 395 U.S. at 717 ( If there is anything settled in the jurisprudence of England and America, it is
that no man can be twice lawfully punished for the same offence. And . . . there has never been any doubt of [this
rule's] entire and complete protection of the party when a second punishment is proposed in the same court, on
the same facts, for the same statutory offense' (quoting Ex parte Lange, 85 U.S. (18 Wall.) 163, 168 (1873))).

33
317 U.S. 49, 52-54 (1942).

34
Id. at 53-54.

35
Id. at 50-51.

36
See id. at 52, 53-54 (Since the single continuing agreement, which is the conspiracy here, thus embraces
its criminal objects, it differs from successive acts which violate a single penal statute and from a single act
which violates two statutes. (distinguishing Blockburger v. United States, 284 U.S. 299, 301-04 (1932))).

37
Id. at 52.
........................................
a conspiracy to violate a different penal statute, it may be proper to conclude . . . that several
conspiracies are charged rather than one, and that the conviction is for each.
38

Garcia argues that the State charged him with a single agreement to accomplish multiple
criminal purposes. The State disagrees, noting that it charged Garcia with multiple counts of
conspiracy to violate two different Nevada statutes and that under Nevada law a defendant
may be convicted of both robbery and burglary.
39

Here, the State did in fact charge Garcia with multiple counts of conspiracy: count
XXVIII, the conspiracy to commit burglary by entering the Silver Dollar Discount Store with
the intent to commit a larceny therein, and count XXIX, a separate and distinct charge of
conspiracy to commit robbery arising from the unlawful taking of Leonardo Jeminez's wallet.
The two crimes involve separate and distinct elements charged under NRS 200.380 and NRS
205.060 independently and in conjunction with Nevada's conspiracy statute, NRS 199.480.
40
To convict Garcia of conspiracy to commit burglary, the State was required to show that
Garcia and another agreed to enter the establishment with the intent to commit a felony
therein.
41
In contrast, to prove conspiracy to commit robbery, the State must show that
Garcia and another agreed to take Jeminez's property by force, fear, or threat.
42
Nevada law
specifically authorizes the prosecution for each crime committed during the commission of a
burglary.
43
Thus, it is constitutionally permissible to convict Garcia on both conspiracy to
commit burglary and conspiracy to commit robbery provided that the State was capable of
proving that two separate and distinct agreements to commit the two different crimes existed.
44

____________________

38
Id.

39
E.g., Rodriguez v. State, 117 Nev. 800, 813, 32 P.3d 773, 781 (2001); Bennett v. State, 106 Nev. 135, 142,
787 P.2d 797, 801-02 (1990) (noting that because NRS 205.070 specifically authorizes the prosecution for each
crime committed during the commission of a burglary, each crime can be used separately as an aggravating
circumstance at sentencing); Jones v. State, 95 Nev. 613, 620, 600 P.2d 247, 252 (1979) (holding that
convictions of burglary and robbery did not violate double jeopardy).

40
NRS 199.480(1) provides, [W]henever two or more persons conspire to commit murder, robbery, sexual
assault, kidnapping in the first or second degree, arson in the first or second degree, or [identity theft], each
person is guilty of a category B felony.

41
NRS 199.480; NRS 205.060.

42
NRS 199.480; NRS 200.380.

43
NRS 205.070.

44
See Zgombic v. State, 106 Nev. 571, 578, 798 P.2d 548, 552 (1990) (noting that Nevada has adopted the
analysis from Blockburger, 284 U.S. 299 (1932), to determine whether a violation of double jeopardy exists).
........................................
In Albernaz v. United States,
45
the United States Supreme Court upheld multiple
conspiracy convictions resulting in consecutive sentences when the conspiracy charges
stemmed from a single course of conduct involving the importation and distribution of
marijuana in violation of two distinct federal statutes.
46
The Court noted that because each of
the convictions required the proof of a fact that the other did not, there was no violation of
Blockburger,
47
and because two different statutes were involved the case was distinguishable
from Braverman.
48
The Court reasoned that because the two statutes at issue were directed to
combat distinct and separate social harms, it was permissible to convict and sentence the
defendant on conspiracy to violate each of the different statutes.
49
This is so because, as the
Court explained, it is the province of the Legislature to define criminal offenses and prescribe
correlative punishments.
50
Where consecutive sentences are imposed at a single criminal
trial, the role of the constitutional guarantee is limited to assuring that the court does not
exceed its legislative authorization by imposing multiple punishments for the same offense.'
51

[Headnotes 20, 21]
Returning to the case at hand, the facts elicited at trial indicate that Garcia and his
coconspirators agreed to enter the Silver Dollar Discount Store and commit a larceny. This
provided sufficient evidence to support the charge of conspiracy to commit burglary by
entering the store with the intent to commit larceny. However, the evidence to support the
charge of conspiracy to commit robbery by an agreement to rob Leonardo Jeminez is another
matter. Darryl Stuckert testified that one of the three assailants pointed a gun at Jeminez, a
customer who was shopping in the Silver Dollar Store, and took his wallet and money. The
testimony at trial fails to prove the existence of a separate and distinct agreement between the
three men to rob Jeminez. Garcia and the coconspirators did not know of Jeminez when they
entered the Silver Dollar Store, and there is insufficient evidence to establish an agreement to
rob this man once in the store.
____________________

45
450 U.S. 333 (1981).

46
Id. at 334-35.

47
Id. at 339.

48
Id. at 339-40.

49
Id. at 343.

50
Id. at 344.

51
Id. (citation omitted). It is well settled that a single transaction can give rise to distinct offenses under
separate statutes without violating the Double Jeopardy Clause. See, e.g., Harris v. United States, 359 U.S. 19
(1959); Gore v. United States, 357 U.S. 386 (1958). This is true even though the single transaction' is an
agreement or conspiracy. American Tobacco Co. v. United States, 328 U.S. 781 (1946). Albernaz, 450 U.S. at
345 n.3.
........................................
this man once in the store. Without proof of a separate agreement, Garcia's conviction for this
conspiracy cannot stand. For this reason, we reverse Garcia's conviction of conspiracy to rob
Jeminez at the Silver Dollar Store. Because the evidence is insufficient on this issue, it is
unnecessary to address Garcia's claim that Braverman applies, and we decline to do so.
CONCLUSION
The false imprisonment convictions were based on facts that were part of and incidental to
the attempted robbery conviction. We conclude that these three false imprisonment
convictions were redundant and must be reversed. We also conclude that the State presented
sufficient evidence to sustain Garcia's convictions for kidnapping and that the district court
did not err in failing to hold a hearing on Garcia's motion to dismiss counsel. Additionally,
we hold that Garcia's challenge to the reasonable doubt instruction required by NRS 175.211
is without merit. We further conclude that because no offer of proof was made at trial, the
record is insufficient to establish that the district court erred in denying Garcia the
opportunity to cross-examine certain non-adverse witnesses called by the State. Finally, we
hold that the evidence produced at trial is insufficient to support Garcia's conviction on the
charge of conspiracy to commit robbery for his actions in the Silver Dollar robbery.
Accordingly, we reverse the district court's judgment of conviction as to the charges of false
imprisonment and conspiracy to commit robbery and affirm Garcia's convictions on all other
charges.
____________
121 Nev. 345, 345 (2005) Wilson v. State
WILEY GENE WILSON, aka JOHN RAYMOND KRUIDENIER, Appellant, v.
THE STATE OF NEVADA, Respondent.
No. 42437
June 23, 2005 114 P.3d 285
Appeal from a judgment of conviction, upon jury verdict, of four counts of use of a minor
in the production of pornography and four counts of possession of visual presentations
depicting sexual conduct of a person under sixteen years of age. Eighth Judicial District
Court, Clark County; Michelle Leavitt, Judge.
The supreme court held that: (1) defendant's convictions on four counts of use of a minor
in producing pornography or as subject of sexual portrayal in performance were redundant,
requiring reversal of three of the four convictions; {2) possession of visual presentation
depicting sexual conduct of person under 16 years of age, i.e.,
........................................
of three of the four convictions; (2) possession of visual presentation depicting sexual
conduct of person under 16 years of age, i.e., possession of child pornography, was not
lesser-included offense of use of minor in producing pornography or as subject of sexual
portrayal in performance, i.e., production of child pornography; (3) trial court did not abuse
its discretion in ordering that defendant's standby counsel turn over copies of photographs
that defendant had taken of minor who was in various stages of undress that previous judge
permitted him to have in preparation for his defense; (4) any violation of Confrontation
Clause resulting from prosecutor's alleged conduct of rearranging courtroom layout to
reposition minor victim in attempt to have her testify with her back to defendant was
harmless; (5) defendant was not entitled to dismissal of charges for State's alleged failure to
commence trial within time required by Interstate Agreement on Detainers (IAD); (6) trial
court's representation to defendant that there was no procedure under state law for him to
compel the appearance of two out-of-state witnesses that he wanted to call to testify
constituted legal error; and (7) trial court did not abuse its discretion in denying defendant's
request to subpoena two out-of-state witnesses that defendant sought to testify at trial.
J. Chip Siegel, Chtd., and Joel Martin Mann and Jay L. Siegel, Las Vegas, for Appellant.
Tufteland, Chief Deputy District Attorney, and Craig L. Hendricks, Deputy District Attorney,
1. Criminal Law.
When defendant receives multiple convictions based on a single act, the supreme
court will reverse redundant convictions that do not comport with legislative intent.
2. Criminal Law.
After the facts are ascertained, an examination of whether multiple convictions are
improperly redundant begins with an examination of the statute at issue.
3. Criminal Law.
Defendant's convictions on four counts of use of a minor in producing pornography
or as subject of sexual portrayal in performance were redundant, requiring reversal of
three of the four convictions; focus of crime was on performance, not on way it was
documented, and thus defendant's conduct of taking four photographs of a minor in
various stages of undress constituted a single act, rather than four separate acts
punishable as separate violations. NRS 200.710.
........................................
4. Statutes.
Whenever possible, courts construe statutory language to avoid an absurd or
unreasonable result.
5. Obscenity.
The purpose of the child pornography statutes is to protect children from the harms
of sexual exploitation and prevent the distribution of child pornography. NRS
200.700200.760.
6. Double Jeopardy.
Under Blockburger test, which Nevada uses to determine whether multiple
convictions arising from a single incident are permissible, or to the contrary, if the
charges amount to a lesser-included offense that is barred by the Double Jeopardy
Clause, if the elements of one offense are entirely included within the elements of a
second offense, the first offense is a lesser-included offense and the Double Jeopardy
Clause prohibits a conviction for both offenses. This test ultimately resolves itself on
whether the provisions of each of the different statutes require the proof of a fact that
the other does not. U.S. Const. amend. 5.
Possession of visual presentation depicting sexual conduct of person under 16 years
of age, i.e., possession of child pornography, was not lesser-included offense of use of
minor in producing pornography or as subject of sexual portrayal in performance, i.e.,
production of child pornography. NRS 200.710, 200.730.
8. Criminal Law.
Trial court did not abuse its discretion in ordering that defendant's standby counsel
turn over copies of photographs that defendant had taken of minor who was in various
stages of undress that previous judge permitted him to have in preparation for his
defense, in prosecution for production and possession of child pornography, because
defendant had access to and possession of copies through standby counsel right up to
start of trial, he was able to have this evidence examined by experts in an effort to
prepare for trial had he wished to do so, and trial court ordered evidence turned over
only after standby counsel represented to court that it was no longer needed to prepare
the defense.
9. Criminal Law.
Trial court's order that defendant's standby counsel turn over copies of photographs
that defendant had taken of minor who was in various stages of undress that previous
judge permitted him to have in preparation for his defense, did not constitute violation
of district court rule providing that once application for an order has been made to
judge and is pending or has been denied by that judge, same application or motion
cannot again be made to same or a different judge, in prosecution for production and
possession of child pornography, because plain language of rule indicated that it
applied to an order that was pending or denied, not to modification of an outstanding
order when need supporting its issuance was no longer contested.
10. Criminal Law.
Prosecutor's alleged conduct of rearranging courtroom layout to reposition minor
victim in attempt to have her testify with her back to defendant could not be considered
to have violated defendant's right of confrontation, absent substantive proof to establish
exactly where prosecution positioned podium and how much of defendant's view of
victim was obstructed, in prosecution for production and possession of child
pornography; only evidence in record was defendant's own statements made when
he argued his motion for a mistrial and a hand-drawn rendering of courtroom
submitted as part of his appendix on appeal, and there was no testimony or affidavit
in record to establish how prosecutor's action blocked defendant's view of the child
during her testimony or confirming layout as drawn by defendant.
........................................
phy; only evidence in record was defendant's own statements made when he argued his
motion for a mistrial and a hand-drawn rendering of courtroom submitted as part of his
appendix on appeal, and there was no testimony or affidavit in record to establish how
prosecutor's action blocked defendant's view of the child during her testimony or
confirming layout as drawn by defendant. U.S. Const. amend. 6.
11. Criminal Law.
Any violation of Confrontation Clause resulting from prosecutor's alleged conduct of
rearranging courtroom layout to reposition minor victim in attempt to have her testify
with her back to defendant was harmless, in prosecution for production and possession
of child pornography, as there was evidence, including testimony from defendant's
sister, that defendant had taken photographs of victim as she was in various stages of
undress. U.S. Const. amend. 6.
12. Extradition and Detainers; States.
The Interstate Agreement on Detainers (IAD) is an interstate compact approved by
the United States Congress to which Nevada is a party. NRS 178.620.
13. Extradition and Detainers.
Requirement under Interstate Agreement on Detainers (IAD) that when, at State's
request, defendant is brought from another jurisdiction to face charges pending against
him, receiving state must try him within 120 days of his arrival, unless good cause is
shown for a delay is not absolute, and time period is tolled whenever defendant is either
unable to stand trial, or when delay is occasioned by defendant's own actions. NRS
178.620, 178.405.
Defendant was not entitled to dismissal of charges for State's alleged failure to
commence trial within time required by Interstate Agreement on Detainers (IAD), in
prosecution for production and possession of child pornography; period of 120 days set
forth in IAD that State had to try defendant, who had been transferred to State from
federal government, was tolled from date defendant's competency was first challenged
until he was deemed competent to stand trial, which in turn, meant that defendant had
been brought to trial within 105 days of being transferred to State. NRS 178.620.
Unavailability of two doctors who had treated defendant while he was in federal
custody to testify at hearing on defendant's motion to suppress his confession, which
unavailability defendant claimed was result of a delay in bringing him to trial in
violation of his rights under the Interstate Agreement on Detainers (IAD), did not
prejudice defendant, as he was not prevented from presenting evidence or testimony
pertaining to voluntariness of his confession. NRS 178.620.
16. Witnesses.
Defendant's right to produce an out-of-state witness under Uniform Act To Secure
the Attendance of Witnesses From Without a State in Criminal Proceedings is not
absolute. Under the Act, a trial court has discretion to issue a certificate summoning the
attendance of an out-of-state witness based on a determination that the witness is
material to the party's case. NRS 174.395174.445.
17. Criminal Law.
The supreme court reviews for an abuse of discretion a trial court's refusal to issue a
certificate summoning the attendance of an out-of-state witness pursuant to the
Uniform Act To Secure the Attendance of Witnesses From Without a State in
Criminal Proceedings.
........................................
witness pursuant to the Uniform Act To Secure the Attendance of Witnesses From
Without a State in Criminal Proceedings. NRS 174.395174.445.
18. Witnesses.
Where there are adequate substitutions for an out-of-state witness's testimony, it is
reasonable for a trial court to decline to compel the attendance of an out-of-state
witness, under the Uniform Act To Secure the Attendance of Witnesses From Without
a State in Criminal Proceedings. NRS 174.395174.445.
19. Witnesses.
Trial court's representation to defendant that there was no procedure under state law
for him to compel the appearance of two out-of-state witnesses that he wanted to call to
testify constituted legal error, in prosecution for production and possession of child
pornography, given that there was such a procedure set forth in the Uniform Act To
Secure the Attendance of Witnesses From Without a State in Criminal Proceedings.
NRS 174.395174.445.
20. Witnesses.
Trial court did not abuse its discretion in denying defendant's request to subpoena
two out-of-state witnesses that defendant sought to testify at trial, in prosecution for
production and possession of child pornography, as defendant failed to show how
testimony of two witnesses would have assisted him. NRS 174.395174.445.
There is no requirement that the State allege exact dates unless the situation is one in
which time is an element of the crime charged; instead, the State may provide
approximate dates on which it is believed that the crime occurred. NRS 173.075(1).
22. Criminal Law; Indictment and Information.
Error in the indictment, which accused defendant of committing production and
possession of child pornography on or 10th day of November . . . and the 18th day of
November was not so egregious that it deprived defendant of adequate notice of
charges against him or prejudiced him to such an extent that he was unable to
adequately defend against charges; defendant argued that he believed the State was
charging him with committing the crimes on the specific dates of November 10th and
18th, rather than a span of dates from the 10th to the 18th, but defendant made
representations to the trial court which indicated that he was aware that the State was
accusing him of crimes between the dates listed. NRS 173.075(1).
OPINION
Per Curiam:
While running an errand with the 10-year-old daughter of a family friend, Wiley Gene
Wilson stopped at a local Wal-Mart store to buy new clothes for the girl because she had
urinated in her pants. Wilson also purchased a Polaroid camera and film. Wilson then took
photographs of the girl in various stages of undress and in various sexually suggestive poses
as she changed clothes in the back of his Ford Bronco.
........................................
sexually suggestive poses as she changed clothes in the back of his Ford Bronco. The State
charged Wilson by indictment with four counts of using a minor in the production of
pornography and four counts of possession of a visual presentation depicting sexual conduct
of a person under 16 years of age. Following a jury trial, Wilson was convicted on all eight
counts and sentenced to four terms of 24 to 72 months on the possession charges to run
concurrently with four consecutive terms of life with the possibility of parole after ten years
for the production charges. The district court further ordered that all sentences were to run
consecutively to any remaining time on the federal prison sentence Wilson was currently
serving.
Wilson appeals his conviction arguing that (1) it violates double jeopardy because he was
convicted on four counts of production of child pornography arising out of a single incident,
(2) it violates double jeopardy because the four charges of possession of child pornography
are lesser-included offenses to the four production charges, (3) the district court erred by
denying Wilson possession of material evidence (the photographs) against him at trial, (4) the
district court violated his Sixth Amendment right to confront his accuser, (5) the district court
erred by denying Wilson's motion to dismiss based on the State's alleged failure to meet the
120-day deadline under the Interstate Agreement on Detainers, (6) the district court failed to
compel the testimony of material witnesses for the defense, and (7) the indictment failed to
adequately advise Wilson of the charges such that he could prepare a defense. We reverse
three of Wilson's four convictions for production of child pornography and remand the case to
the district court for resentencing as appropriate. However, we conclude that Wilson's
remaining arguments on appeal lack merit.
FACTS
In September of 2001, the victim's father (Keith) moved from Hawaii to Las Vegas along
with his ten-year-old daughter (M.T.), his four-year-old son, and a family friend named Faye.
Keith was looking for work but was unable to secure employment, and the family was having
difficulties making ends meet. Sometime during September, Wilson approached Keith, who
was sitting on a park bench eating a sack lunch with his children. Wilson introduced himself
as Sean Thomas and asked Keith if he was looking for work. Wilson offered Keith work
remodeling his travel trailer and agreed to allow Keith's family to live in the trailer while
Keith was doing the remodel work.
On November 15, 2001, Keith was attempting to fix a problem with the satellite dish
receiver in the trailer. Wilson took the receiver down to the satellite company to see if they
could fix it. The first time he left, Wilson took both of Keith's children with him, and he was
gone for about an hour and a half.
........................................
and he was gone for about an hour and a half. Wilson returned to the trailer with a new
receiver, but this one also did not work. After calling the satellite company a second time,
Wilson decided to return to the satellite company with the new receiver. This time only M.T.
accompanied Wilson, and the two of them were gone about 2 hours. Upon their return,
Keith noticed that M.T. was wearing different clothes.
Apparently, on the way to the satellite company Wilson and M.T. were tied up in traffic on
the freeway and M.T. urinated on herself, soaking her pants. M.T. testified that after she
urinated in her clothing, Wilson took her to Wal-Mart to buy her some new clothes. At the
Wal-Mart store Wilson purchased a bathing suit for M.T. along with a Polaroid camera and
instant film. M.T. testified that Wilson told her to take her clothes off and that he would take
pictures of her. M.T. took off her pants and underwear, and Wilson proceeded to take
photographs of her. Wilson told M.T. how to pose in various positions and took additional
photographs of her. After Wilson was done taking the pictures, M.T. got dressed in the
clothes Wilson purchased for her. M.T. testified that she saw Wilson put the pictures in the
glove compartment of his Ford Bronco. Four photographs were taken.
A day or two later, Wilson drove Keith and his two children to the Stardust because Keith
had a job interview. On the way home the police pulled Wilson over and arrested him on an
outstanding warrant unrelated to the present charge. Keith testified that the arresting officers
searched the Bronco but did not look in the glove compartment. Wilson gave Keith the keys
to the Bronco, and some officers followed Keith back to the trailer. Once there, Keith locked
the truck and the officers took possession of the keys.
About an hour and a half after his arrest, Wilson called Keith and said that his arrest was a
mistake. Wilson asked to talk to M.T., and Keith allowed Wilson to talk to his daughter
because she was upset. About an hour after Wilson's call, Keith received a second telephone
call from Wilson's sister, Virgie Marie Barerra. Sometime after Wilson talked to M.T., she
told her father that Wilson had taken pictures of her.
Barerra testified that before calling Keith she received a call from Wilson, who asked her
to retrieve some photographs from the glove compartment of his Bronco. Barerra testified
that Wilson said the photographs were really, really gross and asked her not to look at them
but to take them home and destroy them. Barerra told Wilson that she thought it was illegal
for her to open the Bronco, but he said that because the Bronco was actually registered in her
name she was permitted to do what he asked.
Barerra testified that along with her husband, Thomas Barerra, she went over to the trailer
where Keith and his two children lived to retrieve the photographs.
........................................
to retrieve the photographs. The Barerras went out to the Bronco to retrieve the pictures, and
Keith went with them. The glove compartment was locked, so Barerra told her husband to
break it open with a screwdriver. The three of them removed papers, envelopes, and the
vehicle's manual from the glove box. Eventually, they discovered a number of photographs
stashed in the manual. The three of them went into the travel trailer and called the Las Vegas
Metropolitan Police Department.
When Officer Darrell Rhoads arrived at the trailer he spoke to Keith and Barerra, who
gave him consistent accounts of what had occurred that evening. They gave the officer the
pictures they found in the glove box. Both Officer Rhoads and Detective Marvel Courtney
attempted to talk with M.T. about the pictures, but she was unresponsive. Eventually,
Detective Cheryl Hooten, with the sexual assault detail, interviewed M.T., and M.T. told her
about the incident. Detective Hooten testified that M.T. told her that after she urinated in her
clothing Wilson took her to a Wal-Mart store where he purchased a new camera along with a
change of clothes. Hooten further testified that M.T. told Hooten that Wilson instructed her to
change clothes and took pictures of her as she did.
Barerra consented to a search of the Bronco, and the police ultimately conducted a search
of both the Bronco and the travel trailer pursuant to a warrant. The police found a Polaroid
camera inside the center console of the Bronco. On the bathroom floor of the travel trailer the
police found a plastic Wal-Mart shopping bag containing clothes with urine on them. In
addition, the police recovered a Wal-Mart sales receipt. The receipt, dated November 15,
2001, indicated that the items bought that day included a crop bralet, a cover-up, an instant
camera, and instant film, totaling $51.07.
Detective Courtney contacted Wilson while he was incarcerated at the North Las Vegas
Detention Center. Detective Courtney read Wilson his Miranda
1
rights, and Wilson signed a
waiver acknowledging that he understood them. Wilson admitted to Detective Courtney that
he purchased the camera on the same day the pictures were allegedly taken. At one point
Wilson called his brother-in-law, Thomas Barerra, and told him that the police had visited
him in jail that day, that he had admitted that he took the pictures, and that he needed help.
Wilson also admitted to his sister, Virgie Barerra, that he took the pictures and that he was
sorry for what he did.
On January 20, 2003, Wilson arrived at the Clark County Detention Center (CCDC) on
loan from the federal government through the Interstate Agreement on Detainers (IAD). The
State indicted Wilson on four counts of use of a minor in producing pornography and four
counts of possession of a visual presentation depicting sexual conduct of a person under
16 years of age.
____________________

1
Miranda v. Arizona, 384 U.S. 436 (1966).
........................................
dicted Wilson on four counts of use of a minor in producing pornography and four counts of
possession of a visual presentation depicting sexual conduct of a person under 16 years of
age. At the time of arraignment, Wilson invoked his right to a speedy trial under the IAD. The
court, noting that under the IAD Wilson's trial must begin within 120 days of January 20,
2003, set a trial date for March 20, 2003, and made arrangements to have a public defender
appointed to the case.
At the calendar call on March 17, 2003, Wilson's attorney from the public defender's office
notified the court that based on the report of a psychologist he believed Wilson was not
competent to stand trial. Consequently, Wilson underwent a second psychological evaluation,
and on March 26, 2003, the court reviewed the two psychological reports and ordered Wilson
committed for further evaluation to determine if he was competent to stand trial. The order of
commitment was signed on March 31, 2003. However, on April 9, 2003, the State informed
the district court that because the federal authorities considered Wilson an escape risk, the
facilities selected for observation were inadequate to house him. The State requested to have
Wilson evaluated by its own doctors, and the district court issued an order for a psychiatric
examination. As he did on each prior occasion, Wilson objected and expressed concerns to
the district court that he was not insane and reiterated his right to a speedy trial under the
120-day requirement of the IAD. The district court explained to Wilson that once his own
attorney challenged his competence before the court, the proceedings were tolled and that
after the district court could establish his competency the proceedings would continue.
On April 30, 2003, the district court reviewed the psychological report submitted by the
State, which concurred with the reports submitted earlier, and stated that Wilson was not
competent to stand trial. At the suggestion of both Wilson and the State prosecutor, the
district court determined that it should hold a competency hearing to determine whether
Wilson was competent to stand trial. On May 16 and 21, 2003, the district court heard
testimony from four doctors. Wilson again argued that he was competent to stand trial and
filed in open court a motion to dismiss, arguing that the State failed to meet the 120-day
deadline under the IAD.
On June 4, 2003, the district court deemed Wilson competent to stand trial. Wilson
indicated that pursuant to Faretta v. California
2
he would like to represent himself at trial.
On June 9, 2003, the district court conducted a full Faretta canvass and deemed Wilson
competent to represent himself.
3
At that time, the district court appointed Jonathan
MacArthur as Wilson's standby counsel and Robert Lawson as his investigator.
____________________

2
422 U.S. 806 (1975).

3
In Nevada, guidelines for such a canvass are set forth in SCR 253. See Harris v. State, 113 Nev. 799,
801-02, 942 P.2d 151, 153-54 (1997).
........................................
pointed Jonathan MacArthur as Wilson's standby counsel and Robert Lawson as his
investigator. On that date, the district court heard Wilson's motion to dismiss and denied the
motion, explaining that because Wilson's own attorneys challenged his competency, the
district court was forced to stay the proceedings until his competency was fully evaluated by
the court.
On July 7, 2003, Wilson filed a motion for discovery seeking copies of the photographs
that were in evidence from the grand jury proceedings. The district court ordered copies of the
pictures delivered to Wilson. Two days later on July 9, 2003, Wilson renewed his motion for
discovery because the pictures still had not been provided by the State. The State argued that
if Wilson took possession of the pictures they would be confiscated as contraband as soon as
he returned to the detention center. At the suggestion of Wilson's standby counsel, the district
court ordered that copies be made of the pictures and that they be released into the custody of
Wilson's standby counsel so that he could review them as necessary.
Wilson brought various motions prior to trial, including a motion for reconsideration of
the district court's denial of his motion to dismiss for violating the 120-day requirement under
the IAD, a motion to quash the State's motion to permit evidence of prior bad acts, and a
motion for forensic testing of the photographs, which was later withdrawn when Wilson was
notified that the time required would force him to waive his IAD rights. Wilson also notified
the district court that he was having difficulty getting his sister and niece who were living in
California to testify on his behalf. The district court told Wilson's investigator to take steps to
procure their testimony and to obtain two tickets for the California witnesses' travel.
The trial commenced on July 23, 2003. On that day, prior to jury selection and outside the
presence of the jury, the State renewed its objection to Wilson's possession of the
photographs through his standby counsel. The district court inquired of standby counsel as to
why the defense needed copies of the pictures. Counsel replied that it obtained copies
pursuant to a court order issued by Judge Lee A. Gates. Wilson's standby counsel indicated to
the district court that the defense no longer had a need to maintain possession of the
photographs but argued that the order specifically allowed the defense to maintain possession
of the photographs until the end of trial. The district court, finding no compelling reason for
the defense to maintain possession of the photographs, ordered counsel to turn them over to
the court clerk and ordered that they be available to Wilson through standby counsel as
needed at any time.
On July 24, 2003, Wilson notified the district court that he was still having difficulty
getting his sister and niece to testify at trial.
........................................
Wilson, his investigator, and the State all indicated that they were having trouble contacting
the two witnesses. The district court ordered Wilson's investigator and standby counsel to use
every means necessary to obtain their attendance, but indicated that the court did not have the
power to compel the attendance of individuals residing outside the state.
During trial, Wilson filed a motion for a new trial, arguing that the State violated his right
of confrontation when the prosecuting attorney rearranged the courtroom by moving the
podium across the room so that M.T. had her back to the defense table while testifying. The
district court, interpreting the motion as a motion for a mistrial, denied the motion, noting that
M.T. testified in open court, with the defendant present, and that he had ample opportunity to
cross-examine the witness on the stand.
On July 29, 2003, the jury returned a verdict of guilty on all eight counts of the indictment.
Wilson, through standby counsel, argued that each of the four possession charges constituted
a lesser-included offense of the four production charges and should be dismissed. The district
court denied the motion, noting that the possession and production charges have separate and
distinct elements. The district court sentenced Wilson to four terms of life with the possibility
of parole after 10 years for the production of child pornography, each sentence to run
consecutively, and four terms of 24 to 72 months on the possession of child pornography
charges, to run concurrently to the other charges of the indictment. The district court further
ordered that the entire sentence was to run consecutive to any remaining time on the federal
sentence Wilson was currently serving.
DISCUSSION
Redundant convictions
[Headnotes 1, 2]
Wilson argues that his four convictions for using a child in a sexual performance are
redundant convictions because they involved the use of a child in a single sexual
performance. While often discussed along with double jeopardy, a claim that convictions are
redundant stems from the legislation itself and the conclusion that it was not the legislative
intent to separately punish multiple acts that occur close in time and make up one course of
criminal conduct. We have declared convictions redundant when the facts forming the basis
for two crimes overlap,
4
when the statutory language indicates one rather than multiple
criminal violations was contemplated,
5
and when legislative history shows that an
ambiguous statute was intended to assess one punishment.
____________________

4
Jefferson v. State, 95 Nev. 577, 599 P.2d 1043 (1979).

5
Ebeling v. State, 120 Nev. 401, 404, 91 P.3d 599, 601 (2004).
........................................
biguous statute was intended to assess one punishment.
6
When a defendant receives
multiple convictions based on a single act, this court will reverse redundant convictions that
do not comport with legislative intent. '
7
After the facts are ascertained, an examination of
whether multiple convictions are improperly redundant begins with an examination of the
statute.
8

[Headnote 3]
NRS 200.710 states:
1. A person who knowingly uses, encourages, entices or permits a minor to simulate
or engage in or assist others to simulate or engage in sexual conduct to produce a
performance is guilty of a category A felony and shall be punished as provided in NRS
200.750.
2. A person who knowingly uses, encourages, entices, coerces or permits a minor to
be the subject of a sexual portrayal in a performance is guilty of a category A felony
and shall be punished as provided in NRS 200.750, regardless of whether the minor is
aware that the sexual portrayal is part of a performance.
The clear import of both subsections is to criminalize the use of a child in a performance
involving a sexual act or portrayal.
The threshold issue is whether Wilson committed a single act or four individual acts that
are punishable as separate violations of NRS 200.710. The statute punishes a defendant for
knowingly using, encouraging, or permitting a minor to simulate or engage in sexual conduct
to produce a performance, or to be the subject of a sexual portrayal in a performance. As
opposed to some statutes that make it a crime to produce child pornography
9
or to possess
child pornography,
10
both subsections of NRS 200.710 focus on the use of a minor in the
performance of a sexual act or sexual portrayal.
____________________

6
Carter v. State, 98 Nev. 331, 334-35, 647 P.2d 374, 376 (1982) (prohibiting the imposition of multiple
sentence enhancements pursuant to two different statutes and noting that [w]here the legislative intent of a
criminal statute is ambiguous, the statute must be strictly construed against imposition of a penalty for which it
does not provide clear notice).

7
Ebeling, 120 Nev. at 404, 91 P.3d at 601 (quoting State v. Koseck, 113 Nev. 477, 479, 936 P.2d 836, 837
(1997) (quoting Albitre v. State, 103 Nev. 281, 283, 738 P.2d 1307, 1309 (1987))).

8
Mangarella v. State, 117 Nev. 130, 133, 17 P.3d 989, 991 (2001) (Statutes should be given their plain
meaning and must be construed as a whole and not be read in a way that would render words or phrases
superfluous or make a provision nugatory.' (quoting Charlie Brown Constr. Co. v. Boulder City, 106 Nev. 497,
502, 797 P.2d 946, 949 (1990), overruled on other grounds by Calloway v. City of Reno, 116 Nev. 250, 993
P.2d 1259 (2000))).

9
NRS 200.725.

10
NRS 200.730.
........................................
the use of a minor in the performance of a sexual act or sexual portrayal. The performance
can be done in any wayin a play, a dance or other visual presentation, or by film,
photograph, computer-generated image or electronic representation.
11
But the crux of the
prohibited conduct is the use of a minor in a sexual performance and not how the
performance is otherwise recorded or documented.
[Headnote 4]
Wilson argues that there was but one instance where he took four pictures of a minor's
performance in various stages of undress. To prove the point, Wilson analogizes his four
pictures to the making of a motion picture film, which, under the State's interpretation of the
statute would amount to 24 separate violations of the statute per second of film. As Wilson
points out, this would be the equivalent of 1440 violations of NRS 200.710 per minute of
film. This would obviously be an absurd result, and whenever possible, we construe statutory
language to avoid an absurd or unreasonable result.
12
Had Wilson made a film of the minor
instead of taking photographs, he would have committed only a single violation and be
subject to one punishment. The State admitted during oral argument that this would be the
case if Wilson used film. The two disparate results between the use of film and photographs
demonstrates to us that the focus of the crime must be on the performance and not on the way
it is documented.
The State points to the definition of performance that is contained in the child pornography
statutes. The word performance is defined as any play, film, photograph,
computer-generated image, electronic representation, dance or other visual presentation.
13
This definition of a performance is broad and covers various types of performances that can
be considered sexual in nature as well as how those performances are recorded. But
notwithstanding this broad definition, it is the use of a child in a sexual performance that is
prohibited under NRS 200.710, and that performance can be of any type and documented in
any manner.
In addition to the statutory language, Wilson directs our attention to our recent decision in
Crowley v. State
14
and asserts that his act of photographing the victim should be treated as
one event. In Crowley, the defendant rubbed the victim's underwear before pulling down his
pants and performing fellatio on him.
15
We reasoned that because the act of rubbing the
victim outside of his pants was a prelude to the other acts that followed, the conduct was
incidental to the sexual assault and should be treated as one episode.
____________________

11
NRS 200.700(1).

12
Speer v. State, 116 Nev. 677, 679, 5 P.3d 1063, 1064 (2000).

13
NRS 200.700(1).

14
120 Nev. 30, 83 P.3d 282 (2004).

15
Id. at 34, 83 P.3d at 285.
........................................
pants was a prelude to the other acts that followed, the conduct was incidental to the sexual
assault and should be treated as one episode.
16
In the case at bar, the four pictures were taken
in a short period of time with Wilson pausing only to reposition the child. The facts and
holding of Crowley are very similar to this case.
[Headnote 5]
The purpose of Nevada's child pornography statutes is to protect children from the harms
of sexual exploitation and prevent the distribution of child pornography.
17
As such, the intent
of the Legislature in passing NRS 200.700 to 200.760, inclusive, was to criminalize the use of
children in the production of child pornography, not to punish a defendant for multiple counts
of production dictated by the number of images taken of one child, on one day, all at the same
time. If the Legislature intended this statute to punish a party for every individual photograph
produced of a sexual performance, it certainly could have effectuated that intent in the statute.
Therefore, we conclude that the facts of this case demonstrate a single violation of NRS
200.710, not multiple acts in violation of the law.
Because of the language of the statute that focuses on the use of a minor in a sexual
performance and our recent decision in Crowley, we reverse three of Wilson's four
convictions for the use of a child as the subject in the performance of a sexual portrayal or
act. Given this conclusion, it is unnecessary to determine whether the multiple convictions for
the use of a minor in a sexual performance violate the Due Process Clause of either the
Nevada or United States Constitution.
Double Jeopardy Clause
Wilson next argues that his conviction on four counts of possession of child pornography
under NRS 200.730 violates double jeopardy because those counts are lesser-included
offenses of the production charges.
[Headnote 6]
Nevada uses the Blockburger
18
test to determine whether multiple convictions arising
from a single incident are permissible, or to the contrary, if the charges amount to a
lesser-included offense that is barred by double jeopardy.
19
Under this test, if the
elements of one offense are entirely included within the elements of a second offense, the
first offense is a lesser included offense and the Double Jeopardy Clause prohibits a
conviction for both offenses."
____________________

16
Id. at 34, 83 P.3d at 285-86.

17
State v. Dist. Ct. (Epperson), 120 Nev. 254, 263, 89 P.3d 663, 668 (2004).

18
Blockburger v. United States, 284 U.S. 299 (1932).

19
E.g., Salazar v. State, 119 Nev. 224, 227, 70 P.3d 749, 751 (2003).
........................................
of one offense are entirely included within the elements of a second offense, the first offense
is a lesser included offense and the Double Jeopardy Clause prohibits a conviction for both
offenses. '
20
The test ultimately resolves itself on whether the provisions of each of the
different statutes require the proof of a fact that the other does not.
21

[Headnote 7]
The two statutes involved are NRS 200.710 and NRS 200.730. Comparing the two, NRS
200.710 requires that a person knowingly use, encourage, entice, coerce or permit a minor to
engage in or be the subject of a sexual portrayal in a performance. NRS 200.730 requires that
a person knowingly and willfully possess a film, photograph or other visual presentation
depicting a person under the age of 16 years as the subject of a sexual portrayal or engaging
in or simulating . . . sexual conduct.
We conclude that the production charge required only that Wilson utilize a minor in the
performance of a sexual portrayal, whereas the possession statute requires that he maintain
possession of the photograph memorializing the pornographic performance. The production
crime was completed when Wilson had the minor pose in sexually explicit positions. He then
photographed the activity so that he could memorialize it for later review. The fact that he
maintained possession, until he was arrested days later on an unrelated offense, amounts to
the commission of a separate and distinct crime from the initial production of the
photographs.
The crime of possession of child pornography is not a lesser-included offense to the
production of child pornography as defined by Nevada law. Consequently, NRS 200.710 and
NRS 200.730 are not mutually exclusive and, as this case aptly demonstrates, a violation of
each requires proof of an element that the other does not. Therefore, we affirm Wilson's four
convictions for the possession of child pornography.
District court's refusal to permit Wilson possession of the photographs
The State charged Wilson with the production and possession of child pornography. The
actual pornographic photographs taken of the minor victim were material pieces of evidence
against Wilson at trial. Wilson argues that the district court committed reversible error when
it ordered that Wilson's standby counsel turn over the copies of the pictures that a previous
judge permitted him to have in preparation of his defense.
____________________

20
Id. (quoting Williams v. State, 118 Nev. 536, 548, 50 P.3d 1116, 1124 (2002) (quoting Barton v. State, 117
Nev. 686, 692, 30 P.3d 1103, 1107 (2001))).

21
Blockburger, 284 U.S. at 304.
........................................
copies of the pictures that a previous judge permitted him to have in preparation of his
defense.
Wilson argues on appeal that the district court's denial of possession of the pictures
violated due process and his Sixth Amendment right to the effective assistance of counsel,
citing State v. District Court (Epperson).
22
In Epperson, the State sought to prevent the
defense from obtaining a copy of a pornographic video that was part of the discoverable
evidence.
23
The State refused to copy the video for defense counsel to review with experts in
preparation of a defense, arguing that Nevada's child pornography statutes, NRS 200.710 to
200.730, prohibit the reproduction of child pornography, but the State provided defense
counsel access to view the video at its office.
24
This court held that [b]ecause nothing in
NRS 174.235 or NRS 200.710 to 200.735 precludes child pornography from being copied for
the purpose of defending criminal charges, the Epperson defendants had a right to possess a
copy of the videotape to prepare for trial, provided that certain restrictions were met.
25

[Headnote 8]
We conclude that this case is distinguishable from Epperson. In Epperson, the defense was
able to show that it was unable to adequately prepare for trial because it was denied physical
possession of the evidence before trial. Here, Wilson had access to and possession of the
evidence through standby counsel right up to the start of trial. He was able to have it
examined by experts in an effort to prepare for trial had he wished to do so. The district court
ordered the evidence turned over only after standby counsel represented to the court that it
was no longer needed to prepare Wilson's defense. The fact that it was turned over on the first
day of trial, to remain with the clerk or entered into evidence as the case may warrant, did not
prevent Wilson's access to the evidence provided he could demonstrate a further need for it.
[Headnote 9]
Furthermore, Wilson makes no argument as to how or why access, instead of possession,
in any way prejudiced his ability to mount an adequate defense. Wilson does argue that Judge
Leavitt abused her discretion and violated EDCR 7.12. EDCR 7.12 provides that once an
application or writ for an order has been made to a judge and is pending or has been denied
by that judge, the same application or motion cannot again be made to the same or a different
judge. Contrary to Wilson's argument, the plain language of the rule indicates that it applies
to a motion or order that is pending or denied, not to the modification of an outstanding
order when the need supporting its issuance is no longer contested.
____________________

22
120 Nev. 254, 89 P.3d 663.

23
Id. at 258-59, 89 P.3d at 665-68.

24
Id.

25
Id. at 262, 89 P.3d at 668.
........................................
is pending or denied, not to the modification of an outstanding order when the need
supporting its issuance is no longer contested. Wilson bases his argument on the overriding
public policy of preventing forum shopping. We conclude that Wilson's argument is
unpersuasive, and the district court did not violate the rule or abuse its discretion.
Confrontation Clause
Wilson contends that his Sixth Amendment right to confront the witnesses against him
was violated when the prosecution rearranged the courtroom by moving a podium so that
M.T., a minor child, had her back to the defendant while testifying. Wilson argues that this
action was made more prejudicial because it was done in full view of the jurors, tainting their
impression of the witness's testimony. He also believes that this was not harmless error
because without this witness's testimony, the State lacked sufficient evidence to prove beyond
a reasonable doubt that he took the pornographic photographs.
The Sixth Amendment to the United States Constitution provides every criminal defendant
with the right to confront his or her accuser.
26
In Coy v. Iowa, the United States Supreme
Court held that the use of a screen to block the defendant's view of a witness on the stand
violates the Sixth Amendment.
27
In that case, a specially designed screen was used to block
the witness's view of the defendant while allowing the defendant to hear and dimly to
perceive the witnesses.
28
The Supreme Court opined that [i]t is difficult to imagine a more
obvious or damaging violation of the defendant's right to a face-to-face encounter.
29

This court addressed the constitutional right to a face-to-face confrontation in Smith v.
State.
30
In that case, the prosecutor positioned himself between the child victim and the
defendant so that the witness could not see the defendant during her direct testimony and vice
versa.
31
Relying on Coy, this court held that even though Smith had the opportunity to
cross-examine the child victim face-to-face, he could not do so effectively because when a
child witness is permitted to testify on direct examination behind the defendant's back,' so to
speak, and does so credibly, the damage has already been done; it would be very difficult to
impeach or discredit that testimony on cross-examination."
____________________

26
U.S. Const. amend. VI; see also Smith v. State, 111 Nev. 499, 502, 894 P.2d 974, 975 (1995).

27
487 U.S. 1012, 1015-22 (1988).

28
Id. at 1015, 1020.

29
Id. at 1020.

30
111 Nev. 499, 894 P.2d 974.

31
Id. at 501, 894 P.2d at 975.
........................................
credit that testimony on cross-examination.
32
As the majority pointed out in Smith,
cross-examination of the child victim by the defense may not provide an adequate cure
because defense counsel is likely to alienate the jury against the defendant.
33

[Headnote 10]
In the present case, the prosecutor rearranged the courtroom layout to reposition the minor
witness in an attempt to have her testify with her back to the defendant. Wilson did not object
at the time, but he later moved for a mistrial at the end of his case in chief. The State
suggested that its motive for moving the podium was to protect M.T. and argued that the
arrangement did not violate Wilson's rights:
Whether I question [her] from my table, from across the room, what have you, I
think is irrelevant to whether or not he had an opportunity to confront his [sic] witness,
which he did. She testified. He had the opportunity to ask her questions. That's meeting
his right for confrontation. So I don't believe that that is a basis for a mistrial, either.
Recognizing the failings of this argument, the State on appeal attempts to distinguish Coy and
Smith, arguing that in each case there was a physical barrier or blockade between the witness
and the defendant.
While the State's argument misses the mark in relation to this court's Confrontation Clause
analysis, Wilson failed to establish exactly where the prosecution positioned the podium and
how much of his view was obstructed. Wilson did not make a contemporaneous objection but
waited until the end of his case to make a verbal motion for a mistrial. The only evidence in
the record is Wilson's own statements made when he argued his motion for a mistrial and a
hand-drawn rendering of the courtroom submitted as part of his appendix on appeal. There is
no testimony or affidavit in the record to establish how the prosecutor's action blocked
Wilson's view of the child during her testimony or confirming the layout as drawn by him. In
the absence of substantive proof, we are unable to conclude that the prosecutor's actions
violated the Confrontation Clause.
[Headnote 11]
We are also unpersuaded by Wilson's claim that but for this alleged Confrontation Clause
violation that tainted the child's testimony, the State would not have been able to establish
that he took the photographs. The record contains other evidence establishing that Wilson
took the photographs. Wilson's sister, Virgie Barerra, testified that Wilson called her shortly
after his arrest and asked her to remove some pictures from his Ford Bronco.
____________________

32
Id. at 502-03, 894 P.2d at 976.

33
Id.
........................................
testified that Wilson called her shortly after his arrest and asked her to remove some pictures
from his Ford Bronco. According to Barerra's testimony, Wilson suggested the pictures were
really, really gross and that she should destroy them and not look at them. The evidence at
trial indicated that Wilson, while running an errand with the victim, stopped at a Wal-Mart
store to purchase her some new clothes, and according to the store receipt, also purchased an
instant camera and film. Wilson admitted to buying the camera when interviewed by the
police. A Polaroid camera was discovered in the center console of his Bronco. Both Barerra
and her husband testified that during separate conversations with each of them, Wilson
admitted that he took the photographs and that he needed help. Because evidence independent
of the child's testimony established that Wilson took the photographs, we conclude that any
Confrontation Clause violation was harmless beyond a reasonable doubt.
34

Interstate Agreement on Detainers (IAD)
Wilson argues that the district court committed reversible error when it denied his motion
to dismiss for failure to commence trial within the 120-day period required by the IAD.
Wilson contends that his trial did not commence until 184 days after his arrival in the CCDC,
a violation of Article IV(c) of the IAD.
[Headnotes 12, 13]
The IAD is an interstate compact approved by the United States Congress to which
Nevada is a party.
35
The IAD is codified in Nevada law at NRS 178.620. The IAD, among
other things, specifies the procedures by which a prisoner may request speedy disposition of
the charges pending against him in a jurisdiction other than where he is incarcerated.
36
Article IV of the IAD requires that when, at the State's request, a defendant is brought from
another jurisdiction to face charges pending against him, the receiving state must try him
within 120 days of his arrival, unless good cause is shown for a delay.
37
The failure to
commence trial within the 120-day period results in dismissal of the charges with
prejudice.
____________________

34
See Franco v. State, 109 Nev. 1229, 1237, 866 P.2d 247, 252 (1993) (stating that Confrontation Clause
errors are subject to harmless error review).

35
Prince v. State, 118 Nev. 634, 637, 642, 55 P.3d 947, 949, 952 (2002) (holding that the IAD does not
apply to a defendant awaiting sentencing).

36
NRS 178.620, Art. I.

37
NRS 178.620, Article IV provides in pertinent part:
(a) The appropriate officer of the jurisdiction in which an untried indictment, information or
complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who
is serving a term of imprisonment in any party state made available . . . upon presentation of a written
request for temporary custody or availability to the appropriate authorities of the state in which the
prisoner is incarcerated . . . .
. . . .
........................................
120-day period results in dismissal of the charges with prejudice.
38
However, this 120-day
requirement is not absolute, and the time period is tolled whenever a defendant is either
unable to stand trial,
39
or when the delay is occasioned by the defendant's own actions.
40
Under NRS 178.405, whenever doubt arises as to the competence of the defendant, the court
shall suspend the trial . . . until the question of competence is determined.
The federal government transferred Wilson to the CCDC on January 20, 2003, and his trial
commenced on July 23, 2003a total span of 184 days. The issue on appeal is whether the
State met the 120-day requirement because the time period was tolled by the necessary
inquiry into Wilson's competency to stand trial. On March 17, 2003, the public defender who
was initially assigned to represent Wilson raised concerns regarding Wilson's competency to
stand trial. He presented the court with a psychological evaluation that indicated Wilson was
incompetent and unable to aid in his defense. On March 26, 2003, the judge was presented
with a second report, also demonstrating that Wilson was not competent to stand trial.
[Headnote 14]
Wilson argues that the 120-day period was not tolled until March 31, 2003, the date the
commitment order was signed and filed.
41
Wilson further contends that because the judge
expressed doubts as to the validity of the psychological reports, the time period was not
tolled while the court conducted the hearing and further evaluation that was required
under Nevada law.
____________________
(c) In respect of any proceeding made possible by this Article, trial shall be commenced within one
hundred twenty days of the arrival of the prisoner in the receiving state, but for good cause shown in open
court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any
necessary or reasonable continuance.

38
NRS 178.620, Article V(c) provides, in pertinent part:
[I]n the event that an action on the indictment, information or complaint on the basis of which the
detainer has been lodged is not brought to trial within the period provided in Article III or Article IV
hereof, the appropriate court of the jurisdiction where the indictment, information or complaint has been
pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall
cease to be of any force or effect.

39
Snyder v. State, 103 Nev. 275, 277, 738 P.2d 1303, 1305 (1987).

40
E.g., Diaz v. State, 118 Nev. 451, 454, 50 P.3d 166, 167-68 (2002) (citing United States v. Scheer, 729
F.2d 164, 168 (2d Cir. 1984)); see also Snyder v. Sumner, 960 F.2d 1448, 1454 (9th Cir. 1992) (Because
Snyder himself requested the continuance, he cannot dispute that this first delay is to be attributed to him. By
requesting the continuance, he waived his right to a speedy trial.). But see Diaz, 118 Nev. at 456, 50 P.3d at
169 (Rose, J., dissenting) (I would not recognize a tolling of the [IAD] limit unless it is demonstrated that the
defendant has engaged in conduct intended to cause a delay in bringing the case to trial.).

41
Wilson cites State, Division Child & Family Services v. District Court, 120 Nev. 445, 92 P.3d 1239
(2004).
........................................
doubts as to the validity of the psychological reports, the time period was not tolled while the
court conducted the hearing and further evaluation that was required under Nevada law. We
conclude that Wilson's arguments are unpersuasive. Read together, these statutes require that
at the point in time when a doubt is raised as to a defendant's competency to stand trial, and
where good cause is shown in open court, the 120-day period is tolled until the court can
ascertain the defendant's mental competency. Importantly, the district court ultimately
reviewed the reports of four psychologists, three of whom believed Wilson was not
competent to stand trial and a fourth who disagreed with that assessment.
On June 4, 2003, the district court, finding the opinion of the fourth doctor more
persuasive, adjudged Wilson competent to stand trial.
42
Consequently, the time period was
tolled from the date Wilson's competency was first challenged, March 17, 2003, until he was
deemed competent on June 4, 2003, a span of 79 days. Therefore, Wilson was brought to trial
in 105 days, well within the 120-day period. As a result, we conclude that the trial court did
not err in denying Wilson's motion to dismiss for the State's failure to commence trial within
the time required by the IAD.
[Headnote 15]
In his reply brief, Wilson raises an unrelated argument that the delay in bringing him to
trial resulted in prejudice because the two doctors who treated him while he was in federal
custody either died or retired and thus were unavailable to appear at the hearing on his motion
to suppress his confession. Wilson argues that their testimony would prove that his
confession was not freely and voluntarily given. In regard to the violation of his IAD rights,
this line of reasoning is irrelevant to the issues presented on appeal. Moreover, we conclude
that the unavailability of these two particular doctors did not prevent Wilson from presenting
at the suppression hearing evidence or testimony pertaining to the voluntariness of his
confession. We therefore conclude that no prejudice is demonstrated on these facts.
Failure to compel attendance of out-of-state witnesses
Wilson next argues that the district court committed reversible error and violated his due
process rights when it failed to compel two out-of-state witnesses to testify. Wilson claims
the witnesses would have testified that they were with Wilson at all times during the dates
listed on the indictment. Wilson argues that because the district court had the authority to
compel the testimony of out-of-state witnesses under NRS 174.425 and did not do so, he was
denied due process and his conviction should be reversed.
____________________

42
Wilson does not challenge this finding by the district court on appeal.
........................................
[Headnotes 16, 17]
As this court has often noted, the Sixth Amendment provides a criminal defendant with the
right to compel the production of witnesses to testify on his or her behalf.
43
However,
jurisdictional limitations inherently hinder a state court's ability to compel out-of-state
witnesses because the State of Nevada cannot enforce a subpoena against a citizen of another
state unless that party is present within this state. To ensure the attendance of out-of-state
witnesses, the Legislature enacted NRS 174.395 to 174.445, known as the Uniform Act To
Secure the Attendance of Witnesses From Without a State in Criminal Proceedings.
44
However, the right to produce an out-of-state witness is not absolute.
45
Under the Act, a trial
court has discretion to issue a certificate summoning the attendance of an out-of-state witness
based on a determination that the witness is material to the party's case.
46
As a result, we
review a trial court's refusal to issue a certificate for an abuse of discretion.
47

[Headnote 18]
This court has noted that it is reasonable for the trial court to refuse to issue a certificate to
compel an out-of-state witness's attendance under certain circumstances.
48
In addition, we
have concluded that it is unreasonable for the trial court to refuse to compel a witness merely
because it doubts the veracity of his or her testimony.
____________________

43
E.g., Palmer v. State, 112 Nev. 763, 766, 920 P.2d 112, 113 (1996); Bell v. State, 110 Nev. 1210, 1213,
885 P.2d 1311, 1313 (1994) (citing State v. Fouquette, 67 Nev. 505, 221 P.2d 404 (1950)); see also U.S. Const.
amend. VI.

44
If a person in any state . . . is a material witness in a prosecution pending in a court of record in this state,
or in a grand jury investigation which has commenced or is about to commence, a judge of such a court
may issue a certificate under the seal of the court stating these facts and specifying the number of days the
witness will be required. The certificate may include a recommendation that the witness be taken into
immediate custody and delivered to an officer of this state to ensure his attendance in this state. This
certificate must be presented to a judge of a court of record in the county in which the witness is found.

45
Fouquette, 67 Nev. at 516, 221 P.2d at 410.

46
Id.

47
Bell, 110 Nev. at 1213-14, 885 P.2d at 1313-14; see also Palmer, 112 Nev. at 766, 920 P.2d at 113-14.

48
See Palmer, 112 Nev. at 767-68, 920 P.2d at 114 (noting that when there is a credible showing that the
witness intends to invoke the Fifth Amendment privilege not to testify, the court may refuse to issue a certificate,
and distinguishing the facts of Palmer from Bell where the trial court merely suggested the witness might invoke
the Fifth Amendment, whereas in Palmer the witness indicated to the court that he would).
........................................
mony.
49
However, where there are adequate substitutions for the witness's testimony, it is
reasonable for a trial court to decline to compel the attendance of an out-of-state witness.
50

Initially, it is important to note that the district court in this case did indeed err with regard
to the law. The trial court failed to recognize that it could compel out-of-state witnesses to
appear. Wilson raised the issue before the district court on multiple occasions. When he
raised the issue at trial, the following exchange occurred:
MR. WILSON: There is no compulsory process at all to bring a witness and I don't
have a fair trial?
THE COURT: I cannot.
MR. WILSON: They're an alibi witness.
THE COURT: I'm going to tell you again, I don't know many other ways I can explain
this to you. I don't have subpoena power. I cannot as a judge in Nevada order a
California resident to appear in this court.
They do not have to comply with my subpoena. I have no jurisdiction in California.
And I explained this to you last week and explained to you that they were your family
members and that you need to talk to them and get them to voluntarily appear.
Following that exchange, the State made a lengthy showing for the record as to why the
witnesses were not alibi witnesses and that there was inadequate notice before the trial court
as to the witnesses' status as such.
Wilson argues on appeal that he explained to the district court the materiality of the
witnesses. However, the trial record cited by Wilson is for the sentencing hearing, which
occurred on October 10, 2003. At that time, Wilson argued that it was crucial to his case
because the two witnesses he intended to call would testify that they were with him during a
portion of the time the State accused him of committing the acts in question.
[Headnote 19]
We conclude that it was legally incorrect for the district court to represent to Wilson that
there was no procedure under Nevada law for a criminal defendant to compel the appearance
of an out-ofstate witness.
____________________

49
Bell, 110 Nev. at 1214, 885 P.2d at 1314 (noting that [o]n the facts presented, it was too speculative to
say that because [the witness] might tell conflicting stories, his testimony was immaterial to Bell's defense).

50
Id. at 1215, 885 P.2d at 1314 (Other jurisdictions have determined that given the availability of in-state
witnesses who can supply the needed testimony, it is not error for a trial court to deny a party's request to compel
the presence of an out-of-state witness.) (citing Com. v. Appleby, 450 N.E.2d 1070 (Mass. 1983); Sanchez v.
State, 691 S.W.2d 795 (Tex. 1985)).
........................................
state witness. The record indicates that Wilson raised the issue numerous times. The court
went so far as to order his court-appointed investigator and standby counsel to do whatever
was necessary to contact these witnesses for the defense. Although the record is unclear as to
what steps the parties involved used to contact Wilson's relatives, they apparently were
unsuccessful at procuring their attendance at his trial. It is surprising to us that the district
attorney did not inform the district court of its obvious error, nor did standby counsel inform
Wilson.
[Headnote 20]
Although the district court made a legal error, the denial of Wilson's request to subpoena
out-of-state witnesses was justified because Wilson failed to show that the witnesses were
material to his case and how their absence prejudiced the defense. Wilson did not make an
offer of proof as to what the two out-of-state witnesses would have said in support of his
case. In Wilson's motion for a mistrial, he stated that these two witnesses would have shown
that he was with them during several dates in question. However, he did not represent that
either of the witnesses would have testified that they were with him on November 15, 2001,
the day the pictures were taken. Therefore, we conclude that Wilson has not shown how the
testimony of the two witnesses would have assisted him, and the district court did not abuse
its discretion in denying Wilson the requested relief.
Proper notice of the charges in the indictment
Wilson's final contention is that defects in the indictment violated his due process rights by
failing to provide him with adequate notice and that the defects prejudiced him to such an
extent that he was unable to mount a proper defense. Wilson points to the language of the
indictment wherein the State accused him of crimes committed at and within the County of
Clark, State of Nevada, on or 10th day of November, 2001, [sic] and the 18th day of
November 2001. (Emphasis added.)
[Headnote 21]
Nevada law requires that an indictment must contain a plain, concise and definite written
statement of the essential facts constituting the offense charged.
51
However, this court has
noted that there is no requirement that the State allege exact dates unless the situation is one
in which time is an element of the crime charged.
52
Instead, the State may provide
approximate dates on which it is believed that the crime occurred.
____________________

51
NRS 173.075(1).

52
Cunningham v. State, 100 Nev. 396, 400, 683 P.2d 500, 502 (1984) (citing Brown v. State, 81 Nev. 397,
404 P.2d 428 (1965); Martinez v. State, 77 Nev. 184, 360 P.2d 836 (1961), and noting that time is not an
element for
........................................
the State may provide approximate dates on which it is believed that the crime occurred.
53
In
Cunningham v. State, this court held that it is permissible for the State to give a time frame
for an offense instead of a specific date, provided that the dates listed are sufficient to place
the defendant on notice of the charges.
54
Otherwise, convictions for criminal misfeasance
would only be valid when the State correctly guesses the [exact] date of an offense.
55
This
court has made it clear, however, that the State may not fail to allege any date whatsoever in
an indictment or information, for such a failure would deprive the defendant of adequate
notice of the crime charged such that he would be incapable of preparing an adequate
defense, which is the intended purpose behind the notice requirement.
56

In the present case, Wilson argues on appeal that he believed that the State charged him
with committing the crimes on the specific dates of November 10 and 18, not a span of dates
from the 10th to the 18th. Wilson states that because the indictment said on or 10th . . . and
the 18th, he believed that if he could show at trial that he did not commit the crimes charged
on the two dates noted, [t]his would be a specific defense. In support, Wilson notes that at
trial he was able to show that he was incarcerated as of November 17 and could not have
committed the crimes on that date. In addition, Wilson urges that his defense strategy
revolved around using the testimony of the two out-of-state witnesses to show that he could
not have committed the crimes on the day of November 10 because the witnesses were with
him at all times that day. In fact, the State concedes on appeal that the indictment was in error
but argues that it was merely a clerical error and was not prejudicial because the defendant
was aware at trial that the charges involved a span of dates between November 10 and
November 18, 2001.
[Headnote 22]
While Wilson's argument is technically correct in that the indictment as written is
incorrect, he misrepresents on appeal the impact of that error on his ability to mount a defense
at trial. During his opening statement Wilson said, I will show you a receipt and it says that
on November 15, 2001, at a certain time a Polaroid camera was purchased from a
Wal-Mart.
____________________
crimes of a sexually deviant nature and that crimes involving the sexual abuse of a child victim often prove
especially difficult cases to pin down an exact time frame due to the age of the child and the child's reluctance to
testify).

53
Id.

54
Id.

55
Koerschner v. State, 116 Nev. 1111, 1119, 13 P.3d 451, 456 (2000).

56
Cunningham, 100 Nev. at 400, 683 P.2d at 502; see also Koerschner, 116 Nev. at 1119, 13 P.3d at 457
(citing Cunningham with approval and refusing to find error when the State failed to allege specific dates for
two of three charges of sexual assault).
........................................
says that on November 15, 2001, at a certain time a Polaroid camera was purchased from a
Wal-Mart. . . . Then I'll show you statements that this person testified under oath very clearly
and specifically, No, it wasn't him. This demonstrates that Wilson was aware the State
intended to present evidence of his actions on the dates between the dates listed on the
indictment, and the State's theory of the crime was that it occurred on that date. In addition,
other representations Wilson made to the court indicate that he was aware that the State was
accusing him of crimes between the dates listed. For example, while attempting to
demonstrate the materiality of the aforementioned out-of-state witnesses Wilson stated, They
charged me with specific dates, 10th to the 18th. Do you understand? That's only a sevenday
period. Five of them days, Marie and Jessica was with me 24 hours a day. While the State
should make every effort to set forth accurate facts in the charging document, we conclude
that the error in the indictment in this case was not so egregious that it deprived Wilson of
adequate notice of the charges against him or prejudiced him to such an extent that he was
unable to adequately defend against the State's charges.
CONCLUSION
We conclude that Wilson's conviction on four counts of producing child pornography
under NRS 200.710, which arose out of a single episode, are redundant and therefore reverse
the conviction for three of those counts. We further conclude that possession of child
pornography under NRS 200.730 is not a lesser-included offense of the production of child
pornography under NRS 200.710 and therefore Wilson's four convictions for possession of
child pornography do not violate the Double Jeopardy Clause. We conclude that Wilson's
remaining arguments on appeal lack merit. Accordingly, we reverse three of Wilson's four
convictions for the production of child pornography, we affirm the other convictions, and we
remand this case to the district court for resentencing in accordance with this opinion.
____________
........................................
121 Nev. 371, 371 (2005) Gumm v. State, Dep't of Education
ALEXANDER GUMM, By and Through His Guardian ad Litem, ALLEN GUMM; ALLEN
GUMM; and ANTOINETTE GUMM, Petitioners, v. NEVADA DEPARTMENT OF
EDUCATION, Respondent, and DOUGLAS COUNTY SCHOOL DISTRICT, Real
Party in Interest.
No. 44491
June 23, 2005 113 P.3d 853
Original petition for a writ of mandamus challenging the Nevada Department of
Education's alleged refusal to enforce an administrative decision rendered under the
Individuals with Disabilities Education Act.
Parents of autistic public school student petitioned for writ of mandamus directing Nevada
Department of Education (NDOE) to enforce administrative due process decision by directing
school district to pay parents additional monies owed as reimbursement for out-of-pocket
expenses during period in which district had allegedly violated Individuals with Disabilities
Education Act (IDEA) by failing to provide student free appropriate education. The supreme
court, Hardesty, J., held that: (1) parents properly invoked complaint review procedure (CRP)
as means of enforcing administrative decision, and (2) NDOE properly adhered to CRP in
making independent decision that school district satisfied administrative due process decision
by paying parents the amount it did.
Petition denied.
Nevada Disability Advocacy and Law Center and Elizabeth A. Cannon-Lynch, Sparks, for
Petitioners.
Brian Sandoval, Attorney General, and James E. Irvin, Deputy Attorney General, Carson
City, for Respondent.
Crowell Susich Owen & Tackes and J. Thomas Susich, Carson City; Walther Key Maupin
Oats Cox & LeGoy and C. Robert Cox and Michael A. Nivinskus, Reno, for Real Party in
Interest.
1. Schools.
Parents of autistic public school student properly invoked complaint review
procedure (CRP) through Nevada Department of Education (NDOE) as means of
enforcing administrative due process decision awarding them reimbursement for their
forfeiture of salary and benefits during period in which school district had allegedly
failed to provide student free appropriate education under Individuals with Disabilities
Education Act (IDEA), even if they had been able to institute federal district court
action to seek interpretation of administrative decision instead. 20 U.S.C. 1415; NAC
388.318; 34 C.F.R. 300.660300.662.
........................................
2. Schools.
Nevada Department of Education (NDOE) properly adhered to complaint review
procedure (CRP) in making an independent decision that school district satisfied
administrative due process decision by awarding parents of autistic public school
student reimbursement for their out-of-pocket expenses during period in which
district had allegedly violated Individuals with Disabilities Education Act (IDEA);
NDOE refused to compel district to remit to parents their requested additional sum due
to vague nature of due process decision, which had failed to address what constituted
out-of-pocket expenses, but instead of remanding matter to hearing officer for
interpretation, NDOE was merely required to [r]eview all relevant information and
make an independent determination, pursuant to CRP. 20 U.S.C. 1415; NAC
388.318; 34 C.F.R. 300.660300.662.
3. Mandamus.
requires as a duty or to control an arbitrary or capricious exercise of discretion. NRS
34.160.
4. Mandamus.
Extraordinary writ of mandamus will issue only when the right to the relief
requested is clear and the petitioners have no plain, speedy, and adequate remedy in the
ordinary course of law. NRS 34.160.
5. Schools.
Under the Individuals with Disabilities Education Act (IDEA), state and local
agencies that accept federal IDEA funding must ensure that children with disabilities
and their parents are guaranteed procedural safeguards with respect to the provision of
free appropriate public education. 20 U.S.C. 1415(a).
6. Schools.
The Individuals with Disabilities Education Act (IDEA) delineates the rights of
parents and children to participate in an impartial due process hearing regarding any
complaint that pertains to the identification, evaluation, or educational placement of
the child, or the provision of a free appropriate public education to such child. 20
U.S.C. 1415(b)(6).
7. Schools.
The parties to a due process hearing under Individuals with Disabilities Education
Act (IDEA) are afforded the rights (1) to be advised by counsel, (2) to present evidence
and compel witnesses, (3) to obtain a record of the hearing, and (4) to receive written
findings of fact and a decision. 20 U.S.C. 1415(h).
8. Schools.
Related to, yet separate from the due process hearing set forth under Individuals with
Disabilities Education Act (IDEA), the Nevada Department of Education (NDOE) must
investigate and resolve any complaint alleging that a public agency has violated the
IDEA or regulations promulgated pursuant to the IDEA for which a due process hearing
is not requested or is not available; this complaint review procedure (CRP) is thus an
alternative method of resolving an IDEA complaint, identified not in the IDEA but
rather in federal and state regulations. 20 U.S.C. 1415; NAC 388.318; 34 C.F.R.
300.660300.662.
9. Schools.
Complaint review procedure (CRP) used as alternative to due process hearing under
Individuals with Disabilities Education Act (IDEA) is intended to constitute an
informal and less expensive means of resolving complaints alleging due process
violations, as well as complaints involving other IDEA concerns.
........................................
complaints alleging due process violations, as well as complaints involving other IDEA
concerns. 20 U.S.C. 1415; NAC 388.318; 34 C.F.R. 300.660300.662.
10. Schools.
Unlike due process hearings under Individuals with Disabilities Education Act
(IDEA), the complaint review procedure (CRP) is performed by Nevada Department of
Education (NDOE), rather than by an impartial administrative officer. 20 U.S.C.
1415; NAC 388.318; 34 C.F.R. 300.660300.662.
OPINION
The Individuals with Disabilities Education Act
1
(IDEA) is designed to ensure that all
children with disabilities have available to them a free appropriate public education in light
of their special needs.
2
In this, the IDEA aims to help schools prepare students with
disabilities for independent living, to ensure that the rights of such children and their parents
are protected, and to assist continuing efforts to provide and implement the most effective
educational programs possible.
3
To accomplish those purposes, the IDEA and its
corresponding regulations set forth certain procedural measures, which are intended to
safeguard the substantive rights afforded to children and their parents under the act. This
petition for a writ of mandamus involves a state educational agency's alleged refusal to
comply with one of those procedures. We take this opportunity to clarify and distinguish two
mechanisms for obtaining review of IDEA issues.
FACTS
In November 2001, petitioners Alexander Gumm, an autistic child, and Allen and
Antoinette Gumm, Alexander's parents, requested a due process hearing under the IDEA. The
Gumms alleged that real party in interest Douglas County School District had failed to
provide Alexander with a free appropriate public education under the act. At the hearing's
conclusion, the hearing officer found that the school district had failed to provide Alexander
with appropriate education. Accordingly, the hearing officer directed the school district to
satisfy specified compensatory education requirements in 2002-2003 and to reimburse
petitioners for "all out-of-pocket expenses" related to Alexander's placement in a
separate childhood autism program in 2001-2002.
____________________

1
20 U.S.C. 14001487 (2000).

2
Id. 1400(d)(1)(A).

3
Id. 1400(d).
........................................
ments in 2002-2003 and to reimburse petitioners for all out-of-pocket expenses related to
Alexander's placement in a separate childhood autism program in 2001-2002. Although the
hearing officer expressly directed the school district to pay the Gumms mileage for one
round trip for each day [Alexander] attended the program, the hearing officer did not
otherwise define out-of-pocket expenses.
The school district administratively appealed the hearing officer's decision to a state
review officer. The review officer, however, affirmed each of the findings challenged by the
school district, all of which involved the appropriateness of the available education. Thus, the
review officer did not address any question regarding the meaning of out-of-pocket
expenses, and the review officer's decision merely reiterated that the school district must
reimburse petitioners' out-of-pocket expenses. Neither party challenged the review officer's
decision in the district court.
In complying with the review officer's decision, the school district reimbursed the Gumms
$64,770.72, of which $27,961.92 apparently constituted the amount required to provide
Alexander with transportation to the childhood autism program for 230 days.
4
The Gumms,
however, believed that they were owed an additional sum under the decision, to fully account
for Antoinette's salary and benefits that she forfeited when she took employment leave in
2001 in order to provide Alexander with transportation to and from the program.
Consequently, the Gumms submitted a complaint to respondent Nevada Department of
Education (NDOE), requesting that NDOE immediately enforce the review officer's decision
by directing the school district to pay them an additional $26,515.27 as additional
reimbursement for Antoinette's forfeited salary and benefits.
NDOE conducted an investigation into the Gumms' complaint and found that the review
officer's decision neither specified a reimbursement amount nor further clarified
out-of-pocket expenses. Noting that evidence concerning the Gumms' requested relief,
submitted during the due process hearing but addressed by neither the hearing officer nor the
review officer, did not determine the matter, NDOE then applied its own legal analysis to the
reimbursement issue. NDOE determined that the school district was not required by law to
reimburse an additional amount equal to Antoinette's forfeited salary and benefits and had
paid all the monies owed under the review officer's decision. Therefore, NDOE concluded,
nothing remained to be enforced.
____________________

4
The reimbursement letter also noted that supplementary (nonsalary-related) amounts would be reimbursed
upon the Gumms' submittal of certain itemized billing statements.
........................................
Thereafter, the Gumms filed the instant writ petition, asserting that they had no other
means to challenge the school district's refusal to pay additional monies owed under the
review officer's decision other than to submit a complaint to NDOE. The Gumms urge this
court to issue a writ of mandamus directing NDOE to vacate its refusal to enforce the
decision and to order the school district to pay additional sums for reimbursement. As
directed, both the school district and NDOE timely filed answers to the writ petition. The
Gumms have submitted a reply.
5

DISCUSSION
[Headnotes 1-4]
A writ of mandamus is available to compel the performance of an act that the law requires
as a duty or to control an arbitrary or capricious exercise of discretion.
6
This extraordinary
writ will issue only when the right to the relief requested is clear and the petitioners have no
plain, speedy and adequate remedy in the ordinary course of law.
7
In this instance, although
we ultimately conclude that writ relief is not warranted, we nevertheless exercise our
discretion to review this petition because it appears that the Gumms may not have an
adequate legal remedy.
IDEA procedural overview
[Headnotes 5-7]
Under the IDEA, state and local agencies that accept federal IDEA funding must ensure
that children with disabilities and their parents are guaranteed procedural safeguards with
respect to the provision of free appropriate public education.
8
Thus, the IDEA delineates the
rights of parents and children to participate in an impartial due process hearing regarding any
complaint that pertains to the identification, evaluation, or educational placement of the
child, or the provision of a free appropriate public education to such child.
9
The parties to a
due process hearing are afforded the rights (1) to be advised by counsel, (2) to present
evidence and compel witnesses, (3) to obtain a record of the hearing, and (4) to receive
written findings of fact and a decision.
____________________

5
We grant the Gumms' motion for leave to file a reply to the answers. The clerk of this court shall file the
reply, provisionally received on April 4, 2005.

6
NRS 34.160; see also Smith v. District Court, 107 Nev. 674, 818 P.2d 849 (1991); Round Hill Gen. Imp.
Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981).

7
Hardin v. Guthrie, 26 Nev. 246, 66 P. 744 (1901); NRS 34.170.

8
20 U.S.C. 1415(a).

9
Id. 1415(b)(6); see also id. 1415(f); NAC 388.300(7).
........................................
receive written findings of fact and a decision.
10
Any party aggrieved by the hearing's
outcome may administratively appeal to a state review officer, and any party aggrieved by the
review officer's decision may appeal that decision by initiating a civil action in the district
court within thirty days of the decision's issuance.
11

[Headnotes 8-10]
Related to, yet separate from the due process hearing, NDOE must investigate and resolve
any complaint alleging that a public agency has violated the IDEA or regulations promulgated
pursuant to the IDEA for which a due process hearing is not requested or is not available.
12
This complaint review procedure (CRP) is thus an alternative method of resolving an IDEA
complaint, identified not in the IDEA but rather in federal and state regulations. It is intended
to constitute an informal and less expensive means of resolving complaints alleging due
process violations, as well as complaints involving other IDEA concerns.
13
Unlike due
process hearings, the CRP is performed by NDOE, rather than by an impartial administrative
officer. Once a complaint is received, NDOE has sixty days in which to investigate the
complaining party's allegations and render a decision; the local school district must comply
with any NDOE order directing it to remediate a violation.
14
Issues that are addressed in a
due process hearing decision are final, however, and may not be further reviewed during a
CRP.
15
But a complaint alleging a public agency's failure to implement a due process
decision must be resolved by [NDOE] through the CRP.
16
Neither federal nor state
regulations contain any provision regarding appeals from CRP decisions.
17

In this instance, the review officer's due process decision became final when no party
thereafter initiated a district court action.
____________________

10
Id. 1415(h); NAC 388.310; see also 34 C.F.R. 300.509 (2004).

11
20 U.S.C. 1415(g), (i)(2); NAC 388.315.

12
34 C.F.R. 300.660.662; NAC 388.318.

13
Assistance to States for the Education of Children with Disabilities and the Early Intervention Program
for Infants and Toddlers with Disabilities, 64 Fed. Reg. 12,406, 12,646 (March 12, 1999) [hereinafter
Assistance to States]; Porter v. Board of Trustees of Manhattan Beach, 307 F.3d 1064, 1072-73 (9th Cir. 2002);
see also Lucht v. Molalla River School Dist., 225 F.3d 1023 (9th Cir. 2000) (detailing available IDEA
procedures under federal and Oregon law).

14
34 C.F.R. 300.661; NAC 388.318.

15
34 C.F.R. 300.661(c)(2).

16
Id. 300.661(c)(3).

17
Id.; NAC 388.318. Before being amended in 1999, the federal regulations permitted a party to appeal a
CRP decision to the U.S. Department of Education. See Assistance to States, 64 Fed. Reg. at 12,646.
........................................
Then, once the Gumms discovered that they would not receive the amount they believed was
due, they invoked the CRP's enforcement mechanism by filing a complaint with NDOE
alleging that the school district had failed to fully implement the due process decision. NDOE
timely resolved the complaint.
Propriety of writ relief
Initially, we note that the Gumms' right to the relief they requestedenforcement of the
review officer's decision by directing the school district to pay an additional sum certainis
not at all as clear as they contend; the decision merely provides for out-of-pocket expenses
without defining the phrase, and nothing else in the record demonstrates that the review
officer, or even the hearing officer, meant that phrase to include Antoinette's forfeited
income. As a result, the administrative decisions' out-of-pocket expenses reimbursement
requirement is vague, and the parties should have sought clarification.
The school district maintains that the Gumms could have directly filed an IDEA complaint
in the federal or state district court seeking to enforce the administrative decision, instead of
instigating the CRP.
18
The Gumms disagree, asserting that with the promulgation of the
1999 amendments to the federal regulations providing a means of administrative
enforcement, enforcement actions in the courts are no longer available. In this instance,
however, even if the Gumms are correct,
19
it appears that they nevertheless might have been
able to institute a district court action seeking an interpretation of the IDEA decision. Even
so, whether the Gumms could have directly instigated a district court action instead of filing a
CRP complaint is immaterial to our resolution of this petition; under the regulations, the
Gumms properly invoked the CRP as a means of enforcing the administrative decision.
Accordingly, the question here is whether NDOE failed to carry out its CRP duties under the
law.
NDOE asserts that it had no authority within the CRP to direct the review officer to clarify
the administrative decision because remanding the matter for clarification would
improperly interfere with the decision's finality.
____________________

18
See Porter, 307 F.3d at 1069-70, 1069 n.7 (holding that parents were allowed to bring an action in the
federal district court to enforce a due process decision without first exhausting the California CRP but not
reaching the question of whether such actions were appropriate under either the IDEA or federal civil rights
statutes); 20 U.S.C. 1415(i)(2).

19
We note that, while not addressing the CRP or its significance within the IDEA's enforcement scheme, the
First Circuit Court of Appeals, at least, held that a 2002 due process decision enforcement action was viable in
the federal district court under the IDEA without further resort to administrative remedies. See Nieves-Marquez
v. Puerto Rico, 353 F.3d 108 (1st Cir. 2003).
........................................
manding the matter for clarification would improperly interfere with the decision's finality.
NDOE cites two Third Circuit Court of Appeals opinions for support. In Muth v. Central
Bucks School District,
20
the court recognized that, within the IDEA predecessor's
administrative appeal context, a remand following an [administrative] impartial review' is
fundamentally inconsistent with the statutory scheme. The court also noted that the
regulations contained stringent timetables meant to ensure a final administrative decision
within seventy-five days of receipt of the due process hearing request and within thirty days
of a request for review of a hearing officer's decision.
21
After the review officer renders a
decision, an aggrieved party might then institute a district court action. However, in Carlisle
Area School v. Scott P.,
22
the court also recognized that, unlike an administrative reviewer,
the district court is permitted to remand an administrative decision for clarification. The court
noted that Muth rested on the rationale that [administrative] remands to the administrative
hearing officer obstructed the party's access to judicial review and concluded that barring a
court from remanding an IDEA matter to an administrative officer would impair the court's
ability to review the decision fairly and undermine the same policies asserted in Muth.
23

The above cases do not directly support NDOE's contentions, however, since NDOE was
not providing appellate review of the administrative decision. Instead, as mentioned, the
matter was before NDOE through the CRP. Nevertheless, it appears that NDOE properly
independently determined which expenses the Gumms were entitled to receive. Under 34
C.F.R. 300.661(c)(3)'s enforcement mechanism, NDOE must resolve a complaint alleging
that the school district failed to implement a due process decision. And in so doing, NDOE
must [r]eview all relevant information and make an independent determination as to whether
the public agency is violating a requirement of [the IDEA] or of this part.
24

The Gumms' complaint was specifically made under the federal enforcement regulation
and expressly alleged that the school district had failed to implement the due process decision
clearly defining out-of-pocket expenses. Since the due process decision does not in fact
address what constituted those expenses, however, in order to resolve the Gumms' complaint,
NDOE was required, and had the power, to make its own legal determination of the
reimbursement question.
____________________

20
839 F.2d 113, 124 (3d Cir. 1988), reversed and remanded on other grounds sub nom. Dellmuth v. Muth,
491 U.S. 223 (1989).

21
Id. at 125.

22
62 F.3d 520, 526 (3d Cir. 1995).

23
Id.

24
34 C.F.R. 300.661(a)(3) (2004).
........................................
and had the power, to make its own legal determination of the reimbursement question.
25
Accordingly, NDOE acted as it was required to act under the regulations, and extraordinary
relief is not warranted in this case.
CONCLUSION
Under the IDEA, two distinct procedures exist for resolving complaints: the due process
hearing and the CRP. Here, because NDOE properly observed its duties under the CRP
regulations when it determined that the school district had fully complied with the
administrative due process decision, mandamus will not lie to compel NDOE to direct the
school district to remit an additional sum under the decision. Accordingly, we deny the
Gumms' petition for a writ of mandamus.
____________
121 Nev. 379, 379 (2005) Matter of Parental Rights as to N.D.O.
In the Matter of the Parental Rights as to N.D.O., T.L.O., and T.O.
LETESHEIA O., aka LATESHEIA O., Appellant, v. THE STATE OF NEVADA, DIVISION
OF CHILD AND FAMILY SERVICES, DEPARTMENT OF HUMAN RESOURCES,
Respondent.
No. 42937
July 14, 2005 115 P.3d 223
Appeal from a district court order terminating parental rights. Eighth Judicial District
Court, Family Court Division, Clark County; Gerald W. Hardcastle, Judge.
The supreme court, Parraguirre, J., held that: (1) due process did not demand appointment
of counsel for mother in termination proceedings; (2) no absolute right to counsel in
termination proceedings exists in Nevada, abrogating Matter of Parental Rights as to Bow,
113 Nev. 141, 930 P.2d 1128 (1997), and Matter of Parental Rights as to Daniels, 114 Nev.
81, 953 P.2d 1 (1998); (3) any error in admission of hearsay testimony was harmless; and (4)
trial court was statutorily required to consider evidence of mother's prior convictions.
____________________

25
See id. 300.661(c); id. 300.660(b) (In resolving a complaint in which it has found a failure to provide
appropriate services, [NDOE], pursuant to its general supervisory authority . . . must address: (1) How to
remediate the denial of those services, including, as appropriate, the awarding of monetary reimbursement . . .
.).
........................................
Affirmed.
Mills & Mills and Gregory S. Mills, Las Vegas, for Appellant.
Brian Sandoval, Attorney General, and Dennis C. Wilson, Deputy Attorney General,
1. Infants.
District court has statutory discretion to appoint counsel for an indigent parent in
parental rights termination proceedings. NRS 128.100(2).
2. Constitutional Law; Infants.
Due process did not demand appointment of counsel for mother in proceedings for
termination of her parental rights, where contested issues were not complex and case
did not involve expert testimony, State's interest in protecting children from abuse and
neglect and providing them with stable family life was also strong, and risk of
erroneous decision was minimal; mother testified about her long-term cocaine
addiction, and State's evidence consisted of court-mandated reports that reflected
physical abuse and neglect of children, little progress toward reunification, and mother's
criminal convictions, which evidence was admissible over any objection. U.S. Const.
amend. 14; NRS 128.100(2).
3. Constitutional Law; Infants.
No absolute right to counsel in termination proceedings exists in Nevada; the
applicable statute contemplates a case-by-case determination of whether due process
demands the appointment of counsel; abrogating Matter of Parental Rights as to Bow,
113 Nev. 141, 930 P.2d 1128 (1997); Matter of Parental Rights as to Daniels, 114 Nev.
81, 953 P.2d 1 (1998). U.S. Const. amend. 14; NRS 128.100(2).
No absolute right to counsel exists under the United States Constitution's Fourteenth
Amendment in parental rights termination proceedings; however, at a minimum, the
states must balance the interests of the state and the parent to determine if due process
demands counsel. U.S. Const. amend. 14.
5. Infants.
Any error in admission of hearsay testimony of investigator and case manager for
Division of Child and Family Services (DCFS) in termination of parental rights
proceedings, to effect that children had told them that they were happy living with their
grandmother in Mississippi and wanted to remain with her, that they had large extended
family near their grandmother, and that grandmother had expressed wish to adopt them,
was harmless, where such information was also contained in reports required to be filed
with court by DCFS. NRS 51.035.
6. Infants.
Trial court was statutorily required to consider evidence of mother's prior
convictions in proceedings for termination of her parental rights. NRS 128.106(6).
7. Infants.
Substantial evidence supported district court's findings of parental fault, in
proceedings for termination of mother's parental rights, on grounds of unfitness, failure
of parental adjustment, and token efforts to avoid being an unfit parent, and finding that
termination of parental rights served children's best interests, where mother failed to
present sufficient evidence to rebut evidence with respect to children's best
interests.
........................................
evidence to rebut evidence with respect to children's best interests. NRS 128.105(2)(c),
128.109(1)(a)(b), (2).
OPINION
In considering this appeal, we necessarily examine when a constitutional right to counsel
exists in the context of a parental rights termination proceeding, for without this
constitutional right, no ineffective-assistance-of-counsel claim will lie. We conclude that the
right to counsel must be assessed on a case-by-case basis, consistent with the United States
Supreme Court's decision in Lassiter v. Department of Social Services.
1
As no right to
counsel exists in this case, we do not reach the claim of ineffective assistance of counsel.
FACTS
Appellant Letesheia O. challenges the termination of her parental rights to her three
children. Her two older children have lived outside of Nevada with their maternal
grandmother for most of their lives. Letesheia moved to Las Vegas with her youngest child
when the child was 3 months old. Thereafter, Letesheia was convicted several times for theft
and sentenced to jail time and house arrest. Letesheia's two aunts, who reside in Las Vegas,
cared for her youngest child during Letesheia's absence. The youngest child was removed
from Letesheia's care once due to physical abuse.
Six years after Letesheia moved to Las Vegas, her two older children joined her. Within
less than a year, the State had removed all three children from Letesheia's home several times
due to physical abuse and neglect. After Letesheia failed to substantially comply with her
court-mandated case plan, all three children were placed in the custody of their maternal
grandmother in Mississippi. State agencies worked with Letesheia to develop a new case
plan. Letesheia agreed to take parenting, substance abuse and domestic violence classes and
to participate in counseling, but she only minimally complied with her case plan. Moreover,
Letesheia also was stealing in order to fund her cocaine habit and subsequently was arrested
on more than 30 counts of theft. She later escaped from prison and appeared at her
caseworker's office to inquire about her children. Police arrested Letesheia, and she remained
in custody throughout the parental rights termination proceedings.
____________________

1
452 U.S. 18 (1981).
........................................
ceedings. At the time of the proceedings, she had been incarcerated for about 12 of the 18
months since her children had been placed with their grandmother.
The district court granted the State's petition to terminate the parental rights of Letesheia
and the putative father. The court found that the State proved by clear and convincing
evidence the statutory parental fault grounds of unfitness, failure of parental adjustment and
token efforts to avoid being an unfit parent. The court further determined that termination of
parental rights is in the children's best interests, so that their maternal grandmother may adopt
them. Letesheia appeals.
DISCUSSION
Letesheia argues that she received ineffective assistance of counsel because her trial
attorney failed to object during trial, despite many hearsay statements made by the Division of
Child and Family Services (DCFS) investigator and case manager about the children's bond
with their grandmother. She also notes that counsel did not object to the State's questioning of
Letesheia about the details of her felony convictions.
[Headnotes 1, 2]
NRS 128.100(2) provides the district court with the discretion to appoint counsel for an
indigent parent in parental rights termination proceedings. Recent precedent may have
generated confusion as to whether, and when, a right to counsel exists. In Matter of Parental
Rights of Weinper, this court noted that other states have determined that procedural due
process for termination proceedings requires: (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.
2
Without explicitly stating that due process in Nevada
termination proceedings requires that the parent be afforded these rights, we determined that
the parent in Weinper had been afforded all of these enumerated rights.
3

[Headnote 3]
In two subsequent opinions, this court stated that a parent must be afforded the rights
described in Weinper, including the right to counsel, in order to satisfy due process.
4
However, we now clarify that no absolute right to counsel in termination proceedings
exists in Nevada.
____________________

2
112 Nev. 710, 713, 918 P.2d 325, 328 (1996), superseded by statute on other grounds as stated in Matter
of Parental Rights as to N.J., 116 Nev. 790, 798-800, 8 P.3d 126, 131-32 (2000); see also U.S. Const. amend.
XIV, 1; Nev. Const. art. 1, 8(5).

3
Weinper, 112 Nev. at 713, 918 P.2d at 328.

4
Matter of Parental Rights as to Bow, 113 Nev. 141, 150-51, 930 P.2d 1128, 1134 (1997) (quoting Weinper
and explaining that [t]his court has stated that
........................................
that no absolute right to counsel in termination proceedings exists in Nevada. Our statute
contemplates a case-by-case determination of whether due process demands the appointment
of counsel.
In Lassiter v. Department of Social Services, the Court held that the Fourteenth
Amendment does not require the appointment of counsel in all termination proceedings.
5
The Court reviewed the due process evaluation propounded in Mathews v. Eldridge, holding
that a court must balance the private interests at stake, the government's interest and the risk
that the procedures used will lead to erroneous decisions.
6
The Court noted that a parent's
right to the companionship, care, and custody of her children is an important interest that
warrants deference absent the State's strong, countervailing interest in protecting children.
7
The Court explained that because the State and the parent at least theoretically share an urgent
concern for the child's welfare, both parties may have a strong interest in appointed counsel.
8

However, the Court concluded that because due process is not so rigid as to require that
the significant interests in informality, flexibility and economy must always be sacrificed,'
appointment of counsel is not per se required in all termination proceedings.
9
In explaining
that no bright line rule exists, the Court reasoned that the standards of proof and evidentiary
issues in a termination proceeding often are not complicated, though also acknowledged that
parents with little education or court experience may have difficulty presenting a case,
particularly when expert medical or psychiatric testimony is involved.
10
Although the Court
concluded that the parent in Lassiter was not entitled to counsel because her case was not
particularly complex, nor was expert testimony involved, the Court acknowledged that
appointment of counsel is generally favored:
____________________
as a matter of due process, 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' ),
superseded by statute on other grounds as stated in Matter of Parental Rights as to N.J., 116 Nev. at 798-800, 8
P.3d at 131-32; Matter of Parental Rights as to Daniels, 114 Nev. 81, 88, 953 P.2d 1, 5 (1998) (stating that the
court in Weinper had examined due process in other jurisdictions and noted that parents have a right to counsel
in termination proceedings, and then considering whether the right to counsel attaches to any earlier
proceedings), superseded by statute on other grounds as stated in Matter of Parental Rights as to N.J., 116 Nev.
at 798-800, 8 P.3d at 131-32.

5
452 U.S. 18, 31 (1981).

6
424 U.S. 319, 335 (1976).

7
Lassiter, 452 U.S. at 27.

8
Id. at 27-28.

9
Id. at 31 (quoting Gagnon v. Scarpelli, 411 U.S. 778, 788 (1973)).

10
Id. at 29-30.
........................................
[i]nformed opinion has clearly come to hold that an indigent parent is entitled to the
assistance of appointed counsel not only in parental termination proceedings, but in
dependency and neglect proceedings as well.
11

[Headnote 4]
Thus, after Lassiter, no absolute right to counsel exists under the United States
Constitution's Fourteenth Amendment in parental rights termination proceedings. However, at
a minimum, the states must balance the interests according to the Mathews test to determine
if due process demands counsel. NRS 128.100 allows for that due-process balancing.
In this case, the district court appointed counsel to represent Letesheia without any due
process analysis. We therefore examine whether the specifics of Letesheia's termination
proceeding mandated that she receive the assistance of counsel in order to ensure due process.
Because the right to effective assistance of counsel derives only from a constitutional right to
counsel, if Letesheia did not have a constitutional right to counsel, her ineffective-assistance
claim must fail.
Clearly, Letesheia has a strong interest at stake in proceedings to terminate her rights to
her children. We have characterized parental rights termination as a civil death penalty
because legal termination severs the parent-child relationship.
12
The State also has a strong
interest in a just and correct determination as it seeks to protect Letesheia's children from
abuse and neglect and ensure that they have a stable family life. We expect that both the
parent's interests and the State's interests will almost invariably be strong in termination
proceedings.
Thus, we turn to the risk of an erroneous decision. As in Lassiter, case workers testified
about the events that led to the placement of Letesheia's children with their grandmother, as
well as Letesheia's progress on her case plan. The DCFS reports documented physical abuse
and neglect of her children, including abuse and neglect petitions, and ongoing domestic
violence. These reports showed that DCFS removed Letesheia's children from her care four
times between August 2000 and May 2002. The reports, as well as caseworker testimony,
indicated that the children were happy living with their grandmother and wanted to stay with
her.
[Headnote 5]
In raising her ineffective-assistance claim on appeal, Letesheia points out that the record
reflects no objections by her attorney when the DCFS investigator and case manager testified
that the children told them that they were happy living with their grandmother, wanted to
remain with her, had a large extended family near their grandmother in Mississippi, and
that the grandmother had expressed a desire to adopt the children.
____________________

11
Id. at 33-34.

12
Drury v. Lang, 105 Nev. 430, 433, 776 P.2d 843, 845 (1989).
........................................
mother, wanted to remain with her, had a large extended family near their grandmother in
Mississippi, and that the grandmother had expressed a desire to adopt the children. Neither
the children nor the grandmother were present at the trial, and the testimony by the State
caseworkers as to the grandmother's and children's statements constituted hearsay.
13
However, these statements appeared in the reports that DCFS is required to complete and
submit to the district court; the court monitors the children and parents through these reports.
An objection to the admission of these hearsay statements would have been unsuccessful
because the statements already formed part of the district court record. Whether or not
Letesheia had received assistance of counsel, the hearsay statements could not have been kept
out of the proceeding.
[Headnote 6]
Letesheia also argues that her counsel was ineffective in failing to challenge the admission
into evidence of her previous convictions. As in our discussion regarding the hearsay
statements, Letesheia's counsel had no role in whether details of Letesheia's convictions were
admitted into evidence. We previously have explained that [w]hen considering a parent's
incarceration in termination proceedings, the district court must consider the nature of the
crime, the sentence imposed, who the crime was committed upon, the parent's conduct toward
the child before and during incarceration, and the child's specific needs.
14
As the district
court specifically is directed to consider the details of the parent's convictions, Letesheia's
counsel was powerless to prevent the admission into evidence of information surrounding
Letesheia's felony convictions. Again, whether or not Letesheia had received assistance of
counsel, NRS 128.106(6) dictates that the court consider details of her previous convictions.
We identify no particular intricacies of Letesheia's case that would undermine confidence
in the result the district court reached. The Court in Lassiter noted that cases that require
expert testimony may be difficult to navigate without counsel. In Letesheia's case, no expert
testimony was offered.
15
Letesheia herself testified about her long-term cocaine addiction.
The evidence the State presented to argue that termination of parental rights was warranted
consisted of court-mandated DCFS reports that reflected physical abuse and neglect and little
progress toward reunification, as well as Letesheia's criminal convictions. Particularly in light
of the fact that this evidence was admissible over any objection, we determine that
nothing in the record points to a high risk of an incorrect decision.
____________________

13
See NRS 51.035.

14
Matter of Parental Rights as to J.L.N., 118 Nev. 621, 628, 55 P.3d 955, 960 (2002); see also NRS
128.106(6).

15
We note that Letesheia's counsel called a therapist who had met with Letesheia only a few times and who
offered general observations that with therapy Letesheia could learn to parent appropriately.
........................................
the fact that this evidence was admissible over any objection, we determine that nothing in
the record points to a high risk of an incorrect decision.
We emphasize that in many instances, including cases that involve medical, psychiatric or
other expert testimony, complex facts or evidentiary questions, or a parent who for another
reason is unable to represent herself, appointed counsel may be required to satisfy due
process. However, balancing the interests involved in this case reveals that Letesheia was not
constitutionally entitled to counsel. This conclusion precludes consideration of her
ineffective-assistance-of-counsel claim.
[Headnote 7]
We have considered Letesheia's remaining claims of error and find that they lack merit.
Substantial evidence supports the district court's findings of parental fault on the grounds of
unfitness,
16
failure of parental adjustment,
17
and token efforts to avoid being an unfit parent,
18
and that termination of parental rights served the children's best interests.
19

CONCLUSION
We conclude that, though the district court properly exercised its discretion by appointing
counsel, Letesheia was not constitutionally entitled to counsel. Balancing the interests, both
the State and Letesheia had a very strong interest in the correct result. Because the evidence
the State presented is evidence that the district court must consider in parental rights
termination proceedings, no significant risk of an erroneous decision existed in this case. Due
process did not mandate appointment of counsel, and thus we cannot reach Letesheia's claim
of ineffective assistance of counsel. Further, substantial evidence supports the district court's
judgment that termination of Letesheia's parental rights was warranted based on parental fault
and the best interests of the children. Accordingly, we affirm the district court's order
terminating the parental rights of Letesheia O.
Becker, C. J., Rose, Maupin, Gibbons, Douglas and Hardesty, JJ., concur.
____________________

16
NRS 128.105(2)(c).

17
NRS 128.109(1)(b).

18
NRS 128.109(1)(a).

19
NRS 128.109(2). We note that the statutory presumptions set forth in NRS 128.109 are rebuttable. J.L.N.,
118 Nev. at 626, 55 P.3d at 958. However, Letesheia failed to present sufficient rebuttal evidence.
____________
........................................
121 Nev. 387, 387 (2005) Day v. Washoe County Sch. Dist.
ALFRED DAY, Appellant, v. WASHOE COUNTY SCHOOL
DISTRICT and CDS COMPFIRST, Respondents.
No. 39884
July 28, 2005 116 P.3d 68
compensation case. First Judicial District Court, Carson City; Michael R. Griffin, Judge.
Workers' compensation claimant sought judicial review of appeals officer's denial of
request to reopen claim for treatment of claimant's left hip. The district court affirmed
officer's decision. Claimant appealed. The supreme court, Maupin, J., held that appeals
officer could not reconsider original acceptance of claimant's osteoarthritis as industrially
related.
Nancyann Leeder, Nevada Attorney for Injured Workers, Carson City, for Appellant.
McDonald Carano Wilson LLP and Timothy E. Rowe, Reno, for Respondents.
When deciding workers' compensation claimant's application to reopen claim
concerning left hip, appeals officer could not reconsider original acceptance of
claimant's osteoarthritis as industrially related; sole issue before officer was whether
primary cause of claimant's change in circumstances was injury for which claim was
originally made. NRS 616C.390(1)(b).
Statutory interpretation is a question of law which supreme court reviews de novo.
3. Statutes.
When possible, supreme court gives statutes their plain meaning.
On questions of fact, supreme court reviews an administrative body's decision for
clear error or an arbitrary abuse of discretion and will not overturn an appeals officer's
factual decision that is supported by substantial evidence.
While supreme court will not substitute its judgment for that of an agency as to the
weight of the evidence, supreme court will reverse an agency decision that is clearly
erroneous in light of reliable, probative, and substantial evidence on the whole record.
The supreme court has the inherent authority to remand administrative agency cases
for factual determinations.
Statute governing reopening of workers' compensation claims does not permit
reconsideration of the accuracy of a prior decision that an injury is industrial in nature.
NRS 616C.390.
........................................
OPINION
In this appeal, we consider the scope of the Nevada Industrial Insurance Act's provision for
claim reopening, NRS 616C.390. This statute allows the reopening of closed workers'
compensation claims when the original injury is the primary cause of a worsening of the
industrial condition. We hold that a prior determination that an injury was industrially related
may not be reconsidered in determining primary causation under NRS 616C.390.
Appellant Alfred Day sustained a number of industrial injuries between 1986 and 1995,
which involved his neck, back and hips. The history of Day's various workers' compensation
claims reveals that, by 1995, doctors had diagnosed him with degenerative osteoarthritis in
both hips. Pursuant to this diagnosis, Day's orthopedist requested the reopening of one of
Day's previous industrial insurance claims and recommended bilateral hip-replacement
surgery. The third-party administrator, respondent CDS CompFirst (CDS), ultimately
approved separate surgeries for each hip. Although Day underwent right hip replacement
surgery in 1995, he elected not to immediately undergo the second procedure to his left hip.
Subsequently, in 1997, CDS closed Day's consolidated claim and granted him a 21 percent
permanent partial disability (PPD) rating, the majority of which related to his hips. In making
this award, CDS concluded that Day's degenerative hip condition was 100 percent the result
of his industrial injuries. No appeal was taken from this award.
In 1999, Day requested the reopening of his claim for treatment of his left hip, which CDS
denied. Eventually, the matter proceeded to an appeals officer, who upheld CDS's denial of
claim reopening. The district court denied Day's subsequent petition for judicial review. Day
appeals.
DISCUSSION
[Headnotes 1-6]
Statutory interpretation is a question of law which this court reviews de novo.
1
When
possible, this court gives statutes their plain meaning and, in particular, has " ' "consistently
upheld the plain meaning of the statutory scheme in workers' compensation laws."
____________________

1
E.g., Construction Indus. v. Chalue, 119 Nev. 348, 351, 74 P.3d 595, 597 (2003); see also NRS
233B.135(3)(a), (d).
........................................
meaning and, in particular, has consistently upheld the plain meaning of the statutory
scheme in workers' compensation laws. '
2
However, on questions of fact, this court
reviews an administrative body's decision for clear error or an arbitrary abuse of discretion
and will not overturn an appeals officer's factual decision that is supported by substantial
evidence.
3
While this court will not substitute its judgment for that of the agency as to the
weight of the evidence, this court will reverse an agency decision that is clearly erroneous in
light of reliable, probative, and substantial evidence on the whole record.'
4
Further, this
court has the inherent authority to remand administrative agency cases for factual
determinations.
5

NRS 616C.390 governs the reopening of industrial insurance claims and provides in
pertinent part:
1. If an application to reopen a claim to increase or rearrange compensation is made
in writing more than 1 year after the date on which the claim was closed, the insurer
shall reopen the claim if:
(a) A change of circumstances warrants an increase or rearrangement of
compensation during the life of the claimant;
(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 or a chiropractor
showing a change of circumstances which would warrant an increase or rearrangement
of compensation.
The parties do not dispute that Day's hip condition has worsened since claim closure in 1997
or that Day properly attached a physician's certificate to his 1999 claim reopening application.
Thus, the sole issue before the appeals officer was whether the primary cause of [Day's]
change of circumstances [was] the injury for which the claim was originally made.
6

____________________

2
Chalue, 119 Nev. at 351-52, 74 P.3d at 597 (quoting Barrick Goldstrike Mine v. Peterson, 116 Nev. 541,
545, 2 P.3d 850, 852 (2000) (quoting SIIS v. Prewitt, 113 Nev. 616, 619, 939 P.2d 1053, 1055 (1997))).

3
Id. at 352, 74 P.3d at 597 (stating that [s]ubstantial evidence is that which a reasonable mind might
accept as adequate to support a conclusion ' (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quoting Edison Co. v. Labor Board, 305 U.S. 197, 229 (1938)))).

4
Id. (quoting United Exposition Service Co. v. SIIS, 109 Nev. 421, 425, 851 P.2d 423, 425 (1993)); see also
NRS 233B.135(3).

5
General Motors v. Jackson, 111 Nev. 1026, 1030, 900 P.2d 345, 348 (1995).

6
NRS 616C.390(1)(b).
........................................
In denying claim reopening, the appeals officer noted:
The fact that a condition may have, at one point in time, been accepted as the
responsibility of an industrial insurer and the fact that specific treatment of such
condition may, at one point in time, have been approved, does not obviate the statutory
requirement of proving, upon a request for reopening, that the primary cause of the
current need for treatment of the condition is, or remains, the industrial injury. NRS
616C.390(1)(b).
The preponderance of the relevant and most competent medical evidence presented
herein does not support a conclusion that Claimant has met the evidentiary
requirements of NRS 616C.390(1).
We conclude that the appeals officer misinterpreted NRS 616C.390 to permit reconsideration
of the original acceptance of Day's osteoarthritis as industrially related. In this, we note that
the appeals officer implicitly relied on the medical opinions of Dr. Phelps Kip and Dr. George
Mars. In particular, Dr. Kip concluded that Day's osteoarthritis was not traumatically induced
and, thus, was not industrially related in the first instance. Further, Dr. Mars' final report
states:
Based on the previous Nevada law, any aggravation or preexisting condition can be
considered an industrial condition. However, this was amended and going by the
present law, the patient does have really no changes in his work-related condition from
his previous PPD except in his left hip which has definite decreased range of motion
and increased severe destructive arthropathy. However, this severe destructive
arthropathy under present law is not work-related and in all medical probability not an
extension of his original injury of lifting a 5-gallon can. However, the patient does have
severe problems in this hip and on a non-industrial basis should have total hip
arthroplasty.
7

(Emphasis added.) While the burden was on Day to satisfy NRS 616C.390's claim reopening
requirements, the sole issue before the appeals officer was whether the primary cause for
the worsening of Day's hip osteoarthritis was the injury for which the claim was originally
made. By considering medical opinions revisiting the propriety of the original conclusion
that the osteoarthritis was industrially related, it appears that the appeals officer improperly
reconsidered an issue that had been previously resolved.
8

____________________

7
We question in passing whether Dr. Mars' medical-legal opinion as stated was admissible under NRS
233B.123(1). See NRS 50.275.

8
See Browning v. Young Elec. Sign Co., 113 Nev. 420, 423-25, 936 P.2d 322, 325-26 (1997) (once a
third-party administrator accepts an insurance
........................................
[Headnote 7]
NRS 616C.390 does not permit reconsideration of the accuracy of a prior decision that an
injury is industrial in nature. Accordingly, a new hearing should be conducted before the
appeals officer, with the sole issue to be whether the primary cause for the worsening of
Day's left hip osteoarthritis was the injury for which the claim was originally made. In
making this determination, the appeals officer should be mindful of the fact that respondents
originally accepted Day's degenerative hip condition as industrially related and that NRS
616C.390 requires only a determination of whether that injury is the primary cause of Day's
worsened condition.
9

CONCLUSION
The appeals officer improperly reconsidered the nature of the original industrial injury
upon an application for claim reopening. We therefore reverse the district court's order
denying the petition for judicial review and remand this matter with instructions that the court
direct the appeals officer to conduct a new hearing in accordance with the analysis set forth in
this opinion.
____________
121 Nev. 391, 391 (2005) Lee v. Ball
BARRY J. LEE, Appellant, v. CHRISTOPHER G. BALL, Respondent.
No. 41686
July 28, 2005 116 P.3d 64
Appeal from a district court judgment granting additur and denying attorney fees and
costs. Eighth Judicial District Court, Clark County; Stewart L. Bell, Judge.
Automobile passenger, who sustained injuries after the driver negligently turned into
oncoming traffic, brought action against driver, alleging general and special damages. The
jury awarded passenger $1,300, and driver subsequently moved for costs and attorney fees
because passenger failed to recover an amount in excess of the offer of judgment. The district
court granted an $8,200 additur and awarded passenger prejudgment interest, but did not offer
driver the option of a new trial. Driver appealed. The supreme court, Maupin, J., held that: (1)
additur was warranted, and {2) driver should have been offered the option of a new trial or
acceptance of the additur.
____________________
claim, the insurer must timely appeal the decision or it loses its right to challenge the validity of the award).

9
See id.
........................................
121 Nev. 391, 392 (2005) Lee v. Ball
and (2) driver should have been offered the option of a new trial or acceptance of the additur.
Ronald M. Pehr, Las Vegas, for Appellant.
Piazza & Associates and Carl F. Piazza and David H. Putney, Las Vegas, for Respondent.
1. New Trial.
Courts have the power to condition an order for a new trial on acceptance of an
additur.
2. New Trial.
If the damages are clearly inadequate and case would be a proper one for granting a
motion for a new trial limited to damages, then the district court has discretion to grant
a new trial, unless the defendant consents to the court's additur.
3. Appeal and Error; New Trial.
The trial court has broad discretion in determining motions for additur, and appellate
court will not disturb the trial court's determination unless that discretion has been
abused.
4. New Trial.
Granting additur in the absence of a demonstrable ground for a new trial is an abuse
of discretion.
5. New Trial.
Additur was warranted in personal injury action brought against driver by passenger,
who sustained injuries after driver negligently turned into oncoming traffic, because
jury's damages award to passenger was substantially less than the conceded proofs of
special damages, there was at least some indication that jury award was clearly
inadequate in violation of trial court's instructions, and although jury, acting reasonably,
could have disbelieved passenger's evidence concerning alleged pain and suffering, it
was incumbent upon driver to demonstrate that the additur, in and of itself, constituted
an abuse of discretion, and driver failed to do so.
6. New Trial.
Although additur was warranted in personal injury action brought against driver by
passenger, who sustained injuries after driver negligently turned into oncoming traffic,
driver should have been offered the option of a new trial or acceptance of the additur;
additur could not stand alone as a discrete remedy, and instead, it was only appropriate
when presented to the defendant as an alternative to a new trial on damages.
7. New Trial.
Additur may not stand alone as a discrete remedy; rather, it is only appropriate when
presented to the defendant as an alternative to a new trial on damages.
8. Interest.
Trial court's calculation of the rate of prejudgment interest using periodic biannual
legal rates of interest in effect during four-year period was error; instead, pursuant to
statute governing computation of interest, trial court should have calculated
prejudgment interest at the single rate in effect on the date of judgment. NRS 17.130(2).
........................................
121 Nev. 391, 393 (2005) Lee v. Ball
9. Interest.
Prejudgment interest accrued in personal injury action beginning on date that
plaintiff completed service of process. NRS 17.130(2).
OPINION
In this appeal, we clarify that a district court's grant of additur is only appropriate when
The litigation below arose from a car accident in which the passenger in a vehicle,
respondent Christopher Ball, sustained injuries after the driver, appellant Barry Lee,
negligently turned into oncoming traffic. Ball sued Lee, alleging general and special damages.
Unhappy with the results of court-annexed arbitration, Lee requested a trial de novo. Before
trial, Lee served Ball with an offer of judgment for $8,011.46. After a two-day trial, the jury
awarded Ball $1,300. Lee subsequently moved for costs and attorney fees because Ball failed
to recover an amount in excess of the offer of judgment. Ball opposed this motion, requesting
a new trial or, in the alternative, additur. After an untranscribed hearing, the district court
granted an $8,200 additur and awarded Ball prejudgment interest but did not offer Lee the
option of a new trial. The district court further calculated prejudgment interest using a
pro-rata formula based on the differing statutory rates of interest in effect before the entry of
final judgment. Lee appeals, arguing that the district court erred by granting an additur, failing
to offer a new trial, and erroneously calculating prejudgment interest. As a result, Lee argues
he is entitled to attorney fees and costs.
DISCUSSION
Additur
[Headnotes 1-6]
Under Drummond v. Mid-West Growers,
1
Nevada courts have the power to condition an
order for a new trial on acceptance of an additur.
2
In line with Drummond, our subsequent
decisions have confirmed a "two-prong test for additur: {1) whether the damages are
clearly inadequate, and {2) whether the case would be a proper one for granting a motion
for a new trial limited to damages."
____________________

1
91 Nev. 698, 708-13, 542 P.2d 198, 205-08 (1975).

2
Id. at 708, 542 P.2d at 205.
........................................
121 Nev. 391, 394 (2005) Lee v. Ball
firmed a two-prong test for additur: (1) whether the damages are clearly inadequate, and (2)
whether the case would be a proper one for granting a motion for a new trial limited to
damages.
3
If both prongs are met, then the district court has discretion to grant a new trial,
unless the defendant consents to the court's additur.
4
The district court has broad discretion
in determining motions for additur, and we will not disturb the court's determination unless
that discretion has been abused.
5
However, granting additur in the absence of a demonstrable
ground for a new trial is an abuse of discretion.
We conclude that Lee has failed to demonstrate that the district court abused its discretion
in determining that additur was warranted. First, the hearing during which the district court
orally granted additur was not reported, the parties have not provided a trial transcript in the
record on appeal, and the parties have not otherwise favored us with the district court's oral
explanation for granting Ball such relief.
6
Second, because the award was substantially less
than the conceded proofs of special damages, there is at least some indication that the jury
award was clearly inadequate in violation of the district court's instructions. Although the
jury, acting reasonably, could have disbelieved Ball's evidence concerning alleged pain and
suffering and reasonably inferred that he was not injured as severely as claimed,
7
and
although the jury was not bound to assign any particular probative value to any evidence
presented,
8
it is incumbent upon Lee to demonstrate that the additur, in and of itself,
constitutes an abuse of discretion.
9
He has failed to do so.
[Headnote 7]
We conclude, however, that the district court abused its discretion in failing to offer Lee
the option of a new trial or acceptance of the additur. We clarify that, under Drummond,
additur may not stand alone as a discrete remedy; rather, it is only appropriate when
____________________

3
Evans v. Dean Witter Reynolds, Inc., 116 Nev. 598, 616, 5 P.3d 1043, 1054 (2000) (citing Drummond, 91
Nev. at 705, 542 P.2d at 203).

4
Drummond, 91 Nev. at 712, 542 P.2d at 208.

5
Donaldson v. Anderson, 109 Nev. 1039, 1041, 862 P.2d 1204, 1206 (1993).

6
See Stover v. Las Vegas Int'l Country Club, 95 Nev. 66, 68, 589 P.2d 671, 672 (1979) (stating [w]hen
evidence on which a district court's judgment rests is not properly included in the record on appeal, it is assumed
that the record supports the lower court's findings). We further note that the district court's written order
granting additur is silent as to the reasons for this award.

7
See Quintero v. McDonald, 116 Nev. 1181, 1184, 14 P.3d 522, 524 (2000).

8
Id.

9
See Wallace v. Haddock, 825 A.2d 148, 151-52 (Conn. App. Ct. 2003) (declining to upset an award of
additur when the appellant failed to provide transcripts and failed to seek any further articulation of the court's
reasoning for granting the motion for an additur).
........................................
121 Nev. 391, 395 (2005) Lee v. Ball
stand alone as a discrete remedy; rather, it is only appropriate when presented to the
defendant as an alternative to a new trial on damages.
10

Prejudgment interest
[Headnotes 8, 9]
Lee argues that the district court erred in calculating both the rate and period of
prejudgment interest. We agree and conclude that the district court's calculation was plainly
erroneous.
11

Under NRS 17.130(2),
12
a judgment accrues interest from the date of the service of the
summons and complaint until the date the judgment is satisfied. Unless provided for by
contract or otherwise by law, the applicable rate for prejudgment interest is statutorily
determined.
13
In determining what rate applies, NRS 17.130(2) instructs courts to use the
base prime rate percentage "as ascertained by the Commissioner of Financial Institutions
on January 1 or July 1, as the case may be, immediately preceding the date of judgment,
plus 2 percent."
____________________

10
See Drummond, 91 Nev. at 712, 542 P.2d at 208; see also Donaldson, 109 Nev. at 1043, 862 P.2d at 1207
(reversing a district court order and remanding with instructions to grant a new trial limited to damages, unless
the defendant agreed to additur); ITT Hartford Ins. Co. of the S.E. v. Owens, 816 So. 2d 572, 575-76 (Fla. 2002)
(holding the relevant Florida statute requires a trial court to give the defendant the option of a new trial when
additur is granted); Wallace, 825 A.2d at 153 (finding the relevant Connecticut statute requires parties have the
option of accepting additur or receive a new trial on the issue of damages); Runia v. Marguth Agency, Inc., 437
N.W.2d 45, 50 (Minn. 1989) ([A] new trial may be granted for excessive or inadequate damages and made
conditional upon the party against whom the motion is directed consenting to a reduction or an increase of the
verdict. Consent of the non-moving party continues to be required.); Tucci v. Moore, 875 S.W.2d 115, 116
(Mo. 1994) (Additur requires that the party against whom the new trial would be granted have, instead, the
option of agreeing to additur.); Belanger by Belanger v. Teague, 490 A.2d 772, 772 (N.H. 1985) (mem.)
(holding a jury verdict supplemented with an additur may go to judgment only if the defendant waives a new
trial).

11
See Bradley v. Romeo, 102 Nev. 103, 105, 716 P.2d 227, 228 (1986) (The ability of this court to consider
relevant issues sua sponte in order to prevent plain error is well established. Such is the case where a statute
which is clearly controlling was not applied by the trial court. (citation omitted)).

12
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, at a rate equal to the prime rate at the largest bank in Nevada as ascertained by
the Commissioner of Financial Institutions on January 1 or July 1, as the case may be, immediately
preceding the date of judgment, plus 2 percent. The rate must be adjusted accordingly on each January 1
and July 1 thereafter until the judgment is satisfied.

13
NRS 17.130(2); see also Gibellini v. Klindt, 110 Nev. 1201, 1208, 885 P.2d 540, 544-45 (1994) (holding
that the or specified in the judgment language does not permit a judge to vary an interest rate outside of the
statutory rate).
........................................
121 Nev. 391, 396 (2005) Lee v. Ball
instructs courts to use the base prime rate percentage as ascertained by the Commissioner of
Financial Institutions on January 1 or July 1, as the case may be, immediately preceding the
date of judgment, plus 2 percent.
The district court calculated the rate of prejudgment interest using periodic biannual legal
rates of interest in effect between May 27, 1999, and March 24, 2003. This was error. Under
the plain language of NRS 17.130(2), the district court should have calculated prejudgment
interest at the single rate in effect on the date of judgment.
The district court further determined that prejudgment interest accrued from May 27, 1999,
to March 24, 2003. NRS 17.130(2) explicitly provides that the judgment draws interest from
the time of service of the summons and complaint until satisfied. Ball completed service of
process on June 9, 1999, and the district court entered final judgment on March 29, 2003.
Therefore, prejudgment interest accrued beginning June 9, 1999, not May 27, 1999.
Accordingly, the district court also erred in calculating the period prejudgment interest
accrued.
CONCLUSION
We hold that the district court erred in granting an additur without providing Lee the
option of accepting the additur or a new trial on damages and in calculating prejudgment
interest. Accordingly, we reverse the district court's judgment and remand this matter for
____________
121 Nev. 396, 396 (2005) MGM Mirage v. Cotton
MGM MIRAGE, Appellant, v. BRENDA COTTON, Respondent.
No. 43324
July 28, 2005 116 P.3d 56
Appeal from a district court order denying a petition for judicial review of an appeals
officer's decision awarding workers' compensation. Eighth Judicial District Court, Clark
County; Jessie Elizabeth Walsh, Judge.
Employer petitioned for review of appeals officer's award of workers' compensation
benefits to claimant who was injured on employer's premises approximately ten minutes
before her scheduled shift. The district court denied the petition. Employer appealed. The
supreme court held that: (1) premises-related exception to the going and coming rule would
be adopted, and (2) claimant showed that injury occurred in the course of employment and
arose out of employment, and thus claimant was entitled to workers' compensation
benefits.
........................................
arose out of employment, and thus claimant was entitled to workers' compensation benefits.
Affirmed.
David H. Benavidez, Henderson, for Appellant.
Craig P. Kenny & Associates and Craig P. Kenny and Kathryn N. Potvin, Las Vegas, for
Respondent.
Supreme court reviews an administrative body's decision for clear error or an
arbitrary abuse of discretion.
Supreme court will not disturb an agency's factual findings that are supported by
In reviewing an administrative agency's decision, questions of law are reviewed de
novo.
Nevada Industrial Insurance Act requires a claimant to establish more than merely
being at work and suffering an injury in order to recover. NRS Chapters 616A616D.
Nevada looks to whether the employee is in the employer's control in order to
determine whether an employee is acting within the scope of employment when an
accident occurs outside of the actual period of employment or off the employer's
premises. NRS 616B.612(1), 616C.150(1).
Premises-related exception to the going and coming rule, under which an employee
injured on the employer's premises while proceeding to or from work within a
reasonable interval before or after work may be entitled to workers' compensation,
would be adopted. NRS 616B.612(1), 616C.150(1).
Claimant who tripped over curb and injured her ankle while on employer's premises
as she walked from employer's parking lot to employer's sidewalk entrance about ten
minutes before she was scheduled to work showed that injury occurred in the course of
employment and arose out of employment, and thus claimant was entitled to workers'
compensation benefits; claimant was injured within a reasonable time before starting
work, and claimant established causal link between injury and workplace conditions or
environment. NRS 616B.612(1), 616C.150(1).
OPINION
Per Curiam:
In this appeal, we consider whether an employee, who suffers an injury connected to the
work environment and on the employer's premises while arriving to or departing from work,
is eligible for workers' compensation benefits.
........................................
workers' compensation benefits. Generally, under the going and coming rule, employees are
not entitled to workers' compensation for injuries sustained while traveling to or from work.
We now adopt a premises-related exception to the going and coming rule. Thus, we hold
that an employee who is injured on the employer's premises within a reasonable interval
before or after work may be eligible for workers' compensation.
FACTS
In January 2003, respondent Brenda Cotton, an employee of appellant MGM Mirage in
Las Vegas, Nevada, walked through her employer's parking lot approximately ten minutes
before her scheduled shift. Cotton injured herself when she tripped over a curb while stepping
from the parking lot onto the sidewalk leading to the entrance of an MGM building. She was
diagnosed with an ankle fracture, sprain and ligament tear.
MGM denied Cotton's workers' compensation claim, reasoning that Cotton had failed to
establish that her injury arose out of and in the course of employment under NRS 616C.150.
A hearing officer affirmed MGM's determination, noting that the injury is stated to have
occurred prior to being on the clock.' An appeals officer reversed the hearing officer's
decision and awarded compensation, and the district court denied MGM's subsequent petition
for judicial review. MGM appeals.
DISCUSSION
[Headnotes 1-3]
This court review[s] an administrative body's decision for clear error or an arbitrary abuse
of discretion.
1
We will not disturb an agency's factual findings that are supported by
2
However, [q]uestions of law are reviewed de novo.
3
Analysis of the
premises exception to the going and coming rule presents a question of law for this court's
review.
NRS 616B.612(1) requires an employer to provide compensation in accordance with the
terms of the Nevada Industrial Insurance Act
4
for any employee injuries arising out of and
in the course of the employment. NRS 616C.150(1) provides that an injured employee is not
entitled to receive workers' compensation unless she establishes by a preponderance of the
evidence that her injury arose out of and in the course of her employment.
____________________

1

2
Bullock v. Pinnacle Risk Mgmt., 113 Nev. 1385, 1388, 951 P.2d 1036, 1038 (1997).

3
Id.

4
NRS Chapters 616A-616D, inclusive.
........................................
[Headnote 4]
We previously have explained that the language of the statute reveals that legislators did
not intend the Nevada Industrial Insurance Act to make employers absolutely liable for any
injury that might happen while an employee was working. Rather, the statute requires a
claimant to establish more than merely being at work and suffering an injury in order to
recover.
5
In Rio Suite Hotel & Casino v. Gorsky, we interpreted the statutory language
arose out of . . . employment
6
to signify that the claimant must show a causal connection
between the injury and the workplace environment.
7
As noted by the appeals officer below,
we have sustained a workers' compensation award when an employer's truck struck an
employee as he waited on the employer's premises, after his shift, for his ride home.
8

MGM argues that Cotton was not injured in the course of employment when she arrived in
her employer's parking lot about ten minutes before she was scheduled to work because
injuries sustained by employees while going to or returning from their regular place of work
are not deemed to arise out of and in the course of their employment, unless the injuries fall
under an exception to the rule.
9
MGM contends that the inquiry in Nevada is whether the
employee was performing a service for the employer or acting within the employer's control
at the time of the injury.
10

[Headnote 5]
MGM correctly states that Nevada looks to whether the employee is in the employer's
control in order to determine whether an employee is acting within the scope of employment
when an accident occurs outside of the actual period of employment or off the employer's
premises.
11
Thus, we have embraced a going and coming rule, precluding compensation
for most employee injuries that occur during travel to or from work. This rule frees
employers from liability for the dangers employees encounter in daily life.
____________________

5
Rio Suite Hotel & Casino v. Gorsky, 113 Nev. 600, 605, 939 P.2d 1043, 1046 (1997).

6
NRS 616C.150(1).

7
Gorsky, 113 Nev. at 604, 939 P.2d at 1046.

8
See Provenzano v. Long, 64 Nev. 412, 428, 183 P.2d 639, 646-47 (1947).

9
Nev. Industrial Comm. v. Dixon, 77 Nev. 296, 298, 362 P.2d 577, 578 (1961); see also 1 Arthur Larson &
Lex K. Larson, Larson's Workers' Compensation Law 13.01(1) (2004).

10
National Convenience Stores v. Fantauzzi, 94 Nev. 655, 658, 584 P.2d 689, 691 (1978) (a respondeat
superior case); Nevada Ind. Com. v. Leonard, 58 Nev. 16, 24, 68 P.2d 576, 579 (1937).

11
Tighe v. Las Vegas Metro. Police Dep't, 110 Nev. 632, 636, 877 P.2d 1032, 1035 (1994); Schepcoff v.
SIIS, 109 Nev. 322, 325, 849 P.2d 271, 273 (1993); Leonard, 58 Nev. at 26, 68 P.2d at 579-80; Costley v.
Nevada Ind. Ins. Com., 53 Nev. 219, 225, 296 P. 1011, 1013 (1931).
........................................
ployers from liability for the dangers employees encounter in daily life.
However, Cotton's situation is that of an employee injured on the employer's premises as
the employee arrived for work. Although Nevada has not expressly adopted a
premises-related exception to the going and coming rule, other states have. Many
jurisdictions recognize that [o]ne exception to the going and coming' rule is the parking lot'
rule: An injury sustained on an employer's premises while an employee is proceeding to or
from work is considered to have occurred in the course of employment.'
12

[Headnote 6]
We agree with this approach. When an employee has use of the employer's premises, for
example, for parking, the employee must necessarily have a reasonable margin of time and
space in going and coming between her automobile and work.
13
Under a parking lot or
premises-related exception to the going and coming rule, injuries sustained on the employer's
premises while the employee is proceeding to or from work, within a reasonable time, are
sufficiently connected with the employment to have occurred in the course of employment.
14

[Headnote 7]
We emphasize that the inquiry is two-fold. If an employee establishes that an injury
occurred in the course of employment, she also must show that the injury arose out of the
employment. In this case, Cotton was on the employer's premises as she walked from the
employer's parking lot to the employer's sidewalk entrance about ten minutes before she was
scheduled to work. She tripped over the curb, part of the workplace environment, and injured
her ankle. Thus, Cotton first showed that her injury occurred in the course of employment
because she was injured within a reasonable time before starting work.
15
Second, she
demonstrated that her injury arose out of her employment because she established the causal
link between the injury and workplace conditions or workplace environment.
____________________

12
Hearthstone Manor v. Stuart, 84 P.3d 208, 211 (Or. Ct. App. 2004) (quoting Norpac Foods, Inc. v.
Gilmore, 867 P.2d 1373, 1376 (Or. 1994)); see also P.B. Bell & Associates v. Ind. Com'n of Ariz., 690 P.2d 802,
805 (Ariz. Ct. App. 1984); Smith v. State, Dept. of Labor & Indus., 907 P.2d 101, 105 (Haw. 1995); Milledge v.
Oaks, 784 N.E.2d 926, 929 (Ind. 2003); Goff v. Farmers Union Accounting Service, Inc., 241 N.W.2d 315, 317
(Minn. 1976); Barnes v. Stokes, 355 S.E.2d 330, 331 (Va. 1987).

13
North Amer. Rock. Corp., S.D. v. Workmen's Comp. App. Bd., 87 Cal. Rptr. 774, 777 (Ct. App. 1970).

14
See Norpac Foods, 867 P.2d at 1376.

15
1 Larson & Larson, supra note 9, 12.01; see, e.g., Brooks v. Carter, 430 N.E.2d 566, 568 (Ill. App. Ct.
1981); Barre v. TCIM Services, Inc., 971 P.2d 874, 877 (Okla. Civ. App. 1998); Barnes, 355 S.E.2d at 331.
........................................
causal link between the injury and workplace conditions or workplace environment.
Accordingly, the appeals officer did not abuse her discretion by awarding Cotton benefits.
CONCLUSION
We expressly adopt a premises-related exception to the going and coming rule and hold
that an employee injured on the employer's premises while proceeding to or from work within
a reasonable interval before or after work may be entitled to workers' compensation.
Therefore, we conclude that the appeals officer's determination that Cotton's injury arose out
of and in the course of her employment was not in error or an arbitrary abuse of discretion,
and we affirm the judgment below.
____________
121 Nev. 401, 401 (2005) Whisler v. State
DOUGLAS RONALD WHISLER, Appellant, v. THE
STATE OF NEVADA, Respondent.
No. 42033
July 28, 2005 116 P.3d 59
Appeal from a judgment of conviction, upon a jury verdict, of driving while under the
influence of controlled substances or chemicals. Second Judicial District Court, Washoe
County; Steven R. Kosach, Judge.
The supreme court, Parraguirre, J., held that: (1) defendant did not waive right to challenge
denial of motion in limine ruling regarding admissibility of prior DUI conviction, (2)
probative value of evidence of prior conviction for DUI was not substantially outweighed by
danger of unfair prejudice, (3) driving under influence of controlled substance did not require
proof that defendant willfully or knowingly became intoxicated, and (4) evidence that drug
carisoprodol was not controlled substance in Nevada did not preclude prosecution for driving
under influence of controlled substance or chemical.
Affirmed.
John E. Oakes, Reno, for Appellant.
and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Defendant did not waive right to challenge on direct appeal denial of motion in
limine ruling regarding admissibility of prior conviction for driving under influence
{DUI) by preemptively introducing such evidence at trial.
........................................
driving under influence (DUI) by preemptively introducing such evidence at trial.
2. Witnesses.
Probative value of evidence of prior conviction for driving under influence (DUI)
was not substantially outweighed by danger of unfair prejudice, in trial for subsequent
driving under influence of controlled substance or chemical; evidence was relevant to
impeach defendant's testimony that he was unaware of impairment, and jury was
instructed that evidence was considered only for purposes of impeachment, to show
absence of mistake regarding defendant's knowledge of impairment, and to evaluate
defendant's credibility. NRS 48.035(1), 50.095.
3. Criminal Law.
A district court's ruling on a motion in limine is reviewed for an abuse of discretion.
4. Witnesses.
Before admitting evidence of a defendant's prior conviction, the district court must
balance the potential for prejudice against the usefulness of the prior conviction for the
purpose of impeachment. NRS 50.095.
5. Automobiles.
Driving under influence (DUI) of controlled substance did not require proof that
defendant willfully or knowingly became intoxicated. NRS 484.379(2)(a), (c).
6. Automobiles.
Evidence that drug carisoprodol was not controlled substance in Nevada did not
preclude prosecution for driving under influence of controlled substance or chemical.
NRS 484.379.
OPINION
This is an appeal from a verdict finding appellant, Douglas Whisler, guilty of driving
while under the influence of controlled substances or chemicals. On appeal, Whisler contends
that the district judge erred in admitting evidence of Whisler's prior felony conviction,
denying his motion in limine, refusing a proffered jury instruction on involuntary
intoxication, and misinterpreting NRS 484.379. We hold that the district court properly
admitted evidence of Whisler's prior conviction and that his involuntary intoxication defense
is without merit. Accordingly, we affirm the judgment entered below.
FACTS
In March 2001 in Reno, witnesses observed Whisler walking, stumbling and weaving
side-to-side as he proceeded to his vehicle. After Whisler drove away, these witnesses
contacted police and followed him. They testified that Whisler repeatedly weaved in and out
of his travel lane, eventually stopped at his residence, and exited his vehicle.
........................................
ited his vehicle. One of the witnesses approached Whisler to provide help, if needed. The
witness testified that Whisler was unable to stand without leaning on the car and did not seem
to understand his questions, but that he did not smell of alcohol. Whisler only explained that
he was tired from an extended trip out of town.
Police officer Robert Tygard responded to Whisler's residence and noticed that Whisler
was unsteady on his feet, shaking, having difficulty maintaining his balance and slurring his
speech. Officer Tygard detected no odor of alcohol on Whisler. Whisler informed Officer
Tygard that he had no medical problems, was not taking any medication and had just returned
from a trip to Mexico. Upon the officer's request that Whisler hold out his hands, the officer
noticed that Whisler's hands were shaking. Officer Tygard then conducted several field
sobriety tests. While Whisler was mentally oriented to time and place, he failed the physical
tests, and the officer observed two indications of impairment based upon a horizontal gaze
nystagmus test.
Although Whisler initially stated he was not under a doctor's care nor taking prescription
medicine, he later informed the officer that he was taking Vicodin for a chipped vertebra in
his neck. Whisler also told the officer at one point that he took Vicodin twice a day, but later
stated that he took this medication every four hours. Officer Tygard testified that Whisler's
speech and motions seemed lethargic. Based on these observations, the officer arrested
Whisler for driving while under the influence of a controlled substance or chemical (DUI)
and transported him to the Washoe County Jail where blood was drawn. Test results were
positive for chemicals consistent with Schedule III-type drugs. The State thereafter charged
Whisler with driving under the influence of a controlled substance or chemicals.
The day before Whisler's June 2003 trial, he sought a ruling concerning the admissibility
of a prior felony DUI conviction. In his motion in limine, Whisler admitted that he had
sustained a felony DUI conviction in 1998 for which he received a sentence of 12-30 months.
Whisler noted that he had been alcohol free for approximately six years. He also maintained
that his impairment on the day in question was an unintended consequence of taking
medication he received from a pharmacist in Mexico to relieve pain from a neck injury. Thus,
Whisler argued that his prior felony conviction was not relevant to the current charge and that
its admission would be unfairly prejudicial. Whisler insisted that he would need to testify that
he did not know and was not aware of the effects of the medication. The district court
determined that, if Whisler testified as to his impairment, evidence of the prior felony
conviction was admissible for impeachment purposes.
At trial, Whisler defended on the theory that he unexpectedly became impaired by the
combination of medications, labeling his defense as involuntary intoxication by medication.
........................................
defense as involuntary intoxication by medication. Whisler testified in detail concerning his
prior experience with alcohol. He also called his Alcoholics Anonymous sponsor to testify on
his behalf that he had been sober for at least five years. Whisler preemptively testified that he
had been convicted of a felony for driving under the influence of alcohol in 1998, which
meant that he had had at least two prior misdemeanor convictions for DUI, and that he had
promised the district court that he would stay sober.
Whisler testified that he suffers from chronic pain due to a severe and debilitating
degenerative spinal condition for which he has been receiving medical treatment and
medication, including Vicodin, since 1993. In March of 2001, while vacationing in Mexico,
he ran out of his medication and obtained a quantity of carisoprodol, a nonprescription
muscle relaxant. The next day, while still in Mexico, Whisler obtained a prescription from a
physician for pain medication, allegedly Tylenol 3, along with samples of Valium.
Whisler returned to Reno the day before his arrest. He stated that, on the evening before
the incident, he took one carisoprodol and one capsule of an unknown drug but felt normal.
Whisler testified that he was arrested the next day after driving to the store to purchase
groceries. According to Whisler, he had taken the carisoprodol every three to four hours as
instructed, but again, felt normal.
The State confronted Whisler with medical records demonstrating that he had requested
that his doctor increase his pain medication before his trip to Mexico and that the doctor
refused and, instead, put Whisler on a detoxification plan.
At trial, a criminologist testified that Whisler's blood test revealed 5,000 nanograms per
milliliter (ng/mL) of carisoprodol (trade name Soma), 8,200 ng/mL of meprobamate, 390
ng/mL of diazepam (trade name Valium), 510 ng/mL of nordiazepam and 39 ng/mL of
temazepam. Meprobamate is a metabolite
1
of carisoprodol. Diazepam is broken down in the
body as nordiazepam and temazepam. Each of these drugs is a central nervous system
depressant. Dr. William Anderson, a forensic toxicologist, testified that carisoprodol is a
prescription drug in Nevada but is not a scheduled drug. He also testified that this medication
serves as a central nervous system depressant, that it causes a variety of effects resembling
alcohol ingestion, and that users should learn its effects before driving. Dr. Anderson also
explained that the 5,000 ng/mL of carisoprodol found in Whisler's blood was a rather high
amount but that the level of impairment would vary with each individual. The doctor further
testified that carisoprodol is recognized as an abused drug because of its euphoric effects.
____________________

1
Product of metabolism in the blood.
........................................
The jury found Whisler guilty of driving while under the influence of a controlled
substance or chemical. Finding that Whisler had sustained at least two prior DUI convictions
within the previous seven years, the district court sentenced Whisler to one to three years
incarceration. Whisler timely appealed.
DISCUSSION
Preemptive admission of prior convictions
[Headnote 1]
As a threshold issue, the State argues that Whisler waived his right to appeal the in limine
ruling because he preemptively raised the issue of his felony conviction at trial during his
testimony.
In Pineda v. State, a case decided during the pendency of this appeal, we held that a
defendant may appeal a trial court's definitive unfavorable in limine ruling to admit a prior
conviction when the defendant preemptively introduces the evidence at trial.
2
Our ruling
permits trial counsel to ameliorate the adverse effect of such evidence and preserve the error
for appeal.
3
In Pineda, we discussed the United States Supreme Court decision of Ohler v.
United States
4
and rejected its proposition that a defendant waives his appellate standing
concerning admission of prior convictions when he preemptively introduces the prior
convictions after an unfavorable ruling on a motion in limine.
5

The State urges this court to either re-embrace Ohler, or at least retreat somewhat from
Pineda. In this, the State recognizes that Pineda is limited to situations in which the
defendant has thoroughly litigated the issues in limine. However, the State posits that this
court should expressly limit the Pineda ruling to circumstances where the State unequivocally
commits to introducing the evidence regardless of other developments in the trial. The State
argues that it should be free to wait to decide, during the course of trial, whether to introduce
such evidence. The State contends that the Pineda rule takes this decision out of the State's
hands.
To alleviate the problems encountered by both sides in these situations, the State suggests
an alternate procedure under which, during trial, when defense counsel seeks to preemptively
introduce the prior felony conviction, counsel need only request a bench conference at which
time the district court can demand a commitment from the State. If the State informs both the
district court and defense counsel that it does not intend to introduce the disputed evidence,
the defendant's testimony can go forward with the defense free to decide whether to
introduce the evidence.
____________________

2
120 Nev. 204, 209, 88 P.3d 827, 831 (2004).

3
Id.

4
529 U.S. 753, 755 (2000).

5
Pineda, 120 Nev. at 208, 88 P.3d at 830.
........................................
free to decide whether to introduce the evidence. If the State informs the district court that it
will present the evidence, then defense counsel can decide whether to preemptively introduce
the evidence, remove the sting and still have grounds for appeal. The State argues that
limiting Pineda in this way would prevent sham objections and leave the parties to devote
their attention to the actual disputes.
We decline to adopt the invitation to change our ruling in Pineda. First, preservation of
appellate issues concerning pretrial rulings on the admissibility of prior convictions never
divests the State of its prerogatives to introduce the evidence. It simply requires another
strategic decision of whether to admit evidence and invite the possibility of error on appeal.
In this we note, as with the instant case, convictions are virtually never overturned based upon
admission of prior convictions for impeachment. Second, while the State's suggestion has
some appeal, it leaves the defendant's decision to testify and to preemptively admit the prior
conviction in limbo at the early stages of the trial. By way of example, the suggested
procedure would affect the content of the defendant's opening statement. Thus, on balance,
we reaffirm the ruling in Pineda as the best approach to this preservation issue.
Motion in limine
[Headnote 2]
Whisler contends that the district court abused its discretion in denying his motion in
limine to exclude the prior conviction. In his motion, Whisler argued that, because his prior
felony DUI conviction involved voluntary impairment by alcohol, and because his latest
charge involved involuntary intoxication by medication,
6
the danger of unfair prejudice
substantially outweighed the probative value of the evidence.
[Headnotes 3, 4]
A district court's ruling on a motion in limine is reviewed for an abuse of discretion.
7
A
district court may permit the State to impeach witnesses with proof of prior felony
convictions.
8
Before admitting such evidence, the district court must balance the potential
for prejudice against the usefulness of the prior conviction for the purpose of impeachment.
9
NRS 48.035(1) states that relevant evidence is inadmissible "if its probative value is
substantially outweighed by the danger of unfair prejudice."
____________________

6
See Com. v. Wallace, 439 N.E.2d 848, 850 (Mass. App. Ct. 1982) (recognizing involuntary intoxication
by medicine' as the condition of a defendant who has taken prescribed drugs with severe unanticipated
effects).

7
State v. Shade, 111 Nev. 887, 895, 900 P.2d 327, 331 (1995).

8
NRS 50.095; Hicks v. State, 95 Nev. 503, 504, 596 P.2d 505, 506 (1979).

9
Hicks, 95 Nev. at 504, 596 P.2d at 506.
........................................
evidence is inadmissible if its probative value is substantially outweighed by the danger of
unfair prejudice.
The district court determined that if Whisler testified as to his impairment and defended on
the ground of involuntary intoxication by medication, evidence of his felony DUI conviction
would be admissible for impeachment purposes. The district court reasoned that evidence of
Whisler's prior felony DUI conviction rebutted his testimony that he was unaware of his
impairment. We agree. The felony DUI conviction demonstrated that Whisler had indeed
experienced impairment and was familiar with the symptoms of impairment. Further, the
district court instructed the jury that evidence of Whisler's prior felonies may be considered
only for limited purposes: (1) as evidence of Whisler's knowledge of impairment, (2) the
absence of mistake on Whisler's part concerning his level of impairment and (3) to evaluate
Whisler's credibility. The district court also instructed the jury that the evidence of Whisler's
prior felonies may not be considered as evidence of his guilt for the charged crime. Thus, in
light of Whisler's testimony and the cautionary instructions, the probative value of Whisler's
felony conviction was not substantially outweighed by the danger of unfair prejudice.
Accordingly, we conclude that the district court did not abuse its discretion in denying
Whisler's motion in limine.
Jury instruction
[Headnote 5]
At trial, the district court instructed the jury on the defense of involuntary intoxication by
medication with the following instruction:
If one should become intoxicated as a result of an innocent mistake of fact, but after
becoming impaired was still sufficiently in possession of his facilities to know what he
was doing and to understand the character of his acts, and with such knowledge and
understanding should voluntarily drive a motor vehicle, the involuntariness of the
intoxication would not excuse him because the prohibited act (driving) was done
voluntarily.
Whisler also urged the court to instruct the jury that the State must prove beyond a reasonable
doubt that Whisler was not involuntarily intoxicated or intoxicated by mistake. The district
court denied Whisler's request.
Whisler argues that knowingly or willfully becoming intoxicated is an element of the
crime that the State must prove. He also argues against the notion that DUI is a strict liability
offense and contends that a mens rea is required for a DUI conviction. In this, Whisler notes
the State's allegation that he willfully and unlawfully drove a vehicle while under the
influence of chemicals. For support, Whisler relies upon Commonwealth v.
........................................
support, Whisler relies upon Commonwealth v. Wallace, in which the Massachusetts Court of
Appeals held that a defendant may introduce evidence that he did not know of the possible
effects of the medication on his driving ability, that he did not receive warnings as to its use,
and that he had no reason to anticipate the effects which the drug induced.
10
The court of
appeals recognized that courts are reluctant to infer a legislative intent to impose absolute
liability.
11
Because the language of the Massachusetts statute did not indicate an intent to
hold a defendant strictly liable for the particular offense, the Wallace court determined that a
defendant may introduce evidence of willfulness.
12
Thus, Whisler argues that, as in Wallace,
DUI is not a strict liability offense in Nevada.
Whisler was convicted of violating NRS 484.379(2)(a) and (c), which provide that [i]t is
unlawful for any person who . . . [i]s under the influence of a controlled substance . . . or . . .
ingests . . . any chemical . . . to a degree which renders him incapable of safely driving . . . to
drive . . . a vehicle on a highway. Despite Whisler's reliance on the word willfully as stated
in the amended information, willfully described driving rather than willfully becoming
impaired as Whisler contends. Whisler does not contest the fact that he was driving his
vehicle willfully. NRS 484.379 therefore does not include willful intoxication as an element
of the offense.
In Slinkard v. State, we explained: [k]nowledge of one's intoxication is not, however, an
element of the crime of driving while intoxicated, and absence of such knowledge is not a
defense. Indeed, because consumption of alcohol can prevent a person from knowing he is
intoxicated, accepting appellant's contention could vitiate the DUI statutes.
13
Lack of
knowledge of one's intoxication is similar to the defense of involuntary intoxication by
medication in that in each defense the defendant argues that he did not know he was
intoxicated or impaired. As the State notes, to give credence to either defense and to require
the State to prove knowledge of intoxication or impairment would create too heavy a burden
on the State and endanger the public. The State also points out that in many cases the
intoxicated defendant does not know that he is intoxicated, precisely because of the
intoxicating effects of the substance he has ingested. We have refused to recognize such a
defense in DUI cases. Accordingly, Whisler's argument is without merit.
____________________

10
439 N.E.2d at 852-53.

11
Id. at 852.

12
Id. at 851-52.

13
106 Nev. 393, 395-96, 793 P.2d 1330, 1332 (1990) (citations omitted).
........................................
NRS 484.379
[Headnote 6]
Whisler argues that he cannot be convicted based on the voluntary ingestion of a drug that
was not scheduled, controlled or otherwise prohibited. Blood tests revealed that Whisler had
ingested the drug carisoprodol, which is not a controlled substance in Nevada.
14
However,
Whisler was convicted of driving while under the influence of a controlled substance or
chemical in violation of NRS 484.379. Carisoprodol is a chemical, and a jury found beyond a
reasonable doubt that it rendered him incapable of driving safely while under its influence.
15

For the foregoing reasons, we affirm the district court verdict finding appellant guilty of
driving while under the influence of controlled substances or chemicals.
Maupin and Douglas, JJ., concur.
____________
121 Nev. 409, 409 (2005) Hosier v. State
DAVID HOSIER, Petitioner, v. THE STATE OF NEVADA,
Respondent.
No. 44949
August 11, 2005 117 P.3d 212
Original proper person petition for extraordinary relief.
Defendant convicted of sexual assault and lewdness with child under age of fourteen filed
original proper person petition for extraordinary relief, challenging validity of convictions.
The supreme court held that it would not exercise original jurisdiction to consider merits of
defendant's claims that could have been raised on direct appeal or in timely post-conviction
petition for writ of habeas corpus.
Petition denied.
David Hosier, Lovelock, in Proper Person.
____________________

14
NRS 0.031 defines controlled substance as a drug, immediate precursor or other substance which is
listed in schedule I, II, III, IV or V for control by the State Board of Pharmacy pursuant to NRS 453.146.
Carisoprodol is not listed in the schedules. Carisoprodol's metabolite, meprobamate, however, is listed in
Schedule IV. See NAC 453.540.

15
See NRS 454.005 ( Chemical' includes all chemicals intended, designed and labeled for use in the cure,
treatment, mitigation or prevention of disease in man or other animals.).
........................................
Brian Sandoval, Attorney General, Carson City; Noel S. Waters, District Attorney, Carson
City, for Respondent.
1. Courts.
Supreme court would not exercise original jurisdiction to consider merits of
defendant's claims in petition for extraordinary relief challenging validity of convictions
for sexual assault and lewdness with child under age of fourteen that could have been
raised on direct appeal or in timely post-conviction petition for writ of habeas corpus.
Const. art. 6, 4.
2. Habeas Corpus.
The filing of an original petition for writ of habeas corpus in the supreme court
serves as a tolling document for federal habeas corpus purposes.
OPINION
Per Curiam:
This is an original proper person petition for extraordinary relief. Citing to Article 6,
Section 4 of the Nevada Constitution, petitioner David Hosier challenges the validity of his
1990 judgment of conviction and requests this court to exercise its original jurisdiction to
consider the merits of his claims. For the reasons discussed below, we conclude that the
exercise of our original jurisdiction is not warranted in this matter.
PROCEDURAL HISTORY
The district court convicted Hosier, pursuant to a jury verdict, of seven counts of sexual
assault and one count of a lewdness with a child under the age of fourteen years. The district
court sentenced Hosier to serve seven consecutive terms of life in the Nevada State Prison
with the possibility of parole after five years had been served on each term. Hosier timely
appealed from the judgment of conviction, and this court dismissed the appeal in 1991.
1

In 1993, Hosier filed an untimely post-conviction petition for a writ of habeas corpus in
the district court. The district court denied the petition on the ground that it was untimely and
without good cause contrary to the requirements of NRS 34.726. This court dismissed
Hosier's subsequent appeal.
2
On March 22, 2005, Hosier filed the instant original proper
person petition in this court.
____________________

1
Hosier v. State, Docket No. 21626 (Order Dismissing Appeal, September 3, 1991).

2
Hosier v. State, Docket No. 26884 (Order Dismissing Appeal, April 28, 1995).
........................................
DISCUSSION
[Headnote 1]
In his petition, Hosier seeks this court's review of numerous claims challenging the
validity of his 1990 judgment of conviction. He argues that Article 6, Section 4 of the Nevada
Constitution entitles him to this court's review of the merits of his claims. Article 6, Section 4
provides that this court has jurisdiction to issue all writs necessary or proper to the complete
exercise of its appellate jurisdiction. Based on this language and the Ninth Circuit Court of
Appeals decision in Blair v. Crawford,
3
Hosier apparently argues that we are compelled to
exercise our original jurisdiction to consider the merits of his claims because procedural and
time snarls have previously prevented this court from reviewing his claims on the merits.
Thus, he asserts, this court has not completed the exercise of its appellate jurisdiction. In
addition, Hosier asserts that Article 6, Section 4 precludes this court from applying any
procedural bars that would prevent our resolution of his claims on the merits.
Hosier's arguments are unpersuasive. Although this court retains original jurisdiction to
issue writs, this court will not exercise its original jurisdiction to consider a writ petition in a
criminal case raising claims that could or should have been raised in an appeal or in an
appropriate post-conviction proceeding in the district court. A challenge to the validity of the
judgment of conviction should be raised in a post-conviction petition for a writ of habeas
corpus filed in the district court in the first instance.
4
A party aggrieved by the district court's
resolution of a post-conviction habeas petition may then appeal the decision to this court.
5
Such an appeal completes this court's exercise of its appellate jurisdiction.
[Headnote 2]
Further, Hosier's reliance upon Blair is misplaced. Blair does not require this court to
exercise its original jurisdiction to consider the merits of claims raised in original petitions
filed in this court in the first instance. Rather, Blair recognizes that the filing of an original
petition in this court serves as a tolling document for federal habeas corpus purposes.
6
In
fact, as Blair observes, this court has not issued a writ of habeas corpus under its original
jurisdiction since the passage of NRS 34.720 et seq."
____________________

3
275 F.3d 1156 (9th Cir. 2002).

4
See NRS 34.738(1); NRAP 22. We express no opinion as to whether Hosier could satisfy the procedural
requirements of NRS chapter 34 if he were to file a habeas corpus petition at such a late date.

5
See NRS 34.575(1).

6
275 F.3d at 1159.
........................................
tion since the passage of NRS 34.720 et seq.
7
Thus, we decline to exercise this court's
original jurisdiction to consider this original petition challenging the validity of the judgment
of conviction.
Strong policy reasons support our determination. Original petitions are not accompanied
by a complete record on appeal. Thus, this court's ability to review claims challenging the
judgment of conviction is seriously limited. In addition, the Nevada Constitution limits this
court's appellate jurisdiction to questions of law alone.
8
Our consideration of many petitions
of this type would require this court to exceed its appellate jurisdiction because the claims
presented often require evidentiary and factual determinations. This court is not a fact-finding
tribunal; the district court is the most appropriate forum to resolve such issues.
9
Finally,
petitions seeking this court's exercise of original jurisdiction compromise this court's interest
in the finality of judgmentsespecially when they are intended to circumvent procedural
bars, as appears to be the case here.
This court has received a number of similar frivolous petitions seeking this court's exercise
of original jurisdiction. These petitions challenge the validity of the judgments of conviction
and are in essence thinly-disguised petitions for writs of habeas corpus. We caution such
petitioners that deductions of time earned by a prisoner may be forfeited if a court finds that
the prisoner has filed a document in a civil action that contains a claim or defense included
for an improper purpose, that is not supported by existing law or reasonable argument for a
change in existing law, or that contains allegations or information presented as fact for which
evidentiary support is not available or is not likely to be discovered after further investigation.
10
These petitions waste scarce judicial resources, and this court will take all appropriate
steps necessary to curb abusive and vexatious filings.
CONCLUSION
Hosier has presented no compelling reason for this court's exercise of its original
jurisdiction in this case. Accordingly, we deny the petition.
11

____________________

7
Id.

8
Nev. Const. art. 6, 4.

9
Wade v. State, 115 Nev. 290, 294, 986 P.2d 438, 441 (1999).

10
NRS 209.451(1)(d). A petition for a writ of habeas corpus is a civil action for the purposes of this
statute. NRS 209.451(5).

11
This court has received all proper person documents submitted in this matter and concludes that no relief is
warranted for the reasons discussed above.
____________
........................................
121 Nev. 413, 413 (2005) State v. Dist. Ct. (Jackson)
THE STATE OF NEVADA, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT
OF THE STATE OF NEVADA, in and for THE COUNTY OF WASHOE, and THE
HONORABLE JANET J. BERRY, District Judge, Respondents, and ANNA MARIE
JACKSON, Real Party in Interest.
No. 44865
August 11, 2005 116 P.3d 834
Original petition for a writ of certiorari or mandamus challenging a district court judgment
awarding credit for time spent on house arrest.
The supreme court, Hardesty, J., held that: (1) supreme court's intervention by way of
extraordinary writ was warranted, and (2) house arrest does not constitute time actually
spent in confinement for which the duration of a sentence may be credited.
Petition granted.
[En banc reconsideration denied October 7, 2005]
and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for Petitioner.
Kenneth A. Stover, Reno, for Real Party in Interest.
1. Mandamus.
Supreme court may issue a writ of mandamus to: compel the performance of an act
that the law requires as a duty resulting from an office, trust, or station; control a
manifest abuse of discretion; or clarify an important issue of law. NRS 34.160.
2. Mandamus.
Mandamus is an extraordinary remedy, and therefore the decision to entertain a
petition lies within the discretion of supreme court.
3. Mandamus.
Supreme court would issue writ of mandamus directing district court to amend its
judgment of conviction by removing credit awarded for time defendant served on house
arrest; State did not have an adequate remedy at law, and petition raised an important
issue of law.
4. Criminal Law.
State cannot appeal from a judgment of conviction or an order denying a motion for
reconsideration. NRS 177.015(3).
District courts must allow credit against duration of sentence when bail is set for a
defendant and the defendant is financially unable to post bail. NRS 176.055(1).
........................................
Despite its discretionary language, the purpose of statute governing sentence credit
for time spent in confinement before conviction is to ensure that all time served is
credited towards a defendant's ultimate sentence. NRS 176.055(1).
7. Statutes.
Words in a statute will generally be given their plain meaning, unless such a reading
violates the spirit of the act, and when a statute is clear on its face, courts may not go
beyond the statute's language to consider legislative intent.
House arrest does not constitute time actually spent in confinement for which the
duration of a sentence may be credited. NRS 176.055(1).
OPINION
This is an original petition by the State for a writ of certiorari or mandamus. The State
contends that the district court exceeded its jurisdiction or abused its discretion by awarding
Anna Marie Jackson, the real party in interest, credit against her prison sentence for the time
she served on house arrest as a condition of bail. NRS 176.055 allows the district court to
award credit against the duration of a sentence for time actually spent in confinement before
conviction. For the reasons discussed below, we hold that house arrest is not confinement
within the meaning of the statute. Accordingly, we grant the petition and direct the clerk of
this court to issue a writ of mandamus.
FACTS
On September 26, 2002, Reno Police Officer Michael Scofield was responding to an
accident when his motorcycle collided with Jackson's vehicle as she attempted to turn onto
Mill Street from a private drive. Officer Scofield died as a result of the collision.
A jury convicted Jackson of driving under the influence of a prohibited substance,
resulting in death, a violation of NRS 484.3795. Following the verdict and after posting bail,
Jackson was placed on house arrest, monitored by way of an electronic bracelet, and
subjected to weekly testing for the presence of marijuana. She worked outside of the home
from June 2004 to September 2004, and she traveled to California to get married and to Las
Vegas to be deposed by an attorney for Officer Scofield's estate.
........................................
During sentencing, Jackson asked the district court for a house arrest credit of 297 days,
and the Division of Parole and Probation informed the district court that Jackson was entitled
to 297 days' credit for time served. The district court followed the Division's recommendation
and sentenced Jackson to serve a prison term of 24 to 96 months with 297 days' credit for
time served and to pay a fine of $2,000.
After sentencing Jackson, the district court considered her motion for bail pending appeal
and concluded that the State needed additional time to respond to the motion. The district
court also determined that in the meantime Jackson would remain on house arrest under her
previous conditions. The State subsequently filed an opposition to Jackson's request for bail
pending appeal and a motion requesting the district court to reconsider its award of credit for
time served on house arrest.
The district court granted Jackson's application for bail pending appeal and denied the
State's motion to reconsider the sentencing order, finding that:
The Court followed the recommendation of the Division of Parole and Probation,
which included credit for time served while on house arrest pending sentencing.
Pursuant to NRS 176.055, Parole and Probation views residential confinement as
confinement. The State did not object to the credit for time served, which the Court at
imposition of sentence announced orally. The recommendation for credit for time
served for house arrest was also in the written presentence investigation report, which
the State had in its possession prior to sentencing.
The district court concluded that it did not have jurisdiction to modify Jackson's sentence
because it was not based on a materially untrue assumption or mistake that worked to
Jackson's detriment, and that the State did not interpose a timely objection to the Division's
recommendation of credit for time served while on house arrest. The State then filed the
instant petition.
DISCUSSION
[Headnotes 1, 2]
This court may issue a writ of mandamus to compel the performance of an act that the law
requires as a duty resulting from an office, trust, or station; control a manifest abuse of
discretion; or clarify an important issue of law.
1
A writ of mandamus will not issue if the
petitioner has a plain, speedy, and adequate remedy in the ordinary course of law.
____________________

1
See NRS 34.160; Smith v. District Court, 113 Nev. 1343, 1345, 950 P.2d 280, 281 (1997); Round Hill Gen.
Imp. Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981).
........................................
issue if the petitioner has a plain, speedy, and adequate remedy in the ordinary course of law.
2
It is an extraordinary remedy, and therefore the decision to entertain a petition lies within
the discretion of this court.
3

[Headnotes 3, 4]
The State does not have an adequate remedy at law because it cannot appeal from a
judgment of conviction or an order denying a motion for reconsideration.
4
Further, this
petition raises an important issue of law which requires clarification: whether a district court
has discretion to credit time spent on house arrest towards a prison sentence. Therefore, we
conclude that this court's intervention by way of extraordinary writ is warranted.
[Headnotes 5, 6]
The district court's authority to award credit for time spent in presentence confinement
comes from NRS 176.055(1), which states in relevant part:
[W]henever a sentence of imprisonment in the county jail or state prison is imposed,
the court may order that credit be allowed against the duration of the sentence,
including any minimum term thereof prescribed by law, for the amount of time which
the defendant has actually spent in confinement before conviction, unless his
confinement was pursuant to a judgment of conviction for another offense.
(Emphasis added.) The district court's authority is further defined by our caselaw: Anglin v.
State, which holds that district courts must allow credit when bail is set for a defendant and
the defendant is financially unable to post bail;
5
Nieto v. State, which states that credit for
presentence confinement is not limited to the situations discussed in Anglin;
6
and Kuykendall
v. State, which states that despite its discretionary language, the purpose of NRS 176.055 is to
ensure that all time served is credited towards a defendant's ultimate sentence.
7
Neither the
statute nor the caselaw construing the statute defines confinement.
[Headnote 7]
The words in a statute will generally be given their plain meaning, unless such a reading
violates the spirit of the act, and when a statute is clear on its face, courts may not go
beyond the statute's language to consider legislative intent."
____________________

2
NRS 34.170.

3
Hickey v. District Court, 105 Nev. 729, 731, 782 P.2d 1336, 1338 (1989).

4
See NRS 177.015(3); Castillo v. State, 106 Nev. 349, 352, 792 P.2d 1133, 1135 (1990) (the right to appeal
only exists if a statute or court rule provides for an appeal).

5
90 Nev. 287, 292, 525 P.2d 34, 37 (1974).

6
119 Nev. 229, 231-32, 70 P.3d 747, 748 (2003).

7
112 Nev. 1285, 1287, 926 P.2d 781, 783 (1996).
........................................
when a statute is clear on its face, courts may not go beyond the statute's language to consider
legislative intent.
8
The dictionary definition of the word confine is to hold within a
location, imprison, or keep within limits.
9
Thus, confinement is a general term whose
plain meaning is so broad that the statute is not clear on its face.
A review of the legislative history of NRS 176.055 suggests that the legislative intent was
to allow credit for presentence time spent in the county jail. Since becoming law in 1967,
NRS 176.055 has been amended three times.
10
During the brief hearings on each of these
amendments, committee members and witnesses used the phrase county jail time when
referring to time actually spent in confinement.
11
This usage suggests that the Legislature
understood confinement to be synonymous with county jail time.
Furthermore, allowing credit for time spent on house arrest would defeat the legislative
intent of statutes imposing mandatory prison sentences.
12
This case provides a good
example. Jackson was convicted under NRS 484.3795. The Legislature specifically amended
NRS 484.3795 to add mandatory prison time in response to a public outcry over the tragic
deaths and injuries caused by drunk drivers.
13
The statute requires the district court to
sentence a defendant to a prison term of at least two years if he or she is convicted of causing
death or substantial bodily harm to another while driving under the influence of an
intoxicating liquor or a controlled substance.
14
It further prohibits the court from suspending
the sentence or granting probation.
____________________

8
Pellegrini v. State, 117 Nev. 860, 873-74, 34 P.3d 519, 528 (2001).

9
Merriam-Webster's Collegiate Dictionary 242 (10th ed. 1997).

10
1981 Nev. Stat., ch. 247, 1, at 479; 1973 Nev. Stat., ch. 94, 1, at 161; 1971 Nev. Stat., ch. 183, 1, at
243; 1967 Nev. Stat., ch. 523, 234.5, at 1433.

11
See Hearing on S.B. 255 Before the Assembly Comm. on the Judiciary, 61st Leg. (Nev., April 29, 1981)
(statement of Mr. Campos); Hearing on S.B. 255 Before the Senate Comm. on the Judiciary, 61st Leg. (Nev.,
March 10, 1981) (statement of Senator Close); Hearing on S.B. 146 Before the Assembly Comm. on the
Judiciary, 57th Leg. (Nev., March 6, 1973) (summary of bill attached to minutes); Hearing on S.B. 146 Before
the Senate Comm. on the Judiciary, 57th Leg. (Nev., Feb. 8, 1973) (statement of Mr. Campos); Hearing on A.B.
77 Before the Assembly Comm. on the Judiciary, 56th Leg. (Nev., Feb. 10, 1971) (attached letter from the
Department of Parole and Probation).

12
E.g., NRS 176A.100(1) (prison sentences for convictions of murder, first-degree kidnapping, sexual
assault, attempted sexual assault of a child, lewdness with a child and for habitual criminal adjudications cannot
be suspended); NRS 453.3405 (under most circumstances, prison sentences for drug trafficking convictions
cannot be suspended); NRS 484.3792(3) (prison sentences for driving-under-the-influence convictions cannot be
suspended).

13
1981 Nev. Stat., ch. 755, 6, at 1926-27; see also Hearing on S.B. 83 Before the Senate Comm. on
Transportation, 61st Leg. (Nev., Feb. 3, 1981).

14
NRS 484.3795(1).
........................................
ing the sentence or granting probation.
15
Clearly the Legislature intended for those convicted
under this statute to spend time in prison. We consider it unlikely that the Legislature would
have defined confinement so broadly as to allow a convicted defendant to circumvent a
mandatory prison sentence through time spent on house arrest.
We have previously concluded that an appellant whose probation had been revoked was
not entitled to credit for time spent in a residential treatment program as a condition of
probation. In Grant v. State, we observed that certain residential drug treatment programs
[might] so restrain the liberty of a probationer that residence in such programs is tantamount
to incarceration in a county jail, and that in such cases credit should arguably be granted
under Merna.
16
However, we declined to reach that issue because there was no evidence
that the residential drug treatment program restrained Grant's liberty, and Grant's contention
that he was not free to leave, by itself, did not necessarily indicate restraints on his liberty
akin to incarceration.
17
Notwithstanding this dictum in Grant, in Webster v. State, we stated
that an [a]ppellant is not entitled to credit for time spent on probation outside of
incarceration, and we concluded that [t]he imposition of residential confinement as a
condition of appellant's probation is insufficient to change the character of his probation from
a conditional liberty to actual confinement.
18

[Headnote 8]
Here, Jackson's liberty was restricted by the imposition of house arrest. However, there are
substantial differences between her restriction and incarceration in the county jail. Jackson
was free to leave her home on advance notice for matters such as grocery shopping,
employment, laundry, medical appointments, counseling, and court appearances. As
mentioned above, Jackson was even permitted to travel to California to get married and to
Las Vegas for a deposition. Additionally, Jackson was allowed to reside in her own home and
enjoy all of its comforts. We conclude that Jackson's house arrest was merely a reasonable
condition imposed upon her release on bail,
19
and we hold that house arrest does not
constitute time "actually spent in confinement" for which the duration of a sentence may
be credited.
____________________

15
NRS 484.3795(2).

16
99 Nev. 149, 151, 659 P.2d 878, 879 (1983) (citing Merna v. State, 95 Nev. 144, 591 P.2d 252 (1979)
(which held that a probationer whose probation has been revoked is entitled to credit for jail time served as a
condition of probation)).

17
Id.

18
109 Nev. 1084, 1085, 864 P.2d 294, 295 (1993).

19
See NRS 178.484(8).
........................................
constitute time actually spent in confinement for which the duration of a sentence may be
credited.
Moreover, we believe that to hold otherwise would have a chilling effect on the district
court's willingness to impose house arrest. In cases like this, where the defendant is subject to
a mandatory prison term if convicted, the district court might hesitate to impose house arrest
as a condition of bail if the time spent on house arrest must be credited against the sentence
under Kuykendall. This is especially true if the duration of the defendant's house arrest is
likely to exceed the minimum sentence and render the defendant eligible for parole without
having spent a day inside a correctional facility. Our holding allows the district court to
impose house arrest as a condition of bail without having to first consider the potential
sentencing ramifications. Accordingly, it serves an important policy by making it easier for
the district court to impose bail conditions that ensure the defendant's presence in court and
the safety of the community.
CONCLUSION
We grant the State's petition and direct the clerk of this court to issue a writ of mandamus
that directs the district court to amend its judgment of conviction by removing the credit
awarded for time Jackson served on house arrest. In accord with this holding, we further note
that Jackson is not entitled to post-conviction credit for time spent on house arrest during the
pendency of her appeal.
____________
121 Nev. 419, 419 (2005) City Plan Dev. v. State, Labor Comm'r
CITY PLAN DEVELOPMENT, INC., Appellant, v. OFFICE OF THE LABOR
COMMISSIONER, DEPARTMENT OF BUSINESS AND INDUSTRY, STATE OF
NEVADA, Respondent.
No. 40636
August 11, 2005 117 P.3d 182
Appeal from a district court order denying a petition for judicial review of the Labor
Commissioner's decision. Eighth Judicial District Court, Clark County; Jennifer Togliatti,
Judge.
Contractor who built a public work appealed from adverse decision of the Labor
Commissioner. The district court set aside the Commissioner's decision and remanded the
matter for a new hearing. The Labor Commissioner determined that contractor had violated
the prevailing wage statutes and was indebted to employees, and contractor appealed.
........................................
violated the prevailing wage statutes and was indebted to employees, and contractor appealed.
The district court denied contractor's petition for judicial review, and contractor appealed.
The supreme court, Rose, J., held that: (1) administrative process was not manifestly unfair
and did not violate due process rights of contractor, (2) contractor was required to pay
employees who were undocumented aliens the prevailing wage regardless of their alien
status, and (3) Commissioner improperly assessed contractor a double penalty.
Affirmed in part, reversed in part and remanded with instructions.
Orin G. Grossman, Las Vegas, for Appellant.
General, Carson City, for Respondent.
The supreme court, like the district court, generally reviews administrative decisions
under an abuse of discretion standard.
An abuse of discretion occurs when the record does not contain substantial
evidence supporting the administrative decision, and substantial evidence is that
which a reasonable mind might accept as adequate to support a conclusion.
While supreme court reviews purely legal questions de novo, an administrative
hearing officer's conclusions of law, which will necessarily be closely tied to the
hearing officer's view of the facts, are entitled to deference on appeal.
Statute providing that Labor Commissioner may adopt regulations to carry out the
provisions of labor laws and statute providing that Commissioner may prosecute a
claim for wages and commissions used the word may, not shall, and thus, these
statutes did not set forth mandatory prehearing procedures that the Commissioner was
required to follow, but, rather, delineated the general prosecutorial authority of the
Commissioner in carrying out his duties under all of the labor laws. NRS 607.160,
607.170.
Labor Commissioner acted within the scope of his statutory power in conducting
hearing on public works project employees' claims alleging inadequate payment under
the prevailing wage statutes. NRS 338.015.
In action brought by public works project employees alleging inadequate payment
under the prevailing wage statutes, Labor Commissioner's subsequent amended
complaint was not governed by administrative regulation that set forth the requirements
for individuals filing complaints with the Labor Commissioner, not the requirements
for the Labor Commissioner's Office filing a claim. NAC 607.200.
........................................
Appellate court would not consider public works project employer's claim that Labor
Commissioner should have disqualified himself because his alleged multiple roles
created an appearance of impropriety mandating disqualification under the Code of
Judicial Conduct, given that employer failed to provide any support for the proposition
that the Canons guiding judicial conduct applied to the actions of an administrative
adjudicator like the Labor Commissioner. NCJC Canon 3E(1)(a).
8. Constitutional Law; Labor and Employment.
Because senior investigator conducted investigation, the chief compliance audit
investigator signed the complaint, and Labor Commissioner acted as the hearing
officer, the administrative process was not manifestly unfair and did not violate due
process rights of public works project employer in context of employees' prevailing
wage claims; Labor Commissioner did not fill the roles of prosecutor and adjudicator,
and after reviewing the evidence as it related to the eight claimants, Commissioner
found that only five of the eight claimants had substantiated their claims, and this
detracted credence from employer's argument that Commissioner was biased and that
his decision was a preordained factual and legal conclusion. U.S. Const. amend. 14.
The combination of investigating, prosecuting and judging functions in one
administrative office, standing alone, does not constitute a denial of due process. U.S.
Const. amend. 14.
While the public works contract between the county and employer might constitute a
public benefit, employer's payment of the prevailing wage under that contract to
public works project employees, who were undocumented aliens, did not constitute
public benefit within meaning of statute providing that person or governmental entity
that provides a state or local public benefit is not required to pay any costs or other
expenses relating to the provision of such a benefit to an alien who is not eligible for
the benefit, and thus, statute did not apply. 8 U.S.C. 1621(c)(1); NRS 422.065(1)(b).
Statute addressing the payment of unemployment benefits based on an alien's status
did not apply to claims alleging inadequate payment under the prevailing wage statutes
made by public works project employees who were undocumented aliens since the
issue at hand involved the payment of prevailing wages, not unemployment benefits.
NRS 612.448.
Public works project employer was required to pay employees who were
undocumented aliens the prevailing wage regardless of their alien status; statutes
addressing those persons deemed to be employed on public works and, therefore,
entitled to prevailing wages did not exclude an individual on the basis of his
immigration status. NRS 338.040, 338.050.
under the prevailing wage statutes, Labor Commissioner has the authority to determine
and distinguish classifications of workers and then to determine the prevailing wage for
that classification, and when acting in an adjudicative capacity, the Labor
Commissioner must make any classification determination necessary to a complaint's
resolution. NRS 338.030; NAC 338.007.
........................................
under the prevailing wage statutes, Labor Commissioner did not engage in ad hoc
rulemaking when he simply applied the evidence to his predefined classifications to
determine each claimant's appropriate wage. NRS 338.030.
Substantial evidence supported the Labor Commissioner's determination that public
works project employees were not paid prevailing wages; employees testified that they
were paid less than the prevailing wage, and their testimony was credible. NRS
338.030.
Forfeiture in the amount of $1550 was appropriate for public works project
employer's violation of prevailing wage statutes; law explicitly stated that Labor
Commissioner had authority to impose forfeiture ranging from $10 to $25 per day,
based on a sliding scale established by regulation, and the law required notice of any
such forfeiture to be inserted in the public works contract, and employer, via the public
works contract, was placed on notice that it faced forfeitures if it failed to pay
employees the prevailing wage, and the forfeiture amount was well within the
requirements of the law and in accord with the monetary limit, or lack thereof, of
employer's contractor's license. NRS 338.060.
Labor Commissioner improperly assessed public works project employer a double
penalty when it ruled that employer was indebted to employees for not paying
prevailing wages in the total amount of $11,946.31 and then assessed penalty in the
amount of $11,946.31, and as such, employer was not required to pay the second
$11,946.31 penalty; statute authorized only one assessment equal to the prevailing
wage and also authorized an additional administrative fine, and the fine had to be
consistent with the costs of investigation and prosecution, and there was no indication
that those costs equaled the amount due employees. NRS 338.090.
Construction of a statute is a question of law that appellate court reviews de novo.
19. Statutes.
In construing a statute, a court should consider multiple legislative provisions as a
whole.
20. Statutes.
When the language of a statute is unambiguous, court will not look beyond the
statute itself when ascertaining its meaning.
21. Statutes.
When a statute is susceptible to more than one reasonable but inconsistent
interpretation, the statute is ambiguous, and court must determine the Legislature's
intent.
22. Statutes.
When interpreting a statute, court will look to the policy and spirit of the law and
will seek to avoid an interpretation that leads to an absurd result.
Subsection of statute providing that Labor Commissioner shall assess public works
project employer who is found to have failed to pay the prevailing wage an amount
equal to the difference between the prevailing wages required to be paid and the wages
that employer actually paid authorizes only one assessment equal to the prevailing
wage, the actual wage differential, and another subsection of the statute providing
that Commissioner may impose administrative penalty not to exceed the costs
incurred by Commissioner to investigate and prosecute the matter addresses an
additional administrative fine.
........................................
thorizes only one assessment equal to the prevailing wage, the actual wage differential,
and another subsection of the statute providing that Commissioner may impose
administrative penalty not to exceed the costs incurred by Commissioner to investigate
and prosecute the matter addresses an additional administrative fine. NRS
338.090(2)(a), (b).
OPINION
In this appeal, we examine the parameters of the Labor Commissioner's authority to
conduct hearings, render decisions and assess penalties involving prevailing wage issues
under Nevada labor law. We conclude that, under the circumstances of this case, the Labor
Commissioner properly heard and rendered a decision on public works project employees'
claims alleging inadequate payment under Nevada's prevailing wage statutes. While
substantial evidence supports both the Labor Commissioner's determination that the
employees were not paid prevailing wages and his corresponding awards, we nevertheless
conclude that the Labor Commissioner improperly assessed the employer a double penalty.
FACTS
The Clark County Board of County Commissioners awarded appellant City Plan
Development, Inc., a contract to build a public work, Fire Station #26, which was completed
in September 1999. Thereafter, twenty individuals filed wage claims against City Plan. The
Office of the Labor Commissioner issued a notice of violations and scheduled a hearing on
the matter. Former Deputy Labor Commissioner David Hill presided over the hearing and
issued a decision adverse to City Plan on June 13, 2000.
City Plan petitioned the district court for judicial review of the June 13 decision. The
district court set aside the June 13 decision and remanded the matter for a new hearing
limited to the wage claims of Rogelio Arteaga, Juan Cruz Guerrero, Sergio Reyes, Victor
Chavarin Flores, Jesus Jarero Victor, Jose Luis Jarero, Bernabe Lopez, and Narsiso Vallejo
Guillen. The district court also ordered that if the hearing officer ultimately awarded any
monetary amount to the claimants, he had to specify precisely the dates and hours worked by
the claimant, the wage rate applicable to the work performed, and the wage rate actually paid.
Subsequently, Larry Dizon, a senior investigator in the Labor Commissioner's Office,
prepared an amended administrative complaint pertaining to the eight specified individuals.
Gail Maxwell, the chief compliance audit investigator, signed it.
........................................
the chief compliance audit investigator, signed it. Labor Commissioner Terry Johnson, acting
as the hearing officer, conducted a second hearing.
At the hearing, Lila Rodrigues, who testified that City Plan employed her in various
administrative capacities, explained that she usually prepared the payroll for the fire station
project employees from timecards submitted by supervisors and signed by the employees.
Even so, on some occasions, according to Rodrigues, the foreman or other supervisors would
call in the employees' hours, which she copied onto timecards used to calculate the payroll.
Later, the employees signed the timecards, either when given to them by a superintendent at
the jobsite or when they picked up their paychecks.
Rodrigues testified that the employees' wages were determined in accordance with
predetermined public works projects wage schedules for specific job classes, based on
notations on the employees' timecards indicating their particular job classification. For
instance, Rodrigues explained, a notation of framing and sheathing indicated a particular
type of carpentry. Apparently, the supervisors made the notations on the timecards.
Next, the Labor Commissioner heard testimony from five of the claimant employees: Juan
Cruz Guerrero, Jesus Jarero Victor, Jose Luis Jarero, Narsiso Vallejo Guillen, and Victor
Chavarin Flores. With the exception of Cruz Guerrero, each of these claimants testified that
he had worked on the City Plan fire station project for approximately 3 days in April 1999,
or a total of 37.5 hours. These four claimants also testified and agreed that Vallejo Guillen, on
his and their behalf, had negotiated with Jose Ochoa, a City Plan foreman in charge of hiring
workers to perform framing (and layout and plating) work on the project, for a total payment
of $1800. Accordingly, the claimants asserted they were each paid a flat rate of approximately
$360 for their work, or one-fifth of the $1800 payment.
1

These four claimants also testified to endorsing checks for payments that they never
received, receiving inaccurate payment documentation, signing blank timecards, and/or
discovering that their signatures had been forged on certain documents. For instance, Jarero
Victor averred that he had signed a blank timecard and had never written any work hours on
it. He confirmed at the hearing that the timecard nevertheless indicated that he had worked
44.25 hours at $29.29 per hour and 4.25 hours at $43.93 per hour, for which he was owed a
net total of $1100. But when he went to Ochoa's house to pick up his paycheck, he said
Ochoa instructed him to endorse the $1100 check over to Ochoa, and Ochoa paid him only
$360 in cash in return.
____________________

1
The fifth person implicated in the negotiated $1800 payment is not involved in this appeal.
........................................
Ochoa's house to pick up his paycheck, he said Ochoa instructed him to endorse the $1100
check over to Ochoa, and Ochoa paid him only $360 in cash in return. Jarero Victor also
identified subsequent timecards indicating that he had earned additional wages, but those
cards did not bear his signature and reflected dates when he had worked for a different
employer. According to Jarero Victor, he later received a W-2 form indicating that he had
earned $5000 during his City Plan employment. Nonetheless, Jarero Victor insisted that he
had never received more than $360 for his work on the project.
The other three claimants who were part of the negotiated framing agreement similarly
testified that they had signed blank timecards; some signed these documents for fear of not
getting paid at all. At least one of them admitted to having endorsed a $1100 paycheck, but he
and each of the others denied ever actually receiving anything besides the approximately $360
cash payment. They also denied receiving and endorsing subsequent City Plan paychecks.
The fifth claimant, Cruz Guerrero, testified that he began work on April 26 or 27, 1999,
and continued working for approximately two months. According to Cruz Guerrero, he
performed carpentry work on the project, leveling walls and installing plywood sheets; at the
hearing, Rodrigues suggested that this work was consistent with the separate job
classification of laborer, also within the field of carpentry. Like the other claimants, Cruz
Guerrero testified that he had entered into a separate oral agreement with OchoaCruz
Guerrero was to be paid $16 per hour. Cruz Guerrero averred that, while he was actually paid
$16 per hour for the first 39 hours he worked, the corresponding paycheck indicated that he
had only worked 25 hours. Cruz Guerrero also testified that he had signed several blank
timecards and that his other paychecks also reflected fewer hours than he had actually worked
and, consequently, a rate of pay substantially higher than what he had actually received.
Finally, Dizon, the Labor Commissioner's Office investigator, also testified at the hearing.
In particular, he noted that his investigation of the original complaints had resulted in certain
findings that corroborated the claimants' statements.
After the hearing, the Labor Commissioner determined that City Plan had violated the
prevailing wage statutes and was indebted to each of the above claimants. As directed by the
district court, the Labor Commissioner's decision listed in detail the dates and hours worked
by the claimants, the type of work performed, the rate of pay received, and the rate of pay that
City Plan should have paid. The decision specified the amount thereby owed each claimant,
assessed an administrative penalty, and mandated forfeitures and a period from which City
Plan would be disqualified from being awarded public work contracts.
........................................
tures and a period from which City Plan would be disqualified from being awarded public
work contracts.
City Plan petitioned the district court for judicial review, which the court denied. City Plan
appeals, challenging the Labor Commissioner's authority to proceed with wage claims in this
case and the administrative decision itself.
DISCUSSION
Standard of review
[Headnotes 1-3]
This court, like the district court, generally reviews administrative decisions under an
abuse of discretion standard.
2
An abuse of discretion occurs when the record does not
contain substantial evidence supporting the administrative decision.
3
Substantial evidence is
that which a reasonable mind might accept as adequate to support a conclusion.
4
While this
court reviews purely legal questions de novo, a hearing officer's conclusions of law, which
will necessarily be closely tied to the hearing officer's view of the facts, are entitled to
deference on appeal.
5
This court has determined that [a]n administrative . . . decision
based on a credibility determination is not open to appellate review.'
6

Authority of the Labor Commissioner
[Headnote 4]
City Plan makes several challenges to the Labor Commissioner's authority to proceed in
this matter. City Plan first argues that the Labor Commissioner lacked authority to hear this
matter because he failed to follow the requirements of NRS 607.160 and NRS 607.170 before
holding the administrative hearing. NRS Chapter 607 governs the Office of the Labor
Commissioner, providing that the Labor Commissioner [s]hall enforce all labor laws of the
State of Nevada.
7
Accordingly, that chapter defines the scope, generally, of the Labor
Commissioner's permissible powers. NRS 607.160 and NRS 607.170 authorize the Labor
Commissioner, after due inquiry, to take assignments of wage claims for prosecution or to
refer claims to the Attorney General when the claimants are financially unable to employ
counsel.
____________________

2
Ayala v. Caesars Palace, 119 Nev. 232, 235, 71 P.3d 490, 491 (2003).

3

4
Id.

5
Ayala, 119 Nev. at 235, 71 P.3d at 491.

6
McClanahan v. Raley's, Inc., 117 Nev. 921, 925, 34 P.3d 573, 576 (2001) (quoting Langman v. Nevada
Administrators, Inc., 114 Nev. 203, 209, 955 P.2d 188, 192 (1998)).

7
NRS 607.160(1)(a).
........................................
are financially unable to employ counsel.
8
Nevertheless, these provisions, which use the
word may, not shall, do not set forth mandatory prehearing procedures that the Labor
Commissioner was required to follow in this matter but rather delineate the general
prosecutorial authority of the Labor Commissioner (and Attorney General) in carrying out his
duties under all of the labor laws.
9

[Headnote 5]
As noted above, this is a prevailing wage matter, brought under the specific public works
project statutes in NRS Chapter 338.
10
Before an amendment in 2003, NRS 338.015
specifically permitted the Labor Commissioner to hold hearings on and assess penalties for
violations of NRS 338.010 to 338.130, inclusive.
11
That statute never mandated that the
Labor Commissioner comply with any NRS 607.160 and NRS 607.170 prehearing
procedure; instead, it required the Labor Commissioner, after rendering a decision, to
notify the Attorney General
12
of any violations for prosecution.
13
Accordingly, the Labor
Commissioner acted within the scope of his statutory power in conducting the hearing in this
instance.
[Headnote 6]
Next, City Plan asserts that the Labor Commissioner's Office failed to comply with the
requirements of NAC 607.200 because the amended administrative complaint was not
verified or filed, and it was signed more than twenty-four months after the last act complained
about in the complaint. According to City Plan, the Labor Commissioner was therefore
without jurisdiction over this matter. The title of NAC 607.200 is Practice Rules: Pleading:
Complaints to the Commissioner. This section plainly covers the requirements for
individuals filing complaints with the Labor Commissioner, not the requirements for the
Labor Commissioner's Office filing a claim.
____________________

8
See also NRS 607.175.

9
See Tarango v. SIIS, 117 Nev. 444, 451 n.20, 25 P.3d 175, 186 n.20 (2001) ( [I]n statutes, may is
permissive and shall is mandatory unless the statute demands a different construction to carry out the clear
intent of the legislature.' (quoting S.N.E.A. v. Daines, 108 Nev. 15, 19, 824 P.2d 276, 278 (1992))).

10
The parties do not dispute that the claimants were employed at the site of a public work. See NRS 338.040,
amended by 2001 Nev. Stat., ch. 259, 6, at 1147.

11
NRS 338.015(1), amended by 2001 Nev. Stat., ch. 259, 3, at 1146, and by 2003 Nev. Stat., ch. 140, 18,
at 798.

12
The 2001 amendment of NRS 338.015 substituted attorney general for district attorney. 2001 Nev.
Stat., ch. 259, 3, at 1146.

13
See SIIS v. Miller, 112 Nev. 1112, 1118, 923 P.2d 577, 580 (1996) (noting that a specific statute takes
precedence over a general statute' (quoting SIIS v. Surman, 103 Nev. 366, 368, 741 P.2d 1357, 1359 (1987))).
........................................
fice filing a claim. Here, the claimants filed their wage claims with the Labor Commissioner
in 1999, well within the period prescribed by NAC 607.200, making the claims timely under
the regulation. The Labor Commissioner's subsequent amended complaint was not governed
by NAC 607.200, and therefore, it did not have to meet that regulatory requirement.
Fairness of the administrative process
[Headnotes 7, 8]
City Plan alleges that the administrative process was unfair because the Labor
Commissioner lacked the requisite authority to hold the hearing since he served as the
prosecutor and the hearing officer in this matter in violation of City Plan's due process rights.
City Plan further contends that the Labor Commissioner should have disqualified himself
because his alleged multiple roles created an appearance of impropriety mandating
disqualification under the Nevada Code of Judicial Conduct (NCJC) Canon 3E(1)(a).
Notably, however, City Plan failed to provide any support for the proposition that the Canons
guiding judicial conduct apply to the actions of an administrative adjudicator like the Labor
Commissioner. In the absence of relevant authority, we will not consider City Plan's NCJC
disqualification arguments.
14
Therefore, we will only address City Plan's due process claims.
NRS 233B.122(1), which is part of Nevada's Administrative Procedure Act, states that no
individual who acts as an investigator or prosecutor in any contested case may take any part
in the adjudication of such case.
15
Here, the record shows that Dizon, a senior investigator,
conducted the initial investigation, made recommendations, and prepared the amended
complaint. Gail Maxwell, the chief compliance audit investigator for the Office of the Labor
Commissioner, then signed the amended complaint. The Labor Commissioner, therefore, did
not participate in the filing or prosecution of the complaint; instead, he merely acted as the
hearing officer on the matter.
____________________

14
Holland Livestock v. B & C Enterprises, 92 Nev. 473, 474, 553 P.2d 950, 950 (1976).

15
NRS 233B.122 applies only to a contested case. A contested case is defined as a proceeding . . . in
which the legal rights, duties or privileges of a party are required by law to be determined by an agency after an
opportunity for hearing, or in which an administrative penalty may be imposed. NRS 233B.032. Together, NRS
607.205 and NRS 607.207 authorize the Labor Commissioner, upon notice and hearing, to render a decision
regarding public works project prevailing wage issues. And NRS 338.090(2)(b), both at the time the original
complaints were filed and now, clearly authorizes the Labor Commissioner to impose an administrative penalty
when the prevailing wage provisions are violated. Accordingly, this matter constitutes a contested case subject to
the prohibitions of NRS 233B.122. See Citizens for Honest Gov't v. Sec. of State, 116 Nev. 939, 11 P.3d 121
(2000).
........................................
prosecution of the complaint; instead, he merely acted as the hearing officer on the matter.
Further, the Labor Commissioner's actions comported with Nevada law, which authorized
him under NRS 338.015(1) and NRS 338.090, respectively, to hold hearings and assess fines
for violations of the prevailing wage provisions. Additionally, NRS 607.205 provides that the
Labor Commissioner may conduct hearings to aid the Commissioner's enforcement
responsibilities under Nevada's labor laws, including NRS 338.030, which relates to
prevailing wages.
[Headnote 9]
Moreover, this court has previously noted that [i]t is not uncommon in administrative law
to find the combination of investigating, prosecuting and judging functions.
16
Importantly,
such a combination in one office, standing alone, does not constitute a denial of due process.
17
In Rudin v. Nevada Real Estate Advisory Commission, this court addressed a similar
factual situation and stated that the Nevada Real Estate Advisory Commission did not violate
a real estate licensee's due process rights because [t]he investigation was conducted by
investigators, the prosecution by counsel for the Commission, and the decision was made by
the Commission itself.
18

Likewise, here, because the senior investigator conducted the investigation, the chief
compliance audit investigator signed the complaint, and the Labor Commissioner acted as the
hearing officer, the administrative process was not manifestly unfair and did not violate City
Plan's rights. Significantly, the United States Supreme Court has noted:
[T]he contention that the combination of investigative and adjudicative functions
necessarily creates an unconstitutional risk of bias in administrative adjudication has a
much more difficult burden of persuasion to carry. It must overcome a presumption of
honesty and integrity in those serving as adjudicators; and it must convince that, under
a realistic appraisal of psychological tendencies and human weakness, conferring
investigative and adjudicative powers on the same individuals poses such a risk of
actual bias or prejudgment that the practice must be forbidden if the guarantee of due
process is to be adequately implemented.
19

____________________

16
Rudin v. Nevada R. E. Advisory Comm'n, 86 Nev. 562, 565, 471 P.2d 658, 660 (1970).

17
Id.

18
Id.

19
Withrow v. Larkin, 421 U.S. 35, 47 (1975).
........................................
City Plan has failed to overcome this heavy burden. As noted, the record demonstrates that
the Labor Commissioner did not fill the roles of prosecutor and adjudicator.
20
In addition,
the record shows that after reviewing the evidence as it related to the eight claimants named
in the amended complaint, the Labor Commissioner found that only five of the eight
individuals had substantiated their claims. This detracts credence from the argument that the
Labor Commissioner was biased and that his decision in the case was a preordained factual
and legal conclusion. Thus, we conclude that City Plan's arguments are without merit.
21

Application of the prevailing wage law to the claimants
[Headnote 10]
City Plan alleges that because the claimants involved are undocumented aliens, NRS
422.065 expressly precludes City Plan from being required to pay them prevailing wages.
According to City Plan, the Attorney General and the Labor Commissioner aided and
abetted these illegal acts of bestowing public benefits on the claimants at the two
administrative hearings, one district court proceeding, and now on appeal.
NRS 422.065(1)(b) provides:
Notwithstanding any other provision of state or local law, a person or governmental
entity that provides a state or local public benefit . . . [i]s not required to pay any costs
or other expenses relating to the provision of such a benefit after July 1, 1997, to an
alien who, pursuant to 8 U.S.C. 1621, is not eligible for the benefit.
Section 1621(c)(1) defines a [s]tate or local public benefit as:
(A) any grant, contract, loan, professional license, or commercial license provided by an
agency of a State or local government or by appropriated funds of a State or local
government; and
____________________

20
See also State, Dep't Mtr. Vehicles v. Thompson, 102 Nev. 176, 178, 717 P.2d 580, 581 (1986) (discussing
NRS 233B.122(1) in the context of allegations that a hearing officer improperly acted as a prosecutor during an
administrative hearing).

21
City Plan argues that Deputy Labor Commissioner David Hill should have continued to fulfill the role of
hearing officer upon remand, absent a showing of unavailability. Respondent points out that Hill was unavailable
because he was no longer employed by the State of Nevada. See NRS 607.205 (authorizing the Labor
Commissioner or a person designated from the commissioner's regular staff to conduct hearings). Although
City Plan asserts that if Hill was unavailable, the Director of the Department of Business and Industry was
required to appoint a new hearing officer under NRS 232.520(7), we note that that provision merely authorizes
the director to designate another to perform the director's duties; it does not apply to the duties of the Labor
Commissioner or prohibit the Labor Commissioner from holding hearings, as authorized by NRS 607.205.
Accordingly, this argument is meritless.
........................................
ernment or by appropriated funds of a State or local government; and
(B) any retirement, welfare, health, disability, public or assisted housing, postsecondary
education, food assistance, unemployment benefit, or any other similar benefit for
which payments or assistance are provided to an individual, household, or family
eligibility unit by an agency of a State or local government or by appropriated funds of
a State or local government.
Here, no payments of costs or expenses related to a state or local public benefit are at issue.
While the public works contract between the county and City Plan may constitute a public
benefit under 1621, the payment of the prevailing wage under that contract does not
constitute such a benefit. City Plan is simply not the entity providing the public benefit
contract under the statute and, therefore, is not included in the statute's express terms
excusing payment. Instead, the payment of the prevailing wage is required when an entity
enters into a contract to perform a public work.
22
Thus, NRS 422.065 does not apply.
[Headnotes 11, 12]
Likewise, we conclude that NRS 612.448, which addresses the payment of unemployment
benefits based on an alien's status, does not apply because the issue at hand involves the
payment of prevailing wages, not unemployment benefits. The statutes that apply, NRS
338.040 and NRS 338.050, address those persons deemed to be employed on public works
and therefore entitled to prevailing wages. Neither section excludes an individual on the basis
of his immigration status. Furthermore, the Legislature amended NRS Chapter 338 in 2003
and mandated that the prevailing wage laws be enforced [w]ithout regard to whether an
employee or workman is lawfully or unlawfully employed.
23
This further evidences the
Legislature's intention that any worker falling within the purview of the prevailing wage laws
be paid accordingly regardless of his status as an illegal alien.
In 1999, NRS 338.050 specifically stated that all workers employed by a contractor or
subcontractor who perform work on a public work are subject to the provisions of NRS
338.010 to NRS 338.090.
24
At that time, NRS 338.040 provided that [w]orkmen . . .
necessary in the execution of any contract for public works are deemed to be employed on
public works.
25
And, NRS {14) defined "workman" as a "skilled mechanic,
skilled workman, semiskilled mechanic, semiskilled workman or unskilled workman."
____________________

22
See NRS 338.020.

23
NRS 607.160(1)(a) (as amended in 2003).

24
NRS 338.040, amended by 2001 Nev. Stat., ch. 259, 6, at 1147-48.

25
Id.
........................................
338.010(14) defined workman as a skilled mechanic, skilled workman, semiskilled
mechanic, semiskilled workman or unskilled workman. The claimants fall within the
definition of workman, and City Plan, a contractor, hired them to perform duties on a
public work. It follows, therefore, that City Plan was required to pay claimants the prevailing
wage regardless of their alien status. Allowing City Plan to hire undocumented workers and
pay them beneath the prevailing wage scale because they are undocumented would
circumvent the purpose of the prevailing wage statutes and would only encourage others to
hire undocumented aliens to perform necessary work. Therefore, we conclude that the
claimants' immigration status does not relieve City Plan of the duty to pay the required
prevailing wage.
Finally, City Plan argues that the Labor Commissioner inappropriately classified the
claimants as laborers and carpenters, without the statutory authority to do so and,
therefore, engaged in ad hoc rule making. According to City Plan, this act is unfair because
Nevada law fails to provide any job classifications, and it is virtually impossible to set wage
rates without also establishing the corresponding classifications. This argument is
unpersuasive.
[Headnote 13]
NRS 338.030 sets forth the procedure for determining prevailing wages. Subsection 1 of
that statute states that [t]he public body awarding any contract for public work . . . shall
ascertain from the Labor Commissioner the prevailing wage . . . for each craft or type of
work. The Labor Commissioner's determination of the craft or work classification is an
inherent part of the process. Therefore, the Labor Commissioner is obligated to define a
classification or type of work and then to determine the prevailing wage for that
classification.
[Headnote 14]
This conclusion is supported by NAC 338.007, which was added by amendment in August
2000 and states that a [r]ecognized class of workmen' means a class of workmen
recognized by the Labor Commissioner as being [in] a distinct craft or type of work for
purposes of establishing prevailing rates of wages. This language demonstrates that the
Labor Commissioner has the authority to determine and distinguish classifications of
workers. Additionally, when acting in an adjudicative capacity, the Labor Commissioner
must make any classification determination necessary to a complaint's resolution.
26
Here, the
Labor Commissioner simply applied the evidence to his predefined classifications to
determine each claimant's appropriate wage. Consequently, we reject City Plan's claim that
the Labor Commissioner engaged in ad hoc rulemaking.
____________________

26
See generally NRS 233B.121(8); NRS 233B.125.
........................................
City Plan's claim that the Labor Commissioner engaged in ad hoc rulemaking.
Substantial evidence
[Headnote 15]
According to City Plan, even if the administrative process was properly carried out in this
instance, the Labor Commissioner's decision is nonetheless unsupported by the record. City
Plan erroneously contends that because the claimants did not testify as to: (1) what days and
hours they worked, (2) the type of work they performed, and (3) how much they should have
been paid, the record does not support the Labor Commissioner's determinations. As stated
previously, the Labor Commissioner heard the testimony of Cruz Guerrero, Jarero Victor,
Luis Jarero, Vallejo Guillen, and Chavarin Flores, each of whom testified that he was paid
less than the prevailing wage.
27
After listening to this testimony, the Labor Commissioner
noted that he particularly relied on the statements and strong credibility of the claimants
themselves, as observed at the hearing, in rendering his decision.
Further, while both parties failed to provide this court with copies of the exhibits used at
the hearing, it is apparent that the Commissioner reviewed several exhibits to formulate his
decision on the work performed.
28
Additionally, he heard the testimony of City Plan's payroll
specialist, Rodrigues, who testified that the foreman in charge of carpentry and framing
supervised the claimants and that the carpentry and framing notations on the claimants'
timecards reflected the type of work performed. Because an administrative hearing officer's
decision based on a credibility determination is not open to review and because the claimants'
testimony and other evidence is consistent with the Labor Commissioner's determinations,
29
we conclude that the Labor Commissioner's decision is supported by substantial evidence in
the record, and it will not be disturbed.
30

____________________

27
See generally NRS 338.050 (providing that public works project employees are governed by the prevailing
wage laws, regardless of the existence of any other contractual employment relationship).

28
Moreover, this court has noted that [w]hen evidence on which a district court's judgment rests is not
properly included in the record on appeal, it is assumed that the record supports the lower court's findings.'
Borgerson v. Scanlon, 117 Nev. 216, 221, 19 P.3d 236, 239 (2001) (quoting Raishbrook v. Estate of Bayley, 90
Nev. 415, 416, 528 P.2d 1331, 1331 (1974)).

29
McClanahan, 117 Nev. at 925, 34 P.3d at 576.

30
As the Labor Commissioner's decision is based on substantial evidence in the record, we reject City Plan's
argument that the Labor Commissioner improperly used his personal knowledge to determine the work
performed.
........................................
Penalties
[Headnotes 16, 17]
In the instant case, the Labor Commissioner found that (1) City Plan was indebted to the
five claimants in the total amount of $11,946.31, (2) an assessed penalty was due under NRS
338.090 in the amount of $11,946.31, (3) a forfeiture in the amount of $1550 was appropriate
under NRS 338.060, and (4) City Plan was disqualified from being awarded a public works
contract for two years. Although City Plan vaguely alleges that the Labor Commissioner
failed to explain any of the penalties and maintains that the penalties are not supported in law
or fact, City Plan only specifically challenges the Labor Commissioner's imposition of
forfeitures and the penalties assessed under NRS 338.090 in its appellate briefs.
31

As for the imposition of forfeitures, City Plan's assertions lack merit. NRS 338.060
explicitly stated that the Labor Commissioner has the authority to impose a forfeiture ranging
from $10 to $25 per day, based on a sliding scale established by regulation.
32
In addition,
that statute required notice of any such forfeiture to be inserted in the public works contract.
33
Therefore, City Plan, via the contract, was placed on notice that it faced forfeitures if it failed
to pay employees the prevailing wage as required under Nevada law. Furthermore, the Labor
Commissioner determined this figure well within the requirements of NRS 338.060, in accord
with the monetary limit, or lack thereof, of City Plan's contractor's license.
[Headnotes 18-22]
Lastly, with regard to the $11,946.31 penalty assessed under NRS 338.090, City Plan
alleges that such a penalty constitutes an impermissible double penalty. We agree. Initially,
we note that the construction of a statute is a question of law that this court reviews de novo.
34
In construing a statute, a court should consider multiple legislative provisions as a whole.
35
When the language of a statute is unambiguous, this court will not look beyond the statute
itself when ascertaining its meaning.
36
However, when a statute is susceptible to more than
one reasonable but inconsistent interpretation, the statute is ambiguous, and this court
must determine the Legislature's intent.
____________________

31
Regarding City Plan's vague arguments, we conclude that the Labor Commissioner properly imposed
penalties because the facts of the case support their imposition and because NRS 338.017 specifically mandated
a two-year disqualification at the time that City Plan failed to pay the appropriate prevailing wage, thereby
giving appropriate notice.

32
NRS 338.060(1) (1999) (amended 2001 and 2003).

33
Id. (current version at NRS 338.060(5)).

34
Gallagher v. City of Las Vegas, 114 Nev. 595, 599, 959 P.2d 519, 521 (1998).

35
Diamond v. Swick, 117 Nev. 671, 676, 28 P.3d 1087, 1090 (2001).

36
Erwin v. State of Nevada, 111 Nev. 1535, 1538-39, 908 P.2d 1367, 1369 (1995).
........................................
ceptible to more than one reasonable but inconsistent interpretation, the statute is ambiguous,
and this court must determine the Legislature's intent.
37
When interpreting a statute, this
court will look to the policy and spirit of the law and will seek to avoid an interpretation that
leads to an absurd result.
38

NRS 338.090 is entitled Penalties, and subsection 2 addresses the Labor Commissioner's
imposition of penalties for violations of the prevailing wage statutes. In 1999, it read in
pertinent part:
2. The labor commissioner, in addition to any other remedy or penalty provided in
this chapter:
(a) Shall assess a person who, after a hearing, is found to have failed to pay the
prevailing wage required pursuant to NRS 338.020 to 338.090, inclusive, an amount
equal to the difference between the prevailing wages required to be paid and the wages
he actually paid; and
(b) May in addition impose an administrative fine not to exceed the costs he incurred
to investigate and prosecute the matter.
39

This provision is susceptible to more than one reasonable interpretation. As City Plan
notes, the statute could be read to provide for one assessment only, equal to the amount of the
prevailing wages owed less the amount actually paid. Or, as the Labor Commissioner
maintains, the provision could be read to provide for two assessments equal to the difference
between the required prevailing wage and the actual amount of wages paidone as a penalty
and one as wages due to the claimants. The statute is ambiguous, and accordingly, a review of
its legislative history is appropriate.
[Headnote 23]
Subsection 2 of NRS 338.090 was added to the statute as part of Assembly Bill 414 in
1993. During an initial discussion regarding this bill in the Assembly Committee on
Government Affairs, then Labor Commissioner Frank MacDonald proposed the following
changes in language: In addition to assessing against the person the actual amount of the
prevailing wage owed, the person may be further assessed an administrative fine that may
include any cost incurred by the labor commissioner in investigating and prosecuting the
matter and the other penalties as allowed in this chapter.
40
He explained that this language
cohered to the intent behind AB 414, which was not to punish but to deter wrongful conduct.
41
As the provision's terms demonstrate, MacDonald's suggestion was substantially
adopted by the Legislature.
____________________

37
Gallagher, 114 Nev. at 599, 959 P.2d at 521.

38
Hunt v. Warden, 111 Nev. 1284, 1285, 903 P.2d 826, 827 (1995).

39
2001 Nev. Stat., ch. 259, 10, at 1149.

40
Hearing on A.B. 414 Before Assembly Government Affairs Comm., 67th Leg., at 7 (Nev., April 9, 1993).

41
Id.
........................................
the provision's terms demonstrate, MacDonald's suggestion was substantially adopted by the
Legislature. Therefore, we conclude that NRS 338.090(2)(a) should be read to authorize only
one assessment equal to the prevailing wage-actual wage differential; NRS 338.090(2)(b)
addresses an additional administrative fine. The opposite conclusion would result in penalties
more akin to punishment in contravention of the Legislature's intent.
Consequently, we conclude that it was not appropriate for the Labor Commissioner to
assess a double fine. Fines under NRS 338.090(2) must be consistent with the costs of
investigation and prosecution, and there is no indication that those costs equaled the amount
due the claimants in this case. Therefore, City Plan is not required to pay the second
$11,946.31 penalty assessed under NRS 338.090, and any fine imposed under that provision
upon reassessment should adhere to the provision's terms.
CONCLUSION
We conclude that, with the exception of its argument regarding the improper assessment of
penalties under NRS 338.090, City Plan's claims are unpersuasive. Accordingly, we affirm
that portion of the district court's order denying judicial review with respect to the payment of
prevailing wages and most of the other penalties imposed on City Plan. We reverse that
portion of the district court's order with respect to the (second) penalty imposed under NRS
338.090, and we remand this matter to the district court with instructions that it direct the
Labor Commissioner to reconsider the appropriate penalty, consistent with this opinion.
____________
121 Nev. 436, 436 (2005) Bellon v. State
ROBERT LINZY BELLON, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 41984
August 11, 2005 117 P.3d 176
Appeal from a judgment of conviction, pursuant to a jury verdict, of first-degree murder
with the use of a deadly weapon. Eighth Judicial District Court, Clark County; Jackie Glass,
Judge.
The supreme court held that: (1) testimony of Louisiana police officers regarding threats
defendant made against them during negotiations to obtain a waiver of extradition was not so
interconnected with events surrounding victim's murder or defendant's flight and subsequent
arrest as to be admissible under res gestae statute, (2) testimony of officers regarding threats
defendant made against them was not admissible to show consciousness of guilt, and {3)
trial court's error in admitting testimony of officers regarding threats defendant made
against them was not harmless.
........................................
against them was not admissible to show consciousness of guilt, and (3) trial court's error in
admitting testimony of officers regarding threats defendant made against them was not
harmless.
David M. Schieck, Special Public Defender, and Lee Elizabeth McMahon, Deputy Special
Public Defender, Las Vegas, for Appellant.
Tufteland, Chief Deputy District Attorney, and Nathan A. Crane, Deputy District Attorney,
1. Criminal Law.
In the limited circumstance where the State has argued that evidence is admissible as
res gestae at trial, and specifically repudiated the admissibility of the evidence under
statute permitting admission of prior bad acts for limited purposes, thereby
circumventing the requirement for a Petrocelli hearing as required under state law, the
State is not permitted to abandon that argument on appeal and assert the admissibility
of the evidence under statute permitting admission of prior bad acts for limited
purposes. NRS 48.035(3), 48.045(2).
2. Criminal Law.
In murder prosecution, testimony of Louisiana police officers regarding threats
defendant made against them during negotiations to obtain a waiver of extradition was
not so interconnected with events surrounding victim's murder or defendant's flight and
subsequent arrest as to be admissible under res gestae statute; State could have easily
presented testimony concerning the statements defendant made about the murder
weapon, the sentence he might receive in Las Vegas, and the evidence the police
obtained after his arrest without referring to the threats. NRS 48.035(3).
3. Criminal Law.
State may present a full and accurate account of the crime, and while such evidence
is admissible under complete story of the crime doctrine even if it implicates the
defendant in the commission of other uncharged acts, the complete story of the crime
doctrine must be construed narrowly. NRS 48.035(3).
4. Criminal Law.
Admission of evidence under the res gestae statute is limited to the statute's express
provisions. NRS 48.035(3).
5. Criminal Law.
Under the res gestae statute, a witness may only testify to another uncharged act or
crime if it is so closely related to the act in controversy that the witness cannot describe
the act without referring to the other uncharged act or crime. NRS 48.035(3).
6. Homicide.
In murder prosecution, testimony of Louisiana police officers regarding threats
defendant made against them during negotiations to obtain a waiver of extradition was
not admissible to show consciousness of guilt; threats were more reflective of
defendant's frustration at being arrested than demonstrative of his consciousness of
guilt, defendant did not threaten the officers to discourage them from testifying,
and trial court could have admitted the evidence concerning defendant's flight to
Louisiana without referencing the threats.
........................................
than demonstrative of his consciousness of guilt, defendant did not threaten the officers
to discourage them from testifying, and trial court could have admitted the evidence
concerning defendant's flight to Louisiana without referencing the threats. NRS
48.045(2).
7. Criminal Law.
Trial court's error in admitting testimony of Louisiana police officers regarding
threats defendant made against them during negotiations to obtain a waiver of
extradition was not harmless in first-degree murder prosecution; evidence was
extremely prejudicial and was of minimal probative value in terms of providing
evidence that defendant committed charged murder offense.
OPINION
Per Curiam:
Robert Linzy Bellon appeals from his judgment of conviction. Bellon was sentenced to a
term of life imprisonment without the possibility of parole, with an equal and consecutive
term for the use of a deadly weapon.
Bellon argues on appeal that the district court erred by admitting the testimony of
Louisiana police officers regarding threats that Bellon made against them after his arrest.
1
Bellon argues that the statements do not properly fall within the res gestae exception
permitting the admission of such evidence. We agree and conclude that the district court
abused its discretion by admitting the arresting officers' testimony. In addition, we conclude
that the error was not harmless and therefore reverse Bellon's conviction and remand for a
new trial.
On October 8, 1995, the victim, Frank Troy Dunlap, Jr., left his mother's house in Las
Vegas planning to visit relatives. He wore his Rolex watch and carried a Taurus 9mm
handgun. At some point in the afternoon, Dunlap arrived at the home of his relative, Hilda
Blaylock, who shared her home with two men named Rodney Crosby and Lorenzo Elliot.
____________________

1
Bellon asserts several additional claims that we need not discuss given our decision. Bellon contends the
district court erred by: (1) allowing the victim's mother, a witness in the case, to remain in the courtroom after
Bellon invoked the exclusionary rule, in violation of his Sixth Amendment right to an impartial jury; (2) granting
the State's motion in limine precluding Carmel Gadsen's testimony regarding Bellon's statements after the
murder; and (3) giving the statutorily required reasonable doubt instruction. Additionally, Bellon maintains that
the State engaged in prosecutorial misconduct by misstating facts to the jury about Bellon's statements to officers
in Louisiana, resulting in prejudice to the defense.
........................................
Crosby and Lorenzo Elliot. Bellon and Everett Andre Flowers, aka Benzo, arrived at the
residence at approximately the same time as the victim. The group planned to hang out and
kick it for the evening.
After an evening of drinking, including multiple trips to the store to get beer, the group
discussed going to the Crazy Horse club to see a friend who worked there. Elliot asked
Dunlap to drive himself, Bellon, and Benzo to the club. Dunlap reluctantly agreed. Dunlap
drove the vehicle, with Benzo in the front passenger seat beside Dunlap, Elliot in the backseat
behind Benzo, and Bellon in the backseat behind Dunlap. According to Benzo, Dunlap had
his gun with him when he got into the car.
According to Elliot's testimony at trial, as Dunlap backed up he saw someone and asked if
it was an individual named Trim. Elliot looked out the rear view mirror and replied that it
was not Trim. At that exact time, Bellon handed Elliot a bottle of alcohol, and as Elliot
checked to see if the individual was Trim, he heard a loud pop. Elliot looked over, saw
Bellon hunched over Dunlap, and heard another pop. Following the gunshots, Elliot and
Benzo exited the vehicle and began to run away. As they ran, Elliot heard Bellon suggest that
they take the car.
Crosby testified at trial that he had seen Bellon, Dunlap, Elliot, and Benzo in his apartment
when they were getting ready to go to the Crazy Horse club. He said that shortly after the
group left, Elliot returned to their apartment and told him that Bellon had shot Dunlap.
Crosby testified that Elliot told him that as the car backed out of the parking lot, Bellon
grabbed the back of Dunlap's head, around his neck, and shot him twice.
Benzo testified at the trial. Benzo did not recall telling Elliot about Dunlap and Bellon
shooting their weapons on a ride to the store. After reading his statement and refreshing his
memory, Benzo recalled telling police that Bellon had a chrome .380 and Dunlap had a 9mm.
Benzo recalled that Dunlap was giving Bellon, Elliot, and himself a ride to the Crazy Horse.
He sat in the front passenger seat, Elliot sat behind him, and Bellon sat behind Dunlap, who
was driving the car. He said that Dunlap had his gun with him when he got into the car. He
remembered Dunlap asking about another vehicle. Benzo testified that next he heard gunshots
and saw a gun in Dunlap's left hand, pointed out the window. Benzo said that he heard the
shots but did not see the shooting. At that point, he jumped out of the car and ran toward
Elliot's house. He did not know anyone had died as a result of the shooting until he saw it on
the news the next morning.
The first officer to arrive at the scene of the murder found a male slumped behind the
wheel of a car. Police searched the vehicle and found a spent .380 casing on the floorboard of
the vehicle, an empty holster for a large-frame handgun, a bullet fragment, and a
40-ounce malt liquor bottle.
........................................
an empty holster for a large-frame handgun, a bullet fragment, and a 40-ounce malt liquor
bottle.
Police also recovered Dunlap's wallet, which contained a gun registration card for a 9mm
Taurus, model PT92AF, with the serial number TND70395. The police did not recover a
firearm or watch from the scene. Elliot's fingerprints were found on the vehicle's exterior
passenger window and door, and Bellon's fingerprint was found on the back of a bottle of Old
English 800. In July 2002, the police examined and retested the bullet fragment found at the
scene. A firearms examiner testified that the bullet fragment is consistent with a .380
automatic and could have been fired from guns produced by several manufacturers but not
from a 9mm Taurus.
Dr. Giles Green of the Clark County Coroner's Office performed the autopsy on Dunlap.
Dr. Green testified that Dunlap had been shot twice, once in the neck and once in the back,
and that the shot in the back caused Dunlap's death. According to Dr. Green, Dunlap's
wounds were inflicted at close range and were consistent with a .380 caliber weapon. Dr.
Green concluded that Dunlap's death was most probably a homicide. When questioned
whether the death could have been accidental, Green replied that one shot I can buy for an
accident one in a thousand times, but not two.
Lerry Dowell testified that he had known Bellon when he lived in Las Vegas, Nevada. In
October 1995, Dowell moved to Lake Charles, Louisiana, and in August 1996, almost one
year after the shooting, Bellon visited Dowell in Louisiana. In early 1997, Bellon told Dowell
about the shooting and showed him a 9mm Taurus handgun. Bellon told Dowell that he
accidentally shot another man when the two had exchanged guns. He said the gun he was
holding discharged because the vehicle hit a speed bump in the road. Bellon asked if he could
use Dowell's identity. Dowell agreed and gave Bellon his Social Security card and birth
certificate. Dowell testified that Bellon had identification bearing Dowell's name, but Bellon's
picture.
More than three years after the shooting, on November 20, 1998, Bellon was taken into
custody in Lake Charles, Louisiana, on unrelated charges. Initially, Bellon gave officers
several identities before finally revealing his true identity. At that point, officers in the
Calcasieu Parish Sheriff's Office discovered that Bellon had outstanding arrest warrants in the
State of Nevada, including one for Dunlap's homicide.
As a result, the sheriff's office conducted an investigation. Bellon consented to a search of
both of his residences in Lake Charles, Louisiana. When asked if the officers would find
anything pertaining to the Nevada investigation, Bellon replied, Like the murder weapon or
something like that?"
........................................
murder weapon or something like that? In reply the officers said, a murder weapon,
anything that would pertain to that case. Detective David Judice testified that Bellon posed
a question to me, pardon me, if I thought he was that fucking stupid to bring something like
that down to Louisiana. Detective Leslie Blanchard testified that the officers searched two
residences, Bellon's own and that of his father, and found 9mm ammunition at his father's
house, as well as Lerry Dowell's Social Security card and birth certificate and contact
information for Benzo.
In May 1999, in an event entirely unrelated to Bellon, Detective Michael Brady, an officer
of the Calcasieu Parish Sheriff's Office, responded to a call involving a fight at a hotel.
Detective Brady arrested several individuals attempting to flee the scene in a car and
recovered a 9mm Taurus handgun, which bore the serial number of Dunlap's gun.
After Bellon's arrest, officers arrested Bellon's pregnant girlfriend, Carleen Holland, on
charges of accessory after the fact to the murder, and agreed to release her and drop the
charges against her if Bellon agreed to waive extradition. Apparently, after Holland's arrest,
Bellon made a series of threatening statements to Detectives Judice and Blanchard concerning
Bellon's waiver of extradition.
At trial, during the opening statement, the prosecutor stated:
During that time period, he's visited by Detective Blanchard and Judice. There's
discussions between Detective Blanchard and Judice that you're going to hear about.
The defendant tells them, Hey, this isn't Lake Charles, this is Vegas. They have a
murder all the time in Vegas. I'm going to do a couple of years on the murder. But when
I get out, because you guys caught me, I'm going to come back.
Defense counsel objected, and a bench conference was held off the record. The district court
overruled the objection and allowed counsel to make his objection on the record. Defense
counsel argued that any possible testimony offered by the officers in relation to the threats
constituted bad acts evidence not admissible under Nevada law and, in any event, the court
was required to hold a Petrocelli
2
hearing.
The State, on the other hand, argued that the evidence was not offered pursuant to NRS
48.045, the prior bad act statute; rather, it was offered under NRS 48.035, the res gestae
statute. The State contended that the statements fell within the res gestae doctrine because the
statements were part of the complete story of the crime. Once again, the district court stated
that it overruled Bellon's objection to the admission of the testimony.
____________________

2
Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985).
........................................
As a result of this ruling, Detective Judice and Detective Blanchard testified about several
conversations they had with Bellon. Detective Judice testified that on December 3, 1998, the
officers had a discussion with Bellon concerning his extradition to Nevada. Detective Judice
gave the following testimony:
Q: And did the defendant tell you anything of what he was going to do if and when
he ever got back from Las Vegas?
A: Yeah, he made it clear that he would return to Lake Charles.
Q: And what did he say he would do?
A: He was going to find my family, my children, as well as Detective Blanchard's.
He would kill us and when we found our children, we'd be able to bury them.
The following day, on December 4, 1998, the officers had another discussion with Bellon
about his extradition. Detective Judice testified that Bellon said that [h]e changed his mind.
He had decided that he wouldn't come after me, he'd go ahead and make me suffer and he'd
just go after my family.
Detective Blanchard also testified about the events surrounding Bellon's arrest in Lake
Charles, Louisiana. Detective Blanchard testified that when he and Detective Judice
transported Bellon back to the sheriff's office after searching his residences, he asked Bellon
what sentence he thought he would receive on the charge and Bellon replied, They'll
probably give me about 20 years. They'll offer me a plea bargain for second degree murder
and tell me that I don't have to face the death penalty.
Detective Blanchard testified that he participated in the negotiations with Bellon
concerning his waiver of extradition. Detective Blanchard stated:
When we were walking back to the jail, he commented that Lake Charles is nothing
like Vegas because Vegas has homicides every day and that he'd see daylight again.
And he said that he would come back forI called him JuniorDetective Judice is
referred to as Junior. He commented to Detective Judice and I that he's [sic] come back
for us whenever he got out. And after that, he said, No actually, I'm going to come
back, I'm going to get you good. He said, I'll get your kids. He said, So, when they
disappear off a playground, and you find them, you can bury them.
On cross-examination Detective Blanchard offered the following testimony concerning the
nature of the statements:
Q: He made the comments to you with regards to your family.
A: That is correct.
........................................
Q: When you refused to release his pregnant girlfriend, correct?
A: That is correct.
Q: That was along the lines of, How would you like your family to be treated this
way?
A: No, it was along the lines of, I will be released. And whenever I get out, I will
make you pay for catching me.
The district court gave the following instruction after the officers testified:
You have heard evidence of other uncharged acts or crimes. Such evidence may only
be considered by you as it relates to the elements of the crime charged. You may not
consider such evidence for any other purpose including to prove the character of a
person in order to show that he acted in conformity therewith.
Additionally, the district court provided an identical instruction when the jury was charged.
DISCUSSION
[Headnotes 1, 2]
Bellon argues that the statements he made to Louisiana police officers, which included
threats to them and their families, should not have been admitted at trial. At trial the State
contended that the evidence was admissible under NRS 48.035(3),
3
the res gestae statute.
The State argued that the detectives' testimony was necessary for them to tell the complete
story of the crime. Now, on appeal, the State does not rely on NRS 48.035(3). Instead, the
State contends that the evidence was admissible under NRS 48.045(2), which permits the
admission of prior bad acts for limited purposes, such as to show consciousness of guilt.
4
We
note that this court has previously upheld the decision of a trial court if the court reached the
right result even though it was based upon incorrect grounds.
5

____________________

3
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.

4
See Santillanes v. State, 104 Nev. 699, 701, 765 P.2d 1147, 1148 (1988) (holding that evidence which
shows consciousness of guilt is admissible).

5
Wyatt v. State, 86 Nev. 294, 298, 468 P.2d 338, 341 (1970) (If a judgment or order of a trial court reaches
the right result, although it is based on an incorrect ground, the judgment or order will be affirmed on appeal.).
........................................
While recognizing the validity of that premise, we now hold that in the limited circumstance
where the State has argued that evidence is admissible as res gestae at trial, and specifically
repudiated the admissibility of the evidence under NRS 48.045 thereby circumventing the
requirement for a Petrocelli hearing as required under Nevada law, the State is not permitted
to abandon that argument on appeal and assert the admissibility of the evidence under NRS
48.045(2). In any event, we also conclude that the officers' testimony was not admissible
under either the res gestae statute or to show consciousness of guilt under NRS 48.045(2).
[Headnotes 3-5]
The State may present a full and accurate account of the crime, and such evidence is
admissible even if it implicates the defendant in the commission of other uncharged acts.
6
However, the complete story of the crime doctrine must be construed narrowly.
7
Accordingly, we have stated that the crime must be so interconnected to the act in question
that a witness cannot describe the act in controversy without referring to the other crime.
8
We now reiterate that admission of evidence under NRS 48.035(3) is limited to the statute's
express provisions. Under the statute, a witness may only testify to another uncharged act or
crime if it is so closely related to the act in controversy that the witness cannot describe the
act without referring to the other uncharged act or crime.
In the instant case, we conclude that the State could introduce evidence of Bellon's flight
to Louisiana without referring to the threats he made against Detective Judice and Detective
Blanchard. These threats were not so interconnected with the events surrounding Dunlap's
murder or Bellon's flight and subsequent arrest that the detectives could not testify without
mentioning the threats. To the contrary, the State could have easily presented testimony
concerning the statements Bellon made about the murder weapon, the sentence he might
receive in Las Vegas, and the evidence the police obtained after his arrest without referring to
the threats he made during the negotiations to obtain a waiver of extradition.
[Headnote 6]
We also conclude that the threats are not sufficient to demonstrate consciousness of guilt.
We have previously noted that [d]eclarations made after the commission of the crime which
indicate consciousness of guilt, or are inconsistent with innocence, or tend to establish intent
may be admissible.
9
In this instance, the threats Bellon made against the officers are more
reflective of his frustration at being arrested than demonstrative of his consciousness of
guilt.
____________________

6
Bletcher v. State, 111 Nev. 1477, 1480, 907 P.2d 978, 980 (1995).

7
Tabish v. State, 119 Nev. 293, 307, 72 P.3d 584, 593 (2003).

8
Bletcher, 111 Nev. at 1480, 907 P.2d at 980.

9
Abram v. State, 95 Nev. 352, 356, 594 P.2d 1143, 1145 (1979).
........................................
Bellon made against the officers are more reflective of his frustration at being arrested than
demonstrative of his consciousness of guilt. Additionally, Bellon did not threaten the officers
to discourage them from testifying. Moreover, the district court could have admitted the
evidence concerning Bellon's flight to Louisiana without referencing the extraordinarily
prejudicial statements about the threats he made against the officers. Therefore, we conclude
that the statements are not admissible under NRS 48.045(2).
[Headnote 7]
We have previously delineated the considerations that are relevant to determine whether
the erroneous admission of evidence constitutes harmless error.
10
Those considerations
include whether the issue of innocence or guilt is close, the quantity and character of the
error, and the gravity of the crime charged.
11
In this case, we cannot say that these
considerations weigh in favor of a conclusion that the district court's error was harmless.
Bellon was charged with the most serious of offenses, first-degree murder. Significantly, the
inadmissible evidence is extremely prejudicial and was of minimal probative value in terms
of providing evidence that Bellon committed the murder for which he was charged. While we
acknowledge that substantial evidence supports Bellon's conviction and is sufficient to
convict Bellon in the absence of any error, we conclude that the gravity of the error was
sufficient to deprive Bellon of his right to a fair trial considering the prejudicial nature of the
testimony regarding the threats Bellon made toward the police officers and their families.
Accordingly, we conclude that the judgment of conviction must be reversed.
CONCLUSION
We conclude that the district court committed reversible error in admitting evidence of
other uncharged acts or crimes under either the res gestae statute or under NRS 48.045(2).
We also conclude that such error was not harmless. Accordingly, we reverse and remand this
case to the district court for a new trial.
____________________

10
Big Pond v. State, 101 Nev. 1, 3, 692 P.2d 1288, 1289 (1985).

11
Id.
____________
........................................
121 Nev. 446, 446 (2005) Southern Nev. Homebuilders v. Clark County
SOUTHERN NEVADA HOMEBUILDERS ASSOCIATION, Appellant, v. CLARK
COUNTY, a Political Subdivision of the State of Nevada; CITIZENS FOR SMART
GROWTH; CONCERNED CITIZENS OF LOGANDALE; NORTHWEST
CITIZENS ASSOCIATION; CHARLES CARTER; MARY DUEHLMEIER;
CAROLYN EDWARDS; GEORGE HITTER; and LISA MAYO-DE RISO,
Respondents.
No. 42418
August 11, 2005 117 P.3d 171
Appeal from a district court order granting declaratory relief by proclaiming a zoning
ordinance valid. Eighth Judicial District Court, Clark County; Valerie Adair, Judge.
The supreme court, Hardesty, J., held that county zoning ordinance's supermajority
approval requirement for nonconforming zone change applications violated its enabling
statute and, thus, was invalid.
Reversed.
Kummer Kaempfer Bonner & Renshaw and Christopher L. Kaempfer and James E. Smyth
II, Las Vegas; Lubbers Law Group and Edward C. Lubbers, Las Vegas, for Appellant.
David J. Roger, District Attorney, and Robert T. Warhola, Deputy District Attorney, Clark
County, for Respondent Clark County.
Law Office of Garry L. Hayes and Garry L. Hayes and Martin L. Welsh, Henderson, for
Respondents Citizens for Smart Growth, Concerned Citizens of Logandale, Northwest
Citizens Association, Carter, Duehlmeier, Edwards, Hitter, and Mayo-De Riso.
Silence on voting requirements in statute indicates the Legislature's desire that only a
simple majority approval be met.
Statutory construction is a question of law and is reviewed de novo, without
deference to the district court's conclusions.
3. Statutes.
When interpreting a statute, court must give its terms their plain meaning,
considering its provisions as a whole so as to read them in a way that would not render
words or phrases superfluous or make a provision nugatory.
4. Statutes.
It is the duty of the court, when possible, to interpret provisions within a common
statutory scheme harmoniously with one another in accordance with the general
purpose of those statutes and to avoid unreasonable or absurd results, thereby
giving effect to the Legislature's intent.
........................................
cordance with the general purpose of those statutes and to avoid unreasonable or absurd
results, thereby giving effect to the Legislature's intent.
Enabling statute, which provided County Commissioners with the power to effect
zoning decisions and, in particular, to decide nonconforming zone change applications,
did not authorize the adoption of a super-majority voting requirement to approve
nonconforming zone change applications, and thus, county zoning ordinance's
supermajority approval requirement for nonconforming zone change applications
violated its enabling statute and was invalid. By its failure to state otherwise, the
Legislature intended only simple majority approval of nonconforming zone change
applications under enabling statute. NRS 278.260.
6. Statutes.
When a statutory scheme is in place, deference should be given to that scheme.
When a statute does not express specific or heightened voting requirements, court
will not take it upon itself to fill in such requirements, for it is not the business of the
court to fill in alleged legislative omissions based on conjecture as to what the
Legislature would or should have done.
Statutory subsection, providing that governing body may adopt and use such
procedures as may be necessary for this purpose, had to be read in context of another
subsection which concerned implementation of a master plan by the governing body
once a master plan had been adopted, and as such, the former subsection could not be
read to expand the authority of the County Commissioners to impose a greater voting
requirement than that mandated by the Legislature's silence in the enabling statute, and
thus, the former subsection did not authorize county zoning ordinance's supermajority
approval requirement for nonconforming zone change applications. NRS 278.230(1),
(2).
Statute providing that the necessary quorum to act upon and the number of votes
necessary to act upon a matter, as fixed by any statute, ordinance or rule, is reduced as
though the member abstaining were not a member of the body or committee was a
narrow statute defining a quorum when a public body member had to abstain from a
vote due to a conflict of interest, and this statute did not operate as an enabling statute
empowering the County Commissioners to adopt zoning ordinance which contained
supermajority approval requirement for nonconforming zone change applications. NRS
281.501(5).
County zoning ordinance's supermajority approval requirement for nonconforming
zone change applications was invalid since no authority allowed county to create
supermajority voting requirements for approval of nonconforming zone change
applications.
Legislature has expressly enumerated supermajority voting requirements when it has
intended to do so, and therefore, when the Legislature has not specified a supermajority
voting requirement, its silence reflects an intent to permit the imposition of only a
simple majority vote.
........................................
OPINION
The Clark County Board of Commissioners approved a debated zoning ordinance that
required supermajority (two-thirds) board approval of nonconforming zone change
applications. The ordinance's enabling statute, NRS 278.260, is silent as to whether
supermajority approval is authorized. The district court concluded that the construction of
other relevant statutes, together with silence on the matter in NRS 278.260, amounted to a
broad grant of authority to the County Commissioners and declared the supermajority voting
provision valid.
[Headnote 1]
We conclude that there is no support for the district court's construction. Silence on voting
requirements in a statute indicates the Legislature's desire that only a simple majority
approval be met. And there are no other statutes upon which the supermajority approval
requirement can be properly grounded. Further, the County Commissioners have not
demonstrated any contrary legislative intent, and public policy considerations do not support
their position. Therefore, declaratory relief validating the supermajority voting requirement
was improper.
In February 2003, the County Commissioners approved Clark County Ordinance 2865.
The ordinance requires a comprehensive update of the Clark County master plan at least once
every five years and sets forth new procedures to amend zone change applications that do not
conform to the master plan. These new procedures also prohibit the County Commissioners
from considering nonconforming zone change applications within two years of a master plan
update. Once this two-year period expires, the County Commissioners may consider
nonconforming zone change applications once each quarter, but approval of such requests
may only occur if the applicant meets certain compelling justification requirements not at
issue here and satisfies the ordinance's new supermajority approval requirement.
During the public hearings held as part of the approval process for this ordinance,
representatives for Southern Nevada Home-builders Association (SNHA) voiced their
opposition. SNHA's opposition was unsuccessful, and the County Commissioners approved
the ordinance.
Once the ordinance was adopted, Clark County, joined by various citizens and citizens
groups, filed an action in district court seeking a declaration that the ordinance is valid and
not in conflict with NRS 27S.260.
........................................
seeking a declaration that the ordinance is valid and not in conflict with NRS 278.260. SNHA
filed a counterclaim, asserting that the supermajority voting requirement in the ordinance is
invalid because it is inconsistent with NRS 278.260.
The district court granted summary judgment in favor of Clark County and the citizens
groups, holding that county commissions were given broad grants of power by the
Legislature. In particular, the district court held that the grants of power found in NRS
278.260 and NRS 278.230(2) provide mechanisms by which the County Commissioners
could require supermajority approval of nonconforming zone change applications. In so
holding, the district court also determined that our decision in Falcke v. Douglas County,
1
which invalidated a different supermajority voting requirement based on a conflict with its
enabling statute, was not controlling in this instance. This appeal followed.
DISCUSSION
Standard of review
[Headnotes 2-4]
The issue in this case is one of statutory construction, which is a question of law, and is
reviewed de novo, without deference to the district court's conclusions.
2
When interpreting a
statute, this court must give its terms their plain meaning, considering its provisions as a
whole so as to read them in a way that would not render words or phrases superfluous or
make a provision nugatory.
3
Further, it is the duty of this court, when possible, to interpret
provisions within a common statutory scheme harmoniously with one another in accordance
with the general purpose of those statutes and to avoid unreasonable or absurd results,
thereby giving effect to the Legislature's intent.
4

NRS 278.260 does not authorize the adoption of a supermajority voting requirement to
approve nonconforming zone change applications
[Headnote 5]
NRS 278.260 is an enabling statute, providing the County Commissioners with the power
to effect zoning decisions and, in particular, to decide nonconforming zone change
applications.
____________________

1
116 Nev. 583, 3 P.3d 661 (2000).

2
Walker v. Dist. Ct., 120 Nev. 815, 819, 101 P.3d 787, 790 (2004); Salas v. Allstate Rent-A-Car, Inc., 116
Nev. 1165, 1168, 14 P.3d 511, 513 (2000).

3
Charlie Brown Constr. Co. v. Boulder City, 106 Nev. 497, 502, 797 P.2d 946, 949 (1990), overruled on
other grounds by Calloway v. City of Reno, 116 Nev. 250, 993 P.2d 1259 (2000).

4
Washington v. State, 117 Nev. 735, 739, P.3d 1134, 1136 (2001).
........................................
NRS 278.260(1) gives the County Commissioners authority to provide for the manner in
which zoning regulations and restrictions . . . are determined, established, enforced and
amended.
5
This grant of power is more broadly enumerated in NRS 278.020, which
provides that the County Commissioners are authorized and empowered to regulate and
restrict the improvement of land and to control the location and soundness of structures in
order to promote the health, safety, morals, or the general welfare of the community. The
statutes, however, are silent on whether voting requirements to approve nonconforming zone
change applications require simple or supermajority approval.
The Nevada Legislature has specifically legislated voting requirements for other land
planning applications within NRS Chapter 278.
6
No zoning application statute in Nevada,
however, requires supermajority approval in any instance. In Falcke, this court compared a
different NRS Chapter 278 enabling statute, NRS 278.220, with a related statute, NRS
278.210. NRS 278.220 provides for the County Commissioners' approval of master plan
amendments, but, like the statute at issue here, does not expressly provide for a supermajority
voting requirement regarding such amendments. NRS 278.210(2), on the other hand,
expressly requires that, at the earlier stage, when a planning commission approves plan
amendments, it must be by resolution of the commission carried by the affirmative votes of
not less than two-thirds of the total membership of the commission. Thus, in Falcke, we held
that given the express language requiring a supermajority vote for approval in NRS
278.210(2) and the absence of similar language in NRS 278.220, the Legislature's omission in
the former statute reflects its intent to require approval only by a simple majority.
7

[Headnotes 6, 7]
We further stated in Falcke that NRS Chapter 278 provides a comprehensive statutory
framework
8
and that our decision was necessary to provide guidance to the counties of this
state in following the dictates of NRS Chapter 278.
9
When a statutory scheme is in place,
deference should be given to that scheme.
10
A common statutory scheme exists in this
instance, within which NRS 278.260 and NRS 278.220 are both found. As a result, the Falcke
court's reasoning is instructive in this instance.
____________________

5
NRS 278.015 defines [g]overning body as the city council or other legislative body of the city or the
board of county commissioners.

6
Falcke, 116 Nev. at 589, 3 P.3d at 664; see NRS 278.210.

7
116 Nev. at 589, 3 P.3d at 664.

8
Id.

9
Id. at 587, 3 P.3d at 663.

10
See Flick Theater v. City of Las Vegas, 104 Nev. 87, 89-90, 752 P.2d 235, 237 (1988).
........................................
Falcke court's reasoning is instructive in this instance. When a statute does not express
specific or heightened voting requirements, this court will not take it upon itself to fill in such
requirements, for it is not the business of this court to fill in alleged legislative omissions
based on conjecture as to what the legislature would or should have done.'
11
Therefore, we
conclude that, by its failure to state otherwise, the Legislature intended only simple majority
approval of nonconforming zone change applications under NRS 278.260.
Clark County and the citizens groups argue that NRS 278.250(4) and NRS 278.260(1)
authorize the County Commissioners to impose supermajority approval requirements because
they broadly grant the governing body power over zoning issues;
12
however, neither
provision expressly authorizes a supermajority voting requirement. Further, accepting this
argument would necessarily lead to the conclusion that a county could require a vote of 80%
or 90% majority. Nothing in the legislative history of NRS Chapter 278 suggests that the
Legislature intended to delegate that kind of power to the counties' governing bodies.
Although the Nevada Legislature has expressly required heightened approval requirements in
a number of other contexts,
13
it has not provided for imposing a supermajority voting
requirement for nonconforming zone change applications, and we will not infer one here.
We conclude, therefore, that the ordinance's supermajority approval requirement violates
its enabling statute, NRS 278.260.
No other statutory provision provides a basis for a supermajority voting requirement
[Headnotes 8, 9]
SNHA further contends that the district court erred when it concluded that NRS
278.230(2) or NRS 281.501(5) provide a statutory basis for upholding the ordinance. We
agree.
The district court cited NRS 278.230(2) in support of its conclusion that the Legislature
expressly authorized the County Commissioners to adopt a supermajority voting rule.
____________________

11
Falcke, 116 Nev. at 589, 3 P.3d at 665 (quoting McKay v. Board of Cty. Comm'r, 103 Nev. 490, 492, 746
P.2d 124, 125 (1987)).

12
NRS 278.250(4) states that [i]n exercising the powers granted in this section, the governing body may use
any controls relating to land use or principles of zoning that the governing body determines to be appropriate.
NRS 278.260(1) states that [t]he governing body shall provide for the manner in which zoning regulations and
restrictions . . . are determined.

13
See, e.g., NRS 278.210(2) (two-thirds vote by the planning commission to adopt or amend a master plan);
NRS 377B.100(2) (two-thirds vote by the board required to approve tax for infrastructure); NRS 540A.040
(two-thirds vote by the board required to take action concerning the board's administrative matters); NRS
705.020(1) (two-thirds vote by the board required to grant use of a street to a railroad).
........................................
sioners to adopt a supermajority voting rule. However, reliance on this subsection for
authority to establish voting requirements is improper. NRS 278.230(2) provides, [T]he
governing body may adopt and use such procedures as may be necessary for this purpose.
But this subsection must be read in the context of NRS 278.230(1) and the statutory scheme
in which it appears. NRS 278.230(1) concerns the implementation of a master plan by the
governing body once a master plan has been adopted. It does not, therefore, govern the
approval of nonconforming zone change applications, or even approval procedures in general.
Thus, NRS 278.230(2) cannot be read to expand the authority of the County Commissioners
to impose a greater voting requirement than that mandated by the Legislature's silence in NRS
278.260.
NRS 281.501(5) states that the necessary quorum to act upon and the number of votes
necessary to act upon [a] matter, as fixed by any statute, ordinance or rule, is reduced as
though the member abstaining were not a member of the body or committee. NRS
281.501(5) is a narrow statute defining a quorum when a public body member must abstain
from a vote due to a conflict of interest. It does not operate as an enabling statute empowering
the County Commissioners to adopt a supermajority voting requirement in zoning matters.
Further, we disagree with the district court's conclusion that, by addressing concerns
regarding the quorum provision's effect on nonconforming zone change application
supermajority approval requirements, the Legislature impliedly ratified the ordinance's voting
requirement. During NRS 281.501(5) pre-enactment hearings, Clark County argued that
certain quorum specifications would make it more difficult to obtain a quorum in
supermajority approval votes as with the ordinance at issue here.
14
The Legislature modified
the specifications to account for supermajority voting requirements.
15

[Headnote 10]
There is no authoritative support, however, for the conclusion that the Legislature's
modification operated as an approval of the ordinance's supermajority voting requirements for
nonconforming zone change applications. Instead, the modification merely shows that the
Legislature recognized problems created by the original specifications as applied to
supermajority voting requirements in general, which, as we have already pointed out, validly
exist in other contexts. As no authority allows Clark County to create supermajority voting
requirements for the approval of nonconforming zone change applications, the ordinance's
supermajority voting requirement is invalid.
____________________

14
Hearing on S.B. 16 Before the Senate Comm. on Gov't Affairs, 72d Leg. (Nev., Feb. 5, 2003).

15
Hearings on S.B. 16, Before the Senate Comm. on Gov't Affairs, 72d Leg. (Nev., Mar. 5, 2003).
........................................
zone change applications, the ordinance's supermajority voting requirement is invalid.
CONCLUSION
[Headnote 11]
The Legislature has expressly enumerated supermajority voting requirements when it has
intended to do so. Therefore, when the Legislature has not specified a supermajority voting
requirement, its silence reflects an intent to permit the imposition of only a simple majority
vote. As no statutes or other examples of legislative intent expressly indicate otherwise, we
conclude that NRS 278.260(2) requires only simple majority approval of nonconforming zone
change applications. As a result, the ordinance violates its enabling statute and is not valid,
and we reverse the district court's order granting declaratory relief on that issue.
____________
121 Nev. 453, 453 (2005) Szydel v. Markman
ANNETTE SZYDEL and KEVIN SZYDEL, Individually, and as Husband and Wife,
Appellants, v. BARRY MARKMAN, M.D., Respondent.
No. 42663
August 11, 2005 117 P.3d 200
Appeal from a district court order dismissing a medical malpractice action. Eighth Judicial
District Court, Clark County; Valorie Vega, Judge.
Patient brought medical malpractice action against doctor, alleging that doctor left a
surgical needle inside patient's breast when performing breast lift operation. The district court
dismissed the complaint, and patient appealed. The supreme court, Rose, J., held that expert
affidavit requirement does not apply when malpractice action is based solely on the res ipsa
loquitur doctrine.
[En banc reconsideration denied October 26, 2005]
Hardesty, J., dissented.
Murdock & Associates, Chtd., and Robert E. Murdock, Las Vegas, for Appellants.
John H. Cotton & Associates, Ltd., and Anthony J. D'Olio and Mara E. Fortin, Las Vegas,
for Respondent.
........................................
Appellate court's review of statutory provisions is de novo.
2. Statutes.
When construing a statute, the legislative intent is controlling.
3. Statutes.
Court will not look beyond the plain language of the statute, unless it is clear that
this meaning was not intended.
4. Statutes.
When the language of a statute is clear on its face, court will deduce the legislative
intent from the words used.
5. Statutes.
When two statutes are clear and unambiguous, but conflict with each other when
applied to a specific factual situation, an ambiguity is created and court will attempt to
reconcile the statutes, and in doing so, court will attempt to read the statutory
provisions in harmony, provided that this interpretation does not violate legislative
intent.
6. Health.
Expert affidavit requirement does not apply when medical malpractice action is
based solely on the res ipsa loquitur doctrine; it is unreasonable to require a plaintiff to
expend unnecessary effort and expense to obtain an affidavit from a medical expert
when expert testimony is not necessary for the plaintiff to succeed at trial. NRS
41A.071, 41A.100.
7. Health.
When a plaintiff files a res ipsa loquitur claim in conjunction with other medical
malpractice claims that do not rely on the res ipsa loquitur doctrine, those other claims
must be supported by an appropriate affidavit from a medical expert. NRS 41A.071,
41A.100.
8. Health.
Any medical malpractice action based solely on the res ipsa loquitur doctrine and
filed without an expert affidavit must, when challenged by the defendant in a pretrial or
trial motion, meet the prima facie requirements for a res ipsa loquitur case. NRS
41A.100(1)(a)-(e).
OPINION
In this appeal, we consider whether a medical malpractice action filed under Nevada's res
ipsa loquitur statute, NRS 41A.100, which does not require expert testimony at trial, must
include a medical expert affidavit, as mandated by NRS 41A.071. We conclude that the
expert affidavit requirement does not apply when the malpractice action is based solely on the
res ipsa loquitur doctrine.
FACTS
On June 22, 2001, respondent Dr. Barry Markman performed a bilateral mastopexy, or
breast lift, operation on appellant Annette Szydel. After Dr. Markman completed the
procedure on the right breast, the nursing staff conducted an equipment count and informed
Dr.
........................................
formed Dr. Markman that all sponges, needles, and other equipment used during the surgery
were accounted for. Dr. Markman closed Szydel's right breast and continued the operation on
her left breast. After Dr. Markman completed the procedure on her left breast, the nursing
staff informed Dr. Markman that one of the surgical needles was unaccounted for.
Dr. Markman conducted a thorough search of Szydel's left breast but was unable to locate
the missing needle. Following an initial search of the operating field and operating room, an
x-ray was taken to see if the missing needle was located within the wound or had adhered to
Szydel's body. Following the hospital's standard procedure in such situations, the hospital
staff relocated Szydel to the recovery room to facilitate a thorough search of the operative
suite and the surgical drapes. Dr. Markman informed Szydel of the missing needle and
explained that, if necessary, she would be taken back into the operating room to remove the
needle.
The standard x-ray did not indicate the presence of a foreign object. The search of the
operative suite and Szydel's surgical drapes also failed to locate the missing needle. Dr.
Markman then took Szydel to the fluoroscopy
1
suite to rule out any possibility that the
needle was left inside Szydel's body. The results of the fluoroscopy showed that the needle
was located in the middle of Szydel's right breast, indicating that the initial equipment count
performed after the procedure on her right breast was incorrect. Szydel was taken back to the
operative suite, and the needle was removed.
At the time of Szydel's surgery, a Nevada statute required that medical malpractice claims
be submitted to a medical-legal screening panel before proceeding in district court. In June
2002, the Governor called a special session of Nevada's Legislature to address a perceived
medical malpractice insurance crisis in Nevada.
2
During the special session, the Legislature
enacted various measures intended to reform the way medical malpractice claims are handled,
including completely eliminating the requirement for prescreening of medical malpractice
cases by the medical-legal screening panel and requiring medical malpractice actions to be
accompanied by an expert's affidavit.
3
However, the changes passed during the special
session were not effective until October 1, 2002. As a result, claimants who filed a case with
the panel before the effective date could elect to opt out of the new statutory scheme and
continue under the prior prescreening statutes.
4

____________________

1
Steadman's Medical Dictionary 543 (5th unabridged ed. 1982).

2
Borger v. Dist. Ct., 120 Nev. 1021, 1023, 102 P.3d 600, 602 (2004).

3
Id.; see also NRS 41A.016, repealed by 2002 Nev. Stat. Spec. Sess., ch. 3, 69, at 25.

4
Borger, 120 Nev. at 1024, 102 P.3d at 602-03; 2002 Nev. Stat. Spec. Sess., ch. 3, 72, at 25-26.
........................................
Szydel filed a complaint with the medical-legal screening panel on September 27, 2002.
Szydel elected to continue with the panel. The panel then informed Szydel by letter that her
complaint was procedurally deficient and advised her that unless she corrected the
deficiencies before December 4, 2002, her complaint would not be filed or submitted to the
panel and any subsequent filing would be considered a new complaint.
5

Szydel never corrected the procedural problems with her complaint, and the panel
dismissed her claim without prejudice on January 9, 2003. Six months later, on June 6, 2003,
Szydel and her husband filed a malpractice complaint in district court. Szydel's complaint
alleged that in performing the mastopexy operation, Dr. Markman left a surgical needle inside
Szydel's breast and, under Nevada's res ipsa loquitur statute, there is a rebuttable presumption
of negligence. Dr. Markman moved to dismiss for failure to comply with NRS 41A.071, the
new statutory provision requiring malpractice actions to be accompanied by a medical
expert's affidavit.
NRS 41A.071 requires the dismissal of any medical malpractice action filed in district
court without a medical expert's supporting affidavit. Szydel opposed Dr. Markman's motion
and argued that because this was a retained foreign object case under NRS 41A.100, Nevada's
res ipsa loquitur statute, which does not require expert testimony at trial, the affidavit
requirement of NRS 41A.071 was inapplicable to her complaint.
After giving Szydel additional time to obtain an expert's affidavit, the district court
dismissed Szydel's complaint without prejudice for her failure to comply with NRS 41A.071.
Szydel appeals.
DISCUSSION
Standard of review and applicable law
[Headnotes 1-4]
Szydel argues that the expert witness affidavit requirement of NRS 41A.071 does not
apply in a retained foreign object case under NRS 41A.100(1)(a), the res ipsa loquitur statute.
Our review of statutory provisions is de novo.
6
When construing a statute, the legislative
intent is controlling.
7
Under the plain meaning rule, "[t]his court will not look beyond the
plain language of the statute, unless it is clear that this meaning was not intended."
____________________

5
The exact wording of the panel's letter read:
If the deficiencies are corrected to the satisfaction of the Division on or before December 4, 2002, the
above date of receipt will be deemed the date of filing.
If the deficiencies are not corrected on or before December 4, 2002, the complaint will not be filed or
submitted to the panel and any subsequent submission is a new complaint.

6
Clark County v. Upchurch, 114 Nev. 749, 753, 961 P.2d 754, 757 (1998).

7
Id.
........................................
[t]his court will not look beyond the plain language of the statute, unless it is clear that this
meaning was not intended.
8
When the language of a statute is clear on its face, this court
will deduce the legislative intent from the words used.
9

[Headnote 5]
When two statutes are clear and unambiguous but conflict with each other when applied to
a specific factual situation, an ambiguity is created and we will attempt to reconcile the
statutes.
10
In doing so, we will attempt to read the statutory provisions in harmony, provided
that this interpretation does not violate legislative intent.
11

Resolution of the conflict between NRS 41A.100 and NRS 41A.071
[Headnote 6]
We begin with the plain meaning rule and look to the meaning of language employed in
each of the statutes.
12
NRS 41A.100(1) provides an exception to the basic requirement that
expert testimony or evidence from a recognized medical text or treatise is required to prove
negligence and causation in a medical malpractice lawsuit.
13
As this court has noted, NRS
41A.100(1) requires that a res ipsa loquitur instruction must be given when the circumstances
and evidence so warrant.
14
In Born v. Eisenman, this court noted that:
[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.
15

NRS 41A.100(1)(a) sets forth the specific exception involved in this case and states that
expert testimony is not required in instances where a foreign object is unintentionally left
in the patient's body following surgery.
____________________

8
State v. Quinn, 117 Nev. 709, 713, 30 P.3d 1117, 1120 (2001).

9
Cleghorn v. Hess, 109 Nev. 544, 548, 853 P.2d 1260, 1262 (1993).

10
See Bowyer v. Taack, 107 Nev. 625, 627, 817 P.2d 1176, 1177 (1991).

11
City Council of Reno v. Reno Newspapers, 105 Nev. 886, 892, 784 P.2d 974, 978 (1989).

12
Quinn, 117 Nev. at 713, 30 P.3d at 1120; Cleghorn, 109 Nev. at 548, 853 P.2d at 1262.

13
Banks v. Sunrise Hospital, 120 Nev. 822, 850, 102 P.3d 52, 71 (2004) (Maupin, J., concurring in part and
dissenting in part).

14
Born v. Eisenman, 114 Nev. 854, 859, 962 P.2d 1227, 1230 (1998).

15
Id. (quoting Johnson v. Egtedar, 112 Nev. 428, 434, 915 P.2d 271, 274 (1996)).
........................................
stances where a foreign object is unintentionally left in the patient's body following surgery.
16

In contrast, NRS 41A.071 requires the dismissal of a medical malpractice action filed
without an affidavit from a medical professional practicing in a substantially similar field.
17
As this court recently noted in Borger v. District Court, the plain language of NRS 41A.071
provides a threshold requirement for medical malpractice pleadings and does not pertain to
evidentiary matters at trial, as does NRS 41A.100(1).
18
However, in a footnote, this court in
Borger noted the apparent conflict between NRS 41A.071 and NRS 41A.100(1) but left the
issue unresolved because NRS 41A.100(1) was not at play in that case.
19

The language of these two statutes is unambiguous. However, when read together, the
statutes are in conflict because NRS 41A.100(1) permits a jury to infer negligence without
expert testimony at trial,
20
whereas NRS 41A.071 requires dismissal whenever the expert
affidavit requirement is not met.
21
Accordingly, we agree with Szydel that requiring an
expert affidavit at the start of a malpractice action, while permitting the plaintiff to proceed at
trial without the need to produce expert testimony under the res ipsa loquitur doctrine, leads
to an absurd result. Enforcing this requirement in a res ipsa case would do little to advance
the primary goal of the expert affidavit requirement, which is to deter frivolous litigation
and identify meritless malpractice lawsuits at an early stage.
____________________

16
NRS 41A.100(1)(a) provides:
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:
(a) A foreign substance other than medication or a prosthetic device was unintentionally left within
the body of a patient following surgery.

17
NRS 41A.071 provides:
If an action for medical malpractice or dental malpractice is filed in the district court, the district court
shall dismiss the action, without prejudice, if the action is filed without an affidavit, supporting the
allegations contained in the action, submitted by a medical expert who practices or has practiced in an
area that is substantially similar to the type of practice engaged in at the time of the alleged malpractice.

18
120 Nev. at 1028, 102 P.3d at 605.

19
Id. at 1027 n.25, 102 P.3d at 604 n.25.

20
Born, 114 Nev. at 859, 962 P.2d at 1230.

21
Borger, 120 Nev. at 1029, 102 P.3d at 606.
........................................
of the expert affidavit requirement, which is to deter frivolous litigation and identify meritless
malpractice lawsuits at an early stage.
22

In Palanque v. Lambert-Woolley,
23
the New Jersey Supreme Court held that New Jersey's
statutory affidavit requirement does not apply to common knowledge malpractice cases
where jurors' common knowledge as lay persons is sufficient to enable them, using
ordinary understanding and experience, to determine a defendant's negligence without the
benefit of the specialized knowledge of experts. '
24
The New Jersey court noted that in
such a case whether a plaintiff's claim meets the [required] threshold of merit can be
determined on the face of the complaint.
25
The court reasoned that
requiring an affidavit of merit in such a case is not necessary to achieve the primary
goal of the statute, that is, to weed out meritless malpractice lawsuits at an early stage
and to prevent frivolous litigation. Indeed, recognition of the common knowledge
exception allows meritorious claims to move forward without the added, and in those
cases unnecessary, cost of hiring an expert to execute an affidavit when that expert will
not testify at trial.
26

For the same reasons, we conclude that requiring an expert affidavit in a res ipsa case
under NRS 41A.100(1) is unnecessary. As this court has noted, the purpose of the expert
affidavit requirement is to lower costs, reduce frivolous lawsuits, and ensure that medical
malpractice actions are filed in good faith based upon competent expert medical opinion.
27
NRS 41A.071 was intended to substitute the medical-legal screening panel with a less
expensive process that continues to deter frivolous lawsuits.
28
Undeniably, the res ipsa
loquitur doctrine codified in NRS 41A.100 permits medical malpractice claims to go forward
without expert testimony when the plaintiff is able to present some evidence that one or more
of the factual situations enumerated in NRS 41A.100(1)(a)-(e) exist.
29

____________________

22
See id. ([T]he underlying purpose of [NRS 41A.071] . . . is to ensure that such actions be brought in good
faith based upon competent expert opinion. In this, the statute clearly works against frivolous lawsuits filed with
some vague hope that a favorable expert opinion might eventually surface.).

23
774 A.2d 501 (N.J. 2001).

24
Id. at 506 (quoting Hubbard ex rel. Hubbard v. Reed, 774 A.2d 495, 499 (N.J. 2001) (quoting Chin v. St.
Barnabas Medical Center, 734 A.2d 778, 785 (N.J. 1999))).

25
Id.

26
Id.

27

28
Id. at 1026, 102 P.3d at 604.

29
Born, 114 Nev. at 859, 962 P.2d at 1230.
........................................
These are factual situations where the negligence can be shown without expert medical
testimony, as when a foreign substance is found in the patient's body following surgery, NRS
41A.100(1)(a), or when a surgical procedure is performed on the wrong limb of the patient's
body, NRS 41A.100(1)(e). It would be unreasonable to require a plaintiff to expend
unnecessary effort and expense to obtain an affidavit from a medical expert when expert
testimony is not necessary for the plaintiff to succeed at trial.
30

At the same time the Legislature added NRS 41A.071, it amended the expert testimony
requirement contained in NRS 41A.100(2) to add the substantially similar medical field
language contained in NRS 41A.071.
31
This requirement that the testimony of a medical care
provider be from someone in a substantially similar field relates back to the statement of what
medical testimony is admissible under NRS 41A.100(1). The res ipsa loquitur exception is
contained at the end of NRS 41A.100(1). If the Legislature had wanted NRS 41A.100 to fall
within the ambit of NRS 41A.071, it had the opportunity to accomplish that goal while
making the noted change. The fact that it declined to do so indicates to us that the Legislature
did not want to extend the affidavit requirement to res ipsa loquitur cases.
[Headnotes 7, 8]
When, however, a plaintiff files a res ipsa loquitur claim in conjunction with other medical
malpractice claims that do not rely on the res ipsa loquitur doctrine, those other claims are
subject to the requirements of NRS 41A.071 and must be supported by an appropriate
affidavit from a medical expert.
32
In addition, any res ipsa claim filed without an expert
affidavit must, when challenged by the defendant in a pretrial or trial motion, meet the prima
facie requirements for a res ipsa loquitur case. Consequently, the plaintiff must present facts
and evidence that show the existence of one or more of the situations enumerated in NRS
41A.100(1)(a)-(e). While the dissent disapproves this procedure because it is not specifically
set forth in the statute, we believe it is only fair that a plaintiff filing a res ipsa loquitur case
be required to show early in the litigation process that his or her action actually meets the
narrow res ipsa requirements.
____________________

30
Palanque, 774 A.2d at 506.

31
See 2002 Nev. Stat. Spec. Sess., ch. 3, 12, at 9-10.

32
Although Dr. Markman disputes the fact that his actions, as a matter of law, meet the requirements of res
ipsa loquitur under NRS 41A.100(1)(a), the district court did not rule on the issue but dismissed Szydel's claim
due to her failure to submit an affidavit as required by NRS 41A.071. The application of Nevada's res ipsa
statute to the factual circumstances of Szydel's claim should be addressed by the district court if raised on
remand. Consequently, we do not consider Dr. Markman's contention.
........................................
row res ipsa requirements. Of course, as recognized by the Palanque court, the wise course
of action in all malpractice cases would be for plaintiffs to provide affidavits even when they
do not intend to rely on expert testimony at trial.'
33

Because we conclude that the expert affidavit requirement in NRS 41A.071 does not apply
to a res ipsa loquitur case under NRS 41A.100(1), we reverse the district court's order
dismissing the complaint and remand this case to the district court for proceedings consistent
with this opinion. In light of our disposition, we do not reach appellant's other arguments.
Gibbons, J., concurs.
Hardesty, J., dissenting:
The majority improperly compares two independent legal concepts within NRS Chapter
41A, one a jurisdictional requirement and the other a rule of evidence, to circumvent the clear
and unambiguous filing requirements that provide a district court with jurisdiction over a
medical malpractice case. The affidavit requirement of NRS 41A.071 is jurisdictional in
nature, intended to prevent frivolous lawsuits and ensure that medical malpractice cases are
filed in good faith based on competent expert opinion.
1
NRS 41A.100, Nevada's limited
codification of res ipsa loquitor, is a rule of evidence creating the rebuttable presumption that
a defendant is negligent in medical malpractice cases.
Szydel's malpractice action focuses on the retained foreign object provisions of NRS
41A.100. Although retained foreign object cases frequently demonstrate clear examples of
medical malpractice, that is not always the case. Szydel initially filed a complaint with the
medical-legal screening panel, claiming that medical malpractice occurred based on the
temporary retention of a needle during a bilateral mastopexy. The retained needle was
removed before postoperative recuperation. The panel dismissed her claim without prejudice
because she failed to procure an expert opinion stating that negligence occurred. After
Szydel's case was dismissed by the medical-legal screening panel, Szydel filed a complaint in
district court under NRS 41A.100. Again, however, Szydel failed to provide an expert
opinion after the district court gave her several extensions of time to do so. Without an expert
opinion, the district court dismissed the case. Szydel conceded that she was never able to
procure an expert opinion to meet the requirements of the medical-legal screening panel or
NRS 41A.071. In spite of Szydel's futile efforts to procure an expert opinion, the majority
breathes new life into a case that lacks merit and was properly dismissed under NRS
41A.071.
____________________

33
774 A.2d at 507 (quoting Hubbard, 774 A.2d at 501).

1
See Borger v. Dist. Ct., 120 Nev. 1021, 1029, 102 P.3d 600, 606 (2004).
........................................
procure an expert opinion, the majority breathes new life into a case that lacks merit and was
properly dismissed under NRS 41A.071.
General rules of statutory construction apply in this instance. It is well-established that the
language of a statute should be given its plain meaning unless, in so doing, the spirit of the
act is violated.
2
Thus, when a statute is clear on its face, a court may not go beyond the
language of the statute in determining the legislature's intent.'
3
An ambiguous statute,
however, which is capable of being understood in two or more senses by reasonably
informed persons,' or one that otherwise does not speak to the issue before the court, may be
examined through reason and consideration of public policy to determine the legislature's
intent.
4
The meaning of the words used may be determined by examining the context and
the spirit of the law or the causes which induced the legislature to enact it.'
5
In addition,
when the legislature enacts a statute, this court presumes that it does so with full knowledge
of existing statutes relating to the same subject.'
6
Further, when separate statutes are
potentially conflicting, [this court] attempt[s] to construe both statutes in a manner to avoid
conflict and promote harmony.
7

NRS 41A.071 is clear and unambiguous, providing that the district court shall dismiss the
action, without prejudice, if the action is filed without an affidavit. The plain meaning of the
statute clearly intends to prevent fraudulent claims from being filed. Generally, in res ipsa
loquitor cases involving retained foreign objects, the affidavit requirement of NRS 41A.071
should be relatively easy to satisfy; however, if the affidavit requirement is not met, the case
must be dismissed under NRS 41A.071.
My colleagues reach a conclusion that NRS 41A.071 and NRS 41A.100, when read
together, conflict because NRS 41A.100(1) permits a jury to infer negligence without any
expert testimony at trial, whereas NRS 41A.071 requires dismissal whenever the expert
affidavit requirement is not met.
____________________

2
University Sys. v. Nevadans for Sound Gov't, 120 Nev. 712, 731, 100 P.3d 179, 193 (2004).

3
Id. (quoting McKay v. Bd. of Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 441 (1986)).

4
Id. (quoting McKay, 102 Nev. at 649, 730 P.2d at 442); Clark County v. Sun State Properties, 119 Nev. 329,
334, 72 P.3d 954, 957 (2003).

5
University Sys., 120 Nev. at 731, 100 P.3d at 193 (quoting McKay, 102 Nev. at 650-51, 730 P.2d at 443).

6
State, Div. of Insurance v. State Farm, 116 Nev. 290, 295, 995 P.2d 482, 486 (2000) (quoting City of
Boulder v. General Sales Drivers, 101 Nev. 117, 118-19, 694 P.2d 498, 500 (1985)).

7
Beazer Homes Nevada, Inc. v. Dist. Ct., 120 Nev. 575, 587, 97 P.3d 1132, 1140 (2004).
........................................
The affidavit requirement is not susceptible to two meanings, and it cannot be read to say
that the need for an affidavit in a res ipsa case has been excused or not addressed by our
Legislature. An affidavit is required in all cases.
The plain meaning of both statutes is not in conflict and can be harmonized. NRS 41A.071
is a procedural rule that requires a sworn affidavit from a medical professional before the
district court may entertain a medical malpractice claim. Once a party has met that initial
requirement, the district court must later determine during trial whether, as a matter of law,
the res ipsa loquitor rule in NRS 41A.100 applies, which allows the plaintiff to proceed to the
jury without producing expert testimony regarding negligence and causation on the part of the
defendant.
Without applying the affidavit requirement of NRS 41A.071 to res ipsa loquitor cases,
even the most frivolous of res ipsa claims could be brought to district court. Further, the
purpose behind NRS 41A.071, to reduce frivolous lawsuits that have some vague hope that a
favorable expert opinion might eventually surface,
8
would be thwarted. It is unlikely that
the Legislature intended cases to be excluded from a review for frivolity under NRS 41A.071.
Instead, the Legislature more likely intended that a party bringing a res ipsa case would
establish, through a medical expert opinion, that the party's case is not frivolous, regardless of
whether the party would produce expert opinion evidence later in trial. The approach taken by
the majority runs contrary to the goals of NRS 41A.071 because, by the time a decision is
made on whether a party is entitled to the res ipsa instruction, a substantial amount of time,
energy, and money in discovery and trial is expended.
The majority suggests a remedy if an expert opinion is not required with the complaint
filing and the res ipsa loquitor instruction is later denied. They conclude that the case must be
dismissed. Nothing in the statutory structure of NRS Chapter 41A provides for such a
procedure or dismissal. The better approach is to require the medical affidavit initially, even
if a party does not intend to rely later on expert testimony at trial.
For these reasons, I would affirm the dismissal by the district court.
____________________

8
____________
........................................
121 Nev. 464, 464 (2005) Kahn v. Morse & Mowbray
FRANK KAHN, as Personal Representative for WILLIAM KAHN, Deceased, and
CHRISTINE KAHN, Individually and as Trustee of the KAHN FAMILY TRUST,
Appellants, v. MORSE & MOWBRAY, a Nevada Professional Corporation; and
CHRISTOPHER H. BYRD, Individually, Respondents.
No. 41148
FRANK KAHN, as Personal Representative for WILLIAM KAHN, Deceased, and
CHRISTINE KAHN, Individually and as Trustee of the KAHN FAMILY TRUST,
Appellants, v. MORSE & MOWBRAY, a Nevada Professional Corporation; and
CHRISTOPHER H. BYRD, Individually, Respondents.
No. 41508
August 11, 2005 117 P.3d 227
Consolidated appeals from a district court order granting summary judgment and an order
awarding attorney fees and costs. Eighth Judicial District Court, Clark County; Kathy A.
Hardcastle, Judge.
Former clients filed legal malpractice case against former attorney and attorney's law firm.
The district court granted attorney and law firm summary judgment and later granted attorney
and law firm $37,341 in attorney fees. Former clients appealed. The supreme court, Rose, J.,
held that: (1) clients' allegation that attorney committed malpractice when he failed to state on
the record that clients' settlement agreement was not final until reduced to writing was not
barred by collateral estoppel, (2) clients' allegation that law firm and attorney committed
malpractice by offering clients bad advice concerning settlement agreement was not barred by
collateral estoppel, (3) genuine issue of material fact as to whether attorney adequately
advised clients as to several terms of settlement agreement precluded summary judgment, (4)
clients' claim of legal malpractice that alleged that attorney failed to structure settlement
agreement so that it would be tax beneficial to clients was barred by collateral estoppel, (5)
clients failed to allege facts sufficient to support their intentional infliction of emotional
distress claim, and (6) award of $37,341 in attorney fees to attorney and law firm after finding
that clients brought their claims without reasonable grounds was an abuse of discretion.
........................................
Gibbons, J., dissented in part.
JoNell Thomas, Las Vegas, for Appellants.
Rawlings Olson Cannon Gormley & Desruisseaux and Barbara I. Johnston and James R.
Olson, Las Vegas, for Respondents.
The supreme court reviews an order granting summary judgment de novo.
2. Judgment.
A genuine issue of material fact exists, for the purpose of a summary judgment
motion, when a reasonable jury could return a verdict for the nonmoving party.
When reviewing summary judgment, the supreme court construes the pleadings and
proof in the light most favorable to the nonmoving party.
When reviewing a motion for summary judgment the supreme court may be required
to determine whether the law has been correctly perceived and applied by the district
court.
5. Judgment.
Generally to establish a claim of collateral estoppel or issue preclusion, a litigant
must show that an issue of fact or law was necessarily and actually litigated in a prior
proceeding.
6. Judgment.
The following three elements must be met to preclude a party from litigating issues
previously addressed: (1) the issue decided in the prior litigation must be identical to
the issue presented in the current action, (2) the initial ruling must have been on the
merits and have become final, and (3) the party against whom the judgment is asserted
must have been a party in privity with a party to the prior litigation.
7. Judgment.
In contrast to claim preclusion, the doctrine of issue preclusion does not apply to
matters that could have been litigated but were not.
8. Judgment.
Issue preclusion may be appropriate, even when the causes of action asserted in the
second proceeding are substantially different from those addressed in the initial
proceeding, as long as the court in the prior action addressed and decided the same
underlying factual issues.
9. Judgment.
When determining whether issue preclusion applies to a given case, courts must
scrupulously review the record to determine if it actually stands as a bar to relitigation.
10. Judgment.
Clients' allegation that attorney committed malpractice when he failed to state on the
record that clients' settlement agreement was not final until reduced to writing was not
barred by collateral estoppel; the court in the prior action did not address the factual
bases underlying the malpractice claim.
11. Judgment.
Clients' allegation that law firm and attorney committed malpractice by offering
clients bad advice concerning settlement agreement was not barred by collateral
estoppel; the court in the prior action did not address the factual bases underlying
the malpractice claim, and the court ruled that the attorneys involved in settlement
negotiations could not discuss the details of private conversation that occurred
between themselves and their clients.
........................................
barred by collateral estoppel; the court in the prior action did not address the factual
bases underlying the malpractice claim, and the court ruled that the attorneys involved
in settlement negotiations could not discuss the details of private conversation that
occurred between themselves and their clients.
Under Nevada law, to establish a claim of legal malpractice, a plaintiff must
demonstrate (1) the existence of an attorney-client relationship, (2) a duty owed to the
client by the attorney, (3) breach of that duty, and (4) the breach is the actual and
proximate cause of the client's damages.
13. Judgment.
Genuine issue of material fact as to whether attorney adequately advised clients as to
several terms of settlement agreement precluded summary judgment in legal
malpractice case.
14. Judgment.
Genuine issue of material fact regarding whether attorney should have stated on the
record that settlement agreement was not final until reduced to writing precluded
summary judgment in clients' legal malpractice action.
15. Judgment.
Clients' claims of legal malpractice that alleged that attorney wrongfully abandoned
clients shortly before trial, which resulted in attorney having an interest in settlement of
lawsuit, and that attorney testified against clients at the settlement hearing, were barred
by collateral estoppel, where the trial court addressed the underlying factual bases of the
claims in prior litigation.
16. Judgment.
Clients' claim of legal malpractice that alleged that attorney failed to structure
settlement agreement so that it would be tax beneficial to clients was barred by
collateral estoppel, where the parties to the settlement agreement agreed to structure the
agreement to be tax beneficial to everyone involved, such that the matter was actually
litigated.
Clients' claim of legal malpractice that alleged that attorney failed to amend clients'
answer and counterclaims to add additional claims lacked merit, where the trial court
determined that clients agreed, on the record, to relinquish any and all claims relating to
the lawsuit or to other parties.
18. Damages.
Clients failed to alleged facts sufficient to support their intentional infliction of
emotional distress claim, in legal malpractice case against attorney and law firm based
on attorney's alleged negligence during representation of clients in settlement
negotiations; clients failed to allege any facts that demonstrated that attorney or law
firm's conduct was extreme or outrageous.
19. Damages.
Clients were not entitled to recover damages for negligent infliction of emotional
distress in legal malpractice case against attorney and law firm; emotional distress was
not a foreseeable consequence of an attorney's alleged general negligence.
20. Costs.
Trial court award of $37,341 in attorney fees to attorney and law firm after finding
that clients brought their claims without reasonable grounds was an abuse of discretion,
in legal malpractice case; clients' claims of legal malpractice based on attorney's
allegedly bad advice were not barred by collateral estoppel and had not been decided
by the courts.
........................................
by collateral estoppel and had not been decided by the courts. NRS 18.010(2)(b).
21. Costs.
To support an award of attorney fees based on a party asserting claims without
reasonable grounds, there must be evidence in the record supporting the proposition
that the complaint was brought without reasonable grounds or to harass the other party.
NRS 18.010(2)(b).
22. Appeal and Error; Costs.
The decision to award attorney fees is within the sound discretion of the district
court and will not be overturned absent a manifest abuse of discretion.
OPINION
Appellants, William (now deceased) and Christine Kahn and the Kahn Family Trust (the
Kahns), sued their prior attorney, Christopher Byrd and his firm, Morse & Mowbray, for legal
malpractice. Byrd and Morse & Mowbray filed a motion for summary judgment, alleging that
the factual and legal issues in the case had already been litigated and resolved in another
action. The district court granted the motion for summary judgment and later issued an order
granting attorney fees to Byrd and Morse & Mowbray under NRS 18.010(2)(b), finding that
the malpractice action was brought without reasonable grounds. The Kahns also appeal that
order. We consolidated the appeals.
On appeal the Kahns allege that the district court erred in granting the motion for summary
judgment because they were not collaterally estopped from raising the issues involved in the
legal malpractice suit and because material issues of fact remain unresolved. In addition, the
Kahns contend that the district court abused its discretion in awarding attorney fees because
there was a sound basis for the complaint. We agree with both of these contentions. As the
district court did not actually and necessarily litigate all of the issues supporting the Kahns'
claims for legal malpractice, the district court improperly granted summary judgment on
those claims. As a result, we conclude the district court abused its discretion in awarding
attorney fees. However, we conclude that because the Kahns did not establish a prima facie
case in regard to their claim for intentional infliction of emotional distress, the district court
properly granted summary judgment on that particular claim. Moreover, we also conclude
that a claim for negligent infliction of emotional distress is improper when based upon a legal
malpractice claim.
........................................
In 1980, the Kahns allegedly entered into an oral agreement with their son, Eric Kahn. The
agreement stated that if the Kahns ever decided to sell their business, A-1 Equipment Rental,
Inc., a Nevada corporation, to a third party, they would permit Eric to use the proceeds from
the sale, interest free, for a term of five years. Eric was to repay the loan after five years. This
agreement did not include any rights to proceeds acquired from the sale of the land, which the
Kahns also owned. In October 1997, the Kahns' other son, Frank Kahn, offered to purchase
the business, and the Kahns accepted the offer. In 1997, Eric Kahn sued his parents to enforce
the 1980 agreement, and he sued his brother, Frank, for intentional interference with
contractual relations, negligent interference with contractual relations, and breach of fiduciary
duty. Frank filed counterclaims against Eric and cross-claims against his parents.
The Kahns hired Byrd and his law firm, Morse & Mowbray, to represent them in the
lawsuit. William Kahn alleged that Byrd told the Kahns that they had good defenses to Eric's
complaint and that they had several worthy counterclaims. Byrd, on the Kahns' behalf,
answered the complaint and filed several counterclaims against Eric for repayment of loans,
usurpation of corporate profits, breach of fiduciary duty, conversion of profits, unpaid rent,
emotional distress, and an accounting. Due to the Kahns' ages and related health problems,
Byrd filed a motion for preferential setting for trial, which the district court granted, setting
the trial date for January 25, 1999.
Shortly before the trial date, Byrd informed the Kahns that personal reasons prevented him
from trying the case and that the trial date would need to be continued to facilitate discovery.
As a result, Byrd stipulated with Eric's attorney to continue the trial until April 20, 1999.
Frank's deposition was set for March 18, 1999. A day before the scheduled deposition, a
meeting was held at the office of Frederic Berkley, Frank Kahn's attorney, to discuss the
possibility of settlement. In attendance were William, Christine, Frank, Berkley, and Byrd.
This meeting was prompted by Eric's deposition testimony that he was willing to purchase the
business, inclusive of the land, for $700,000. Allegedly, during the course of these
discussions, Christine called Eric to discuss the option of settling the case.
The parties met early the following morning and engaged in extensive discussions
regarding settlement. During the course of the negotiations, Byrd engaged in separate
conversations with the Kahns, as well as separate conversations with Frank and Berkley.
After several hours of negotiations, an agreement was placed on the record.
........................................
Under the recorded settlement agreement, the Kahns agreed to sell to Eric A-1 Rental, Inc.,
including the land, for a purchase price of $700,000. In addition, all of the parties agreed to
the mutual release of all claims. The parties also agreed to work together to ensure that the tax
impact of the purchase would be mutually beneficial to all the parties. To further this goal, the
parties agreed to use Ron Smith, a certified public accountant, to structure the agreement.
Shortly thereafter, but before the parties could sign a written agreement memorializing the
recorded settlement agreement, the Kahns reneged on the settlement and raised the purchase
price on the property by $500,000. The Kahns also contested Eric's claim that they released
all claims and counterclaims. The Kahns attempted to convince Byrd and his firm to contest
Eric's contentions regarding the settlement agreement, but Byrd and the Morse & Mowbray
firm declined to pursue the matter. As a result, Lamond Mills was substituted as counsel in
place of Byrd.
On June 23, 1999, the district court issued an order granting Eric's counter-motion for
specific enforcement of the agreement. The district court concluded that dictating the
agreement to the court reporter was sufficient to constitute a written stipulation under
applicable court rules. Additionally, the district court determined that an evidentiary hearing
was required, pursuant to Resnick v. Valente,
1
to allow the district court to determine if the
parties intended to enter into a comprehensive agreement and to give the Kahns an
opportunity to assert any possible defenses to the enforcement of the settlement agreement.
The district court held an evidentiary hearing on August 23 and 24, 1999. At the hearing,
Eric, Berkley, William, Byrd, and Frank testified concerning the settlement negotiations and
the resulting agreement.
Eric testified that under the terms of the agreement he agreed to pay, within 90 days or at
the close of escrow, $700,000 in exchange for the business and property. Eric testified that as
part of the agreement all the complaints that the parties had against each other would be
dismissed. In addition, he testified that his brother's attorney, Berkley, reiterated the purchase
price, the 90-day escrow requirement, and the release of claims on the record.
Berkley, on his part, testified as to the terms of the agreement and to the negotiations
preceding the settlement. Berkley stated that during the course of the negotiations, he met and
spoke with Frank, Byrd, Christine, and William about the specifics of the settlement.
Specifically, Berkley testified that the purpose of the group meetings was "[t]o discuss the
settlement discussions as they pertained to the cross-claim and the counterclaims that we
had in the lawsuit."
____________________

1
97 Nev. 615, 637 P.2d 1205 (1981).
........................................
group meetings was [t]o discuss the settlement discussions as they pertained to the
cross-claim and the counterclaims that we had in the lawsuit. All of the parties agreed to the
terms on the record. Berkley did indicate that he expected the recorded transcript to be
reduced to writing and signed by the parties.
Byrd testified that after Eric Kahn's deposition, taken on March 17, 1999, Byrd attended a
conference at Berkley's office to discuss the possibility of settling the case. During those
discussions, Christine called Eric to discuss the settlement and invited Eric to dinner. The
next morning the parties engaged in settlement discussions. Byrd noted that all the parties
involved gave the attorneys the authority to enter into the settlement, which was indicated in
the record. In the afternoon, the parties agreed to settle and to place the settlement on the
record. Byrd stated that he believed the settlement agreement was binding upon the parties.
On cross-examination, Byrd admitted that he told the Kahns he could not try the case. Byrd
denied that this was an ethical violation and also denied that he had a personal interest in
seeing the case settled. Byrd admitted that he thought the oral agreement between the parties
was not the final agreement; instead, he thought that the agreement was going to be reduced
to writing with all parties having the opportunity to add additional terms.
Frank testified that he was present after Eric's deposition on March 17, 1999. Frank met
with his parents and their attorney, Byrd, in Berkley's office. According to Frank, the parties
were attempting to figure out why Eric had stated in his deposition testimony that he had
made a cash offer of $700,000 when he had never made such an offer. He denied that the
parties discussed settlement terms. He said that his mother, Christine, called Eric to see if he
wanted to go to dinner and talk; however, the two did not have dinner together that evening.
Christine told Frank that Eric did not want to discuss settlement. The next morning, Frank
went to the law offices of Hutchinson & Steffen to give his deposition, and at that time he did
not intend to discuss settlement of the case because he thought the possibility of settlement
was out of the question.
Frank testified that as soon as they arrived, the attorneys convened to discuss the
settlement. Frank denied being informed by the attorneys regarding the nature of the
discussions that occurred solely between the attorneys. Frank's understanding regarding the
recording of the settlement agreement was that it would serve as an outline for a draft of a
final written agreement. Frank said that he never heard the terms of the agreement before it
was recorded.
Nevertheless, he agreed to the settlement on the record, but he claimed he did so because
he felt it was an outline and he would ultimately have the chance to make corrections to
the written agreement.
........................................
ultimately have the chance to make corrections to the written agreement. Frank testified that
he thought certain things were missing from the agreement, specifically, the overpayment of
Eric's salary, the fact that all parties would have to pay their own attorney fees, and Eric's
conversion of corporate funds. Frank did not raise these issues when the attorneys asked for
comments and additions to the agreement. On cross-examination, Frank stated that he agreed
that there was a full mutual release of all claims and that the parties would pay their own
attorney fees and that all parties were to cooperate in the tax structure of the deal. Frank said
that he objected to his attorney when the case was taken off calendar the day after the
settlement.
William testified that he was not a party to the negotiations between the attorneys.
Moreover, William stated that he did not participate in discussions between Christine, Frank,
and their attorneys concerning the settlement agreement. William admitted that there were
general discussions as to what would be put on the record as part of the settlement but that he
did not think that the agreement on record constituted a final agreement. According to
William, Eric's attorney never stated that the agreement was going to be the final agreement.
Moreover, William testified that several items were left out of the agreement, including
Eric's salary, nonpayment of rent, and conversion of corporate funds. William testified that he
was present at the settlement meeting where the settlement terms were placed on the record
and agreed to the terms on the record. He admitted that he agreed that the parties would
eventually release all of their claims. Nevertheless, William believed that the only thing he
had agreed to was the purchase price and the sale. He stated that he was concerned about the
agreement being placed on the record and that he continued to object throughout the
settlement negotiations.
After hearing this testimony, the district court issued its findings of fact and conclusions of
law. The district court found that the settlement was discussed and that the parties had arrived
at an agreement to settle the case, including any and all claims that each party had or may
have had against any other party. The district court determined that the parties, together with
counsel, met and memorialized their agreement by verbally stating it to a certified court
reporter.
Additionally, the district court found that all of the parties intended the recorded settlement
to be a final and binding agreement on the parties and that each of the parties agreed to the
terms expressed in that agreement, including the dismissal of any and all claims between the
respective parties. The district court noted that all three of the attorneys had the
opportunity to speak on the record and to provide any explanations, supplements, or
additions that the attorneys felt would better reflect the agreement of the parties and to
express freely any concerns they had with the terms.
........................................
all three of the attorneys had the opportunity to speak on the record and to provide any
explanations, supplements, or additions that the attorneys felt would better reflect the
agreement of the parties and to express freely any concerns they had with the terms. The
district court found that Berkley and Byrd were not interested in the lawsuit.
The district court further found that the record belied William's assertion that he was
unaware of the various terms of the agreement and that he had disagreed with the terms of the
agreement at the time it was recorded. In addition, the district court found that all the parties
knew that further documents would need to be created to effectuate the agreement and that
each party agreed to cooperate in executing the necessary documents. The district court also
found that the Kahns' actions and conduct prevented the 90-day escrow required by the
agreement. The district court concluded that the Kahns were equitably estopped from
claiming the statute of frauds as a defense. As a result of these findings of fact and
conclusions of law, the district court entered a judgment granting Eric's counter-motion for
specific performance of the settlement and ordered that the settlement agreement was a
binding and enforceable contract. Neither the Kahns nor Eric appealed this judgment.
Following the judgment, the Kahns sued Byrd and Morse & Mowbray, alleging legal
malpractice, breach of fiduciary duty, negligent infliction of emotional distress, and
intentional infliction of emotional distress claims. The Kahns claimed that Byrd and his firm
had engaged in legal malpractice because (1) Byrd wrongfully abandoned the Kahns shortly
before the start of trial, which resulted in Byrd having an interest in the settlement of the
lawsuit; (2) Byrd failed to advise the Kahns about the proposed settlement regarding the
purchase price of the property and business; (3) Byrd advised the Kahns off the record that
$700,000 was a fair price for the business and property; (4) Byrd never advised the Kahns
that the agreement would constitute a full settlement of all of the claims against Eric; (5) Byrd
failed to state on the record that these claims were not being released; (6) Byrd failed to state
on the record that no agreement was final until reduced to writing; (7) Byrd failed to structure
the agreement in a way that would be tax beneficial; (8) Byrd had failed to amend the Kahns'
answer and counterclaims to include claims against Eric for using $90,000 in corporate funds
to pay attorney fees related to the lawsuit; (9) Byrd had failed to amend the Kahns' answer
and counterclaims to include claims against Eric relating to unpaid loans; (10) Byrd testified
against them at the settlement hearing knowing that he had never properly advised the Kahns;
and (11) Byrd failed to add A-1 Equipment Rental, Inc., as a party to the lawsuit.
........................................
Morse & Mowbray filed a motion for summary judgment asserting that: (1) the Kahns
were collaterally estopped from pursuing their claims because the underlying factual and legal
issues had been previously litigated during the two-hour evidentiary hearing in the underlying
lawsuit, (2) the Kahns had failed to state a cause of action for negligent infliction of
emotional distress as a matter of law, (3) Byrd had filed the counterclaims that the Kahns
contended were not alleged, (4) the issue of Byrd's failure to amend the answer to include
additional counterclaims was moot because the district court found that any claims that each
party had or may have had against any other party were released under the settlement, and (5)
the claim of abandonment was also moot because no trial ever took place due to the parties
entering into a binding and enforceable settlement agreement.
The district court heard arguments on the motion for summary judgment and subsequently
determined that the Kahns were collaterally estopped from raising any claims because all of
the claims had been necessarily and actually litigated in the prior litigation. Consequently, the
district court entered an order granting summary judgment. The Kahns timely appealed from
that order.
Byrd and Morse & Mowbray moved for costs and attorney fees under NRS 18.020 and
NRS 18.110, arguing that the complaint was brought without reasonable grounds. Byrd and
Morse & Mowbray asked for attorney fees in the amount of $37,341.44 and costs in the
amount of $4,871.40. The Kahns filed a motion to retax and settle costs and an opposition to
the motion for attorney fees. The district court heard arguments on the matter and determined
that Byrd and Morse & Mowbray were entitled to attorney fees in the amount of $37,341. The
Kahns timely appealed that decision. The appeals have been consolidated.
DISCUSSION
Standard of review
[Headnotes 1-4]
This court reviews an order granting summary judgment de novo.
2
A summary judgment
motion should be granted when no genuine issue of material fact exists and the moving party
3
A genuine issue of material fact exists when a
reasonable jury could return a verdict for the non-moving party.
4
This court construe[s] the
pleadings and proof in the light most favorable to the non-moving party."
____________________

2
Yeager v. Harrah's Club, Inc., 111 Nev. 830, 833, 897 P.2d 1093, 1094 (1995).

3
NRCP 56(c); Pressler v. City of Reno, 118 Nev. 506, 509, 50 P.3d 1096, 1098 (2002).

4
Posadas v. City of Reno, 109 Nev. 448, 452, 851 P.2d 438, 441-42 (1993).
........................................
proof in the light most favorable to the non-moving party.
5
Additionally, when reviewing a
motion for summary judgment this court may be required to determine whether the law
has been correctly perceived and applied by the district court. '
6
We have previously
determined that [i]ssue preclusion, or collateral estoppel, is a proper basis for granting
summary judgment.
7

Collateral estoppel
On appeal, the Kahns contend that the district court improperly granted Morse &
Mowbray's motion for summary judgment because the prior litigation did not address issues
identical to those addressed in the malpractice action. We agree and conclude that most of the
issues involved in the malpractice suit were not actually and necessarily litigated in the prior
action to resolve the dispute over the settlement agreement.
[Headnotes 5-9]
We note that generally to establish a claim of collateral estoppel or issue preclusion, a
litigant must show that an issue of fact or law was necessarily and actually litigated in a prior
proceeding.
8
The following three elements must be met to preclude a party from litigating
issues previously addressed:
(1) the issue decided in the prior litigation must be identical to the issue presented in
the current action; (2) the initial ruling must have been on the merits and have become
final; and (3) the party against whom the judgment is asserted must have been a party in
privity with a party to the prior litigation.'
9

Significantly, we note that in contrast to claim preclusion, the doctrine of issue preclusion
does not apply to matters which could have been litigated but were not. '
10
However,
issue preclusion may be appropriate, even when the causes of action asserted in the
second proceeding are substantially different from those addressed in the initial
proceeding, as long as the court in the prior action addressed and decided the same
underlying factual issues.
____________________

5
LaMantia v. Redisi, 118 Nev. 27, 29, 38 P.3d 877, 879 (2002) (quoting Manganaro v. Delaval Separator
Co., 309 F.2d 389, 393 (1st Cir. 1962)).

6
Evans v. Samuels, 119 Nev. 378, 380, 75 P.3d 361, 363 (2003) (quoting Calloway v. City of Reno, 116 Nev.
250, 256, 993 P.2d 1259, 1263 (2000) (quoting Mullis v. Nevada National Bank, 98 Nev. 510, 512, 654 P.2d
533, 535 (1982))).

7
LaForge v. State, University System, 116 Nev. 415, 419, 997 P.2d 130, 133 (2000) (footnote omitted).

8
Id. at 420, 997 P.2d at 133; Marine Midland Bank v. Monroe, 104 Nev. 307, 308, 756 P.2d 1193, 1194
(1988).

9
LaForge, 116 Nev. at 419, 997 P.2d at 133 (quoting Executive Mgmt. v. Ticor Title Ins. Co., 114 Nev. 823,
835, 963 P.2d 465, 473 (1998) (quoting University of Nevada v. Tarkanian, 110 Nev. 581, 598, 879 P.2d 1180,
1191 (1994))).

10
Id. at 420, 997 P.2d at 133 (quoting Executive Mgmt., 114 Nev. at 835, 963 P.2d at 473 (quoting Pomeroy
v. Waitkus, 517 P.2d 396, 399 (Colo. 1974)
........................................
preclusion may be appropriate, even when the causes of action asserted in the second
proceeding are substantially different from those addressed in the initial proceeding, as long
as the court in the prior action addressed and decided the same underlying factual issues.
11
Therefore, when determining whether issue preclusion applies to a given case, courts must
scrupulously review the record to determine if it actually stands as a bar to relitigation.
12

For this reason, we reject the Kahns' contention that collateral estoppel does not apply
because the malpractice cause of action had not accrued at the time of the underlying action
13
and therefore any malpractice issues could not have been raised and litigated in the
underlying suit. Instead, we conclude that any issues or facts decided in the prior suit are
collaterally barred from relitigation, even if a claim of legal malpractice had not accrued.
Such a conclusion is consonant with the doctrine of collateral estoppel, which focuses upon
the underlying factual bases surrounding issues and not upon claims. However, we emphasize
that only those issues actually addressed and litigated are collaterally barred.
Here, the Kahns do not dispute that the previous lawsuit resulted in a final judgment on the
merits or that the party against whom judgment is asserted is a party or in privity with a party
to the prior litigation.
The Kahns do, however, contend that the district court improperly granted Morse &
Mowbray's motion for summary judgment because the factual bases for the legal malpractice
claim were not actually and necessarily litigated in the prior lawsuit, and we agree. On appeal,
Morse & Mowbray contend that because the district court determined that there are no other
defenses to enforcement of the settlement agreement, and no legal reason for not enforcing
the agreement, any issues surrounding the Kahns' claims of legal malpractice were decided
in the prior lawsuit. We conclude that this argument is unpersuasive.
[Headnote 10]
First, the Kahns claimed that Byrd committed malpractice because he failed to state on the
record that no agreement was final until reduced to writing. This factual issue is problematic
because Byrd testified that he thought the agreement had to be memorialized in writing.
____________________
(footnote omitted))); Tarkanian, 110 Nev. at 598-600, 879 P.2d at 1191-92 (noting that two species of res
judicata exist, issue preclusion and claim preclusion, and that only the latter allows preclusion of claims that
could have been litigated in the prior proceeding).

11
LaForge, 116 Nev. at 420, 997 P.2d at 134.

12
See id.

13
Hewitt v. Allen, 118 Nev. 216, 221, 43 P.3d 345, 347-48 (2002) (As a general rule, a legal malpractice
action does not accrue until the plaintiff knows, or should know, all the facts relevant to the foregoing elements
and damage has been sustained.).
........................................
Byrd testified that he thought the agreement had to be memorialized in writing. Moreover,
even if the Kahns understood the scope of the agreement, and all of its terms, it may still have
been incumbent upon Byrd to make this statement on the record to protect his clients and
allow them to make any necessary changes to the recorded agreement. The court in the prior
action did not address the factual bases underlying this malpractice claim, and as a result,
these issues are not barred from relitigation under the doctrine of collateral estoppel.
[Headnote 11]
Second, the district court did not address the factual issues underlying the Kahns' assertion
that Morse & Mowbray offered them bad advice. Morse & Mowbray contend that the district
court addressed this issue because at the evidentiary hearing in the prior action the Kahns'
defense to the enforcement of the settlement was that they were never informed as to the
scope of the agreement. We disagree.
[Headnotes 12-14]
In the prior action, the district court made no findings concerning Byrd's advice regarding
the settlement. In fact, the district court ruled that the attorneys could not discuss the details
of private conversations that occurred solely between themselves and their specific clients.
Consequently, none of the testimony in the prior action addressed the advice provided to the
Kahns during those discussions in any detail. The district court merely determined that the
parties agreed to the terms stated on the record. The fact that the Kahns agreed to the terms
has nothing to do with the factual issues concerning whether Byrd properly advised them as
to those terms.
14
The evidentiary hearing in the prior action simply did not provide a full and
fair opportunity to litigate the adequacy of the advice given by Byrd and Morse & Mowbray.
Other courts have reached similar conclusions.
15
For these reasons, we conclude that the
district court improperly granted Morse & Mowbray's motion for summary judgment on
these particular issues.
____________________

14
Cf. Malfabon v. Garcia, 111 Nev. 793, 798-99, 898 P.2d 107, 110 (1995) (rejecting notion that client who
had signed settlement agreement could not sue attorney for malpractice based on advice that led to settlement).

15
See, e.g., Durkin v. Shea & Gould, 92 F.3d 1510, 1515-16 (9th Cir. 1996) (concluding that prior
proceeding on settlement agreement did not provide adequate opportunity to litigate facts underlying malpractice
claim based on attorney's advice regarding settlement); Grayson v. Wofsey, Rosen, Kweskin, 646 A.2d 195
(Conn. 1994); Keramati v. Schackow, 553 So. 2d 741, 744 (Fla. Dist. Ct. App. 1989) (mere acceptance of a
settlement in a prior suit does not foreclose a malpractice suit against the attorney who handled the case);
Thomas v. Bethea, 718 A.2d 1187, 1190-95 (Md. 1998) (attorney malpractice action was not barred on the
grounds of nonmutual collateral estoppel because it is unjust to preclude a malpractice action when the clients
may have been misinformed as to the actual worth of their case); Cook v. Connolly, 366 N.W.2d 287, 290-91
(Minn. 1985) (for collateral estoppel purposes, issues in
........................................
clude that the district court improperly granted Morse & Mowbray's motion for summary
judgment on these particular issues.
16

[Headnote 15]
As to the Kahns' remaining theories supporting their claim of legal malpractice, we
conclude that they are barred under the doctrine of collateral estoppel. After reviewing the
record, we have determined that in the prior litigation the district court necessarily and
actually litigated the underlying factual bases supporting the claims based on Byrd's alleged
abandonment of the Kahns, Byrd's alleged interest in the settlement of the suit, and Byrd's
alleged ethical violations. Additionally, the court addressed the propriety of Byrd testifying
against his clients, concluding that Byrd could testify about the conversations he had with the
Kahns, Frank, and Berkley together because in those instances the Kahns had specifically
waived the attorney-client privilege. Therefore, the underlying factual bases of the Kahns'
claims were addressed in the prior litigation.
[Headnotes 16, 17]
Moreover, we conclude that because the parties agreed to structure the agreement to be tax
beneficial for everyone involved, this issue was litigated below and is barred under the
doctrine of collateral estoppel. Moreover, we note that because the Kahns reneged on the
agreement before it could be memorialized in writing, there is simply no way to tell if the
agreement was structured in such a manner as to harm the Kahns. Lastly, we conclude that
any claims that the Kahns might have had concerning malpractice as a result of Byrd's and
Morse & Mowbray's failure to amend the complaint to add additional claims lack merit as a
matter of law because the district court determined that the Kahns agreed, on the record, to
relinquish any and all claims relating to the lawsuit or to the other parties.
Emotional distress
[Headnote 18]
The Kahns argue that the district court erred in granting Morse & Mowbray's motion for
summary judgment on their claims of intentional infliction of emotional distress and
negligent infliction of emotional distress.
____________________
client's settlement approval hearing when client was represented by attorney were not the same issues presented
in client's claim against attorney for malpractice in advising them to accept an allegedly inadequate settlement);
see also Ryan v. Ford, 16 S.W.3d 644, 648-49 (Mo. Ct. App. 2000); Novack v. Newman, 709 S.W.2d 116,
118-19 (Mo. Ct. App. 1985); Ayre v. J.D. Bucky Allshouse, P.C., 942 S.W.2d 24, 27-28 (Tex. App. 1996).

16
We also conclude that genuine issues of material fact exist in the instant case. Under Nevada law, to
establish a claim of legal malpractice, a plaintiff must demonstrate the following: [1] the existence of an
attorney-client relationship, [2] a duty owed to the client by the attorney, [3] breach of that duty,
........................................
tentional infliction of emotional distress and negligent infliction of emotional distress. We
disagree. Furthermore, we conclude that a claim for negligent infliction of emotional distress
cannot be premised upon an attorney's negligence in a legal malpractice case.
The Kahns failed to allege facts sufficient to support the intentional infliction of emotional
distress claim. This court has held that when a plaintiff bases a malpractice claim solely on
negligence, without alleging or proving outrageous or extreme conduct, jury instructions as to
damages for emotional distress or mental anguish are inappropriate.
17
It follows logically
from this reasoning that a plaintiff must show outrageous or extreme conduct to succeed on a
claim for intentional infliction of emotional distress arising from a claim of attorney
malpractice. In the instant case, the Kahns failed to allege any facts demonstrating that Byrd's
or Morse & Mowbray's conduct was extreme or outrageous.
18
Accordingly, the district court
properly granted summary judgment in favor of Byrd and Morse & Mowbray on the claim of
intentional infliction of emotional distress.
[Headnote 19]
Additionally, we hold that a claim of negligent infliction of emotional distress is
inappropriate in the context of a legal malpractice suit when the harm resulted from pecuniary
damages, even if the plaintiffs demonstrated physical symptoms. The rationale behind such a
rule is that the primary interest protected in legal malpractice actions is economic and
serious emotional distress is not an inevitable consequence of the loss of money.'
19
We
agree with this rationale.
____________________
and [4] the breach [is the actual and] proximate cause of the client's damages.' Allyn v. McDonald, 112 Nev. 68,
72, 910 P.2d 263, 266 (1996) (quoting Semenza v. Nevada Med. Liability Ins. Co., 104 Nev. 666, 667-68, 765
P.2d 184, 185 (1988)). Here, the parties disagree as to whether Byrd adequately advised the Kahns as to several
of the terms of the agreement and whether Byrd should have stated on the record that the agreement was not
final until reduced to writing. Consequently, summary judgment is inappropriate on these issues.

17
Selsnick v. Horton, 96 Nev. 944, 945-46, 620 P.2d 1256, 1257 (1980) (awarding damages for emotional
distress against an attorney in a malpractice action is disallowed absent proof of extreme and outrageous conduct
causing anguish or distress).

18
See Maduike v. Agency Rent-A-Car, 114 Nev. 1, 4, 953 P.2d 24, 26 (1998) (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.' ).

19
Smith v. Superior Court (Bucher), 13 Cal. Rptr. 2d 133, 136 (Ct. App. 1992) (quoting Merenda v. Superior
Court, 4 Cal. Rptr. 2d 87, 91 (Ct. App. 1992)).
........................................
rationale. We conclude that it is unjust to allow a claim of negligent infliction of emotional
distress when such emotional distress is not a foreseeable consequence of the attorney's
general negligence.
We note that several other jurisdictions have adopted similar restrictions. In Reed v.
Mitchell & Timbanard, P.C., an Arizona court, which adopted this rule, noted that [m]ost
other jurisdictions which have considered this issue in the context of legal malpractice have
held that damages for emotional injuries are not recoverable where they are a consequence of
other damages caused by the attorney's negligence.'
20
Accordingly, the district court
appropriately granted Morse & Mowbray's motion for summary judgment on the Kahns'
claim of negligent infliction of emotional distress.
Attorney fees
[Headnotes 20-22]
The district court found that the Kahns brought their claims without reasonable grounds
and awarded attorney fees to Byrd and Morse & Mowbray under NRS 18.010(2)(b). To
support such an award, however, there must be evidence in the record supporting the
proposition that the complaint was brought without reasonable grounds or to harass the other
party.'
21
The decision to award attorney fees is within the sound discretion of the district
court and will not be overturned absent a manifest abuse of discretion.
22

Given our decision on appeal, we conclude that the award of attorney fees in this case was
premature. The Kahns' claims of legal malpractice, premised upon their allegations of bad
advice, are not collaterally barred. Therefore, at this time an award of attorney fees is an
abuse of discretion. Accordingly, we reverse the district court's order awarding Morse &
Mowbray attorney fees.
CONCLUSION
We conclude that the district court properly granted summary judgment on the Kahns'
emotional distress claims as well as their legal malpractice claims to the extent that those
claims are based on issues we have determined were necessarily and actually litigated. We
therefore affirm that portion of the district court's order. However, as to those issues that we
have determined were not necessarily and actually litigated we conclude that the district
court erred in granting summary judgment and reverse that portion of the district court's
order.
____________________

20
903 P.2d 621, 626 (Ariz. Ct. App. 1995) (quoting 1 Ronald E. Mallen & Jeffrey M. Smith, Legal
Malpractice 6.11, at 904 (3d ed. 1989 & Supp. 1993) (citing cases from numerous jurisdictions)).

21
Semenza v. Caughlin Crafted Homes, 111 Nev. 1089, 1095, 901 P.2d 684, 687 (1995) (quoting Chowdhry
v. NLVH, Inc., 109 Nev. 478, 486, 851 P.2d 459, 464 (1993)).

22
County of Clark v. Blanchard Constr. Co., 98 Nev. 488, 492, 653 P.2d 1217, 1220 (1982).
........................................
essarily and actually litigated we conclude that the district court erred in granting summary
judgment and reverse that portion of the district court's order.
23
We also conclude that the
district court's award of attorney fees under NRS 18.010(2)(b) was an abuse of discretion
because some of the Kahns' claims were based upon reasonable grounds. Accordingly, we
affirm in part, reverse in part, and remand this case to the district court for further
24

Hardesty, J., concurs.
Gibbons, J., concurring in part and dissenting in part:
I concur with the majority regarding the affirmance of the order granting summary
judgment as to the emotional distress claims. I also concur with the majority that the award of
attorney fees under NRS 18.010(2)(b) was improper in that the claims of the appellants
William (now deceased) and Christine Kahn and the Kahn Family Trust (the Kahns) were
based upon reasonable grounds.
However, I dissent regarding the claims of the Kahns for malpractice. The district court
found that there are no other defenses to the enforcement of the settlement agreement and that
there was no legal reason for not enforcing the settlement agreement. I agree. The Kahns did
not appeal the judgment of the district court granting Eric Kahn's counter-motion for specific
performance of the settlement agreement and the finding that the settlement agreement was a
binding and enforceable contract. Therefore, there is no genuine issue of material fact that
precluded the district court from granting summary judgment under the doctrine of collateral
estoppel.
____________________

23
We also note that the Kahns failed to challenge the district court's grant of summary judgment as to their
claim for breach of fiduciary duty on appeal. Accordingly, we have not addressed that issue.

24
We have considered the Kahns' contention that the district court's findings of fact and conclusions of law
are inadequate, and we conclude that the Kahns waived this issue by failing to raise it. Therefore, we conclude
that this issue was not properly raised on appeal. State of Washington v. Bagley, 114 Nev. 788, 792, 963 P.2d
498, 501 (1998). Moreover, even if the issue was properly raised on appeal, we conclude that the Kahns'
arguments are unpersuasive because they failed to demonstrate that the district court's findings of fact and
conclusions of law are clearly erroneous or not supported by ample evidence in the record. NRCP 52. We also
reject the Kahns' contentions that Byrd and Morse & Mowbray confessed error on appeal. See Williams v. State,
95 Nev. 830, 603 P.2d 694 (1979).
____________
........................................
121 Nev. 481, 481 (2005) Sheehan & Sheehan v. Nelson Malley & Co.
SHEEHAN & SHEEHAN, a Nevada Professional Corporation, Appellant, v. NELSON
MALLEY AND COMPANY, a Nevada Professional Corporation, dba NELSON
MALLEY & THORNE, Respondent.
No. 42957
SHEEHAN & SHEEHAN, a Nevada Professional Corporation, Appellant, v. NELSON
MALLEY AND COMPANY, a Nevada Professional Corporation, dba NELSON
MALLEY & THORNE, Respondent.
No. 43401
August 11, 2005 117 P.3d 219
Consolidated appeals from a district court judgment and an order awarding attorney fees
and costs in a breach of contract action. Eighth Judicial District Court, Clark County; Nancy
M. Saitta, Judge.
Sellers of accounting practice sued buyers for breach of contract and declaratory relief,
relating to provision of sales agreement that reduced the $375,000 sales price if buyers
collected less than $325,000 for services rendered in look back period in first fourteen
months following the purchase. Buyers counterclaimed for specific performance and
indemnification. After a bench trial, the district court ordered reduction in sales price to
$320,000 based on look-back provision, ordered further reduction in sales price to
$155,955.63 as liquidated damages for one seller's violation of covenant not to compete,
ordered sellers to indemnify buyers for $35,000 in damages for errors in sellers' accounting
work product, and awarded buyers $50,000 in attorney fees and $8,991.41 in costs. Sellers
appealed. The supreme court, Gibbons, J., held that: (1) sales agreement did not require
buyers to provide sellers with monthly reports on billings and collections during look-back
period, (2) one alleged breach of covenant not to compete was not material, (3) performance
of accounting work outside of geographic limit did not violate covenant not to compete, and
(4) buyers made reasonable efforts to mitigate damages.
Affirmed in part, reversed in part, and remanded.
Steven B. Glade, Las Vegas, for Appellant.
Edward J. Hanigan, Henderson, for Respondent.
Findings of fact and conclusions of law, supported by substantial evidence, will not
be set aside unless clearly erroneous.
........................................
2. Appeal and Error; Contracts.
The construction of a contractual term is a question of law, and the appellate court is
obligated to make its own independent determination on such issue and should not
defer to the district court's determination.
A district court's determination that a contract was or was not breached will be
affirmed unless clearly erroneous.
4. Corporations.
Substantial evidence supported trial court's finding that buyers of accounting
practice collected less than $325,000 for services rendered in look-back period in first
fourteen months following the purchase, so that under the sales agreement buyers were
entitled to reduction of purchase price from $375,000 to $320,000; buyers testified that
work in progress was not intended to be included in breakpoint calculation because
work in progress was not a collection, and trial court found buyers were more
credible than sellers.
The role of determining witness credibility belongs to the district court, and the
appellate court will not direct that certain witnesses should or should not be believed.
6. Corporations.
Sales agreement for accounting practice, which provided for reduction of purchase
price from $375,000 to $320,000 if buyers collected less than $325,000 for services
rendered in look-back period in first fourteen months following the purchase, and
which further provided that buyers would provide sellers with monthly totals of
billings and collections for look-back period, did not require buyers to provide sellers
with monthly reports on billings and collections; rather, buyers were required only to
provide sellers with single report that conveyed billing and collection information on a
monthly basis for entire look-back period.
7. Contracts.
As a general rule, the court construes unambiguous contracts and contractual
covenants not to compete according to their plain language.
8. Contracts.
In interpreting a contract, 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.
9. Corporations.
Even assuming that sales agreement for accounting practice, which provided for
reduction of purchase price from $375,000 to $320,000 if buyers collected less than
$325,000 for services rendered in look-back period in first fourteen months following
the purchase, and which further provided that buyers would provide sellers with
monthly totals of billings and collections for look-back period, required buyers to
provide sellers with monthly reports on billings and collections, so that buyers breached
the agreement by providing sellers with single report conveying billing and collection
information on monthly basis for entire look-back period, such breach was not a
material breach; sellers did not have the right under the agreement to contact clients, for
collection of account receivables, until the last two months of the look-back period.
10. Contracts.
Covenants not to compete are enforceable only if they are reasonable under the
circumstances.
........................................
11. Contracts.
The court strictly construes the language of covenants not to compete.
12. Contracts.
In the case of an ambiguity, language in a covenant not to compete is construed
against the drafter.
13. Damages.
Even if seller of accounting practice breached sales agreement's covenant not to
compete by performing alleged accounting work for building trust, such breach was not
material, and thus, buyers were not entitled to 75 percent reduction in sales price under
agreement's liquidated damages clause for violations of covenant not to compete; seller
received only $300 for the work performed for building trust.
14. Contracts.
Covenant not to compete in sales agreement for accounting practice merely
prevented sellers from performing accounting work within geographic limit; it did not
prevent sellers from being contacted within geographic limit to perform work for
corporation which was located outside geographic limit but which had shareholder who
resided and conducted business within geographic limit.
15. Indemnity.
Under sales agreement for accounting practice, which required sellers to indemnify
buyers for losses or damages sustained as result of sellers' acts, actions, services, or
failure to perform acts, actions, or services, sellers were required to indemnify buyers
for $35,000 in damages buyers incurred as result of having to correct clients' tax returns
that were erroneously prepared by sellers.
16. Damages.
As a general rule, a party cannot recover damages for loss that he could have
mitigated by reasonable efforts.
17. Damages.
The burden is upon the party whose wrongful act caused the damages complained of
to prove that the damages might have been mitigated by reasonable diligence on the
part of the aggrieved party.
18. Damages.
Duty of buyers of accounting practice to make reasonable efforts to mitigate their
damages from sellers' mistakes in clients' tax returns did not require buyers to ask
sellers to correct their mistakes without charge to buyers, for purposes of sellers'
indemnification obligation under sales agreement; buyers could correct the mistakes
themselves and recover damages for the expense of doing so.
19. Appeal and Error; Trial.
The trial court is vested with broad discretion in determining the admissibility of
evidence, and the exercise of such discretion will not be interfered with on appeal in the
absence of a showing of palpable abuse.
20. Pretrial Procedure.
Allowing buyers of accounting practice to testify at trial regarding extent of their
damages was not palpable abuse of discretion, in buyers' action against sellers alleging
contractual right to reduction in purchase price and violation of covenant not to
compete, even if buyers had failed to respond to sellers' initial interrogatory requesting
information on damages; document upon which buyers relied for damages testimony
had been provided to sellers during discovery, and sellers had not brought motion to
compel production.
........................................
21. Costs.
The determination of allowable costs is within the sound discretion of the trial court.
22. Costs.
Reasonable costs must be actual, rather than a reasonable estimate or calculation of
such costs. NRS 18.005.
Sellers of accounting practice waived appellate review of reasonableness of costs
awarded to buyers, where sellers did not bring motion in district court to retax and
settle costs after buyers had served sellers with copy of buyers' memorandum of costs.
NRS 18.005, 18.110(1), (4).
OPINION
In these consolidated appeals, we primarily consider whether the district court properly
construed a contractual covenant not to compete and a corresponding liquidated damages
clause. We conclude that the district court erred as a matter of law in awarding liquidated
damages, and we therefore reverse that part of the judgment. We affirm the remainder of the
judgment and the order awarding attorney fees and costs.
FACTS
William and Thomas Sheehan are brothers who operated an accounting firm, appellant
Sheehan & Sheehan, a Nevada Professional Corporation, in Henderson from 1981 to 1997. In
1996, the Sheehans decided to sell their practice because William would be 65 years old and
Thomas 66 years old at the end of the 1997 tax season. Dennis Nelson and Patrick Thorne are
officers of respondent Nelson Malley and Company, a Nevada Professional Corporation,
d/b/a Nelson Thorne, which expressed an interest in purchasing the Sheehan & Sheehan
practice. As part of the negotiations, the Sheehans provided access to all their tax returns,
work product, and financial statements. Patrick Thorne performed due diligence, spoke with
the Sheehans, and reviewed various documents. William Sheehan testified that Thorne's due
diligence investigation took 50 to 100 hours.
Following the due diligence review, the parties agreed to a sales price of $375,000 with a
$55,000 price reduction if Nelson Thorne collected less than $325,000 for services rendered
in the first fourteen months following its purchase of the practice. The parties referred to the
fourteen-month period following the sale as the look back" period.
........................................
back period. William Sheehan testified that he was afraid that Nelson Thorne would
misrepresent the amount collected in order to take advantage of the price reduction. Before
the agreement was finalized, during a meeting with Dennis Nelson and Patrick Thorne,
William Sheehan stated that he wanted to see monthly figures for Nelson Thorne's collections
during the look-back period. When Nelson refused, Sheehan informed him that he would not
sell the practice unless Nelson Thorne provided the figures as he requested. Nelson started to
leave, but Thorne told him to stay because he was willing to provide those figures to Sheehan.
As a result of that conversation, the sales agreement required Nelson Thorne to provide a
calculation of monthly billing. The agreement also included a covenant not to compete that
prohibited the Sheehans from practicing or holding themselves out as accountants within a
50-mile radius of the Clark County Courthouse. A liquidated damages clause provided for a
75 percent reduction in the sales price outstanding if either of the Sheehans violated the
covenant not to compete. The sales agreement further included an indemnification clause that
provided that Nelson Thorne would be held harmless for costs arising from Sheehan &
Sheehan's performance or failure to perform any act, activity, or service.
William Sheehan testified that the monthly figures were important to him because he
wanted to know, from one month to another, whether Nelson Thorne was timely billing
customers or completing an appropriate amount of business. Accordingly, once Nelson
Thorne took over the Sheehan & Sheehan practice, Sheehan requested monthly reports at
least once a week. Nelson Thorne never provided month-to-month reports to the Sheehans.
On October 1, 1998, Nelson Thorne provided the Sheehans with a document that
accounted for services rendered and bills collected during the look-back period. The
accounting, which included adjustments giving Sheehan & Sheehan credit for uncollected
accounts receivable, totaled $308,411.32. The Sheehans requested an opportunity to review
Nelson Thorne's records. Following that review, the Sheehans claimed that Nelson Thorne
made accounting errors which, when corrected, indicated that it had collected $327,881.82.
On January 23, 1999, Sheehan & Sheehan filed a complaint seeking declaratory relief on
the issue of Nelson Thorne's collections during the look-back period. Nelson Thorne
answered and counterclaimed for specific performance and indemnification. The district court
ordered Nelson Thorne to continue making payments on the promissory note during the
litigation.
After a four-day bench trial, the district court found for Nelson Thorne and ordered that the
original sales price be reduced to $320,000.
........................................
$320,000. The court further found that the evidence at trial proved that William Sheehan had
performed accounting work in violation of the covenant not to compete. Thus, the court
reduced the sales price by an additional $155,955.63 pursuant to the liquidated damages
clause. As a result, the court found that Nelson Thorne had overpaid on the sales price and
ordered Sheehan & Sheehan to repay $139,272.26 to Nelson Thorne. The district court
further found that Nelson Thorne had suffered $35,000 in damages as a result of errors in
Sheehan & Sheehan's work product and ordered indemnification in that amount. After a
separate hearing, the district court awarded Nelson Thorne $50,000 in attorney fees and
$8,991.41 in costs. Sheehan & Sheehan timely appealed both orders. We consolidated the
appeals for review.
DISCUSSION
Standard of review
[Headnotes 1-3]
We have repeatedly held that findings of fact and conclusions of law, supported by
substantial evidence, will not be set aside unless clearly erroneous.
1
However, we have also
recognized that the [c]onstruction of a contractual term is a question of law and this court is
obligated to make its own independent determination on this issue, and should not defer to
the district court's determination.'
2
Thus, the district court's determination that the contract
was or was not breached will be affirmed unless clearly erroneous, but the district court's
interpretation of the meaning of contractual terms is subject to independent appellate review.
Specific performance
[Headnote 4]
Section II, paragraph 3 of the sales agreement provides, in pertinent part:
In the event the Buyer collects, during the fourteen (14) month period immediately
following the Effective Date [the look back period], for services performed during
the year ending on the first anniversary of the Effective Date, for Acquired Clients, an
amount that is less than $325,000, then Seller shall adjust the Purchase Price [from
$375,000 to $320,000].
____________________

1
Edwards Indus. v. DTE/BTE, Inc., 112 Nev. 1025, 1031, 923 P.2d 569, 573 (1996).

2
NGA #2 Ltd. Liab. Co. v. Rains, 113 Nev. 1151, 1158, 946 P.2d 163, 167 (1997) (quoting Clark Co. Public
Employees v. Pearson, 106 Nev. 587, 590, 798 P.2d 136, 137 (1990)).
........................................
At trial, Sheehan & Sheehan argued that Nelson Thorne collected in excess of $325,000.
To support that argument, Thomas Sheehan testified that the district court should include in
its calculation the billings, accounts receivable, adjustments, and work in progress
accumulated during the look-back period. During cross-examination, Thomas Sheehan
conceded that he could not prove that Nelson Thorne exceeded the $325,000 breakpoint
without including all the above factors. On the other hand, both Patrick Thorne and Dennis
Nelson testified that work in progress was not included in the breakpoint calculation because
work in progress is not a collection.
[Headnote 5]
The district court found that for the purposes of the agreement, collections included
billings during the look-back period and accounts receivable as of June 30, 1998. The court
further found that under that formula, Nelson Thorne collected less than $325,000. Thus, the
court concluded that Nelson Thorne was entitled to a $55,000 reduction in the sales price.
The district court noted that its decision was based on its determination that Nelson Thorne's
testimony was more credible. The role of determining witness credibility belongs to the
district court, and we will not direct that certain witnesses should or should not be believed.
3
Thus, we conclude that substantial evidence supports the district court's determination that
Nelson Thorne was entitled to specific performance.
Monthly billing reports
[Headnote 6]
Section II, paragraph 5 of the sales agreement provides, in pertinent part:
[Nelson Thorne] shall furnish to [Sheehan & Sheehan] monthly totals of billings and
collections to/from Acquired Clients commencing with the period ending July 31,
1997. [The Sheehans] shall have right [sic] to contact clients for collection during July
and August, 1998, of balances outstanding on June 30, 1998 if credit is not given for
such balances in computation of adjustment, if any.
[Headnotes 7, 8]
As mentioned above, contract interpretation is subject to independent appellate review.
4
As a general rule, we construe unambiguous contracts and contractual covenants not to
compete according to their plain language.
____________________

3
Douglas Spencer v. Las Vegas Sun, 84 Nev. 279, 282, 439 P.2d 473, 475 (1968).

4
NGA #2, 113 Nev. at 1158, 946 P.2d at 167.
........................................
biguous contracts and contractual covenants not to compete according to their plain language.
5
We have explained, however, that [i]n interpreting a contract, 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.'
6
The district court concluded that Nelson Thorne did not
breach the agreement by failing to prepare monthly billing reports for Sheehan & Sheehan.
The court agreed with Nelson Thorne that a single report that conveyed monthly billing
information for the look-back period satisfied the agreement.
We conclude that the district court's interpretation of paragraph 5 is correct. The plain
language of the sales agreement calls for Nelson Thorne to provide monthly billing totals for
each month commencing in July 1997. The clause calls for a report of monthly totals rather
than a monthly report of totals. Accordingly, the district court correctly held that a single
report of billing totals satisfied the plain meaning of the sales agreement.
[Headnote 9]
Furthermore, even if Nelson Thorne's failure to provide monthly reports constituted a
breach of the agreement, the breach was immaterial. The clause authorized Sheehan &
Sheehan to review Nelson Thorne's billing practices and contact Nelson Thorne's clients for
unpaid debts. However, Sheehan & Sheehan was not authorized to contact clients until July
1998. Thus, even if Nelson Thorne had provided reports on a month-to-month basis, the
reports would presumably have meant little to Sheehan & Sheehan because it could not have
contacted clients until that time. William and Thomas Sheehan both testified that the monthly
reports were important to them because they wanted to ensure that Nelson Thorne was
operating the practice efficiently. This, they said, was important since there was a $55,000
price reduction on the line.
However, Nelson Thorne gave Sheehan & Sheehan credit for all accounts receivable due
as of June 30, 1998. Even with that credit, Sheehan & Sheehan did not prove that Nelson
Thorne collected $325,000 during the look-back period. Since the plain language of the sales
agreement indicates that the parties agreed to a report of monthly totals rather than a monthly
report of totals, we affirm the district court's judgment.
____________________

5
White Cap Indus., Inc. v. Ruppert, 119 Nev. 126, 128, 67 P.3d 318, 319 (2003); Sandy Valley Assocs. v. Sky
Ranch Estates, 117 Nev. 948, 953-54, 35 P.3d 964, 967 (2001); Kaldi v. Farmers Ins. Exch., 117 Nev. 273,
278, 21 P.3d 16, 20 (2001).

6
NGA #2, 113 Nev. at 1158, 946 P.2d at 167 (quoting Davis v. Nevada National Bank, 103 Nev. 220, 223,
737 P.2d 503, 505 (1987)).
........................................
Covenant not to compete
Section VI of the sales agreement provides, in relevant part:
[The Sheehans] hereby agree not to hold themselves out as accountants, including as
certified public accountants engaged in the practice of accounting . . . for a period of
three years from the date of the execution of this agreement, in an area defined by a
radius of fifty miles from the Clark County Court House located at 200 South Third
Street, Las Vegas, Nevada.
Furthermore, Sheehans agree not to compete with [Nelson Thorne] in the performance
of any service, . . . and agree not to perform any act intended to promote themselves or
others as providers of such services . . . .
In the event Sheehans violate the foregoing, then [Nelson Thorne] may, as liquidated
damages and not as a penalty, immediately reduce the Purchase Price by seventy-five
percent (75%) of any amount of the Purchase Price then remaining unpaid, or $125,000,
whichever is greater.
The district court found that the Sheehans breached the covenant not to compete sometime
between August and October 1998. We conclude that the district court's determination was
erroneous as a matter of law.
[Headnotes 10-12]
We construe covenants not to compete according to their plain language, and such
covenants are enforceable only if they are reasonable under the circumstances.
7
Further, we
strictly construe the language of covenants not to compete; and in the case of an ambiguity,
that language is construed against the drafter.
8
According to the covenant's plain meaning,
Nelson Thorne was entitled only to a reduction in the outstanding sales price if the Sheehans
held themselves out as accountants within 50 miles of the Clark County Courthouse.
[Headnote 13]
At trial, Patrick Thorne testified that he discovered that William Sheehan had violated the
covenant not to compete while Thorne was preparing a tax return for a client, the Boulder
City Building Trust. Thorne discovered documents indicating that William Sheehan had
been performing accounting work for the Trust.
____________________

7
White Cap Indus., 119 Nev. at 128, 67 P.3d at 319; Sandy Valley Assocs., 117 Nev. at 953-54, 35 P.3d at
967; Kaldi, 117 Nev. at 278, 21 P.3d at 20; Jones v. Deeter, 112 Nev. 291, 296, 913 P.2d 1272, 1275 (1996).

8
Traffic Control Servs. v. United Rentals, 120 Nev. 168, 172, 174, 87 P.3d 1054, 1057, 1058 (2004).
........................................
han had been performing accounting work for the Trust. Though the covenant not to compete
provided exceptions for some trustee work, that exception did not include accounting work.
However, Nelson Thorne concedes that William Sheehan earned a total fee of $300 for this
service. Even if Sheehan's work for the Boulder City Building Trust technically violated the
covenant not to compete, the breach was immaterial and insufficient to trigger the liquidated
damages clause.
9

Furthermore, Dennis Nelson testified that William Sheehan violated the covenant not to
compete by performing accounting services related to litigation for a client named Dennis
Bayard. Bayard was a shareholder in two corporations: Advanced Steel Systems, Inc., in Las
Vegas and Tucson Steel in Tucson, Arizona. Bayard initially approached Nelson Thorne to
investigate Tucson Steel because he did not believe that Tucson Steel was keeping its books
correctly. However, Bayard ceased conversations with Nelson Thorne and retained William
Sheehan to work on the Tucson Steel matter.
Nelson Thorne argues that the district court correctly determined that Sheehan's work for
Tucson Steel breached the covenant not to compete. We disagree. Tucson, Arizona, is located
more than 50 miles from the Clark County Courthouse. Thus, substantial evidence does not
support the district court's finding that Sheehan's performance of accounting work in Tucson
violated the covenant's geographic restriction.
[Headnote 14]
Moreover, Tucson Steel is a corporation and a separate legal entity from Bayard. The fact
that Bayard contacted and hired Sheehan within the geographic limit does not alter the fact
that Sheehan performed the work for Tucson Steel in Tucson, Arizona. The plain language of
the clause prevents the Sheehans from performing accounting work within the geographic
limit. It does not prohibit the Sheehans from being contacted within the geographic limit to
perform work elsewhere.
Absent express and unequivocal language in the covenant, it is unwise public policy to
hold that a covenant not to compete prevents a party from performing work for an
independent entity located outside the geographic limitation simply because a shareholder of
that independent entity resides and conducts business within the geographic limitation. Such
an interpretation would effectively prevent the Sheehans from working for a company that
either maintains an office or has shareholders who live in Las Vegas.
____________________

9
See, e.g., Young Electric Sign Co. v. Fohrman, 86 Nev. 185, 188, 466 P.2d 846, 847 (1970) (noting that a
party is entitled to recover total damages upon the other party's material breach of the underlying contract).
........................................
ther maintains an office or has shareholders who live in Las Vegas. This interpretation goes
beyond any reasonable need underlying the covenant not to compete.
The plain meaning of the covenant not to compete prohibits the Sheehans from holding
themselves out as accountants within 50 miles of the Clark County Courthouse. We conclude
that, as a matter of law, the Sheehans did not violate this covenant. Thus, the district court
erred in finding that the covenant was breached.
10

Indemnification
[Headnote 15]
Section IX of the sales agreement provides:
[Sheehan & Sheehan] indemnifies and holds [Nelson Thorne] harmless from . . . costs,
damages or expense, including but not limited to attorney's fees, that arise directly or
indirectly from this Agreement or the performance or nonperformance of any act,
activity, or service . . . relating to any and all matters connected with the Practice or this
Agreement, whether occurring before or after the date of execution of this Agreement.
[Sheehan & Sheehan's] acceptance of this Agreement constitutes [Sheehan &
Sheehan's] unqualified acceptance of this indemnification.
The district court concluded that Nelson Thorne was entitled to recoup its remedial costs
under this provision. We conclude that the district court's interpretation is correct.
The plain language of the indemnification clause provides that Sheehan & Sheehan will
compensate Nelson Thorne for losses or damage sustained as a result of Sheehan & Sheehan's
act, action, service, or failure to perform an act, action, or service. Nelson Thorne presented
testimony at trial indicating that it spent a significant amount of time and incurred $35,000 in
damages as a result of having to correct tax returns that were erroneously prepared by
Sheehan & Sheehan. Nelson Thorne also presented documentary evidence demonstrating the
extent of the mistakes made by Sheehan & Sheehan. The indemnification clause applies since
the preparation of tax returns was related to the accounting practice that Nelson Thorne
purchased from Sheehan & Sheehan. Accordingly, we affirm the district court's order
requiring Sheehan & Sheehan to compensate Nelson Thorne for its damages.
____________________

10
Sheehan & Sheehan also argues that the liquidated damages clause constituted an unenforceable penalty.
Since we conclude that Nelson Thorne is not entitled to recover liquidated damages, we do not reach that issue.
........................................
Mitigation of damages
[Headnotes 16-18]
We have previously recognized that [a]s a general rule, a party cannot recover damages
for loss that he could have avoided by reasonable efforts.
11
In explaining this rule, we have
noted that the burden is upon the party whose wrongful act caused the damages complained
of to prove . . . that the damages might have been lessened by reasonable diligence on the part
of the aggrieved party.
12
Sheehan & Sheehan argues that Nelson Thorne could have
mitigated its damages by asking the Sheehans to correct the work free of charge which,
allegedly, the Sheehans were willing to do. This argument is without merit.
Nelson Thorne was only required to make reasonable mitigation attempts.
13
Under the
circumstances, the duty to reasonably mitigate damages did not obligate Nelson Thorne to ask
the Sheehans to correct their own errors. Furthermore, Sheehan & Sheehan failed to produce
any evidence that Nelson Thorne could have mitigated its damages by sending the mistakes to
a third-party accountant rather than correct the errors themselves. Since Sheehan & Sheehan
failed to meet its burden with regard to the mitigation of damages, the district court did not
err in this regard.
Admission of testimony
[Headnotes 19, 20]
On prior occasions, we have explained that [t]he trial court is vested with broad
discretion in determining the admissibility of evidence. The exercise of such discretion will
not be interfered with on appeal in the absence of a showing of palpable abuse.
14
Sheehan
& Sheehan objected to testimony on the extent of Nelson Thorne's damages because its
interrogatories requested that information and Nelson Thorne failed to provide it. Thus,
Sheehan & Sheehan argued that admission of the evidence would result in trial by ambush.
The district court overruled the objection and admitted the testimony after Sheehan &
Sheehan's counsel acknowledged that the document upon which the testimony was based had
been received during the course of discovery, and Sheehan & Sheehan failed to file a motion
to compel after Nelson Thorne failed to provide the document after the initial interrogatory.
Under these circumstances, it was not palpable error for the district court to allow the
witness to testify as to the extent of Nelson Thorne's damages.
____________________

11
Conner v. Southern Nevada Paving, 103 Nev. 353, 355, 741 P.2d 800, 801 (1987).

12
Cobb v. Osman, 83 Nev. 415, 422, 433 P.2d 259, 263 (1967).

13
Conner, 103 Nev. at 355, 741 P.2d at 801.

14
State ex rel. Dep't Hwys. v. Nev. Aggregates, 92 Nev. 370, 376, 551 P.2d 1095, 1098 (1976) (citations
omitted).
........................................
it was not palpable error for the district court to allow the witness to testify as to the extent of
Nelson Thorne's damages.
Costs
[Headnotes 21-23]
The determination of allowable costs is within the sound discretion of the trial court.
15
Only reasonable costs may be awarded.
16
[R]easonable costs' must be actual and
reasonable, rather than a reasonable estimate or calculation of such costs.'
17
The prevailing
party must serve a memorandum of costs within five days of the entry of judgment in the
underlying case.
18
The adverse party may contest those costs by filing a motion to retax and
settle the costs within three days of being served with the prevailing party's memorandum of
costs.
19
Although Nelson Thorne served Sheehan & Sheehan with a copy of its
memorandum of costs, Sheehan & Sheehan did not move the district court to retax and settle
costs. Accordingly, Sheehan & Sheehan waived appellate review of this issue.
20

CONCLUSION
Substantial evidence supports the district court's finding that Nelson Thorne was entitled
to specific performance, indemnification, and costs. However, the district court erred in
determining that Nelson Thorne was entitled to liquidated damages; Sheehan & Sheehan did
not, as a matter of law, violate the covenant not to compete. Accordingly, we affirm in part
and reverse in part the district court's judgment and remand for the district court to recalculate
damages consistent with this opinion. We affirm the order awarding attorney fees and costs.
21

Hardesty, J., concurs.
Rose, J., concurring:
The requirement that Nelson Thorne furnish monthly totals of billing and collections
commencing with the period ending July 31, 1997, means to me that the information
should have been provided each month.
____________________

15
Bobby Berosini, Ltd. v. PETA, 114 Nev. 1348, 1352, 971 P.2d 383, 385 (1998).

16
NRS 18.005.

17
Bobby Berosini, 114 Nev. at 1352, 971 P.2d at 385-86 (quoting Gibellini v. Klindt, 110 Nev. 1201, 1206,
885 P.2d 540, 543 (1994)).

18
NRS 18.110(1).

19
NRS 18.110(4).

20
See Gallego v. State, 117 Nev. 348, 365, 23 P.3d 227, 239 (2001).

21
We have considered Sheehan & Sheehan's remaining arguments on appeal and conclude that they are
without merit.
........................................
July 31, 1997, means to me that the information should have been provided each month.
Nelson Thorne's providing the monthly billings and collections at the end of the look-back
period does not comply with the agreement because it requires that the reporting of the
monthly totals commence with the period ending July 31, 1997, the beginning of the
look-back period. However, I agree with the majority that this breach was of no consequence
because there is nothing the Sheehans could have done even if provided with the monthly
billing and collection totals each month. Therefore, I concur with the majority's conclusion
concerning this issue, and I am in agreement with the rest of the majority opinion.
____________
121 Nev. 494, 494 (2005) Weaver v. State, Dep't of Motor Vehicles
MICHAEL SHANE WEAVER, Appellant, v. THE STATE OF NEVADA, DEPARTMENT
OF MOTOR VEHICLES, Respondent.
No. 41586
August 11, 2005 117 P.3d 193
Appeal from a district court order denying a petition for judicial review of an
administrative decision upholding the revocation of appellant's driver's license. Eighth
Judicial District Court, Clark County; Ronald D. Parraguirre, Judge.
Motorist petitioned for judicial review of Department of Motor Vehicles' (DMV)
administrative revocation of his driver's license, based on result of blood alcohol test. The
district court denied the petition. Motorist appealed. The supreme court held that: (1) officer
who ordered blood alcohol test had reasonable grounds to believe motorist had been driving
or in actual physical control of vehicle while intoxicated; (2) administrative law judge did not
improperly shift burden of proof to motorist by allegedly requiring him to prove that he had
not consumed alcohol before driving his vehicle; and (3) procedural due process requires that
in administrative driver's license revocation proceedings, motorists must be permitted to
submit evidence that they consumed alcohol only after driving.
Affirmed.
Law Offices of John G. Watkins and John Glenn Watkins, Las Vegas, for Appellant.
Brian Sandoval, Attorney General, and Carolyn L. Waters, Deputy Attorney General,
........................................
In reviewing an administrative decision, the supreme court's role 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
When reviewing an administrative decision, neither the supreme court nor the
district court may go beyond the administrative record or substitute its judgment for
that of the administrative agency concerning the weight of the evidence on questions of
fact.
The burden of proof is on the party opposing the administrative decision to show
that it was erroneous in view of the record as a whole or that it was arbitrary or
capricious. NRS 233B.135(2).
5. Automobiles.
The scope of review during a driver's license revocation hearing is limited to three
issues: (1) whether the person failed to submit to an evidentiary test for intoxication; (2)
whether a person's blood alcohol level exceeded the legal limit at the time of the
evidentiary test; and (3) whether the officer who ordered an evidentiary test had
reasonable grounds, at the time she ordered the test, to believe the person had been
driving or in actual physical control of a vehicle while intoxicated.
6. Action.
Under Nevada law, administrative driver's license revocation proceedings are
considered to be civil in nature, not criminal.
7. Automobiles.
The objective of an administrative driver's license revocation proceeding is not to
punish the licensee; rather, the goal is to protect the public from irresponsible and
dangerous drivers.
8. Automobiles.
Evidence in administrative driver's license revocation proceeding established that
officer who ordered blood alcohol test had reasonable grounds to believe motorist had
been driving or in actual physical control of vehicle while intoxicated; at scene of
one-car accident, motorist readily admitted that he was driving the vehicle when it
crashed, he smelled strongly of alcohol, had watery bloodshot eyes, and slurred his
speech when he spoke, he failed three field sobriety tests, i.e., horizontal gaze
nystagmus, one-leg-stand test, and preliminary breath test, and he refused to complete
walk-and-turn test.
9. Automobiles.
In administrative driver's license revocation proceeding, administrative law judge
(ALJ) did not improperly shift the burden of proof to motorist by allegedly requiring
him to prove that he had not consumed alcohol before driving his vehicle; rather, ALJ
merely noted that motorist had mentioned only how much alcohol he consumed when
he went home after the one-car accident and did not mention what he did or did not
drink before driving.
Nevada law defines substantial evidence as that which a reasonable mind might
accept as adequate to support a conclusion.
11. Automobiles.
Administrative law judge's (ALJ) statement, in administrative driver's license
revocation proceeding, that it was not probable motorist drank only after driving, but
it was "probable" he drank before driving as well as afterward, reflected that ALJ
found the evidence to be more than substantial to support officer's decision to
administer blood alcohol test.
........................................
only after driving, but it was probable he drank before driving as well as afterward,
reflected that ALJ found the evidence to be more than substantial to support officer's
decision to administer blood alcohol test.
12. Automobiles.
The supreme court was not required to consider motorist's argument, on appeal from
district court's denial of motorist's petition for judicial review of Department of Motor
Vehicles' (DMV) administrative revocation of his driver's license, that statute providing
that a driver's license must be revoked based on 0.08 blood alcohol concentration is
necessarily overbroad and violates substantive due process, where such argument was
first raised in motorist's reply brief on appeal. U.S. Const. amend. 14; NRS 484.384.
Procedural due process requires that in administrative driver's license revocation
proceedings, motorists must be permitted to submit evidence that they consumed
alcohol only after driving. U.S. Const. amend. 14; NRS 484.384.
The administrative revocation of a driver's license implicates a protectable property
interest entitling the license holder to due process. U.S. Const. amend. 14.
What constitutes adequate procedure, for purposes of procedural due process, varies
depending on the circumstances of a particular case. U.S. Const. amend. 14.
Three factors articulated by the United States Supreme Court in Mathews v.
Eldridge, 424 U.S. 319 (1976), determine whether a given procedure satisfies due
process: (1) the private interest impacted by the government action; (2) the chance that
the procedures used will result in an improper deprivation of the private interest, and
the likely value of added procedural protections; and (3) the government's interest in the
proceedings and the cost of additional procedural protections. U.S. Const. amend. 14.
OPINION
Per Curiam:
NRS 484.384 provides that if a test reveals a blood or breath alcohol concentration of 0.08
or more, then the person tested loses his or her driver's license. In this appeal, we consider
whether NRS 484.384 violates the constitutional right to due process by not allowing the
person tested to present evidence that his or her alcohol level is based on alcohol consumed
after driving. We conclude that, when an intervening time period exists between the driver's
operation of a vehicle and his or her arrest, the driver must be permitted under NRS 484.384
to introduce evidence that he or she only drank alcohol after driving.
........................................
only drank alcohol after driving. In this case, as the administrative law judge permitted such
evidence, we affirm.
FACTS
On October 16, 2001, Officer Peter Kisfalvi of the Las Vegas Metropolitan Police
Department responded to a call concerning a vehicular accident. Officer Kisfalvi testified that
upon arriving at the scene, he observed a gray convertible Porsche up against the south wall
of the street. The vehicle had front-end damage. Weaver, who stood nearby, informed Officer
Kisfalvi that he had lost control of the car while driving, hit a curb, and then hit the wall.
At that time, Officer Kisfalvi noticed that Weaver had bloodshot, watery eyes, smelled
strongly of alcohol, and slurred his speech when he spoke. Officer Kisfalvi asked Weaver
how much he had had to drink, and Weaver replied that he had walked home after the
accident, consumed two beers, and then returned to the accident scene. At the scene, Officer
Kisfalvi administered field sobriety tests to Weaver, including the horizontal gaze nystagmus,
the one-leg-stand test, and the preliminary breathalyzer test. Weaver failed each of these tests
and refused to complete the walk-and-turn test for Officer Kisfalvi. After Weaver consented
to a blood alcohol test, he was taken to the Clark County Detention Center, where he
submitted a blood sample. Officer Kisfalvi later received the results of that blood test, which
indicated that Weaver had a blood alcohol concentration of 0.272, an amount almost three
times the legal limit in effect at the time of the accident. As a result, Officer Kisfalvi
completed and sent to the DMV a Certification of Cause to revoke Weaver's driver's license.
Upon receipt of that document, the DMV revoked Weaver's driver's license. Weaver then
requested a hearing before an administrative law judge.
At the administrative hearing, Weaver testified that upon arriving home after the accident
he changed his clothes and drank five or six beers and four or five shots of tequila. He further
testified that he called a tow truck company and was informed that it would be two hours
before a tow truck would arrive. Approximately two hours after the accident, Weaver left his
home and returned to the accident scene to meet the tow truck driver. Weaver, the tow truck
driver, and Officer Kisfalvi arrived at the scene at approximately the same time. After hearing
this testimony, the administrative law judge affirmed the DMV's revocation.
Weaver then filed a petition for judicial review with the district court. Weaver argued that
the administrative law judge improperly shifted the burden of proof to him to prove that he
had not been driving while intoxicated. The district court remanded the matter to the
administrative law judge to clarify the legal basis and reasoning supporting the judge's
findings of fact and conclusions of law.
........................................
ing supporting the judge's findings of fact and conclusions of law. The administrative law
judge responded and clarified her findings of fact and conclusions of law. After reviewing the
administrative law judge's clarification of the findings of fact and conclusions of law, the
district court denied Weaver's petition for judicial review, finding that the administrative law
judge had not improperly shifted the burden of proof. Weaver now brings this appeal.
DISCUSSION
Standard of review
[Headnotes 1-4]
This court has previously noted that in reviewing an administrative decision, this court's
role 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
1
In addition, when reviewing an administrative decision
neither this court nor the district court may go beyond the administrative record or substitute
its judgment for that of the administrative agency concerning the weight of the evidence on
questions of fact.
2
Moreover, the burden of proof is on the party opposing the administrative
decision to show that it was erroneous in view of the record as a whole or that it was arbitrary
or capricious.
3
Questions of law, however, are reviewed de novo.
4

Reasonable belief to administer the field tests
[Headnotes 5-7]
This court has stated that the scope of review during a driver's license revocation hearing is
limited to three issues: (1) whether the person failed to submit to an evidentiary test; (2)
whether a person's blood alcohol level exceeded the legal limit at the time of the test; and (3)
whether the officer who ordered an evidentiary test had reasonable grounds, at the time she
ordered the test, to believe the person had been driving or in actual physical control of a
vehicle while intoxicated.
5
Significantly, [t]his court has carved out a unique posture
towards administrative driver's license revocation proceedings."
____________________

1
United Exposition Service Co. v. SIIS, 109 Nev. 421, 423, 851 P.2d 423, 424 (1993).

2
Id. at 423-424, 851 P.2d at 424.

3
Id. at 423 n.1, 851 P.2d at 424 n.1; see also NRS 233B.135(2).

4
State, Bus. & Indus. v. Granite Constr., 118 Nev. 83, 86, 40 P.3d 423, 425 (2002).

5
Beavers v. State, Dep't of Mtr. Vehicles, 109 Nev. 435, 438-39, 851 P.2d 432, 435 (1993).
........................................
cation proceedings.
6
Under Nevada law, such proceedings are considered to be civil in
nature, not criminal.'
7
Consequently, the objective of such a proceeding is not to punish the
licensee; rather, the goal is to protect the public from irresponsible and dangerous drivers.
8

[Headnote 8]
On appeal, Weaver challenges the last determination and asserts that there is not
substantial evidence in the record to support the conclusion that Officer Kisfalvi had
reasonable grounds to believe that he drove while intoxicated. We disagree. In State,
Department of Motor Vehicles v. Evans, this court expressly stated that it was not incumbent
upon the DMV 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.
9
In this particular case,
Weaver readily admitted that he was driving his Porsche when he crashed. Therefore, the
DMV only needed to demonstrate that Officer Kisfalvi had reasonable grounds to believe that
Weaver was intoxicated when he crashed the vehicle.
Here, substantial evidence supports the administrative law judge's determination that
Officer Kisfalvi had a reasonable belief that Weaver was driving while under the influence.
When Officer Kisfalvi arrived at the scene of the accident, Weaver exhibited physical signs of
intoxication; Weaver smelled strongly of alcohol, had watery bloodshot eyes, and slurred his
speech when he spoke. Moreover, Weaver failed all of the sobriety tests administered by
Officer Kisfalvi and refused to complete the walk-and-turn test. This evidence supports a
reasonable belief that Weaver was intoxicated at the time of the accident, which occurred
some time before Officer Kisfalvi's arrival on the scene.
That Weaver chose later to modify his story and testify at the hearing that when he
returned home after the accident he consumed four or five shots of tequila and five or six
beers has no impact upon the inquiry into the reasonableness of the officer's beliefs because
this was not part of the information evaluated by Officer Kisfalvi at the scene. Importantly,
the results of the blood test tend to verify that the officer's decision was reasonable since the
test demonstrated that Weaver's blood alcohol level was .272, almost three times the legal
limit.
____________________

6
State, Dep't Mtr. Veh. v. Bremer, 113 Nev. 805, 809, 942 P.2d 145, 148 (1997).

7
Id. (quoting State, Dep't Mtr. Vehicles v. Vezeris, 102 Nev. 232, 235, 720 P.2d 1208, 1211 (1986)).

8
Beavers, 109 Nev. at 438, 851 P.2d at 434.

9
114 Nev. 41, 45, 952 P.2d 958, 961 (1998).
........................................
almost three times the legal limit.
10
Thus, we conclude that the administrative law judge did
not abuse her discretion in determining that when Officer Kisfalvi conducted the test he had
reasonable grounds to believe that Weaver had been driving or in actual physical control of a
vehicle while intoxicated.
Shifting the burden of proof
[Headnote 9]
Weaver contends on appeal that the administrative law judge improperly shifted the
burden of proof by requiring him to prove that he had not consumed alcohol before driving
his vehicle.
11
After Weaver's administrative hearing, he petitioned the district court for
judicial review and complained about this issue. Consequently, the district court issued an
order directing the administrative law judge to clarify her findings of fact and conclusions of
law to determine if the burden was improperly shifted to Weaver at the administrative
hearing.
In response, the administrative law judge clarified that there was no evidence in the record
to show that Weaver had not drunk before the accident because [n]either Petitioner nor his
attorney stated that Petitioner had nothing to drink prior to driving and that the only alcohol
Petitioner consumed was after the accident while at home. As a result, the administrative
law judge based her determination to uphold the revocation of Weaver's license upon a
consideration of the individual credibility of each witness and the totality of the
circumstances. Based upon these considerations, the administrative law judge concluded that
The Petitioner was either not honest with the officer or he was not honest in the
hearing. This Administrative Law Judge noticed that, while Petitioner mentioned how
much he drank at home after driving, there was absolutely no mention of what he
did or did not drink prior to driving.
____________________

10
NRS 484.384.

11
In the findings of fact and conclusions of law, the administrative law judge found that:
While it may be true that Petitioner drank after the accident, he did not claim, much less establish, that he
had nothing to drink prior to the accident. His blood alcohol concentration at the time of the test was
0.272. He initially told the officer he had two beers after the accident. In the hearing he testified he had
five or six beers and four or five shots of tequila after the accident. The officer was dispatched at 10:25
p.m. and the blood draw occurred at 11:36 p.m. Petitioner did not establish what time the accident
occurred or how long he had been drinking. Petitioner was present at the hearing and testified. He had the
assistance of legal counsel. He could have attempted to provide corroborating evidence that he had
nothing to drink prior to the accident if, in fact, that is his contention. Without corroborating evidence,
Petitioner's presentation is insufficient to establish he had not consumed alcohol prior to the accident. The
test results will stand.
........................................
ticed that, while Petitioner mentioned how much he drank at home after driving, there
was absolutely no mention of what he did or did not drink prior to driving. This
Administrative Law Judge was not requiring Petitioner to prove he had not consumed
alcohol prior to driving . . . . Petitioner's failure or refusal to address that critical part
weakened his credibility . . . .
. . . .
. . . This Administrative Law Judge weighed the testimony of the Petitioner against
the testimony of the officer and the totality of the circumstances and concluded that it
was not probable Petitioner drank only after driving, but that it was probable he drank
before driving as well as afterward, especially considering the high blood alcohol
concentration at the time of the test.
After reviewing the administrative law judge's clarification, the district court determined
that the administrative law judge had not shifted the burden of proof to Weaver, and as a
result, the district court denied Weaver's petition for judicial review. We agree with the
district court. Accordingly, we uphold the district court's decision to deny Weaver's petition
for judicial review.
[Headnotes 10, 11]
In the instant case, we conclude that the administrative law judge did not shift the burden
of proof. Instead, the administrative law judge merely determined that Officer Kisfalvi had
reasonable grounds to administer the test. In addition, the administrative law judge allowed
Weaver to present evidence that he had only drunk after driving. Unfortunately for Weaver,
the administrative law judge determined that his testimony was not credible. Because
substantial evidence in the record supports the administrative law judge's factual
determination, we will not disturb her findings on appeal.
12

____________________

12
Weaver also argues that the administrative law judge applied the wrong standard of proof because she
stated that it was more probable than not that Weaver drank before the accident when the appropriate standard of
proof is that of substantial evidence. Black's Law Dictionary defines probability as [l]ikelihood; appearance
of reality or truth; reasonable ground of presumption; verisimilitude; consonance to reason. Black's Law
Dictionary 1201 (6th ed. 1990). Nevada law defines substantial evidence 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, 498 (1986) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated
Edison Co. v. Labor Board, 305 U.S. 197, 229 (1938))). Therefore, the administrative law judge's statement
reflects that she found the evidence to be more than substantial to support Officer Kisfalvi's decision to
administer the blood alcohol test.
........................................
[Headnote 12]
Weaver summarily asserts that since a person might not ingest alcohol until after driving,
NRS 484.384, which simply states that a driver's license must be revoked based on a 0.08
blood alcohol concentration, is necessarily overbroad and violates substantive due process.
As this argument was raised only in Weaver's reply brief, we need not consider it.
13
We note,
however, that the overbreadth doctrine has been applied only in the First Amendment context
and, seemingly, in other cases involving fundamental constitutional rights.
14
Weaver
understandably does not even suggest that retaining a driver's license is a fundamental right.
[Headnotes 13-16]
Weaver also dedicates a small paragraph in his reply brief to the notion that NRS 484.384
violates procedural due process by denying a driver the opportunity to show that he imbibed
alcohol only after operating his vehicle. Again, we need not address this contention. Even so,
we do conclude that procedural due process requires that individuals be permitted to submit
evidence that they consumed alcohol only after driving. We have previously recognized that
[t]he revocation of a driver's license implicates a protectable property interest entitling the
license holder to due process.
15
What constitutes adequate procedure varies depending on
the circumstances of a particular case. More particularly, three factors articulated by the
Supreme Court in Mathews v. Eldridge
16
determine whether a given procedure satisfies due
process: (1) the private interest impacted by the government action; (2) the chance that the
procedures used will result in an improper deprivation of the private interest, and the likely
value of added procedural protections; and (3) the government's interest in the proceedings
and the cost of additional procedural protections.
On prior occasions, this court has explained that drivers have a substantial interest in
retaining their driving privileges, but that the governmental interest in keeping its highways
safe is also substantial and important.
17
Here, then, our focus is on the chance that by
precluding evidence of post-driving alcohol consumption, an individual may be improperly
deprived of his or her driver's license, and the cost of any additional procedural
protections.
____________________

13
Liggett v. State Indus. Ins. System, 99 Nev. 262, 264, 661 P.2d 882, 883 (1983); Ellison v. State, 87 Nev. 4,
479 P.2d 461 (1971).

14
See John F. Decker, Overbreadth Outside the First Amendment, 34 N.M. L. Rev. 53, 55-60 (2004); see
also Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235, 261-76 (1994).

15
State, Dep't Mtr. Veh. v. Root, 113 Nev. 942, 946, 944 P.2d 784, 786 (1997).

16
424 U.S. 319 (1976).

17
Root, 113 Nev. at 946, 944 P.2d at 786 (citing State, Dep't Mtr. Vehicles v. Vezeris, 102 Nev. 232, 236,
720 P.2d 1208, 1211 (1986)).
........................................
that by precluding evidence of post-driving alcohol consumption, an individual may be
improperly deprived of his or her driver's license, and the cost of any additional procedural
protections. As the risk of erroneous license revocation is significant under circumstances in
which a driver may have consumed alcohol after operating a vehicle, but not before, and
because the costs of allowing the driver to admit evidence of post-driving consumption are
minimal, we conclude that drivers must be afforded an opportunity, during license revocation
proceedings, to present evidence that they drank alcoholic beverages only after driving.
Other case law supports this conclusion. In Sereika v. State, this court addressed the
constitutionality of NRS 484.379(1)(c).
18
That statute prohibited an individual from having a
blood alcohol level of .10 or more within two hours after driving. Sereika argued the statute
was unconstitutional because a person might not ingest alcohol until after driving but would
still reach the prohibited blood alcohol level within the two-hour period prescribed by the
statute.
19
We declined to address that argument because Sereika lacked standing to raise it.
We did state, however, that we could conceive of no rational basis for enforcement of NRS
484.379(1)(c) in the scenario that Sereika hypothesized.
20

We also note the significant distinction between our holding in this case and our decision
in State, Department of Motor Vehicles v. Hiatt.
21
In that case, we determined that NRS
484.384 does not require proof that a driver's blood alcohol content exceeded the legal limit
at the time of driving, only that it exceeded the legal limit within two hours of driving.
Therefore, the statute did not create an impermissible and irrebuttable presumption that an
individual's blood alcohol content exceeded the legal limit at the time of driving.
22
Moreover, we concluded that the revocation statute was rationally related to the compelling
state interest in keeping alcohol-impaired drivers off the streets.
23

In Hiatt, we addressed a situation wherein a driver consumed alcohol before driving but
challenged whether his blood alcohol content levels exceeded the legal limit at the time of
driving or had instead risen to such a level by the time of the blood test.
24
In contrast, in the
instant case we address the factual situation where the driver maintains, albeit on appeal, that
he only consumed alcohol after driving.
____________________

18
114 Nev. 142, 955 P.2d 175 (1998).

19
Id. at 150, 955 P.2d at 180.

20
Id.

21
112 Nev. 868, 920 P.2d 116 (1996).

22
Id. at 870, 920 P.2d at 117.

23
Id. at 871, 920 P.2d at 118.

24
Id. at 869-70, 920 P.2d at 117.
........................................
after driving. Allowing a driver's license revocation in such a situation does nothing to further
the state's interest in keeping intoxicated drivers off Nevada's roads and highways. Thus, we
conclude that when an individual challenges the revocation of his or her license at an
administrative hearing, that hearing must provide the opportunity for the driver to present
evidence that he or she consumed alcohol only after driving.
After considering Weaver's argument, we conclude that the administrative law judge did
not abuse her discretion in upholding the revocation of Weaver's driver's license.
Accordingly, we affirm the district court's order denying Weaver's petition for judicial review.
____________
121 Nev. 504, 504 (2005) Gordon v. State
ELWIN RAY GORDON, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 42760
August 11, 2005 117 P.3d 214
Appeal from a judgment of conviction, upon jury verdict, of DUI causing substantial
bodily harm. First Judicial District Court, Carson City; William A. Maddox, Judge.
The supreme court, Douglas J., held that: (1) evidence was sufficient to support conviction
on theory that defendant was under the influence of intoxicating liquor when he hit
motorcyclist, (2) State's actions in taking inaccurate measurements during accident scene
investigation and omitting critical objects in accident reconstruction diagram were not
prejudicial to defendant, and (3) State's act in obtaining only a single blood draw from
defendant following vehicle accident for blood evidence did not result in prejudice to
defendant.
Affirmed.
John E. Oakes, Reno, for Appellant.
Brian Sandoval, Attorney General, Carson City; Noel S. Waters, District Attorney, and
Thomas R. Armstrong, Deputy District Attorney, Carson City, for Respondent.
1. Criminal Law.
The standard of review for sufficiency of the evidence in a criminal case is whether
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.
2. Criminal Law.
A reviewing court will not disturb a verdict on appeal if it is supported by substantial
evidence.
........................................
3. Automobiles.
Evidence was sufficient to support conviction for driving under the influence of
alcohol causing substantial bodily harm on theory that defendant was under the
influence of intoxicating liquor when he hit motorcyclist; defendant testified that,
before the accident, he had six and a half beers, investigating deputies testified that
defendant exhibited signs of intoxication, defendant failed the horizontal gaze
nystagmus field test, and a blood test yielded a blood alcohol result of 0.10. NRS
484.3795(1)(a) (2002).
4. Criminal Law.
In a criminal investigation, police officers generally have no duty to collect all
potential evidence; however, that rule is not absolute.
5. Criminal Law.
If the defendant shows that evidence the State failed to gather was material, i.e.,
that there is a reasonable probability that the result of the proceedings would have been
different if the evidence had been available, the court must determine whether the
failure to gather it resulted from negligence, gross negligence, or bad faith. In the case
of mere negligence, no sanctions are imposed, but the defendant can examine the State's
witnesses about the investigative deficiencies. In the case of gross negligence, the
defense is entitled to a presumption that the evidence would have been unfavorable to
the State. And in the case of bad faith, depending on the case as a whole, dismissal of
the charges may be warranted.
6. Criminal Law.
State's actions in taking inaccurate measurements during accident scene
investigation and omitting critical objects in accident reconstruction diagram were not
prejudicial to defendant in driving under the influence prosecution because inaccurate
lane measurements and missing objects in the accident reconstruction diagram were
irrelevant to the issue of whether defendant was driving under the influence, and
missing objects were depicted in admitted pictures and defense counsel used them to
cross-examine the investigating officers.
7. Automobiles; Criminal Law.
State's act in obtaining only a single blood draw from defendant following vehicle
accident for blood evidence did not result in prejudice to defendant in driving under the
influence prosecution because while a series of blood draws might have shown an
increasing blood alcohol content (BAC), which in turn would have allowed the defense
to argue that defendant's BAC at the time of the accident was lower than 0.10, such
would not have made a difference in defendant's case because evidence existed to
support his conviction on a theory not based on finding a blood alcohol content of 0.10.
NRS 484.3795(1)(a) (2002).
OPINION
In this appeal, we consider whether a jury may return a general guilty verdict based upon
several legally sufficient theories of driving under the influence if at least one theory had
sufficient evidentiary support.
........................................
identiary support. We conclude that it may. We also consider whether the appellant was
prejudiced by the State's failure to gather evidence during its investigation. We conclude that
he was not prejudiced.
FACTS
Appellant Elwin Ray Gordon was charged with driving under the influence causing
substantial bodily harm after his vehicle collided with a motorcycle, injuring the motorcyclist.
1
The collision occurred in June 2002. At the scene, the investigating deputies, who were
trainees, noted that Gordon's eyes were bloodshot and watery, his breath smelled of alcohol,
and his speech was mildly slurred. Gordon submitted to a horizontal gaze nystagmus field
test, which he failed by exhibiting six out of a possible six indicators suggesting possible
impairment. Gordon was then arrested. A subsequent single blood draw yielded a blood
alcohol concentration (BAC) of 0.10.
At trial, a toxicology expert for the State acknowledged that factoring in variance could
lower the actual BAC value to 0.099 and the chances of that were fifty-fifty. A clinical
chemist testified that a BAC of 0.10 would have a noticeable effect on an average
nonalcoholic person's abilities, including their reaction times and cognitive functions. He also
opined that at 0.10 all persons would experience measurable effects. Gordon testified that he
had consumed 6 beers on the evening of the accident.
The district court admitted a number of photographs of the scene taken after the accident.
Based on these, one of the investigating officers acknowledged on cross-examination that
there were inaccurate measurements and omissions in his accident reconstruction diagram,
which also did not include point-of-impact debris, coefficient of friction, yaw patterns, or spin
patterns. The officer also testified that while the patrol division did not have any handheld
audio recorders, some officers had their own, but he did not. The officer testified that he did
not keep field notes and that he generated a one-page report regarding this case.
The jury was instructed on three theories upon which they could convict Gordon: (1) being
under the influence of intoxicating liquor, which rendered him incapable of safely driving; (2)
having a blood alcohol concentration of 0.10 or more; and/or (3) having a blood alcohol
concentration of 0.10 or more by measurement within two hours of driving. The jury could
also return a general guilty verdict without specifying a particular theory, if they unanimously
found beyond a reasonable doubt that at least one of the three theories was proven beyond a
reasonable doubt. In finding Gordon guilty, the jury did not specify a particular theory but
chose this last option.
____________________

1
At trial, Gordon stipulated to the elements of substantial bodily harm.
........................................
chose this last option. The district court denied Gordon's motion for a new trial or acquittal
and entered a judgment of conviction. Gordon now appeals.
DISCUSSION
Validity of the jury's verdict
Gordon argues that the jury's guilty verdict was not supported by substantial evidence.
Two of the three theories of guilt were premised upon finding a BAC of 0.10. However,
factoring in variance or margin of error could lower Gordon's 0.10 BAC reading to 0.099. As
a result, Gordon argues that there was insufficient evidence to support these two theories of
guilt. Because the jury returned a general guilty verdict, Gordon contends that this allows for
the possibility that the jury found Gordon guilty on one of the theories not supported by
sufficient evidence. On this basis, Gordon concludes that the entire verdict is tainted and
should be reversed.
The United States Supreme Court has observed:
We have never suggested that in returning general verdicts . . . the jurors should be
required to agree upon a single means of commission, any more than the indictments
were required to specify one alone. In these cases, as in litigation generally, different
jurors may be persuaded by different pieces of evidence, even when they agree upon the
bottom line. Plainly there is no general requirement that the jury reach agreement on the
preliminary factual issues which underlie the verdict.
2

[Headnotes 1, 2]
We have relied on United States Supreme Court decisions in concluding that a jury may
return a general guilty verdict on an indictment charging several acts in the alternative even if
one of the possible bases of conviction is unsupported by sufficient evidence.
3
[A]s long as
[the] theories are legally sufficient, the verdict will stand even if one theory is ultimately
found to be factually unsupported by the evidence.
4
Although the United States Supreme
Court has noted that it would be preferable for a court to remove a theory that is not
supported by sufficient evidence from the jury's consideration, the refusal to do so does
not provide an independent basis for reversing an otherwise valid conviction.
____________________

2
Schad v. Arizona, 501 U.S. 624, 631 (1991) (plurality opinion) (quoting McKoy v. North Carolina, 494 U.S.
433, 449 (1990) (Blackmun, J., concurring) (footnotes omitted)), cited with approval in Tabish v. State, 119
Nev. 293, 313, 72 P.3d 584, 597 (2003).

3
Rhyne v. State, 118 Nev. 1, 10, 38 P.3d 163, 169 (2002) (citing Griffin v. United States, 502 U.S. 46, 56-57
(1991)).

4
Id.; see also Turner v. United States, 396 U.S. 398, 420 (1970) ([W]hen a jury returns a guilty verdict on an
indictment charging several acts in the conjunctive, . . . the verdict stands if the evidence is sufficient with
respect to any one of the acts charged.).
........................................
remove a theory that is not supported by sufficient evidence from the jury's consideration, the
refusal to do so does not provide an independent basis for reversing an otherwise valid
conviction.
5

The standard of review for sufficiency of the evidence in a criminal case is whether 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. A reviewing court will not disturb a verdict on appeal if it is supported by
6

[Headnote 3]
The content of the jury verdict form was based on NRS 484.3795 (2002) (amended 2003),
7
which reads in pertinent part:
1. A person who:
(a) Is under the influence of intoxicating liquor;
(b) Has a concentration of alcohol of 0.10 or more in his blood or breath;
(c) Is found by measurement within 2 hours after driving or being in actual physical
control of a vehicle to have a concentration of alcohol of 0.10 or more in his blood or
breath;
. . .
and does any act or neglects any duty imposed by law while driving or in actual
physical control of any vehicle on or off the highways of this state, if the act or neglect
of duty proximately causes . . . substantial bodily harm to, a person other than himself,
is guilty of a category B felony . . . .
Here, Gordon challenges the evidentiary sufficiency of the two theories of guilt premised
upon a BAC result of 0.10 or more, but he does not challenge the remaining theory of guilt
premised on being under the influence of intoxicating liquor. Importantly, Gordon also does
not challenge the legal sufficiency of any of these three theories. Because Gordon only
challenges the evidentiary support for the BAC theories and not their legal sufficiency, the
jury's general guilty verdict may stand if there is sufficient evidence to support the theory that
Gordon was driving under the influence of intoxicating liquor under NRS 484.3795(1)(a).
Gordon testified that, prior to the accident, he had consumed 6 beers. The investigating
deputies testified that Gordon exhibited signs of intoxication. Gordon also failed the
horizontal gaze nystagmus field test.
____________________

5
Griffin, 502 U.S. at 60.

6
Domingues v. State, 112 Nev. 683, 693, 917 P.2d 1364, 1371 (1996) (citation omitted).

7
In 2003, this section was amended by substituting 0.08 for 0.10. See 2003 Nev. Stat., ch. 421, 7, at
2560. This change became effective on September 23, 2003. See id. 15, at 2566.
........................................
nystagmus field test. A blood test yielded a BAC result of 0.10. After viewing all of this
evidence in the light most favorable to the prosecution, we conclude that a rational jury could
have found beyond a reasonable doubt that Gordon was driving under the influence of
intoxicating liquor in violation of NRS 484.3795(1)(a) when he hit the motorcyclist. Because
the evidence supports a violation under NRS 484.3795(1)(a) we do not reach the issue of the
sufficiency of the evidence under the theories enumerated in NRS 484.3795(1)(b) or (c).
Therefore, we conclude that Gordon's conviction was valid.
8

The State's investigation
Gordon argues that the State's investigation was so lacking and inept that it denied him due
process because it hampered his defense. In support of this argument, Gordon cites Crockett
v. State,
9
but he notes that he is not accusing the State of deliberately destroying, concealing,
or withholding evidence. Gordon contends that he was prejudiced to the extent that the crime
scene was not accurately preserved because inaccurate measurements were taken during the
accident scene investigation and critical objects were omitted in the accident reconstruction
diagram. Gordon also contends that he was prejudiced because only a single blood draw was
obtained when a series of blood draws is usually ordered.
While Crockett addresses evidence destruction and loss, Daniels v. State
10
and Randolph
v. State
11
are more on point in addressing allegations that the State's failure to gather
evidence was prejudicial.
[Headnotes 4, 5]
In a criminal investigation, police officers generally have no duty to collect all potential
evidence.
12
However, this rule is not absolute.'
13
This court has adopted a two-part test
to determine when dismissal of charges is warranted due to the State's failure to gather
evidence.
14

The defense must first show that the evidence was material, i.e., that there is a
reasonable probability that the result of the proceedings would have been different if
the evidence had been available.
____________________

8
We also conclude that the district court properly rejected appellant's motion for a new trial or judgment of
acquittal.

9
95 Nev. 859, 603 P.2d 1078 (1979).

10
114 Nev. 261, 956 P.2d 111 (1998).

11
117 Nev. 970, 36 P.3d 424 (2001).

12
Id. at 987, 36 P.3d at 435 (citing Daniels, 114 Nev. at 268, 956 P.2d at 115).

13
Daniels, 114 Nev. at 268, 956 P.2d at 115 (quoting State v. Ware, 881 P.2d 679, 684 (N.M. 1994)).

14
Id. at 267-68, 956 P.2d at 115.
........................................
proceedings would have been different if the evidence had been available. Second, if
the evidence was material, the court must determine whether the failure to gather it
resulted from negligence, gross negligence, or bad faith. In the case of mere negligence,
no sanctions are imposed, but the defendant can examine the State's witnesses about the
investigative deficiencies; in the case of gross negligence, the defense is entitled to a
presumption that the evidence would have been unfavorable to the State; and in the
case of bad faith, depending on the case as a whole, dismissal of the charges may be
warranted.
15

[Headnote 6]
Here, the inaccurate lane measurements and missing objects in the accident reconstruction
diagram are irrelevant to the issue of whether Gordon was driving under the influence.
Further, the missing objects were depicted in admitted pictures and Gordon's counsel used
them to cross-examine the investigating officers. While Gordon points out that no video of
the scene was taken nor were the officer's conversations with Gordon recorded, the
investigating officer testified that the department did not have such equipment at its disposal.
Thus, it is difficult to see how the officer's investigation should have included these
recordings. Gordon also notes that the investigating officer did not keep field notes, but
Gordon fails to show how this would have supplied any additional relevant information. The
other deficiencies Gordon cites, i.e., failure to incorporate point-of-impact debris, the
motorcycle's skid pattern and how far the truck had entered the travel lane, probably should
have been noted. However, even had they been, they would have been tangential to the issue
of Gordon's state of intoxication while driving. Therefore, we conclude that the missing
evidence is not material and there was not a reasonable probability that the result of the
proceedings would have been different if they had been available to Gordon.
[Headnote 7]
As for the blood evidence, while a series of blood draws might have shown an increasing
BAC, which in turn would have allowed the defense to argue that Gordon's BAC at the time
of the accident was lower than 0.10, this would not have made a difference in this case
because of the evidence supporting Gordon's violation of NRS 484.3795(1)(a).
Even if the evidence were material, Gordon admitted that he is not claiming that the State
deliberately destroyed, concealed or withheld evidence. Neither does he allege that the State
failed to gather evidence in bad faith.
____________________

15
Randolph, 117 Nev. at 987, 36 P.3d at 435 (citing Daniels, 114 Nev. at 267, 956 P.2d at 115).
........................................
gather evidence in bad faith. Lack of bad faith precludes dismissing the charges against
Gordon. Further, Gordon has not shown that the failure to gather the missing evidence rose to
the level of gross negligence. In light of the investigating officers' trainee status, their failure
to gather evidence was mere negligence at most. In the case of negligence, no sanctions are
appropriate, but the defendant may examine the State's witnesses regarding the investigative
deficiencies. Gordon was allowed to do this at trial. As a result, Gordon has already had an
opportunity to point out the State's investigative deficiencies to the jury. Thus, we conclude
that Gordon failed to demonstrate prejudice.
CONCLUSION
Because there was substantial evidence to sustain any one of the three legally sufficient
theories of DUI upon which the jury's general guilty verdict rested, we conclude that Gordon's
conviction may stand. We also conclude that the State did not fail to properly investigate,
gather, or preserve evidence. Even if it did, it was mere negligence and Gordon was afforded
the appropriate remedy at trial. Accordingly, we affirm the judgment of conviction.
Maupin and Parraguirre, JJ., concur.
____________
121 Nev. 511, 511 (2005) Anderson v. State
ARNOLD DEAN ANDERSON, aka DEAN ARNOLD ANDERSON, Appellant, v.
No. 42289
August 25, 2005 118 P.3d 184
Appeal from a judgment of conviction, entered upon a jury verdict, of felony DUI (third
offense). Seventh Judicial District Court, White Pine County; Dan L. Papez, Judge.
The supreme court, Maupin, J., held that: (1) jury's error in finding that defendant was
guilty under second of three theories of guilt under which State prosecuted defendant for
felony DUI was harmless; (2) prosecutor's comments during closing argument constituted
plain error; and (3) prosecutor's plain error arising from misconduct during closing argument
affected defendant's substantial rights, thus requiring reversal of conviction.
Steven G. McGuire, State Public Defender, and Harriet E. Cummings, Deputy Public
Defender, Carson City, for Appellant.
........................................
Brian Sandoval, Attorney General, Carson City; Richard W. Sears, District Attorney, and
Kevin R. Briggs, Deputy District Attorney, White Pine County, for Respondent.
1. Criminal Law.
Jury need not be unanimous as to a particular theory of culpability for a single
offense to sustain a conviction; a unanimous general verdict of guilt will support a
conviction so long as there is substantial evidence in support of one of the alternate
theories of culpability.
2. Criminal Law.
Jury's finding that defendant was guilty under second of three theories of guilt under
which State prosecuted defendant for felony driving under the influence (DUI) was
erroneous, as State, during closing argument, told jurors that it had presented no
evidence in support of second theory and that they could not base a guilty verdict on
that theory.
3. Criminal Law.
Jury's error in finding that defendant was guilty under second of three theories of
guilt under which State prosecuted defendant for felony driving under the influence
(DUI) was harmless, as jury issued unanimous verdict as to other two theories, record
reflected substantial evidence supporting jury's findings on remaining theories, and
defendant did not demonstrate how the erroneous finding of guilty on second theory
rendered unanimous findings on other theories unreliable.
4. Criminal Law.
Defendant failed to preserve for appellate review issue of whether prosecutor had
committed misconduct during closing argument, as he did not object on this ground at
trial, in prosecution for felony driving under the influence (DUI).
5. Criminal Law.
The supreme court would consider sua sponte on appeal issue of whether prosecutor
had committed misconduct during closing argument, though defendant failed to
preserve this issue for appeal, in prosecution for felony driving under the influence
(DUI).
To determine if prejudicial prosecutorial misconduct occurred, the relevant inquiry is
whether a prosecutor's statements so infected the proceedings with unfairness as to
result in a denial of due process, which inquiry involves consideration of context of
prosecutor's statements. U.S. Const. amend. 14.
7. Criminal Law.
comments standing alone.
8. Criminal Law.
A prosecutor may not vouch for the credibility of a witness or accuse a witness of
lying.
9. Witnesses.
A prosecutor may not use a defendant's post-arrest silence for impeachment
purposes, regardless of whether the defendant received Miranda warnings.
10. Criminal Law.
The prosecution may not refer to a defendant's post-arrest silence in its case-in-chief.
........................................
11. Criminal Law.
Improper comment by prosecutor on post-arrest silence of defendant will not require
reversal if references are harmless beyond reasonable doubt; such comments are
harmless beyond a reasonable doubt if they were merely passing in nature or there is
overwhelming evidence of guilt.
12. Criminal Law.
Failure to object to prosecutor's allegedly improper closing argument precludes
appellate review of the matter unless it rises to the level of plain error. NRS 178.602.
13. Criminal Law.
In conducting plain error review, the supreme court must examine whether there was
error, whether the error was plain or clear, and whether the error affected the
defendant's substantial rights; thus, the burden is on the defendant to show actual
prejudice or a miscarriage of justice.
14. Criminal Law.
Prosecutor's comments during closing argument, including suggestion that defendant
and his son had lied, references to defendant's post-arrest silence, and offering of
personal opinions as to veracity of State's witnesses constituted plain error, in
prosecution for felony driving under the influence (DUI).
15. Criminal Law.
Prosecutor's plain error arising from misconduct during closing argument affected
defendant's substantial rights, thus requiring reversal of conviction for felony driving
under the influence (DUI). None of prosecutor's improper arguments were passing in
nature, but composed the heart of State's view of the case and the defendant. And while
the evidence was sufficient to sustain conviction, it was not overwhelming, and
polemics of prosecutor clearly changed focus of case to his personal views, not the
evidence.
OPINION
In this case we consider whether a trial jury may properly convict a defendant charged with
driving under the influence of intoxicants based upon alternate theories of criminality. We
also consider whether prosecutorial misconduct requires reversal of a conviction based upon
conflicting evidence.
On May 12, 2001, at approximately 4:30 in the afternoon, Nevada Highway Patrol
Troopers Scott Simon and David Stauffacher observed a blue and white pickup traveling in
the opposite direction on U.S. 93 in White Pine County, Nevada. Both troopers noticed that
the driver of the pickup was bearded and wore no shirt, and that a young man with a maroon
shirt occupied the passenger seat.
........................................
senger seat. On-board radar indicated that the pickup was traveling at 89 miles per hour in a
70-mile-per-hour zone. Just before Trooper Simon executed a U-turn to initiate pursuit,
Trooper Stauffacher turned and noticed one of the pickup's wheels touch the shoulder. They
were eventually able to effect a traffic stop, after which Trooper Simon approached the
vehicle with Trooper Stauffacher acting as cover. At that point, although the officers did
not observe the occupants switch seats, a shirtless Anderson emerged from the passenger-side
door. Anderson's 14-year-old son, Jacob, remained in the driver's seat. When Simon asked
Anderson why he switched places with his son, Anderson first denied doing so and then said
he was just being a stupid sh. Smelling alcohol on Anderson's person, Simon conducted
field sobriety tests and a preliminary breath test, all of which Anderson failed. The troopers
arrested Anderson and left Jacob and the truck with family friends nearby. Subsequent breath
testing confirmed blood-alcohol levels in excess of the statutory minimums.
The prosecution ultimately charged Anderson with felony driving under the influence
(DUI), third offense. At trial, the jury found Anderson guilty. The district court enhanced the
charge to felony status based upon Anderson's prior DUI convictions and ultimately
sentenced Anderson to the maximum penalty allowed28 to 72 months imprisonment. The
court also imposed a fine of $2,000, a $25 administrative assessment, and separate
assessments for genetic marker testing and forensic fees. Anderson appeals.
DISCUSSION
Reliability of jury verdict
The State prosecuted Anderson in the alternative on all three statutory theories for DUI
criminal liability: (1) operating a motor vehicle while under the influence of intoxicating
liquor, and/or (2) operating a motor vehicle while having 0.10 percent or more by weight of
alcohol in the blood, and/or (3) being 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.
1
A special verdict form contained spaces for the jury to separately determine
guilt under any of the three theories. During closing argument, the State told jurors that it
presented no evidence in support of the second alternative and that they could not base a
guilty verdict upon that theory. Despite this admonition, the jury unanimously found
Anderson guilty of all three theories on the special verdict form.
Anderson argues that the special findings are all unreliable because the State presented no
evidence in support of the second theory.
____________________

1
See NRS 484.379.
........................................
ory. In this, he also argues that there is no way of knowing whether the jury was unanimous
as to any one theory. We disagree.
[Headnote 1]
NRS 175.481 requires that a verdict be unanimous. In the context of alternative theories of
murder, we held in Evans v. State that the Constitution does not require separate instructions
or jury unanimity on the alternative theories of premeditated and felony murder . . . because
actual intent to kill during the commission of a kidnapping can reasonably be considered the
moral equivalent of premeditation.'
2
Thus, under Evans and Schad v. Arizona,
3
a jury
need not be unanimous as to a particular theory of culpability for a single offense to sustain a
conviction. A unanimous general verdict of guilt will support a conviction so long as there is
substantial evidence in support of one of the alternate theories of culpability.
4

[Headnotes 2, 3]
Here, however, the adjudication of guilt was not dependent upon a general verdict based
upon alternate theories of culpability. Rather, the jury was given the task of separately
determining each of the statutory theories of criminality. Thus, to result in a valid conviction,
it was necessary for the jury to issue a unanimous verdict as to one of the three theories.
Although the jury clearly erred in finding Anderson guilty under the second theory, it still
issued a unanimous verdict as to the other two. The record reflects substantial evidence
supports the jury's findings on the remaining theories and appellant has not demonstrated how
the erroneous finding on one theory renders the unanimous findings on the other theories
unreliable. Accordingly, this error is harmless.
5

In light of the above, we reject the appellant's argument that jurors failed to achieve
unanimity and that all of the verdicts are defective under Evans.
Prosecutorial misconduct
6

[Headnotes 4, 5]
Anderson argues that the prosecution rendered his trial fundamentally unfair by appealing
to the jurors' civic duty while preying on their fears, vouching for the veracity of State
witnesses, personally voicing opinions concerning the credibility of defense witnesses,
attempting to shift the burden of proof, and impliedly referring to Anderson's exercise of
his right to remain silent.
____________________

2
Evans v. State, 113 Nev. 885, 895-96, 944 P.2d 253, 260 (1997) (quoting Schad v. Arizona, 501 U.S. 624,
644 (1991) (plurality opinion)).

3
501 U.S. 624.

4
See Gordon v. State, 121 Nev. 504, 117 P.3d 214 (2005).

5
See NRS 178.598 ([a]ny error, defect, irregularity or variance which does not affect substantial rights shall
be disregarded).

6
The State argues that Anderson failed to preserve this issue for appeal for failure to object at trial. While
true, this court may consider the issue sua sponte. See Coleman v. State, 111 Nev. 657, 662, 895 P.2d 653, 656
(1995).
........................................
ing on their fears, vouching for the veracity of State witnesses, personally voicing opinions
concerning the credibility of defense witnesses, attempting to shift the burden of proof, and
impliedly referring to Anderson's exercise of his right to remain silent.
[Headnotes 6, 7]
whether a prosecutor's statements so infected the proceedings with unfairness as to result in a
denial of due process.
7
This court must consider the context of such statements, and a
criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments
standing alone.'
8

[Headnotes 8-13]
A prosecutor may not vouch for the credibility of a witness or accuse a witness of lying.
9
A prosecutor may also not use a defendant's post-arrest silence for impeachment purposes,
regardless of whether the defendant received Miranda warnings.
10
Further, the prosecution
may not refer to a defendant's post-arrest silence in its case-in-chief.
11
Reversal, however, is
unnecessary if the prosecutor's references to the defendant's post-arrest silence are harmless
12
Such comments are harmless beyond a reasonable doubt if (1)
the comments were merely passing in nature, or (2) there is overwhelming evidence of guilt.
13
Also, failure to object precludes appellate review of the matter unless it rises to the level of
plain error.
14
In conducting plain error review, we must examine whether there was error,'
whether the error was plain' or clear, and whether the error affected the defendant's
substantial rights.
15
Thus, the burden is on the defendant to show actual prejudice or a
miscarriage of justice.
16
As noted in the margin above, Anderson failed to object to the
alleged misconduct he now claims mandates reversal.
____________________

7
Thomas v. State, 120 Nev. 37, 47, 83 P.3d 818, 825 (2004).

8
Id. (quoting United States v. Young, 470 U.S. 1, 11 (1985)).

9
Lisle v. State, 113 Nev. 540, 553, 937 P.2d 473, 481 (1997) (stating that it is improper to vouch for the
credibility of a government witness); Ross v. State, 106 Nev. 924, 927, 803 P.2d 1104, 1105 (1990) (stating that
it is improper argument to characterize a witness as a liar).

10
Coleman, 111 Nev. at 664, 895 P.2d at 657.

11
Morris v. State, 112 Nev. 260, 264, 913 P.2d 1264, 1267 (1996).

12
Id.

13
Id. at 264, 913 P.2d at 1267-68.

14
Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003); see also NRS 178.602.

15
Green, 119 Nev. at 545, 80 P.3d at 95.

16
Id.
........................................
[Headnote 14]
We conclude that the prosecutor's misconduct raises the specter of plain error in several
respects. First, by stating that Jacob couldn't not look at [him] and lie to [him], and that
Anderson and his son had years to cook up a story and they did. Second, by improperly
referring to Anderson's post-arrest silence in stating, for example, if [Anderson] knows he's
been wronged this entire time by these two cops, how come it never came out once? You
know why, because he wasn't being wrongedhe was guilty and he knew it. Third, by
stating that [Anderson is] a drunk driverhe needs to be convictedhe's endangering
peoplehe's certainly endangering his childdo his child and all of us a favordo your
duty in this casefind that he's guilty. Fourth, by offering personal opinions as to the verity
of its own witnesses.
[Headnote 15]
Having determined that the error is plain, we also conclude that the error affects
Anderson's substantial rights, thus compelling reversal. First, none of the arguments
described above were passing in nature. Rather, they composed the heart of the State's
views of the case and the defendant. Second, while the evidence was otherwise sufficient to
sustain a conviction,
17
that evidence was not overwhelming. To explain, the conviction
turned on the credibility of conflicting testimony concerning whether Anderson, although
clearly under the influence, was the driver of the vehicle pulled over by Troopers Simon and
Stauffacher. And, more particularly, Anderson's argument that it was virtually impossible to
make a change of drivers at high speed, especially when the driver is highly intoxicated and
the passenger underaged and inexperienced, raises arguable reasonable doubt. Finally, the
polemics of the prosecutor clearly changed the focus of the case to his personal views, not the
evidence. Thus, under Green, we conclude that Anderson has satisfied the final leg of a plain
error analysis, actual prejudice. Accordingly, the judgment below is reversed and the matter is
remanded for a new trial. In this, we admonish the prosecution for such misconduct.
Accordingly, if this prosecutor continues to repeat this type of adversarial rhetoric, this court
will not hesitate to refer him to the state bar for discipline. A prosecutor's duty is to fairly
present cases, not just to obtain convictions. To advise a jury that it has a duty to convict is to
distort the entire criminal justice process.
With regard to Anderson's other assertions of prosecutorial misconduct, we conclude that
they are without merit.
____________________

17
See Braunstein v. State, 118 Nev. 68, 79, 40 P.3d 413, 421 (2002).
........................................
CONCLUSION
We conclude that the jury verdict is valid because the jury was unanimous as to two
theories of culpability that are supported by substantial evidence. However, the prosecutorial
misconduct committed in this case warrants plain error review because it affected Anderson's
substantial rights. Accordingly, we reverse the judgment of conviction and remand this matter
to the district court for a new trial.
18

____________
121 Nev. 518, 518 (2005) Jacobson v. Estate of Clayton
TONY ALLEN JACOBSON and AMOREENA VICTORINE, Appellants, v. ESTATE OF
DANIEL JAMES CLAYTON, Respondent.
No. 42082
TONY ALLEN JACOBSON and AMOREENA VICTORINE, Appellants, v. ALAN
GLOVER, Administrator of the ESTATE OF DANIEL JAMES CLAYTON, Deceased;
and KEMPER INSURANCE COMPANIES, INC., Respondents.
No. 42716
September 15, 2005 119 P.3d 132
Consolidated appeals from district court orders dismissing two complaints in related
negligence actions. First Judicial District Court, Carson City; William A. Maddox, Judge
(Docket No. 42082); Michael R. Griffin, Judge (Docket No. 42716).
Motorists who were injured in automobile collision with insured brought action against
insured's estate to recover damages, and estate filed third-party complaint against owner of
trailer that insured was towing when collision occurred, for indemnity and contribution. The
district court dismissed complaint on basis that plaintiffs had failed to follow probate
procedures, and following filing of second complaint, another district court judge dismissed
second complaint. Plaintiffs appealed. The supreme court held that: (1) decision in Bodine v.
Stinson, 85 Nev. 657, 461 P.2d 868 (1969), was superseded by statute; and (2) motorists
could bring personal injury action against insured's estate through special administrator.
Reversed and remanded (Docket No. 42082); dismissed as moot (Docket No. 42716).
____________________

18
We have considered Anderson's other assignments of error and conclude that they are without merit.
........................................
Kilpatrick Johnston & Adler and Charles M. Kilpatrick, Carson City; Lemons Grundy &
Eisenberg and Robert L. Eisenberg, Reno, for Appellants.
Law Offices of David R. Sidran and Sunny M. Kwon and David R. Sidran, Las Vegas, for
Respondents.
1. Executors and Administrators.
Decision in Bodine v. Stinson, 85 Nev. 657, 461 P.2d 868 (1969), which held that
probate statutes provided the statutory scheme for the administration of estates and had
to be followed in every case regardless of the existence of insurance, was superseded by
statute specifically allowing suits against a special administrator, in place of probate
proceedings, when the estate's sole asset is a liability insurance policy. NRS 140.040(3).
2. Statutes.
The supreme court accords the plain meaning to an unambiguous statute.
3. Executors and Administrators.
Motorists who were injured in automobile collision with insured could bring
personal injury action against insured's estate through special administrator, where sole
asset in Nevada estate was a liability insurance policy; motorists did not have to pursue
formal probate proceedings. NRS 140.040(3).
OPINION
Per Curiam:
In this appeal, we revisit our 1969 decision in Bodine v. Stinson,
1
in which we determined
that the probate statutes of NRS Chapter 147 provide the statutory scheme for the
administration of estates and must be followed in every case regardless of the existence of
insurance. We conclude that Bodine is superseded by the Legislature's 1971 amendment of
NRS 140.040 to specifically allow suits against a special administrator, in place of probate
proceedings, when the estate's sole asset is a liability insurance policy.
FACTS
In September 2001, California resident Daniel Clayton was involved in an automobile
collision in Washoe County, Nevada. Apparently, Clayton's vehicle, while towing a trailer,
crossed the median and crashed head on into a vehicle in which Carson City, Nevada,
residents Tony Allen Jacobson and Amoreena Victorine were traveling.
____________________

1
85 Nev. 657, 461 P.2d 868 (1969).
........................................
Nevada, residents Tony Allen Jacobson and Amoreena Victorine were traveling. Clayton was
killed, and Jacobson and Victorine suffered injuries. Kemper Insurance Companies insured
Clayton at the time of the accident through a California-issued automobile liability policy.
The district court appointed the Carson City Public Administrator as special administrator of
Clayton's Nevada estate (Estate). The district court order appointing the special administrator
stated that the liability insurance policy constituted the only asset in Clayton's Nevada estate.
Jacobson and Victorine filed a complaint against the Estate to recover damages for their
injuries and sought compensation from the automobile liability insurance policy.
The Estate filed a third-party complaint against McDonald's Travel N' Fun, the company
that owned the trailer Clayton was towing when the accident occurred, for indemnity and
contribution. McDonald's moved to dismiss the complaint and the third-party complaint for
lack of subject matter jurisdiction, arguing that appellants had failed to follow the probate
procedures of NRS Chapter 147. The district court dismissed the complaint without
prejudice. Appellants then filed a second complaint, still maintaining that they were not
required to proceed through probate but also attempting to substantially comply with probate
requirements before the statute of limitations for personal injury actions expired. The district
court dismissed the second complaint, finding that appellants failed to follow probate
procedures and that res judicata barred their second action. Appellants challenge the dismissal
of both complaints.
DISCUSSION
[Headnote 1]
Appellants argue that no formal probate was required because the decedent's only asset in
Nevada is the proceeds of an automobile liability insurance policy. According to appellants,
the district court erred in relying on Bodine v. Stinson,
2
a 1969 case, because in 1971 the
Legislature specifically amended NRS 140.040 to allow a claim such as appellants' to proceed
outside of probate.
[Headnote 2]
Previously, we have recognized that [s]tatutory interpretation is a question of law
reviewed de novo.
3
We accord the plain meaning to an unambiguous statute.
4

____________________

2
Id.

3

4
Id. at 351-52, 74 P.3d at 597.
........................................
In this case, the Public Administrator for Carson City filed a petition for letters of
administration asking the court to appoint him special administrator so that he could accept
service of process for appellants' personal injury action against the Estate. Both the petition
and the district court order appointing the special administrator state that the sole asset is
available insurance coverage with Kemper Insurance Companies. Appellants and the Estate
apparently proceeded with the suit under NRS Chapter 140, governing special administrators,
until McDonald's moved to dismiss. McDonald's, joined by the Estate, argued that appellants
should have proceeded in accordance with the probate procedures of NRS Chapter 147
because the decedent had other assets besides the liability insurance policy.
The district court dismissed the complaint based on our 1969 Bodine decision. In Bodine,
plaintiffs in a wrongful death action sued the special administrator of the defendant decedent's
estate, alleging that various assets existed, including a liability insurance policy. This court
held that, although a special administrator has authority to act regarding wrongful death
claims, a special administrator is not liable to estate creditors and cannot pay creditors'
claims. Therefore, a special administrator is not a legal representative subject to suit under
the wrongful death survival statute.
5
We recognized that NRS 147.040 provides the statutory
scheme for the administration of estates and that the procedure to be followed is the same in
every case without regard to the existence of insurance.
6
Additionally, we noted that NRS
Chapter 147 procedures must be followed when the estate stands to be diminished if the
creditor makes a successful claim.
7
Under NRS 147.040, the claimant must first file a claim
with the administrator. If the claim is denied, the claimant may timely file suit.
The following year, in Klosterman v. Cummings, we reiterated our Bodine holding and
again determined that a suit against the special administrator of a decedent's estate was
barred.
8
The appellants in Klosterman argued that because the special administrator may
maintain an action for wrongful death, the special administrator also may defend against such
an action. In rejecting this argument, we again relied upon the fact that the general
administrator is authorized to pay claims, but the special administrator is not so authorized,
and we explained that [i]f an exception is to be made in the procedure for processing a claim
against an estate where the only asset is a policy of liability insurance, the proper forum to
effect such a change is the legislature."
____________________

5
85 Nev. at 660, 461 P.2d at 871.

6
Id. at 661, 461 P.2d at 871.

7
Id.

8
86 Nev. 684, 476 P.2d 14 (1970).
........................................
only asset is a policy of liability insurance, the proper forum to effect such a change is the
legislature.
9

A year later, the Legislature added the following emphasized language to NRS 140.040(3):
In no case shall the special administrator be liable to an action by any creditor, on any
claim against the estate, nor pay any claim against the deceased, except for claims
involving wrongful death, personal injury or property damage where the estate
contains no assets other than a policy of liability insurance.
10

Thus, after the 1971 amendment, NRS 140.040(3) permits the special administrator to pay
wrongful death, personal injury, and property damage claims when the estate's only asset is a
liability insurance policy. NRS 140.040(3) promotes judicial economy and efficient
resolution of claims by enabling a plaintiff with such claims to avoid lengthy, costly, formal
probate procedures when the sole asset is a liability insurance policy.
[Headnote 3]
Therefore, NRS 140.040(3), as amended, supersedes our decision in Bodine. Here,
decedent's Nevada estate contains only a liability insurance policy, and therefore, appellants
properly proceeded against the Estate through the special administrator to recover damages
for their injuries. Thus, the district court erred in dismissing appellants' first complaint.
CONCLUSION
The current language of NRS 140.040(3) supersedes this court's decision in Bodine v.
Stinson. Therefore, the district court erred in concluding that, pursuant to Bodine, appellants
should have pursued the formal probate proceedings of NRS Chapter 147. Under NRS
140.040(3), the special administrator may pay appellants' personal injury claim because the
sole asset in the Nevada estate is a liability insurance policy. Accordingly, in Docket No.
42082, we reverse the district court's order dismissing appellants' complaint and remand for
further proceedings. Because we have determined that the district court erred in dismissing
the first complaint, we dismiss as moot the appeal in Docket No. 42716 from the district
court's order dismissing the second complaint.
____________________

9
Id. at 686-87, 476 P.2d at 15.

10
1971 Nev. Stat., ch. 361, 1, at 648.
____________
........................................
121 Nev. 523, 523 (2005) Southern Nevada Op. Eng'rs v. Labor Comm'r
SOUTHERN NEVADA OPERATING ENGINEERS CONTRACT COMPLIANCE TRUST,
Appellant, v. TERRY JOHNSON, LABOR COMMISSIONER, STATE OF
NEVADA; and CRYSTAL CASCADES, Respondents.
No. 42093
September 15, 2005 119 P.3d 720
Appeal from a district court order denying a petition for judicial review of the Labor
Commissioner's decision. Eighth Judicial District Court, Clark County; David Wall, Judge.
Labor-management trust petitioned for judicial review of decision of Labor Commissioner
excluding class of soil testers from receiving the prevailing wage under public works
contracts. The district court denied the petition. Trust appealed. The supreme court, Rose, J.,
held that: (1) whether Labor Commissioner's determination constituted administrative
rulemaking was an issue of statutory construction that the supreme court would review de
novo; and (2) Labor Commissioner engaged in administrative rulemaking in violation of
Administrative Procedure Act's notice and hearing requirements, and thus Commissioner's
decision was invalid.
McCracken Stemerman Bowen & Holsberry and Andrew J. Kahn and Richard G.
McCracken, Las Vegas, for Appellant.
Brian Sandoval, Attorney General, Dianna Hegeduis, Senior Deputy Attorney General,
and Patricia A. Palm, Deputy Attorney General, Carson City, for Respondent Labor
Commissioner.
Curran & Parry and Stanley W. Parry, Las Vegas, for Respondent Crystal Cascades.
Schreck Brignone and Andrew S. Brignone, Michael A. Kristof and Elayna J. Youchah,
Las Vegas, for Amicus Curiae Nevada Contractors Association.
Prevailing wage lists direct employers to pay the prevailing wage to employees
performing certain types of work and, therefore, are a regulation. NRS 233B.038(1)(a).
Whether Labor Commissioner's determination, that an entire job classification was
not entitled to protection under prevailing wage laws, constituted administrative
rulemaking was an issue of statutory construction that supreme court would review de
novo. NRS 233B.038(1).
........................................
Standard of deference accorded to an administrative decision on review turns largely
on whether the issues raised by that decision are more appropriately deemed questions
of law or of fact.
An administrative fact-based determination is entitled to a deferential standard of
review.
The supreme court reviews pure legal questions raised by an administrative decision
de novo.
Labor Commissioner engaged in administrative rulemaking in violation of
Administrative Procedure Act's notice and hearing requirements when he effectively
eliminated the field soils testers classification from the prevailing wages list
regulation in the context of rendering a decision in a contested case, and thus
Commissioner's decision was invalid; Commissioner's decision effectively altered a
prior regulation. NRS 233B.038(1), 233B.060, 233B.061.
When an agency engages in conduct that constitutes the making of a regulation, it
must adhere to the notice and hearing requirements set forth in Administrative
Procedure Act. NRS 233B.060, 233B.061.
A decision in a contested case should determine only the rights of the parties
involved in that particular proceeding and not impact the rights of others not involved
in the proceeding. NRS 233B.032.
It is the Labor Commissioner's duty to define a classification or type of work and
then to determine the prevailing wage for that classification, but the fulfillment of this
duty cannot arise out of a decision in a contested case.
Labor Commissioner must make, in the context of a prevailing wage claim, any
determination necessary to conclude whether an individual fits within an existing
classification of work.
When acting in an adjudicative capacity, the Labor Commissioner may not
determine whether an entire job classification should exist for purposes of the
prevailing wage list regulation.
Notice and hearing requirements of the Administrative Procedure Act are not mere
technicalities; they are essential to an agency's adoption of valid rules and regulations.
NRS 233B.060, 233B.061.
OPINION
[Headnote 1]
In this appeal, we address whether the Labor Commissioner's decision to exclude a class of
workers from receiving the prevailing wage under a public works contract constituted a
determination in a contested case or a regulation that was subject to the Nevada
Administrative Procedure Act's {APA) rulemaking procedures.
........................................
ing wage under a public works contract constituted a determination in a contested case or a
regulation that was subject to the Nevada Administrative Procedure Act's
1
(APA)
rulemaking procedures. We conclude that the Labor Commissioner's decision effectively
deleting an entire class of workers from a previously adopted regulation constituted
administrative rulemaking, which required the Labor Commissioner to follow the APA's
provisions.
2
Because the Labor Commissioner failed to follow the APA's procedures, we
reverse the district court's order upholding the Labor Commissioner's decision.
FACTS
Every year in October, the Labor Commissioner publishes a regulation that provides the
prevailing wage rates that must be paid to workers employed on public works. The prevailing
wages list establishes the hourly rates that must be paid to the corresponding classes of
workers. Each year from 1998 through 2002, the Labor Commissioner's office included the
job classification of soils field technician or fields soil and material tester in its published
list of jobs covered under the state's prevailing wage laws.
In November 2001, respondent Crystal Cascades entered into a contract with Clark County
to perform work on a public works project. The contract called for compliance with Nevada's
prevailing wage laws and required Crystal Cascades to pay the prevailing wages in effect at
the time the contract was made. Crystal Cascades hired a subcontractor, Aztech Materials
Testing, to perform work on the project. Ryan Creelman, an Aztech employee, worked on the
project as a soils tester. Aztech paid Creelman $16 per hour for his work, a figure
significantly lower than the required prevailing wage rate of $34.09 per hour for soils field
technicians.
Appellant Southern Nevada Operating Engineers Contract Compliance Trust (the Trust), a
labor-management trust organized by the Operating Engineers Union Local 12 and by
unionized employers, including those who employ soils testers, discovered that Aztech had
failed to pay Creelman the prevailing wage as required under the contract. As a result, the
Trust complained to the County. The Trust did not file its complaint on behalf Creelman.
Instead, the Trust contends that its members were aggrieved because the union contract
required soils testers to be paid an hourly rate at least as high as the published prevailing
wage and because prevailing wage requirements provide unionized employers with a more
level playing field to compete against nonunion employers who would otherwise pay less
than the union contract rate.
____________________

1
NRS Chapter 233B.

2
NRS 233B.038(1)(a) states that a regulation is [a]n 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 any agency. The prevailing wage lists direct employers to pay the prevailing wage to
employees performing certain types of work. The lists are, therefore, a regulation.
........................................
prevailing wage requirements provide unionized employers with a more level playing field to
compete against nonunion employers who would otherwise pay less than the union contract
rate.
After conducting an investigation, the County concluded that Creelman was entitled to the
prevailing wage for soils field technicians. Aztech administratively appealed to the Labor
Commissioner, who held an administrative hearing on the issue. Notice of the hearing was
given only to the parties involved in the dispute. At the hearing, an Aztech engineer and
Aztech's CEO David McDonough testified regarding the work that soils testers, and
specifically, Ryan Creelman perform. McDonough testified that Creelman should be
exempted from the prevailing wage law because Aztech provided the services of a design
professional and Creelman was under its supervision and control.
Creelman also testified regarding the type of work he performed as a soils tester.
According to Creelman, the job required significant time observing the placement of
materials on the job site. When required, Creelman also performed the requisite soils testing.
Soils testing is accomplished by pounding a metal pin 12 inches into the ground, wiggling it
out, and dropping a nuclear gauge into the hole. Creelman would then perform tests and
record the results of the test. Afterwards, Creelman would return to observing the placement
of materials until the next time a soils test was required.
Under NRS 338.040, an individual must be deemed a workman in order to qualify for
the prevailing wage. NRS 338.040 requires that a workman be (1) [e]mployed at the site of a
public work, and (2) [n]ecessary in the execution of the contract for the public work.
Patricia Woody, a Clark County compliance officer, testified that she believed that Creelman
was a workman under the two-prong test of NRS 338.040 because he was employed at the
site of a public work and was necessary to the contract's execution. Woody also testified that
the County does not pay soils testers the prevailing wage. Ronald Yowell testified on the
Trust's behalf and stated that material testing is necessary to the execution of any public
works contract. According to Yowell, he had performed work as a soils tester on both state
and federal projects and was paid the prevailing wage. Yowell also stated that it was his
belief that Creelman was not a design professional but was instead a workman entitled to
the prevailing wage.
Nevertheless, after the hearing, the Labor Commissioner concluded that soils testers did
not fall within the definition of workman under NRS 338.010 and NRS 338.040 and were,
therefore, not entitled to prevailing wages. Commissioner Johnson admitted that his office
had transmitted various conflicting memoranda addressing the issue of the application of the
prevailing wage to soils testers.
........................................
testers. He noted further that the instant administrative proceedings provided an opportunity
to receive testimony and ask questions about the nature of the work, the types of employers
hired to perform the work, and the circumstances surrounding the contracting for this type of
work.
The Labor Commissioner then stated that he believed too much emphasis was placed on
the two-prong test of NRS 338.040. The Labor Commissioner noted that, instead, the
controlling issue should be whether an individual was a workman within the purview of
NRS Chapter 338 generally, which contains Nevada's public works laws, because otherwise
the prevailing wage provisions, including NRS 338.040, would not apply. The Labor
Commissioner noted that other individuals who meet the two-prong administrative test, like
superintendents, suppliers, and project managers, are not considered workers within the
meaning of the prevailing wage statutes.
The Labor Commissioner then determined that the term workman does not apply to
Creelman because, while he is not a licensed professional, his duties are more professional
and administrative in nature than akin to those of a workman.' The Labor Commissioner
noted that, Mr. Creelman did not build, construct, alter, repair or reconstruct any part of the
public work [and] the Legislature intended prevailing wages to apply to workmen' who in
fact engage in these types of duties to facilitate construction of a public works project.
Importantly, the Labor Commissioner then stated that he thought that the field soils tester
classification was likely inadvertently included in the wage determinations within the past
four years as a group classification when it should not have been. Subsequently, the Labor
Commissioner removed soils testers from the prevailing wages list.
The Trust then petitioned the district court for judicial review of the Labor Commissioner's
decision, which the district court denied. The Trust appeals, challenging the Labor
Commissioner's decision on the basis that it constituted ad hoc rulemaking in violation of the
APA.
DISCUSSION
Standard of review
[Headnotes 2-5]
The standard of deference accorded to an administrative decision on review turns largely
on whether the issues raised by that decision are more appropriately deemed questions of law
or of fact.
3
An administrative fact-based determination is entitled to a deferential standard
of review.
____________________

3
See State, Bus. & Indus. v. Granite Constr., 118 Nev. 83, 86, 40 P.3d 423, 426 (2002).
........................................
tial standard of review.
4
But, this court reviews pure legal questions de novo.
5
In this case,
we deal with issues of statutory construction. We have previously noted, we may undertake
independent review of the administrative construction of a statute.'
6
Therefore, we will
review the rulemaking issue raised by this appeal de novo.
Violation of the APA's rulemaking procedure
[Headnotes 6, 7]
The Trust argues compellingly that the Labor Commissioner violated the APA's
procedural rulemaking requirements when he determined that an entire job classification was
not entitled to protection under Nevada's prevailing wage laws. The Trust contends that such
an action constitutes a form of regulation requiring compliance with the APA's rulemaking
procedures. NRS 233B.038(1) defines a regulation as:
(a) 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 any agency;
(b) A proposed regulation;
(c) The amendment or repeal of a prior regulation; and
(d) The general application by an agency of a written policy, interpretation, process
or procedure to determine whether a person is in compliance with a federal or state
statute or regulation in order to assess a fine, monetary penalty or monetary interest.
This court has stated that [a] properly adopted substantive rule establishes a standard of
conduct which has the force of law. In subsequent administrative proceedings involving a
substantive rule, the issues are whether the adjudicated facts conform to the rule.'
7
When an
agency engages in conduct that constitutes the making of a regulation, it must adhere to the
notice and hearing requirements set forth under NRS 233B.060 and 233B.061.
8

____________________

4
City Plan Dev. v. State, Labor Comm'r, 121 Nev. 419, 426, 117 P.3d 182, 187 (2005).

5
Granite Constr., 118 Nev. at 86, 40 P.3d at 426.

6
Id. at 86, 40 P.3d at 425-26 (quoting American Int'l Vacations v. MacBride, 99 Nev. 324, 326, 661 P.2d
1301, 1302 (1983)).

7
State Bd. Equal. v. Sierra Pac. Power, 97 Nev. 461, 464, 634 P.2d 461, 463 (1981) (quoting Pacific Gas &
Electric Co. v. Federal Power Com'n, 506 F.2d 33, 38 (D.C. Cir. 1974)).

8
NRS 233B.060(1) provides: Except as otherwise provided in subsection 2 and in NRS 233B.061, before
adopting, amending or repealing any permanent or temporary regulation, the agency must give at least 30 days'
notice of its intended action, unless a shorter period of notice is specifically permitted by statute. NRS
233B.061 states that:
........................................
[Headnote 8]
The Labor Commissioner insists that the APA's rulemaking procedures do not apply in
this case because his decision did not amend a regulation but rather merely refused, in the
context of a contested case, to uphold a classification that he determined was inconsistent
with legislative intent and erroneous.
9
According to the Labor Commissioner, his decision
was therefore not regulatory in nature under NRS 233B.038(2)(e), which specifically
excludes [a]n agency decision or finding in a contested case from the definition of the term
regulation. We do not agree.
Instead, we conclude that the Labor Commissioner's decision was more closely akin to the
amendment of a regulation under NRS 233B.038(1)(a) because the public works prevailing
wages list effectuates the prevailing wage laws and policy by establishing the rates that apply
to certain detailed classifications of workers. Therefore, the Labor Commissioner's decision
in concluding that the classification of "field soils tester" was improperly included on the
list of prevailing wage "workmen" classification, effectively altered a prior regulation.
____________________
1. All interested persons must be afforded a reasonable opportunity to submit data, views or
arguments upon a proposed regulation, orally or in writing.
2. Before holding the public hearing required pursuant to subsection 3, an agency shall conduct at
least one workshop to solicit comments from interested persons on one or more general topics to be
addressed in a proposed regulation. Not less than 15 days before the workshop, the agency shall provide
notice of the time and place set for the workshop:
(a) In writing to each person who has requested to be placed on a mailing list; and
(b) In any other manner reasonably calculated to provide such notice to the general public and any
business that may be affected by a proposed regulation which addresses the general topics to be
considered at the workshop.
3. With respect to substantive regulations, the agency shall set a time and place for an oral public
hearing, but if no one appears who will be directly affected by the proposed regulation and requests an
oral hearing, the agency may proceed immediately to act upon any written submissions. The agency shall
consider fully all written and oral submissions respecting the proposed regulation.
4. The agency shall keep, retain and make available for public inspection written minutes of each
public hearing held pursuant to subsection 3 in the manner provided in subsections 1 and 2 of NRS
241.035.
5. The agency may record each public hearing held pursuant to subsection 3 and make those
recordings available for public inspection in the manner provided in subsection 4 of NRS 241.035.

9
Under NRS 233B.032, a [c]ontested case' means a proceeding, including but not restricted to rate making
and licensing, in which the legal rights, duties or privileges of a party are required by law to be determined by an
agency after an opportunity for hearing, or in which an administrative penalty may be imposed. NRS 233B.035
defines a party as each person or agency named or admitted as a party, or properly seeking and entitled as of
right to be admitted as a party, in any contested case. Thus, a decision in a contested case should determine
only the rights of the parties involved in that particular proceeding and not impact the rights of others not
involved in the proceeding.
........................................
the classification of field soils tester was improperly included on the list of prevailing wage
workmen classification, effectively altered a prior regulation.
We stress that the Labor Commissioner's decision in this case is distinguishable from a
situation in which the Labor Commissioner must simply determine, according to the facts, if
an individual falls within a given predefined classification on the prevailing wage list. If, in
this case, the Labor Commissioner had merely determined that the work Creelman performed
was not the same work typically performed by a field soils tester, then he would have been
deciding an issue in a contested case, and his decision would not have been subject to the
rulemaking requirements of the APA. In contrast, however, the Labor Commissioner
determined whether a large group of individuals was entitled to the prevailing wage at all.
[Headnotes 9-11]
While this court has recently acknowledged that it is the Labor Commissioner's duty to
define a classification or type of work and then to determine the prevailing wage for that
classification,
10
we wish to emphasize that the fulfillment of this duty cannot arise out of a
decision in a contested case. In City Plan Development v. State, Labor Commissioner, we
stated that, when acting in an adjudicative capacity, the Labor Commissioner must make any
classification determination necessary to a complaint's resolution.
11
We now clarify that the
Labor Commissioner must make, in the context of a prevailing wage claim, any
determination necessary to conclude whether an individual fits within an existing
classification. When acting in an adjudicative capacity, the Labor Commissioner may not
determine whether an entire job classification should exist. As the Trust aptly notes, the
Labor Commissioner's decision here affects a broad group of employees and their employers
by eliminating the requirement that several engineering companies pay the prevailing wage to
soils testers under their employ.
The Labor Commissioner's own actions following his decision lend credence to this
observation. On January 15, 2003, the Labor Commissioner's office sent a letter, which
included the Labor Commissioner's decision in the instant case, to a construction monitor
who had complained that another company had failed to pay soils testers the prevailing
wage on a different public works project. Apparently, the construction monitor, Bechtel, had
already determined that MMC, Inc., had violated the prevailing wage requirements. The
Labor Commissioner stated that [i]t appears to me that the issue presented is similar to the
case referenced above .
____________________

10
City Plan, 121 Nev. at 432, 117 P.3d at 190.

11
Id. at 432, 117 P.3d at 191.
........................................
enced above . . . . please advise if you believe this decision effects [sic] your determination
and please provide a brief reason why. Thus, the Labor Commissioner's decision is already
impacting parties beyond those involved in the instant case. As one federal court has
poignantly observed, if by its action the agency intends to create new law, rights or duties,
the rule is properly considered to be a legislative rule.
12
We therefore conclude that the
Labor Commissioner's decision was a statement of general applicability that effectuates his
office's policy that soils testers are not included under Nevada's prevailing wage law and,
thus, was subject to the APA's rulemaking requirements.
13

[Headnote 12]
Importantly, this court has previously refused to uphold an administrative body's conduct
when it engaged in ad hoc rulemaking within the context of a contested case.
14
The APA sets
forth minimum procedural requirements, such as notice and a hearing, when agencies engage
in rulemaking activity. Again, we reiterate that [t]he notice and hearing requirements are not
mere technicalities; they are essential to the adoption of valid rules and regulations.
15
In this
instance, the Labor Commissioner's failure to follow the APA's notice and hearing
requirements rendered his decision invalid.
We note that this conclusion comports with the statutes that guide the Labor
Commissioner's determinations under the prevailing wage laws. NRS 338.040 permits the
Labor Commissioner to adopt regulations defining the circumstances under which an
employee on a public works project meets the definition of a workman and is therefore
entitled to the prevailing wage. Under NRS 338.030, the Labor Commissioner may change
the prevailing wage rates and classifications but may hold only one hearing a year on the
prevailing wage of any craft or type of work in any county.
____________________

12
General Motors Corp. v. Ruckelshaus, 742 F.2d 1561, 1565 (D.C. Cir. 1984).

13
We similarly reject the argument that the Labor Commissioner's actions in this case are exempted from the
requirements of the APA because the Labor Commissioner was engaging in rate-making, which includes the
integral duty to classify those jobs entitled to the prevailing wage. This court has previously noted that decisions
involving rate-making are also subject to the requirements of the APA. See State Farm Mut. v. Comm'r of Ins.,
114 Nev. 535, 543-44, 958 P.2d 733, 738 (1998) (holding that notice and a hearing were required before the
Commissioner of Insurance could require an insurance company to change its definition of at fault in order to
secure approval of an increase in insurance rates); see Public Serv. Comm'n v. Southwest Gas, 99 Nev. 268, 273,
662 P.2d 624, 628 (1983) (holding that proper notice and a hearing were required prior to issuing an order
changing the gas rate design, which raised prices for certain groups of customers).

14
State Farm, 114 Nev. at 543-44, 958 P.2d at 738.

15
Id. at 543, 958 P.2d at 738 (citing Southwest Gas, 99 Nev. at 273, 662 P.2d at 628).
........................................
rates and classifications but may hold only one hearing a year on the prevailing wage of any
craft or type of work in any county.
16
Interested parties then have 30 days to challenge the
validity of the Labor Commissioner's prevailing wage determinations.
17

Because the Labor Commissioner's actions in the instant case had the effect of removing
an entire classification from the prevailing wage list, thereby changing the wage due to all
soils testers, it also constitutes action under NRS 338.030 which any interested parties
should have been provided the opportunity to challenge.
18
We note that any interested parties
could have challenged the Labor Commissioner's decision had he chosen to alter the
prevailing wage paid to field soils testers at the end of the year under NRS 338.030.
19
As
we stated in State of Nevada v. City of Fallon, the Labor Commissioner's failure to notify and
to accord interested parties affected by his action a reasonable opportunity to be heard
renders his action invalid as based upon unlawful procedure.
20

CONCLUSION
The notice and hearing requirements of the APA must be met when the Labor
Commissioner changes the published prevailing wages list. We conclude that the Labor
Commissioner engaged in ad hoc rulemaking in violation of the APA's notice and hearing
requirements when he effectively eliminated the field soils testers classification from the
prevailing wages list regulation in the context of rendering a decision in a contested case.
____________________

16
We acknowledge that this statute deals specifically with the Labor Commissioner's establishment of
prevailing wage rates. But, as the Labor Commissioner noted, the establishment of a classification is an integral
part of determining the wage rates employees are entitled to be paid. City Plan, 121 Nev. at 432, 117 P.3d at
190.

17
NRS 338.030; NAC 338.060.

18
We also reject the Labor Commissioner's argument that soils testers are not entitled to the prevailing wage
because they have not traditionally been included amongst those workers for whom the Labor Commissioner has
established a prevailing wage. At some point, the Labor Commissioner added soils testers to the list of those jobs
entitled to the prevailing wage. This suggests that the Labor Commissioner's office, of its own accord,
determined that soils testers were workmen within the statutory definition. If the Labor Commissioner
mistakenly added the job of soils testers to its list of classifications, he should have removed it only after
providing the opportunity for notice and a hearing.

19
This court will not address those issues pertaining to the Labor Commissioner's subsequent deletion of the
classification of soils tester from the prevailing wage list. We note, however, that such an action seems to be a
mere formality in the wake of the Labor Commissioner's decision in this case as it was apparent from the Labor
Commissioner's decision that no soils tester was entitled to be paid the prevailing wage.

20
100 Nev. 509, 517, 685 P.2d 1385, 1390-91 (1984).
........................................
Accordingly, the Labor Commissioner's decision is invalid, and we reverse the district
court's order denying the Trust's petition for judicial review and remand for further
proceedings.
____________
121 Nev. 533, 533 (2005) Mineral County v. State, Bd. Equalization
MINERAL COUNTY; MINERAL COUNTY BOARD OF COMMISSIONERS; and
MINERAL COUNTY ASSESSOR, Appellants, v. THE STATE OF NEVADA,
BOARD OF EQUALIZATION and DAY & ZIMMERMAN HAWTHORNE
CORPORATION, Respondents.
No. 40609
September 15, 2005 119 P.3d 706
Appeal from a district court order dismissing petitions for judicial review of Nevada State
Board of Equalization decisions. First Judicial District Court, Carson City; Michael R.
Griffin, Judge.
County filed petitions for judicial review under Administrative Procedure Act (APA),
challenging decision of State Board of Equalization that resulted in decrease in taxable value
of real property. Board and taxpayer jointly moved to dismiss. The district court granted
motion. County appealed. The supreme court, Maupin, J., held that a county may petition for
judicial review of State Board's determination under APA.
Hardesty, J., with whom Becker, C. J., and Douglas, J., agreed, dissented.
Andrew A. List, Carson City; Rachel H. Nicholson, Canonsburg, Pennsylvania, for
Appellants.
Brian Sandoval, Attorney General, and Dawn Nala Kemp, Deputy Attorney General,
Carson City, for Respondent State Board of Equalization.
Hawkins Folsom & Muir and Gordon R. Muir, Reno, for Respondent Day & Zimmerman
Hawthorne Corporation.
Noel Waters, District Attorney, and Mary-Margaret Madden, Deputy District Attorney,
Carson City, for Amicus Curiae Carson City County Assessor.
........................................
1. Taxation.
A county may petition for judicial review of property tax determination of State
Board of Equalization under the Administrative Procedure Act (APA). NRS
233B.130(1), 361.420.
Construction of a statute is a question of law, which the supreme court reviews de
novo.
3. Statutes.
The supreme court interprets statutes according to their plain meaning unless such an
interpretation would run contrary to the spirit of the statutory scheme.
4. Statutes.
Potentially conflicting statutes are harmonized whenever possible.
OPINION
In this appeal, we consider whether a county may seek judicial review of decisions issued
by the State Board of Equalization (State Board) under NRS Chapter 233B, the Nevada
Administrative Procedure Act (APA). We conclude that it may.
Day & Zimmerman Hawthorne Corporation (DZHC) contracts with the federal
government to manage and maintain the Hawthorne Ammunition Depot in Mineral County,
Nevada. DZHC disputed Mineral County's valuations of the depot for tax years 1998-1999
and 2000-2001. As a result, the State Board reviewed the County's valuations and issued two
decisions resulting in a substantial net decrease in taxable value. Shortly thereafter, the
County filed separate petitions for judicial review under the APA. The State Board and
DZHC moved jointly to dismiss the petitions. The district court granted the motions,
concluding that NRS 361.420, which specifies procedures for property owner appeals of
State Board determinations, impliedly prohibits challenges to State Board determinations by
persons or entities other than property owners. Mineral County appeals.
As NRS 361.420 is silent with regard to a county's ability to seek judicial review of State
Board decisions, we hold that a county may petition for judicial review of such
determinations under the APA, in particular, NRS 233B.130(1). Accordingly, we reverse the
district court's order.
........................................
DISCUSSION
[Headnotes 1-4]
Construction of a statute is a question of law, which this court reviews de novo.
1
This
court interprets statutes according to their plain meaning unless such an interpretation would
run contrary to the spirit of the statutory scheme.
2
Potentially conflicting statutes are
harmonized whenever possible.
3

The County claims authority to challenge State Board decisions under NRS 233B.130(1),
which addresses an aggrieved party's ability to obtain judicial review of a state agency
decision, as follows:
1. Any party who is:
(a) Identified as a party of record by an agency in an administrative proceeding; and
(b) Aggrieved by a final decision in a contested case,
is entitled to judicial review of the decision.
Relying upon language from NRS 233B.020(2), stating that [t]he provisions of [NRS
Chapter 233B] are intended to supplement statutes applicable to specific agencies, the
County argues that the APA simply augments the taxpayer appeal provisions of NRS Chapter
361, thus permitting local government entities to petition for judicial review.
The State Board responds that a reading of other language within the APA requires
deference to the more specific administrative procedures set forth in NRS Chapter 361. In
this, the State Board relies upon the statement in NRS 233B.020(2) that [NRS Chapter
233B] does not abrogate or limit additional requirements imposed on such agencies by statute
or otherwise recognized by law, and further upon NRS 361.420(2), which provides that
property owners may institute an action if denied relief by the State Board:
The property owner, having protested the payment of taxes as provided in subsection 1
and having been denied relief by the State Board of Equalization, may commence a suit
in any court of competent jurisdiction in the State of Nevada against the State and
county in which the taxes were paid . . . .
The State Board argues that NRS 361.420(2), when read with NRS 233B.020(2), specifically
limits district court jurisdiction over its decisions to petitions for judicial review brought by
taxpayers or property owners.
____________________

1
Gilman v. State, Bd. of Vet. Med. Exam'rs, 120 Nev. 263, 271, 89 P.3d 1000, 1005-06 (2004).

2
University Sys. v. Nevadans for Sound Gov't, 120 Nev. 712, 731, 100 P.3d 179, 193 (2004).

3
Beazer Homes Nevada, Inc. v. Dist. Ct., 120 Nev. 575, 587, 97 P.3d 1132, 1140 (2004).
........................................
decisions to petitions for judicial review brought by taxpayers or property owners. The State
Board underscores its argument by reference to NRS 361.410(1), which states in part that
[n]o taxpayer may be deprived of any remedy or redress in a court of law relating to the
payment of taxes, but all such actions must be for redress from the findings of the State Board
of Equalization. (Emphasis added.)
Given the discrete language governing NRS Chapter 361 challenges to State Board
decisions, the State Board argues that NRS Chapter 361 procedures preempt the APA under
the fundamental principles of statutory construction; here, that statutes specific to particular
sets of circumstances take precedence over statutes of general application.
4
From this, as
stated, the State Board reasons that NRS 361.410(1) and NRS 361.420(2) exclusively govern
judicial review of State Board decisions, thus depriving local governments of a medium for
review when such decisions are adverse to them. We disagree.
NRS 361.410(1) and NRS 361.420(2) provide a specific mechanism for taxpayers to
protest State Board valuations. Neither explicitly precludes local governments from doing so.
5
And neither abrogates or limits the rights of property holders to challenge State Board
decisions. Thus, even though NRS 361.410(1) and NRS 361.420(2) include specific
provisions concerning taxpayer protections, these statutes do not take precedence over the
APA under these circumstances, as they do not expressly govern the rights of a local
government such as Mineral County. Consequently, we conclude that the provisions of NRS
Chapter 361 supplement, rather than preempt, the provisions of NRS Chapter 233B,
particularly NRS 233B.130(1)'s provision that an aggrieved party may petition for judicial
review of an agency decision. This interpretation is optimal because it permits harmonious
construction of NRS Chapter 233B and NRS Chapter 361.
Policy reasons also support our decision on this issue. For instance, denying a county's
right to judicial review would allow the State Board to set binding precedent regarding
state tax legislation, which could subject county citizens to an unjust outcome and an
inequitable distribution of taxes in the event of an incorrect interpretation and application
of law.
____________________

4
See SIIS v. Miller, 112 Nev. 1112, 1118, 923 P.2d 577, 580 (1996).

5
The State Board asserts that the Legislature's explicit provision for county petitions seeking judicial review
of Nevada Tax Commission decisions under NRS 360.245(7) demonstrates legislative intent to preclude county
petitions for judicial review of State Board decisions. We disagree and conclude that had the Legislature
intended to preclude county petitions of State Board decisions, it could have explicitly stated that intent.
We also reject the State Board's assertion that the history of legislation introduced during the 2005 legislative
session as S.B. 186demonstrating that the bill died in committeedetermines the issue presented in this
case. An uncontradicted affidavit submitted by a proponent of the bill, who also represents Mineral County in
this case, indicates that the proponents withdrew the bill before the Legislature could fully consider it.
........................................
State Board to set binding precedent regarding state tax legislation, which could subject
county citizens to an unjust outcome and an inequitable distribution of taxes in the event of
an incorrect interpretation and application of law. Further, interpreting NRS Chapter 361 as
restricting a local government's right to seek judicial review of a State Board decision would
leave local governments without a remedy in such instances.
CONCLUSION
As NRS 361.420 presents no barrier to a county's right to seek judicial review of a State
Board decision, Mineral County may seek judicial review under NRS 233B.130(1).
Accordingly, we reverse the district court's order dismissing Mineral County's petitions and
remand this case for proceedings consistent with this opinion.
Gibbons and Parraguirre, JJ., concur.
Rose, J., concurring:
Any party aggrieved by an administrative decision may appeal the decision to the district
court for judicial review.
1
This is a time-honored right rooted in fairness and procedural due
process. The Legislature was well aware of the statutory real property taxation scheme set
forth in NRS Chapter 361 when it enacted NRS 233B.130(1) and the Administrative
Procedure Act. Had it wanted to expressly eliminate a county's right to appeal from an
administrative decision, it certainly could have done so. The Legislature was not silent on
permitting a county to appeal from an adverse decision of the Board of Equalization as the
dissent claims because the Legislature has passed the overarching Administrative Procedure
Act that specifically provides for the right of all parties to appeal from an adverse
administrative decision.
This court has previously emphasized the general proposition that an agency should be
permitted to appeal an adverse administrative decision. In State, Department of Motor
Vehicles v. McGuire, a hearing officer ruled after a license revocation hearing that the
allegedly drunk driver was entitled to a seven-day temporary driving permit.
2
The
Department of Motor Vehicles appealed the decision to the district court, where the driver
asserted that the Department did not have the right to appeal under NRS 233B.130 since the
law allowed only a person and not an agency to seek judicial review. This court concluded
that the amendment to NRS 233B.130 the succeeding year changed person to party and
showed an intent to retroactively modify the statute.
____________________

1
NRS 233B.130(1).

2
108 Nev. 182, 827 P.2d 821 (1992).
........................................
and showed an intent to retroactively modify the statute. This court then went on to state:
Finally, [t]he right of appeal . . . should not be taken away unless clearly intended by the
statute. Any doubt about the construction of statutes regulating the right of appeal should be
resolved in favor of allowing an appeal.'
3
No statute states that the counties are denied an
appeal from a decision of the State Board of Equalization.
The dissent claims that permitting the county to appeal is an absurd result, even though
each party is given the right to appeal under a specific section of Nevada law. Rather than
absurd, I find that permitting both parties to appeal an administrative decision a
fundamentally fair process. These two statutes can be harmonized by simply following our
prior decisions and resolving this dispute in favor of allowing an appeal.
4

Hardesty, J., with whom Becker, C. J., and Douglas, J., agree, dissenting:
Only taxpayers, not counties, may sue to challenge the decisions of the State Board of
Equalization under the Legislature's specific statutory scheme to equalize the value of real
property.
Nevada's Constitution directs the Legislature to provide by law for a uniform and equal
rate of assessment and taxation, and shall prescribe such regulations as shall secure a just
valuation for taxation of all [real property].
1
Accordingly, the Legislature adopted NRS
Chapter 361 to provide for the assessment and equalization of the value of real property. That
statutory scheme specifies the timing and procedures for valuing real property for tax
purposes beginning with initial determinations by each county assessor. Taxpayers who claim
inequity or erroneous valuation of their property may appeal the county assessor's valuation to
the county board of equalization.
2
The taxpayer or the county assessor may thereafter appeal
the county board's decision to the State Board of Equalization.
3

Contrary to the majority's claim that the right of appeal statutes do not abrogate or limit the
rights of property holders to appeal, the Legislature imposes several requirements for a
taxpayer to seek judicial review of the State Board of Equalization decision. To challenge the
findings of the State Board of Equalization,
4
the taxpayer must pay and protest any
disputed taxes.
____________________

3
Id. at 184, 827 P.2d at 822 (quoting Thompson v. District Court, 100 Nev. 352, 355, 683 P.2d 17, 19
(1984)).

4
Id.

1
Nev. Const. art. 10, 1(1).

2
NRS 361.356(1); NRS 361.357(1).

3
NRS 361.360(1).

4
NRS 361.410(1).
........................................
taxpayer must pay and protest any disputed taxes.
5
In any action in district court, the
taxpayer bears the burden to show by clear and satisfactory evidence that any valuation
established by the county assessor, county board of equalization or State Board of
Equalization is unjust and inequitable.
6
This burden is deemed to create the presumption that
the valuation placed on the property is reasonable.
7

Nowhere in this statutory scheme, however, does the Legislature grant authority to a
county to seek judicial review of State Board of Equalization decisions. When intended, the
Legislature has expressly enumerated the appeal rights of a county. When the Legislature is
silent, this court should not fill in alleged legislative omissions based on conjecture as to
what the legislature would or should have done.'
8
As noted, the Legislature has expressly
granted the county assessor the right to appeal decisions of the county board of equalization
to the State Board of Equalization.
9
In NRS Chapter 360, a related chapter on taxation, the
Legislature has determined that where a county is a party and is aggrieved by the decision of
the Nevada Tax Commission, it may seek judicial review.
10
The Legislature's silence on the
County's right to appeal in this instance cannot be viewed as an expression of its intention to
grant such a right.
The County relies on NRS 233B.130(1) for authority to seek judicial review. I disagree for
three reasons.
First, NRS 233B.130(1) declares that any aggrieved party can seek judicial review of a
final decision of an administrative agency. Therefore, if the County can rely on this statute for
authority to seek judicial review, then the taxpayer should be able to do so as well. But, as
noted, the Legislature has imposed a number of requirements on the taxpayer before seeking
judicial review that are not present in NRS 233B.130(1). Accepting the County's
interpretation of NRS 233B.130(1) would lead to an absurd result that violates the canon of
statutory construction that requires statutes to be read in harmony but promotes the use of a
specific statute over that of a general statute where they pertain to the same topic.
____________________

5
NRS 361.420(1), (2).

6
NRS 361.410(2); NRS 361.430.

7
Pittsburg Silver Peak v. Tax Commission, 49 Nev. 46, 52, 235 P. 643, 644 (1925); Washoe County v.
Golden Road Motor Inn, 105 Nev. 402, 406, 777 P.2d 358, 360 (1989); Imperial Palace v. State, Dep't
Taxation, 108 Nev. 1060, 1066, 843 P.2d 813, 817 (1992); Sun City Summerlin v. State, Dep't Tax., 113 Nev.
835, 842, 944 P.2d 234, 238 (1997).

8
Falcke v. Douglas County, 116 Nev. 583, 589, 3 P.3d 661, 665 (2000) (quoting McKay v. Board of Cty.
Comm'r, 103 Nev. 490, 492, 746 P.2d 124, 125 (1987)).

9
NRS 361.360(1).

10
NRS 360.245(7).
........................................
over that of a general statute where they pertain to the same topic.
11
Under the County's
view, either we must accept that NRS 233B.130(1) applies to only one party, the County, or
we must allow the taxpayer to rely on the same provision and avoid the onerous burden of
proof and the necessity to protest and pay taxes as a condition to appeal.
Second, a proper application of the rule of statutory construction, that specific statutes
dealing with a subject matter take precedence over statutes of general application, shows that
NRS 233B.130(1) does not apply. That rule of statutory construction provides that a special
provision dealing with a particular subject is controlling and preferred to a provision relating
only in general terms to the same subject.
12
There can be little question that NRS Chapter
361 deals expressly and in detail with the procedures for determining the assessment and
valuation of real property. The provisions of the Administrative Procedure Act (APA), at
most, supplement NRS Chapter 361.
13
The statutory scheme of NRS Chapter 361 creates a
very specific process for resolving inequity and valuation questions including the imposition
of an onerous burden of proof on the taxpayer. If the APA were controlling on the issue of
judicial review, the statutory procedures and evidentiary burdens in NRS Chapter 361 would
be abrogated.
Finally, this court has previously held that where the APA departs from a specific statutory
scheme, the specific scheme controls. In Sierra Life Insurance Co. v. Rottman, we concluded
that NRS 680A.190, giving the Commissioner of Insurance authority to summarily revoke a
certificate of authority, took precedence over NRS 233B.020, which requires an agency to
provide notice and an opportunity to be heard to show compliance to the licensee before
revocation.
14

The majority also points to policy reasons to support its decision. In construing statutes,
this court's objective is to give effect to the Legislature's intent.
15
When the language of the
statute is ambiguous or silent on a particular issue, it should be construed in accordance with
what reason and public policy would indicate the legislature intended.
16
The policies cited
by the majority ignore the fact that counties are subordinate instrumentalities created by the
State to exercise such governmental powers as are entrusted to them.
____________________

11
W. R. Co. v. City of Reno, 63 Nev. 330, 337, 172 P.2d 158, 161 (1946).

12
Id.

13
NRS 233B.020(2).

14
95 Nev. 654, 656, 601 P.2d 56, 57-58 (1979).

15
Davenport v. Comstock HillsReno, 118 Nev. 389, 392 n.4, 46 P.3d 62, 64 n.4 (2002).

16
Id. (internal quotation marks omitted).
........................................
them.
17
The Legislature did not entrust the County with authority to challenge State Board of
Equalization decisions. Further, subordinate government entities lack Fourteenth Amendment
due process rights.
18
Therefore, the County is not entitled to remedy an alleged error in an
adverse ruling of the State Board of Equalization in the absence of a specific statutory grant
of authority to appeal. If this court must consider public policy to decide this case, we should
conclude that it is contrary to public policy, and thus contrary to the Legislature's intent, to
compel a taxpayer to defend a favorable decision from the State Board of Equalization
against a county appeal.
____________
121 Nev. 541, 541 (2005) State, Dep't of Taxation v. DaimlerChrysler
DEPARTMENT OF TAXATION, Appellant, v. DAIMLERCHRYSLER SERVICES
NORTH
AMERICA, LLC, fka CHRYSLER FINANCIAL COMPANY, LLC, Respondent.
No. 42117
September 15, 2005 119 P.3d 135
Appeal from a district court order granting respondent's petition for judicial review of an
administrative decision denying respondent's application for a tax refund under Nevada's
bad-debt collection statute. First Judicial District Court, Carson City; William A. Maddox,
Judge.
Finance company that provided financing of retail motor vehicle purchases which went
into default petitioned for judicial review of decision of Tax Commission upholding
Department of Taxation's denial of company's application for a tax refund under bad-debt
collection statute. The district court granted petition. Department of Taxation appealed. The
supreme court, Rose, J., held that company could not obtain sales tax refund.
Reversed.
Maupin and Hardesty, JJ., dissented.
Brian Sandoval, Attorney General, and Joshua J. Hicks, Senior Deputy Attorney General,
Carson City, for Appellant.
____________________

17
First Nat. Bk. of S.F. v. Nye Co., 38 Nev. 123, 134-35, 145 P. 932, 936 (1914); Reynolds v. Sims, 377 U.S.
533, 575 (1964).

18
City of Boulder City v. State of Nevada, 106 Nev. 390, 392, 793 P.2d 845, 846 (1990); State ex rel. List v.
County of Douglas, 90 Nev. 272, 280, 524 P.2d 1271, 1276 (1974) (stating that a county may not invoke
proscriptions of the Fourteenth Amendment against the will of its creator, the State).
........................................
Kolesar & Leatham, Chtd., and Kenneth A. Burns, Las Vegas; Akerman Senterfitt and
Peter O. Larsen and David E. Otero, Jacksonville, Florida, for Respondent.
Questions of statutory construction, including the meaning and scope of a statute, are
questions of law, which supreme court reviews de novo.
2. Statutes.
When the language of a statute is unambiguous, supreme court gives that language
its ordinary meaning unless it is clear that this meaning was not intended.
3. Taxation.
Company that provided primary financing of retail motor vehicle purchases which
went into default could not obtain sales tax refund under bad-debt collection statute,
even though vehicle retailers, which remitted sales tax, assigned all of their rights to
finance company because there was no express statutory provision permitting
assignment and granting an assignee the benefit of the tax credit, anti-assignment
statute only afforded relief to persons who paid tax in the first instance, and having
never incurred a sales tax liability, finance company could develop no sales tax liability
balance against which the credit would be applied. NRS 372.365(5).
4. Taxation.
Retailer is responsible for remitting sales tax to the State. NRS 372.050.
5. Taxation.
Plain meaning of a tax statute will prevail over general principles of assignment
unless there is an express provision permitting the assignment and granting an assignee
the benefit of the tax credit.
6. Statutes.
Omissions of subject matters from statutory provisions are presumed to have been
intentional.
OPINION
In this case, we consider whether a person who provides primary financing of a retail sale
may exercise the retailer's right to sales tax refunds from the State under Nevada's bad-debt
statute, NRS 372.365(5). We conclude that the statute unambiguously precludes a finance
company from obtaining tax refunds and therefore reverse.
Respondent, DaimlerChrysler Services North America, LLC, financed numerous retail
motor vehicle purchases within the State of Nevada. Under these arrangements, the
purchasers agreed to repay all or part of the purchase price, including a pro rata portion of
sales tax incurred, on an installment or credit basis.
........................................
all or part of the purchase price, including a pro rata portion of sales tax incurred, on an
installment or credit basis. As part of these sales, the dealers assigned to DaimlerChrysler all
of the dealers' rights associated with the contracts without recourse. In exchange for the
assignments, DaimlerChrysler paid the dealers the full amount financed under the contracts,
including the full amount of sales tax. From this amount, the dealers remitted the sales tax to
the Nevada Department of Taxation (Department). The contracts at issue eventually went into
default and, after exhausting collection and repossession efforts, DaimlerChrysler determined
that the unpaid balances were uncollectible. It ultimately claimed the unpaid amounts as
bad-debt deductions on its federal income tax returns for the years 1997 through 1999.
DaimlerChrysler applied to the Department under NRS 372.365(5) for a sales tax refund
proportionate to the unpaid amounts. The Department denied the refund request, and an
administrative hearing officer later denied a petition for redetermination. DaimlerChrysler
then appealed to the Nevada Tax Commission (Commission), which unanimously upheld the
hearing officer's decision. Subsequently, the district court granted DaimlerChrysler's petition
for judicial review, concluding that DaimlerChrysler was entitled to a sales tax refund. The
Department appeals.
DISCUSSION
The Department argues on appeal that DaimlerChrysler does not qualify for bad-debt relief
under NRS 372.365(5).
1
We agree.
[Headnotes 1, 2]
[Q]uestions of statutory construction, including the meaning and scope of a statute, are
questions of law, which this court reviews de novo.
2
When the language of a statute is
unambiguous, this court gives that language its ordinary meaning unless it is clear that this
3

5. If a retailer:
(a) Is unable to collect all or part of the sales price of a sale, the amount of which
was included in the gross receipts reported for a previous reporting period; and
____________________

1
NRS 372.365(5) will be repealed and replaced, effective January 1, 2006, by NRS 372.368. See 2003 Nev.
Stat., ch. 400, 46, 57, at 2366-67, 2370.

2
City of Reno v. Reno Gazette-Journal, 119 Nev. 55, 58, 63 P.3d 1147, 1148 (2003).

3
Harris Assocs. v. Clark County Sch. Dist., 119 Nev. 638, 641-42, 81 P.3d 532, 534 (2003).
........................................
(b) Has taken a deduction on his federal tax return pursuant to 26 U.S.C. 166(a) for
the amount which he is unable to collect,
he is entitled to receive a credit for the amount of sales tax paid on account of that
uncollected sales price.
To summarize, this statute allows for relief if (1) the entity requesting the relief is a retailer,
(2) the retailer is unable to collect all or part of the sales price, (3) the sale was included in
gross receipts, and (4) the retailer has taken a deduction on its federal income tax equal to the
uncollectible amount. NRS 372.055 defines retailers for the purposes of NRS Chapter 372 as
[e]very seller who makes any retail sale or sales of tangible personal property, and [e]very
person making more than two retail sales of tangible personal property during any 12-month
period.
4
NRS 372.040 defines persons as including, among others, individuals, firms or
assignees.
[Headnote 3]
DaimlerChrysler argues that, as the retailers' assignee, it stands in the retailers' shoes for
the purpose of sales tax refunds under NRS 372.365(5). Because this court has not had
occasion to reach this question, DaimlerChrysler asks that we embrace Puget Sound National
Bank v. Department of Revenue, in which the Washington Supreme Court addressed a statute
similar to NRS 372.365(5).
5
The statutory scheme at issue in Puget Sound entitled retail
sellers to a credit or refund for sales taxes previously paid on debts which are deductible as
worthless for federal income tax purposes,
6
defined sellers as person[s] making retail
sales,
7
and defined a person as including an assignee.
8
Within that framework, the court
determined that third-party financing entities given rights under retail credit assignment
agreements were eligible to claim bad-debt sales tax refunds.
9

We decline to adopt the Washington approach in this instance. Most states confronted with
a finance company's claim that it is entitled to a bad-debt tax credit have denied the finance
company relief for a variety of reasons.
10
Like Washington, Ohio's bad-debt statutes are
similar to Nevada's in that they include an "assignee" in the definition of a "person."
____________________

4
NRS 372.055(1)(a), (c) (emphasis added).

5
868 P.2d 127, 129 (Wash. 1994).

6
Wash. Rev. Code 82.08.037.

7
Id. 82.08.010(2).

8
Id. 82.04.030.

9
See Puget Sound, 868 P.2d at 132.

10
See, e.g., DaimlerChrysler v. Weiss, No. 04-284, 2004 WL 2904685 (Ark. Dec. 16, 2004); Weiss v.
American Honda, No. 04-617, 2004 WL 2904680 (Ark. Dec. 16, 2004); Chrysler Financial Co., L.L.C. v.
Wilkins, 812 N.E.2d 948 (Ohio 2004); In re Appeal of Ford Motor Credit Co., 69 P.3d 612
........................................
statutes are similar to Nevada's in that they include an assignee in the definition of a
person.
11
The Ohio court, in Chrysler Financial Co., L.L.C. v. Wilkins, strictly interpreted
its statute in denying a finance company relief because the statute was granting something
similar to a tax exemption, which it concluded should be strictly interpreted.
12
Other states
that have considered a finance company's claim to a bad-debt credit have also used strict
construction of the statute to deny the requested relief.
13

The most recent case on the subject from the Connecticut Supreme Court
14
rejected the
same argument made by the respondent in this case by relying, in part, on strict statutory
construction. The Connecticut court first stated that:
The general rule of construction in taxation cases is that provisions granting a tax
exemption are to be construed strictly against the party claiming the exemption. . . .
Exemptions, no matter how meritorious, are of grace, and must be strictly construed.
They embrace only what is strictly within their terms.
15

It went on to observe that the right to assign the retail tax credit was not expressly given by
the state legislature to anyone and therefore it is a common-law right to assignment that
DaimlerChrysler claimed. And, between a general common-law right to assign and the
statutory right to a tax credit, the Connecticut court concluded that the principle of strict
statutory construction of tax statutes must prevail.
The common thread among most of the decisions cited by the plaintiff is that they
reach their conclusion based on common-law principles of assignment without regard
for the general rules for construing tax provisions. Our approach, however, is in accord
with the majority of jurisdictions that have considered the statutory origin of the right to
tax relief.
____________________
(Kan. 2003); DaimlerChrysler v. State Tax Assessor, 817 A.2d 862 (Me. 2003); Department of Revenue v. Bank
of America, 752 So. 2d 637 (Fla. Dist. Ct. App. 2000); General Motors Acceptance v. Jackson, 542 S.E.2d 538
(Ga. Ct. App. 2000); Suntrust Bank, Nashville v. Johnson, 46 S.W.3d 216 (Tenn. Ct. App. 2000).

11
Chrysler Financial, 812 N.E.2d at 951; DaimlerChrysler, 817 A.2d at 866.

12
Chrysler Financial, 812 N.E.2d at 950.

13
Weiss, 2004 WL 2904680, at *2; DaimlerChrysler, 2004 WL 2904685, at *2; General Motors Acceptance,
542 S.E.2d at 541; Bank of America, 752 So. 2d at 644; In re Appeal of Ford Motor Credit Co., 69 P.3d at 620;
Suntrust Bank, 46 S.W.3d at 224.

14
DaimlerChrysler Services v. CIR, 875 A.2d 28, 30-36 (Conn. 2005).

15
Id. at 32 (quoting Interlude, Inc. v. Skurat, 831 A.2d 235, 241-42 (Conn. 2003)).
........................................
We similarly conclude that, absent an express indication from the legislature that such a
right could be assigned, the plaintiff cannot invoke the tax credit by virtue of its status
as an assignee.
16

We conclude that the plain meaning of NRS 372.365(5) compels the same result as that
reached in the Ohio and Connecticut cases.
17

[Headnote 4]
In two other recent cases, the Arkansas Supreme Court determined that a finance company
was not entitled to a tax credit because it was not the entity responsible for paying the tax.
18
Instead, under the statute, the actual motor vehicle consumer was responsible for paying the
taxes.
19
Similarly, in Nevada, the retailer is responsible for remitting the sales tax to the
state.
20
Further, the bad-debt statute makes no reference to entities providing retail credit
financing. Therefore, only the original retailers, and not the finance companies lending money
for the purchase, should be allowed to claim the tax credit.
Additionally, Nevada's statutory scheme differs from that at issue in Puget Sound in that
NRS Chapter 372 includes an anti-assignment statute. NRS 372.700 states:
A judgment may not be rendered in favor of the plaintiff in any action brought against
the Department to recover any amount paid when the action is brought by or in the
name of an assignee of the person paying the amount or by any person other than the
person who paid the amount.
____________________

16
Id. at 39 (citing, among other cases, Department of Revenue v. Bank of America, 752 So. 2d 637, 643 (Fla.
Dist. Ct. App. 2000) ([s]ince the issue in this case involves a tax refund, general principles of statutory
construction, together with the principles governing proper construction of tax statutes, should prevail over
general assignment principles); General Elec. Capital v. New York State, 754 N.Y.S.2d 84, 86 (App. Div.
2003) (It cannot be doubted that the statute, as written, refers to credits or refunds only to vendors inasmuch as
only vendors are possessed of taxable receipts.' Accordingly, there was nothing irrational in promulgating [a
statute] which limited such credits or refunds to vendors and excluded third-party assignees. (citation omitted));
and In re Appeal of Ford Motor Credit Co., 69 P.3d 612, 621 (Kan. 2003) (Although not specifically limited to
the retailer paying the [sales] tax, the definition of retailer [in the relevant statute and regulation] is not broad
enough to include the assignee of such retailer. We will not extend by implication the clear import of that
definition to include an assignee of the retailer.)).

17
Chrysler Financial, 812 N.E.2d at 950; DaimlerChrysler Services, 875 A.2d at 40.

18
Weiss, 2004 WL 2904680, at *1; DaimlerChrysler, 2004 WL 2904685, at *1.

19
Weiss, 2004 WL 2904680, at *3; DaimlerChrysler, 2004 WL 2904685, at *3.

20
NAC 372.050; Bing Constr. v. State, Dep't of Taxation, 109 Nev. 275, 279, 849 P.2d 302, 304 (1993).
........................................
(Emphasis added.) By its explicit terms, Nevada's anti-assignment statute only affords relief
to persons who paid the taxes in the first instance. Applying the plain meaning of this statute,
as we have concluded we must, DaimlerChrysler's refund claims fail because it never paid
any sum by way of sales tax to the Department during the period at issue.
Going further, the statute explicitly provides relief in the form of a credit, not a refund.
21
The State explains that, under the previous statutory construct, a bad-debt credit actually
operated as a refund. However, in 1997, the Legislature amended the statute and clarified that
when a retailer is unable to collect previously paid sales taxes, that retailer is entitled to a
credit against ongoing sales tax obligations.
22
The use of the word credit in a similar
statute was enough to persuade the Maine Supreme Court to conclude that only retailers with
sales tax liability could avail themselves of the statute.
23
In that case, the court determined
DaimlerChrysler to be ineligible for the bad-debt credit in part because there was no evidence
it had any existing sales tax liability.
24
This reasoning is persuasive. Under the basic claims
provision governing this controversy, the retailer, not the lender, physically forwards tax
payments to the Department and incurs future obligations as sales continue against which
credit may be assessed. Third-party lenders such as DaimlerChrysler never develop such
balances with the Department. Thus, the provision's use of the credit device for relief
structurally eliminates third-party lenders from its protection.
[Headnote 5]
DaimlerChrysler claims that it is entitled to the relief requested because the definition of a
retailer includes any person engaged in retail sales, and the definition of a person
includes an assignee.
25
We disagree. First, it should be noted that these definitions are
contained at the beginning of NRS Chapter 372, the Sales and Use Tax Act, and apply
generally to the entire Act; they are not specifically tailored to the bad-debt provisions
contained later in the Act. Second, we have already concluded that the plain meaning of a tax
statute will prevail over general principles of assignment unless there is an express provision
permitting the assignment and granting an assignee the benefit of the tax credit. Nevada law
contains no such express provision, and we have previously held that a tax exemption
should be strictly construed.
____________________

21
NRS 372.365(5).

22
1997 Nev. Stat., ch. 304, 1, at 1105.

23
DaimlerChrysler, 817 A.2d at 865. Contra Suntrust Bank, 46 S.W.3d at 220 n.1.

24
DaimlerChrysler, 817 A.2d at 865.

25
See NRS 372.040; NRS 372.055.
........................................
held that a tax exemption should be strictly construed.
26
Third, piling definition upon
definition in order to reach the conclusion in this case that DaimlerChrysler was entitled to
the bad-debt tax credit produces a distorted view of the facts at hand. The bad-debt tax credit
is given to a retailer who included the sales in its gross receipts. DaimlerChrysler was not a
retailer for these purposes. We should not permit the bootstrapping of several broad
definitions to unreasonably distort the uncontested facts of a case or defeat a clear statutory
directive.
[Headnote 6]
Even if we assume that the statute is ambiguous, the statute's legislative history and a host
of statutory construction principles combine to repel DaimlerChrysler's claim. This court has
held that an agency's opinion on the application of an ambiguous statute should be given
deference
27
and undoubtedly the Department does not believe DaimlerChrysler is entitled to
any bad-debt credit. Nevada law also provides that omissions of subject matters from
statutory provisions are presumed to have been intentional.
28
Here, the Legislature could
have clearly provided that those financing a retailer's sale were entitled to the bad-debt tax
credit, but it did not do so.
The legislative history of NRS 372.365(5) also indicates that the bad-debt credit should
not be available to finance companies. In discussions about this statute before the Assembly
Committee on Taxation, Assemblyman John Marvel asked Mary Lau, executive director of
the Retailers Association of Nevada, if she had developed any figures on uncollected debts
during any one year on the original fiscal note.
29
Ms. Lau replied that they had adjusted the
fiscal note and [t]hey also did it only for the retailer that sold the goods; it was not for third
party credit.
30
Mr. Marvel then stated that he understood that the first retailer was
responsible for collecting the tax and remitting it to the Department and [s]ubsequently the
retailer would file for a refund if the debt [was] not collectible.
31
He was informed that that
was the way the law was written and passed the last session, "but now it would be a credit
against the tax" and immediately due and payable.
____________________

26
Sierra Pac. Power v. Department Taxation, 96 Nev. 295, 297, 607 P.2d 1147, 1148-49 (1980).

27
See Imperial Palace v. State, Dep't Taxation, 108 Nev. 1060, 1067, 843 P.2d 813, 818 (1992).

28
See Galloway v. Truesdell, 83 Nev. 13, 26, 422 P.2d 237, 246 (1967) (The maxim EXPRESSIO UNIUS
EST EXCLUSIO ALTERIUS', the expression of one thing is the exclusion of another, has been repeatedly
confirmed in this State.).

29
Hearing on A.B. 535 Before the Assembly Taxation Comm., 69th Leg. (Nev., June 12, 1997).

30
Id.

31
Id.
........................................
written and passed the last session, but now it would be a credit against the tax and
immediately due and payable.
32
Because the statutory credit can only be assessed against a
preexisting sales tax liability, the measure's legislative history validates the Department's
contention that these credits are provided exclusively for the benefit of the retailer. As noted,
having never incurred a sales tax liability, the third-party lender can develop no sales tax
liability balance against which the credit would be applied.
CONCLUSION
NRS 372.365(5) does not afford DaimlerChrysler bad-debt relief. Accordingly, we reverse
the district court's order granting DaimlerChrysler's petition for judicial review.
Becker, C. J., Gibbons, Douglas and Parraguirre, JJ., concur.
Maupin, J., dissenting:
I dissent to the result reached by the majority. In my view, as stated by Justice Hardesty,
DaimlerChrysler qualifies as a retailer under Chapter 372 of the Nevada Revised Statutes.
Also, in my view, DaimlerChrysler was the entity/person who actually paid the entirety of the
sales taxes to the Nevada Department of Taxation under NRS 372.700. Thus,
DaimlerChrysler is entitled to bad-debt relief under NRS 372.365(5).
Hardesty, J., dissenting:
In my view, the district court correctly concluded that the bad-debt statute, NRS
372.365(5), in the Nevada Sales and Use Tax Act, applies to providers of installment retail
credit.
[Q]uestions of statutory construction, including the meaning and scope of a statute, are
questions of law, which this court reviews de novo.
1
When the language of a statute is
unambiguous, this court gives that language its ordinary meaning unless it is clear that this
2

NRS 372.365(5) provides as follows:
5. If a retailer:
(a) Is unable to collect all or part of the sales price of a sale, the amount of which
was included in the gross receipts reported for a previous reporting period; and
____________________

32
Id.

1

2
Harris Assocs. v. Clark County Sch. Dist., 119 Nev. 638, 641-42, 81 P.3d 532, 534 (2003).
........................................
(b) Has taken a deduction on his federal tax return pursuant to 26 U.S.C. 166(a) for
the amount which he is unable to collect,
he is entitled to receive a credit for the amount of sales tax paid on account of that
uncollected sales price. The credit may be used against the amount of sales tax that the
retailer is subsequently required to pay pursuant to this chapter.
DaimlerChrysler satisfies each of the four elements summarized by the majority to qualify
for bad-debt relief under NRS 372.365(5). Neither the statute nor its application in this case is
ambiguous. The majority does not dispute DaimlerChrylser's claim that it was unable to
collect all or part of the sales price, that the sales in question were included in the retailer's
gross receipts reported to the Department, or that it took a deduction for the uncollectible
amount on its federal income tax return. To reach its result, however, the majority concludes
that DaimlerChrysler is not a retailer under the Sales and Use Tax Act.
NRS 372.055(1)(c) defines retailers to include [e]very person making more than two
retail sales during any 12-month period.
3
NRS 372.040 defines person under this statutory
scheme as including, among others, assignees. The majority asserts that these statutory
definitions are not specifically tailored to the bad-debt statute. However, NRS 372.015 makes
clear that the definitions given in NRS 372.020 to 372.095, inclusive, govern the
construction of the Sales and Use Tax Act. Further, this court presumes that the Legislature
is aware of the relevant statutory scheme when it enacts a piece of legislation.
4
Because the
bad-debt statute is part of Chapter 372 and incorporates terms such as retailer that are
defined elsewhere within Chapter 372, it appears clear that the Legislature intended these
terms to be interpreted in accordance with these definitions.
In its reasoning, the majority ignores the plain meaning rule of statutory interpretation
for the term retailer and argues two rather new, if not unsupported, concepts. Its first
concept can best be called the distance rule. Under this rule, the majority contends that if the
definitions are found at the beginning of a chapter (not unusual for most of our laws), they
are somehow "not specifically tailored to the bad-debt provisions contained later in the
Act."
____________________

3
The NRS 372.055 definition of retailer includes two other categories of sellers or persons. The majority
references the first of these as [e]very seller who makes any retail sale or sales of tangible personal property.
However, this reference is not applicable because seller is defined at NRS 372.070 as every person engaged
in the business of selling tangible personal property. Although DaimlerChrysler sells repossessed vehicles on
occasion, it does not rely on the NRS 372.070 seller definition to come within the bad-debt statute.

4
See City of Boulder v. General Sales Drivers, 101 Nev. 117, 118-19, 694 P.2d 498, 500 (1985) (It is
presumed that in enacting a statute the legislature acts with full knowledge of existing statutes relating to the
same subject.).
........................................
unusual for most of our laws), they are somehow not specifically tailored to the bad-debt
provisions contained later in the Act.
5
This rationale expressly contradicts NRS 372.015.
Further, I know of no case that suggests that this court can modify or disregard a definition
based on its location in a chapter of the NRS from the statute under review.
The second concept used by the majority can best be described as the piling on or
bootstrapping of definitions concept. Here, the majority criticizes DaimlerChrysler for
using several broad definitions to distort uncontested facts or defeat clear statutory directives.
However, the majority has failed to identify what uncontested facts are being distorted or how
a statutory directive is defeated by the use of statutory definitions applicable to all statutes in
the same chapter. Neither of these novel concepts has been used by this court in the past to
interpret statutes, and I would strongly urge my colleagues against doing so in the future.
These approaches to statutory interpretation subject the laws of this state to uncertainty and
unpredictability when we should be trying to achieve just the opposite outcome.
I can perceive no discernable difference between NRS 372.365(5) and Washington's
bad-debt statute at issue in Puget Sound National Bank v. Department of Revenue.
6
The
statutory scheme addressed in Puget Sound entitled retail sellers to a credit or refund for
sales taxes previously paid on debts which are deductible as worthless for federal income tax
purposes,
7
defined sellers as person[s]
8
making retail sales, and defined a person as
including an assignee.
9
Within that framework, the Washington Supreme Court
determined that third-party financing entities, given rights under retail credit assignment
agreements, were eligible to claim bad-debt sales tax refunds.
10

The majority notes that a number of other jurisdictions have refused to extend bad-debt
relief to third-party financing entities.
11

____________________

5
See majority opinion ante p. 547.

6
868 P.2d 127, 129 (Wash. 1994).

7
Wash. Rev. Code 82.08.037.

8
Id. 82.08.010(2).

9
Id. 82.04.030.

10
See Puget Sound, 868 P.2d at 132.

11
See, e.g., DaimlerChrysler v. Weiss, No. 04-284, 2004 WL 2904685 (Ark. Dec. 16, 2004); Weiss v.
American Honda, No. 04-617, 2004 WL 2904680 (Ark. Dec. 16, 2004); Chrysler Financial Co., L.L.C. v.
Wilkins, 812 N.E.2d 948 (Ohio 2004); In re Appeal of Ford Motor Credit Co., 69 P.3d 612 (Kan. 2003);
DaimlerChrysler v. State Tax Assessor, 817 A.2d 862 (Me. 2003); Department of Revenue v. Bank of America,
752 So. 2d 637 (Fla. Dist. Ct. App. 2000); General Motors Acceptance v. Jackson, 542 S.E.2d 538 (Ga. Ct.
App. 2000); Suntrust Bank, Nashville v. Johnson, 46 S.W.3d 216 (Tenn. Ct. App. 2000).
........................................
However, a careful examination of the statutes in each of the other states shows that they are
quite different from our statutory scheme. The differences are best described by the Court of
Appeals of Tennessee in Suntrust Bank, Nashville v. Johnson, when it noted,
Two other jurisdictions, Nevada and Washington, have construed their bad debt sales
tax credit statutes to permit the assignee of the automobile dealer to receive a credit or
refund when the purchaser subsequently defaults on the retail installment contract.
However, in both jurisdictions, the statutory definitions of dealer or retailer and
person were broad enough to include an assignee of a dealer or retailer.
12

The majority also argues that our bad-debt statute provides for relief in the form of a
credit, not a refund. As a consequence, the majority concludes that the use of the credit
device for relief structurally eliminates third-party lenders from its protection.
13
Once again,
the majority either ignores or overlooks the express language in the bad-debt statute.
14
The
final sentence in that statute omitted from the majority opinion reads, The credit may be used
against the amount of sales tax that the retailer is subsequently required to pay pursuant to
this chapter. This language makes clear that the retailer may apply the bad-debt relief credit
to future sales tax obligations. But the choice belongs to the retailer and in no way creates any
statutory structure prohibiting a retailer from demanding a refund of the bad-debt credit.
Going further, NRS 372.700, relied upon by the majority, does not, by its plain language,
compel the result sought by the Department. NRS 372.700 provides as follows:
A judgment may not be rendered in favor of the plaintiff in any action brought against
the Department to recover any amount paid when the action is brought by or in the
name of an assignee of the person paying the amount or by any person other than the
person who paid the amount.
(Emphasis added.) This language is ambiguous in the context of the true nature of the
transactions involved in this case. Thus, I would construe NRS 372.700 in accord with
legislative intent and to avoid reaching an absurd result. To explain, the original retail sales
transactions included a contemporaneous assignment of the installment contracts to
DaimlerChrysler. DaimlerChrysler funded these purchases, including the sales tax, and the
dealer forwarded the tax payment to the Department.
____________________

12
46 S.W.3d at 225 (citing Puget Sound, 868 P.2d at 130; 2000-08 Op. Att'y Gen., 2000 WL 246660, *2
(withdrawn)).

13
See majority opinion ante p. 547.

14
NRS 372.365(5).
........................................
the tax payment to the Department. Despite the fact that the dealer physically forwarded the
tax payment to the Department, I would conclude that DaimlerChrysler, under NRS 372.700,
was the person who paid the amount of the taxes on the underlying vehicle contracts.
The Department further contends that the dealers, having received the full amount
financed from DaimlerChrysler, incurred no losses due to bad debts and, thus, enjoyed no
refund rights. The Department then reasons that DaimlerChrysler could not ascend to rights
unavailable to its assignor. I disagree. Rights under the installment contracts between the
purchasers and the dealers were assigned to DaimlerChrysler. Those rights included the rights
generally available to creditors under installment sales agreements. In short, the dealers sold
their rights in the event of purchaser default to DaimlerChrysler.
The majority's formalistic interpretation of the bad-debt statute fails to account for the
reality of the modern marketplace, in which third-party vehicle financing arrangements are
the norm.
15
The Department's position likewise runs counter to the apparent intent of the
Legislature in passing the bad-debt statute: to alleviate the tax burden of entities that paid the
full sales tax due on behalf of a purchaser who later defaults on the loan.
16
Certainly, the
circumstances of this case justify DaimlerChrysler's eligibility for bad-debt relief.
CONCLUSION
NRS 372.365(5) entitles DaimlerChrysler to bad-debt relief. DaimlerChrysler did not
receive a discount in its purchase of vehicle financing contracts but paid the full amount
financed, including the full amount of sales tax. Therefore, DaimlerChrysler should receive
tax relief proportionate to the sales tax remaining on the defaulted contracts. Accordingly, I
would affirm the district court's decision to grant DaimlerChrysler's petition for judicial
review.
____________________

15
The Department, citing Shetakis Distributing v. State, Department Taxation, 108 Nev. 901, 907, 839 P.2d
1315, 1319 (1992), urges this court to undertake strict interpretation of the statute because relief afforded under
the statute is analogous to a tax exemption. I would decline to utilize this method of interpretation because it
would produce an unreasonable result in this case, namely providing a windfall to the State. See Hughes
Properties v. State of Nevada, 100 Nev. 295, 297, 680 P.2d 970, 971 (1984).

16
The Department asserts that legislative history bars DaimlerChrysler's claim for bad-debt relief and relies
on committee minutes discussing A.B. 535, the bill that amended the bad-debt statute in 1997. See A.B. 535,
69th Leg. (Nev. 1997). Specifically, the Department refers to a comment by a lobbyist, stating that the bill's
fiscal note did not account for third-party credit. I find this comment and other commentary on the bill
insufficient to establish any legislative intent to bar bad-debt relief to financial institutions in this case.
____________
........................................
121 Nev. 554, 554 (2005) Weber v. State
TIMMY J. WEBER, Appellant, v. THE STATE
No. 41525
September 15, 2005 119 P.3d 107
Appeal from a judgment of conviction, pursuant to a jury trial, of sexual assault on a child
under 14, use of a minor in producing pornography, possession of a visual presentation
depicting sexual conduct of a person under 16, two counts of first-degree murder with the use
of a deadly weapon, two counts of attempted murder with the use of a deadly weapon, two
counts of first-degree kidnapping, two counts of burglary, three counts of sexual assault on a
child under 16, and three counts of open or gross lewdness, and from a sentence of death.
Eighth Judicial District Court, Clark County; Joseph T. Bonaventure, Judge.
The supreme court, Becker, C. J., held that: (1) in a matter of first impression, three groups
of crimes committed by capital murder defendant were connected together, for purposes of
statute permitting joinder if offenses charged are based on two or more acts or transactions
connected together; (2) defendant was not unfairly prejudiced by joinder of numerous charges
against him; (3) error in admitting hearsay evidence via testimony of victim's friend was
harmless; (4) error in denying defendant's challenges for cause to two prospective jurors did
not prejudice him; (5) instruction on flight was supported by evidence; (6) probable cause
supported issuance of search warrants; and (7) death sentence imposed upon defendant was
not imposed under influence of passion, prejudice or any arbitrary factor, nor was it
excessive.
Affirmed.
Philip J. Kohn, Public Defender, and Willard N. Ewing and Robert L. Miller, Deputy
Public Defenders, Clark County, for Appellant.
Brian Sandoval, Attorney General, Carson City; David J. Roger, District Attorney, Steven
S. Owens, Chief Deputy District Attorney, and Christopher J. Lalli, Deputy District Attorney,
1. Criminal Law.
The decision to join or sever charges is within the discretion of the district court, and
an appellant carries the heavy burden of showing that the court abused that discretion.
2. Criminal Law.
Error resulting from misjoinder of charges is harmless unless the improperly joined
charges had a substantial and injurious effect on the jury's verdict.
........................................
121 Nev. 554, 555 (2005) Weber v. State
3. Criminal Law.
Even with charges that otherwise could be joined under statute governing joinder of
offenses, a district court should order severance where joinder would cause unfair
prejudice to defendant. NRS 173.115, 174.165(1).
For purposes of statute governing joinder of offenses, which permits jointer if
offenses charged are based on two or more acts or transactions connected together or
constituting parts of a common scheme or plan, purposeful design is central to a scheme
or plan, though this does not mean that every scheme or plan must exhibit rigid
consistency or coherency. NRS 173.115(2).
Three groups of crimes committed by capital murder defendant, which consisted of
charges concerning his sexual misconduct and abuse of minor victim before date of
murders, charges concerning two murders, and charges concerning attack on two
victims ten days after murders, did not constitute a common scheme or plan, and thus
joinder could not be sustained on this ground. While defendant's sexual misconduct and
abuse of minor victim over five-year period evinced a common scheme, his crimes on
date of murders and his crimes ten days later did not fall into this scheme, except
perhaps his kidnap and sexual assault of minor victim on date of murders, and State
failed to show that attacks ten days after murders actually shared common scheme or
plan with the murders. NRS 173.115(2).
Three groups of crimes committed by capital murder defendant, which consisted of
charges concerning his sexual misconduct and abuse of minor victim before date of
murders, charges concerning two murders, and charges concerning attack on two
victims ten days after murders, were connected together, for purposes of statute
permitting joinder if offenses charged are based on two or more acts or transactions
connected together. Groups of crimes were connected together because evidence of
defendant's numerous criminal acts would have been relevant and cross-admissible in
separate trials to prove his other crimes, under statute governing admissibility of
evidence of other crimes, wrongs, or acts. NRS 48.045(2), 173.115(2).
For purposes of statute governing joinder of offenses, which permits joinder if
offenses charged are based on two or more acts or transactions connected together or
constituting parts of a common scheme or plan, for two charged crimes to be
connected together, a court must determine that evidence of either crime would be
admissible in a separate trial regarding the other crime. NRS 173.115(2).
8. Criminal Law.
Evidence of capital murder defendant's other acts with respect to crimes he
allegedly committed, which consisted of charges concerning his sexual misconduct and
abuse of minor victim before date of murders, charges concerning two murders, and
charges concerning attack on two victims ten days after murders, would be
cross-admissible in separate trials under rule governing admissibility of prior bad
acts. Other acts evidence was relevant in that defendant, after sexually abusing victim
for years, murdered or attempted to murder those who appeared to threaten to end or
expose this abuse, defendant's desire to continue and conceal the abuse or to punish
those who were thwarting it provided motive for murders of victim's brother and
mother and later attempted murder of her other brother and his guardian, and
evidence of murders and attempted murders was probative of defendant's sexual
abuse of victim.
........................................
121 Nev. 554, 556 (2005) Weber v. State
ders of victim's brother and mother and later attempted murder of her other brother and
his guardian, and evidence of murders and attempted murders was probative of
defendant's sexual abuse of victim. NRS 48.045(2).
9. Criminal Law.
Evidence of capital murder defendant's other acts with respect to three groups of
crimes he allegedly committed, which consisted of charges concerning his sexual
misconduct and abuse of minor victim before date of murders, charges concerning two
murders, and charges concerning attack on two victims ten days after murders, would
not be cross-admissible in separate trials to tell the complete story of the crimes
under statute permitting admission of evidence of other acts which are so closely
related to the charged crime that a witness cannot describe the crime without referring
to the other act because State failed to show how any specific witness could not
describe one group of crimes without referring to the others, and statute referred to
witness's ability to describe, not explain a charged crime. NRS 48.035(3),
173.115(2).
10. Criminal Law.
Statute that permits admission of evidence of another act or crime which is so
closely related to crime charged that an ordinary witness cannot describe crime charged
without referring to other act or crime applies to testimony by an actual witness who
cannot describe the charged crime without referring to another uncharged act; it does
not contemplate a hypothetical witness or an abstract viewpoint from which two or
more acts might be considered intertwined. NRS 48.035(3).
11. Criminal Law.
Even if charges could otherwise be properly joined, severance may still be mandated
where joinder would result in unfair prejudice to the defendant. NRS 173.115,
174.165(1).
12. Criminal Law.
To establish that joinder was unfairly prejudicial requires more than a mere showing
that severance might have made acquittal more likely; rather, the defendant carries the
heavy burden of showing an abuse of discretion by the district court. NRS 173.115,
174.165(1).
13. Criminal Law.
Capital murder defendant was not unfairly prejudiced by joinder of numerous
charges against him; jury was instructed that each charge and evidence pertaining to it
should be considered separately, evidence was strong and conclusive with regard to all
three groups of crimes defendant allegedly committed, and severance of charges was
not required merely because defendant purportedly wished to testify on some charges
but remain silent on others. NRS 173.115, 174.165(1).
14. Criminal Law.
The supreme court presumes that the jury followed the instructions given.
15. Criminal Law.
Severance of charges is not required simply because defendant wishes to testify on
one charge but remain silent on another. NRS 173.115, 174.165(1).
16. Criminal Law.
Testimony of murder victim's friend as to what victim had told her that capital
murder defendant said during telephone conversation with friend of victim's daughter,
and contents of defendant's and daughter's remarks during their ensuing argument, was
inadmissible under rule against hearsay; defendant's remarks were statements by a party
opponent, which were excepted by hearsay rule, but exception applied only to first level
of hearsay, i.e.,
........................................
121 Nev. 554, 557 (2005) Weber v. State
hearsay, i.e., testimony by direct percipient of statements, which was daughter, neither
victim nor friend had heard defendant's remarks, and, thus, absent basis for victim to
relate her daughter's statements and basis for friend to relate victim's statements, the
State could not introduce evidence of defendant's remarks by way of friend. NRS
51.035(3)(a), 51.065(1), 51.067.
17. Criminal Law.
Error in admitting hearsay evidence via testimony of victim's friend was harmless, in
capital murder prosecution; defendant was not prejudiced by error, given that most of
the evidence provided by friend was also provided by testimony of victim's daughter,
and daughter's remaining testimony, images of daughter found on defendant's computer,
forensic evidence recovered from house, and testimony of other victims constituted
overwhelming independent evidence of defendant's guilt.
18. Criminal Law.
Testimony of murder victim's friend as to what victim had told her that victim's
daughter had said to capital murder defendant during argument between daughter and
defendant was inadmissible under rule against hearsay; friend never heard daughter's
statements, but learned of them through victim, and no exception to rule against hearsay
applied to victim's recounting to friend of daughter's remarks, or to friend's testimony
about recounting. NRS 51.035, 51.065(1), 51.067.
19. Criminal Law.
Testimony of murder victim's friend as to what victim had allegedly told defendant
was inadmissible under rule against hearsay; the witness had not heard victim's
statements to defendant directly, so hearsay exception was necessary for victim to relate
them to witness, and another exception was necessary for witness to testify about them,
and under hearsay exception for statements offered to show effect on the hearer, victim
could have testified about her own out-of-court statements to defendant to help prove
that he heard and reacted to statements, but victim's statements to witness about what
victim told defendant were being offered for truth of matter asserted, i.e., that victim
actually made statements to defendant. NRS 51.035, 51.065(1), 51.067.
20. Criminal Law.
The rule against hearsay does not exclude a statement merely offered to show that
the statement was made and the listener was affected by the statement. NRS 51.065(1).
21. Criminal Law.
Testimony of murder victim's friend that victim told her that she was mad about
capital murder defendant's dealings with victim's daughter and that she intended to
drive daughter on dates was admissible under exception to rule against hearsay to show
victim's state of mind just before her murder, and victim's statements were relevant to
State's theory of why defendant murdered victim. NRS 51.105(1).
22. Criminal Law.
When testimony has been improperly admitted in violation of the hearsay rule, the
supreme court must determine whether the error was harmless beyond a reasonable
doubt; evidence against defendant must be substantial enough to convict him in an
otherwise fair trial, and it must be said without reservation that the verdict would have
been the same in the absence of error.
23. Jury.
District courts have broad discretion in deciding whether to remove prospective
jurors for cause. NRS 16.060.
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121 Nev. 554, 558 (2005) Weber v. State
24. Jury.
Test for evaluating whether a prospective juror should have been removed for cause
is whether the juror's views would prevent or substantially impair the performance of
his duties as a juror in accordance with his instructions and his oath. NRS 16.050,
175.036.
25. Jury.
Trial court erred in denying capital murder defendant's challenges for cause to two
prospective jurors, one of whom repeatedly expressed doubt that she could fairly
consider all four penalty options, and the other of whom expressed preconceived
opinions about strength of State's case and defendant's likely guilt, and acknowledged
that he had learned of defendant's case in the media; neither prospective juror was able
to state without reservation that she or he had relinquished views previously expressed
which were at odds with their duty as impartial jurors, and detached language
considered alone was not sufficient to establish that juror could be fair when her
declaration as a whole indicated that she could not state unequivocally that a
preconception would not influence her verdict.
26. Criminal Law.
Trial court's error in denying capital murder defendant's challenges for cause to two
prospective jurors did not prejudice him; defendant was able to remove both jurors with
peremptory challenges, and, although he appeared to have exhausted his peremptory
challenges during voir dire, he did not allege or demonstrate that any jurors actually
empanelled were not fair and impartial, as necessary to establish violation of his right to
due process. U.S. Const. amend. 14.
27. Criminal Law.
A jury may properly receive an instruction regarding the defendant's flight so long as
it is supported by the evidence.
28. Criminal Law.
Flight that is such as to warrant a flight instruction signifies something more than
a mere going away; it embodies the idea of going away with a consciousness of guilt,
for the purpose of avoiding arrest.
29. Criminal Law.
Because of the possibility of undue influence by a flight instruction, the supreme
court carefully scrutinizes the record to determine if the evidence actually warranted the
instruction.
30. Criminal Law.
Instruction on flight was supported by evidence, in capital murder prosecution; State
showed that defendant abandoned his car at a casino parking lot on day of murders and
left city on a bus, defendant then traveled to five states, purchased a fake moustache,
and returned to home he had shared with victim, where he broke a police seal and
entered the home, and two days later defendant attacked two victims as they entered
home and immediately disappeared again until he was arrested two weeks later, hiding
out in a trailer.
31. Searches And Seizures.
Probable cause to support issuance of search warrant requires trustworthy facts and
circumstances which would cause a person of reasonable caution to believe that it is
more likely than not that the specific items to be searched for are subject to seizure and
at the place to be searched. Const. art. 1, 18; U.S. Const. amend. 4.
32. Criminal Law.
The supreme court will not overturn a probable cause finding with respect to
issuance of a search warrant unless the evidence in its entirety provides no substantial
basis for the magistrate's finding.
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121 Nev. 554, 559 (2005) Weber v. State
33. Obscenity; Searches And Seizures.
Probable cause supported issuance of search warrant to search capital murder
defendant's computer; murder victim's daughter told police that defendant could make
fake identification and had at least twelve or thirteen credit cards in his name, victim's
friend told police that defendant and victim had used fraudulent credit cards extensively
in the past, that defendant was very computer literate, and that he had made a lot of
money with a scam over the Internet on his computer, and officer who authored
search warrant affidavit stated that persons such as defendant who had computers and
fixations on children might access Internet sites that were pornographic in nature.
Const. art. 1, 18; U.S. Const. amend. 4.
34. Obscenity.
Probable cause existed for second search warrant to search capital murder
defendant's computer, based on police officer's discovery of child pornography stored
on defendant's computer during his initial search of computer. Const. art. 1, 18; U.S.
Const. amend. 4.
35. Criminal Law.
Capital murder defendant was not entitled to evidentiary hearing on his motion to
suppress evidence; even assuming the two search warrants at issue were based on
defective probable cause, defendant failed to make even a minimal showing of bad faith
or of intentional or reckless material falsehoods on the part of the investigators. Const.
art. 1, 18; U.S. Const. amend. 4.
Eight aggravating factors based on felonies found by jury after guilt phase of capital
murder defendant's trial, including initial sexual assault of victim, subsequent sexual
assaults of victim, first-degree kidnapping of victim, sexual assault on victim on date of
murders, first-degree kidnapping of victim, and attempted murders of victims were
supported by evidence; record showed that defendant used or threatened to use violence
during commission of these felonies, and, while record reflected no evidence of overt
violence or threats by defendant against victim during two sexual assaults, record did
show that victim experienced trauma and violence during defendant's first sexual
assault of her, and totality of evidence was sufficient to support inference that two
sexual assaults at issue included at least implicit threats of violence. NRS 200.033(2).
Evidence supported finding of aggravating factor that murder was committed while
person was engaged in burglary, invasion of home or kidnapping in first degree, and
person charged killed or attempted to kill person murdered; defendant killed victim and
committed the murder during his burglary of home shared by him and his girlfriend,
during his kidnapping of two victims. NRS 200.033(4).
Evidence supported finding of aggravating factor that murder involved torture of
victim; defendant not only killed victim by suffocation, but he bound victim's hands
and legs together with layers of duct tape, placed weights on victim, duct-taped his eyes
and mouth shut but left his nostrils open while a black plastic bag was placed over his
head, and autopsy of victim's body revealed that he bled and vomited through his
nostrils, struggled to free himself, and suffered a slow death, all of which showed that
defendant acted in calculated and sadistic manner that caused victim great pain beyond
the killing itself. NRS 200.033(8).
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121 Nev. 554, 560 (2005) Weber v. State
For purposes of aggravating circumstance for imposition of death penalty of murder
involving torture, torture requires that the murderer must have intended to inflict pain
beyond the killing itself. NRS 200.033(8).
Evidence supported finding of aggravating factor that defendant had, in immediate
proceeding, been convicted of more than one offense of murder, as defendant was
convicted of murders of his girlfriend and her son. NRS 200.033(12).
Death sentence imposed upon defendant was not imposed under influence of
passion, prejudice or any arbitrary factor, nor was it excessive; record showed that
defendant had a discerning jury that distinguished murder of his girlfriend from that of
girlfriend's son, choosing to impose death only for the latter, girlfriend's son was a
young teenager, lured by defendant to his death with the promise of money, death was
particularly slow and agonizing, defendant murdered son, who trusted him, without any
reasonable provocation, and defendant destroyed a family, in that his girlfriend was
mother of three children and defendant sexually abused girlfriend's daughter over
five-year period. NRS 177.055(2)(d), (e).
OPINION
By the Court, Becker, C. J.:
Appellant Timmy J. Weber lived in Las Vegas with his girlfriend of about five years, Kim.
Kim's 17-year-old son C., 15-year-old son A., and 14-year-old daughter M. also lived with
Kim and Weber. Weber subjected M. to ongoing sexual abuse during this time and took
pornographic photographs of the abuse. On the morning of April 4, 2002, Weber sexually
assaulted M. and murdered A. and Kim. He immediately fled and traveled through several
states. He reappeared in Las Vegas on April 14, the day of A. and Kim's funeral, when he
attempted to murder C. and another person.
Weber was arrested two weeks later and charged with 17 felony counts, including two
counts of murder with the use of a deadly weapon. After a jury trial, Weber was convicted of
all the charges. For A.'s murder, the jury found 13 aggravating circumstances and returned a
verdict of death. For Kim's murder, Weber was sentenced to life in prison without the
possibility of parole.
Weber raises several issues on appeal. Although we conclude that some trial error
occurred, any error was harmless beyond a reasonable doubt. We therefore affirm Weber's
judgment of conviction and sentence of death.
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121 Nev. 554, 561 (2005) Weber v. State
FACTS
Guilt phase
Although Weber was Kim's boyfriend, he had an unhealthy relationship with her daughter,
M., who was 14 years old when most of the crimes in this case occurred. Kim's older son,
17-year-old C., described Weber's relationship with his sister as one where the two were
overly affectionate towards one another. Sometimes Weber would hang out with M. all
day long, buy her things, or take her to get her nails done. Weber was also protective of M.
and made particular efforts to ensure that her brothers' friends could never associate with her.
One of Kim's coworkers stated that Weber treated [M.] more like his girlfriend than he did
Kim, instead of a stepdaughter or child.
On April 3, 2002, Kim, her children, and Weber were in the process of moving into a new
home, a trailer, in Las Vegas. M. testified that she had withdrawn from school because of the
move and was home that day. Kim was not at home, but Weber was. M.'s friends were calling
to say goodbye. When an African-American friend called for M. that evening, Weber
answered the telephone and cursed at the boy. When M. told Weber that he should not curse
at her friends, he told her that she did not need fucking niggers, called her a ho, and said
that she probably had sex with the dude. Weber's behavior upset M. She testified that she
and Weber would have arguments about just little things, like cleaning the room or
something, but never like this. When she told her mother about the incident later that night,
Kim yelled at Weber, and the two argued. Weber apologized to M. later that night, but she
refused to accept the apology.
The next morning, on April 4, Kim went to visit her friend Robin Thornton. They talked
about the arguments between Kim and Weber and between M. and Weber. Kim received
telephone calls from Weber while she was at Thornton's home. Thornton testified, after
unsuccessful objection by defense counsel, as to what Kim told her that morning. Kim left
Thornton's a little before 11:00 a.m.
M. testified she was home alone with Weber that morning. Her oldest brother C. had spent
the night at his friend Joey's apartment. Her other brother, 15-year-old A., had left to go
skateboarding. As M. sat on the couch watching television, Weber told her to give him a hug.
Still upset about the previous night, M. refused and told Weber that she wanted to go see her
boyfriend. Weber then walked to the front door and closed it. He returned and pinned M. on
the couch, duct-taped her hands together behind her back, and forced her into her bedroom.
M. was scared and screaming.
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121 Nev. 554, 562 (2005) Weber v. State
ing. Weber told her to shut up, put duct tape around her head, and forced her into A.'s
bedroom. Weber threw her on the bed and hog tied her.
As M. explained, he taped each leg, each foot individually, and he tied them together.
And then he brought up my legs and connected them to my hands and then he tied tape
around my thighs so I [couldn't] open my thighs. Weber told M. that if she tried to escape he
would kill her and that it would be easy to do. He turned up the volume of a radio really
loud and told M. that she would be tied up until her mother returned home. He then left M.
alone for a time. Other evidence established that Weber went to a Walgreen's store and
purchased three large rolls of duct tape at 11:39 a.m. that morning.
M. testified that about 45 minutes after leaving her, Weber returned, cut the tape off her,
and forced her into her own bedroom. Weber ordered her to undress, and she did. He then
told M. that he was going to have sex with her, but she said that she could not because her
hand hurtWeber had cut her hand while cutting off the tape. Weber briefly left M. and
returned with two ice packs and placed them on her hand. M. was crying, shivering, and lying
on her bunk bed. Weber lay behind her, put on lubrication, inserted his penis into her vagina,
and had sex with her. M. observed a clock in her bedroom that showed the time as 12:32 p.m.
Afterwards, she went into the bathroom, used her mother's douche, and took a shower.
After the shower, despite her pleas, Weber told M. that he would have to tie her up again.
Wearing only a towel, M. was taken back into her bedroom. Weber put socks over her hands,
duct-taped them, and then duct-taped her legs together. He also duct-taped her head and body
to the ladder of her bunk bed so that she could not move. Weber tried to stuff a sock in M.'s
mouth, but she kept spitting it out. He then said that he was going to go check on her brother
A. and would be back in five minutes. He turned up a television really, really loud, covered
her with a blanket, and left.
M.'s two brothers C. and A. had been hanging out that morning at their friend Joey's
apartment, smoking marijuana, watching television, and playing video games. C. fell asleep
on the couch, while A. and Joey skateboarded to a nearby gas station for snacks. A. and Joey
were returning to the apartment around 2:30 p.m. when they saw Weber sitting in his car. A.
went to talk to him. A few minutes later, A. returned to the apartment and told Joey that
Weber said that A. had to go check in with his mother, Kim, and that she was going to give
him $10. A. told Joey that he would try to be back before Joey left for work, around 3:45
p.m., or would see him later that night. As A. was leaving, another friend, Tony, arrived.
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121 Nev. 554, 563 (2005) Weber v. State
arrived. Tony saw A., carrying his skateboard, get into a car with Weber and drive away.
About a half hour later, C. awoke from his nap in Joey's apartment. He decided to go
home. When he arrived home, it was about 3:30 p.m. All of the doors were locked. C. tried to
enter the house through a window but could not. He heard a television turned up very loud in
M.'s bedroom. C. knocked on the window, and M. screamed when she heard the knocking. C.
thought he heard a muffled scream but was not sure. So he returned to Joey's apartment to get
some help. His friend Kareem was at the apartment and agreed to return with him to the
house. When they reached the house, they heard M.'s screams. C. broke a window, entered,
and let Kareem in through the front door. They found M. in her bedroom naked under a sheet
and tied up with duct tape. C. uncovered her taped mouth and asked her who did it; she
replied that it was Weber and warned that if Weber finds out you guys know, he's going to
kill us.
Kareem finished freeing M. while C. tried to call the police. The telephone was unplugged.
After plugging in the telephone, he called 911 but was placed on hold by a recorded message.
Fearing that Weber would return, the three left the house. C. gave M. his bicycle and told her
to ride to Joey's apartment. C. and Kareem walked back to the apartment together. Because
Joey's apartment did not have a telephone, C. went to a nearby gas station and called the
police from a pay phone.
While C. was using the pay phone, Weber drove up to Joey's apartment. Weber asked
Kareem, who was standing on the front porch of the apartment, if he had seen M. Kareem
replied, I don't know what you're talking about, and Weber drove away. Kareem then saw a
police car driving by and frantically waved his arms. Nevada Highway Patrol Sergeant Philip
Dart stopped and spoke with Kareem and M. Still crying and very upset, M. told Sergeant
Dart that Weber had tied her up for about five hours and forced her to have sex. Sergeant Dart
noticed that M.'s knees and wrists were irritated and covered with a light gray residue from
some type of adhesive.
C. returned to Joey's apartment, and M. repeatedly asked to speak with her mother. She
thought that Kim was at the new trailer getting it ready for the family's move, but neither C.
nor M. had Kim's cellphone number. So C. and M. returned with two troopers to the home to
get the number. By this time, it was about 4:00 p.m. The troopers conducted a protective
sweep of the home, and Sergeant Dart found A.'s body lying on a bed. The locked door to
another bedroom was kicked open, and Kim's body was found in the bedroom closet.
After securing a telephonic search warrant, several Las Vegas Metropolitan Police
Department (LVMPD) detectives and crime scene analysts reentered the home.
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121 Nev. 554, 564 (2005) Weber v. State
scene analysts reentered the home. Inside they found rolls of duct tape, torn pieces of duct
tape with hair-like fibers attached, a roll of black plastic garbage bags, a pair of socks with
duct tape on them, and a used douche bottle. In a garbage can, investigators found a plastic
bag and receipt for duct tape from Walgreen's. They also found a ripped-up greeting card
dated April 3, 2002, written by Kim to Weber that read:
T.J., I love you with all my heart. I do not like some things you do, but that does not
mean that I don't love you. I downright hate some things you do.
T.J., you are so smart, so cute, so giving, so good, but you are so far away from me,
it hurts.
Please come back. I don't want to lose you. I can only take so much pain. The kids
do not need any. If you love me, show me, please.
Love, Kim. Love you, T.J.
P.S.: I don't have all the answers, but I'll look for them if you let me.
Dr. Gary Telgenhoff of the Clark County Coroner's Office initially viewed A.'s body at the
crime scene and later performed the autopsy. A.'s body was found in his bedroom lying face
down on his bed, partially covered by a bed comforter. His head was covered with a black
plastic bag, and an electrical cord was tied around his neck. (An LVMPD Crime Scene
Analyst who also examined A.'s body stated that the electrical cord was around A.'s legs and
a tie string bound the bag around his neck.) A mixture of blood, vomit, and hair was in the
bag covering his head. His arms, hands, and wrists were bound behind his back with duct
tape, and his ankles were bound together by duct tape. A white t-shirt was stuffed inside his
mouth, and duct tape was wrapped around his head, covering his eyes and mouth. Two
45-pound dumbbell weights were on his upper and lower back, and two 50-pound weights
were on his legs. In addition to a split lip and bloody gums, A. had sustained injuries to his
knees, elbow, and ankle that either could have been caused at the time of his death or could
have had an earlier cause, such as skateboarding accidents.
Dr. Telgenhoff determined that A. died from [m]echanical asphyxia, suffocation,
compression and restriction of the torso. Tears in the duct tape around A.'s hands indicated
that he struggled to free himself, and the presence of blood and vomit in the bag around his
headwhich must have exited through his nostrilsindicated that the process of A.'s death
was very, very slow.
Kim's body was found naked and stuffed inside a Rubbermaid container in her bedroom
closet. A black plastic bag was over her head, and a sheet was tied around her ankles.
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121 Nev. 554, 565 (2005) Weber v. State
head, and a sheet was tied around her ankles. Dr. Telgenhoff also performed her autopsy. Her
neck contained a number of marks suggesting that pressure had been applied by some type of
ligature, but no ligature was ever found. Two wounds on the back of her head were diagnosed
as blunt force trauma caused by a blunt object that fractured her skull. She also had bruising
and scrapes on her arm and knees. Dr. Telgenhoff determined that Kim's primary cause of
death was blunt force trauma to the head and that strangulation may have been a secondary
cause.
A palm print lifted from M.'s bunk bed and a fingerprint found on duct tape wrapped
around A.'s ankle were later matched to Weber. Several of Weber's fingerprints were also
found on two rolls of duct tape found inside the home and on the Walgreen's plastic bag
found in the garbage. His palm print was found on the roll of black plastic bags.
Registered Nurse Linda Ebbert performed a sexual assault examination on M., after Kim's
body was discovered. Ebbert observed that
[M.] had multiple areas where there was tape debris on her. She had it on the mouth, on
the neck, both arms, both legs; and she had bruising on the inside of her mouth where
she said she had tried to chew through the tape so she would be able to yell for help.
In addition to bruising on M.'s thigh and a small laceration on her arm, Nurse Ebbert observed
that she had abrasions in her vaginal canal and a bruise on her cervix. This bruise indicated
that non-consensual sexual intercourse may have occurred because when a woman is sexually
aroused the cervix normally pulls out of the way. According to Ebbert, M.'s account of events
was consistent with her injuries, and she observed nothing causing her to believe that M.
experienced consensual sex. DNA analysis of semen collected from M.'s vagina determined
that the semen belonged to Weber.
On the night of April 4, M. was interviewed by an LVMPD detective and was specifically
asked whether Weber had ever previously had or attempted sexual intercourse with her. M.
replied, No. Never. During another interview with detectives four days later, M. repeated
her denials that any sexual contact between her and Weber had ever occurred.
At the second interview, M. informed detectives that Weber possessed various credit cards
and had the ability to make false identifications. Kim's friend, Thornton, also informed
detectives that Weber was very computer literate and may have been involved with some
scam on the Internet. Weber owned a computer, and a warrant was obtained to search it
and any related media.
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121 Nev. 554, 566 (2005) Weber v. State
a warrant was obtained to search it and any related media. LVMPD Forensic Computer
Examiner Larry Smith conducted the search of the computer. When he observed materials
that appeared to be child pornography on some of Weber's floppy disks, he obtained an
additional search warrant. After resuming his search, Examiner Smith discovered more items
of child pornography, including photos of M. and Weber engaged in sexual activity.
A warrant was issued for Weber's arrest, but he remained at large. His car was discovered
on April 10 in the parking lot of a Las Vegas casino. Inside the car was a skateboard and a
parking receipt dated April 4. The LVMPD contacted the Federal Bureau of Investigations for
assistance in locating Weber. The FBI determined that Weber had left Las Vegas on a
Greyhound Bus and arrived in Bakersfield, California, early in the morning on April 5. Later
that day, he used his ATM bank card in the Greyhound Bus terminals in Fresno and
Sacramento. Video surveillance also recorded Weber at the Sacramento terminal on that date.
Weber's ATM bank card was used the following day in Portland, Oregon, and on April 8 in
Seattle, Washington. While in Seattle, Weber called a costume shop. The FBI determined that
someone matching Weber's description had purchased a fake moustache from the shop.
Weber was then traced to Boise, Idaho, and two days later to Fremont, Utah. The next day,
Weber made a call from Salt Lake City. By the following day, April 12, Weber had returned
to Las Vegas.
Meanwhile, M. and C. had been placed in the temporary custody of William Froman and
his wife. Froman was a middle school teacher familiar with Kim and her children. A. and
Kim's funeral services were scheduled for April 14. Before services that day, C. returned to
his home with Froman to obtain some clothes and mementos to place in A.'s grave.
Concerned about Weber, both C. and Froman carried baton-type clubs.
As Froman entered the home, Weber rushed from behind a door and hit him on the head
with a baseball bat. Froman fell over, and Weber hit him in the eye and the elbow with the
bat. Froman got up and charged Weber, and a struggle ensued. Weber said, I'm going to kill
you motherfuckers. C. hit Weber a few times with his club, but Weber hit C. and knocked
him down. Froman ran out of the house to get another weapon from his truck, while Weber
continued fighting with C. Weber then came out of the house and said to Froman, Give me
the truck or I'm going to go in the house and kill [C.] too. Froman tried to run Weber over
with the truck, but Weber ran back into the house. Froman rammed the front of the house
with his truck, honked his horn, and yelled for help. After chasing C. out the back of the
house, Weber ran away. Both C. and Froman were bleeding from their injuries. Froman had a
fractured skull and later received stitches on his face and head.
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121 Nev. 554, 567 (2005) Weber v. State
had a fractured skull and later received stitches on his face and head.
In investigating the attack upon C. and Froman, LVMPD detectives discovered a police
seal missing from the back door of the home, and a door lock had been super-glued so that
entry could be gained anytime. Two weeks later, on April 28, neighbors of the trailer into
which Kim and Weber had planned to move noticed a garbage bag over a window that had
not been there earlier in the day. Suspecting trouble, the neighbors called the police. When
police responded, they found Weber inside the trailer and arrested him without incident.
On April 30, detectives interviewed M. again. During this videotaped interview, detectives
told M. about the photos found on Weber's computer. M. then admitted that she had been
frequently raped by Weber both orally and vaginally before the April 4 incident. M. said the
rapes began about five years earlier when she was 9 or 10 years old and in the third grade.
Weber told her it was their secret and not to tell anyone. The first time it occurred, M. stated,
Weber inserted his penis into her vagina, and she was screaming and bled onto a towel. She
had no pubic hair or developed breasts at that time. M. also said that Weber made her smile
and pose for the photos and that the conduct was against her will. M. had not disclosed this
information before because she was embarrassed and scared.
In May 2002, a grand jury returned an indictment against Weber, which was later
amended, charging him with 17 felony counts: sexual assault on a child under 14 (Count 1),
sexual assault on a child under 16 (Counts 2, 3, and 11), open or gross lewdness (Counts 4, 5,
and 6), use of a minor in producing pornography (Count 7), possession of a visual
presentation depicting sexual conduct of a person under 16 (Count 8), burglary (Counts 9 and
15), first-degree kidnapping (Counts 10 and 13), open murder with the use of a deadly
weapon (Counts 12 and 14), and attempted murder with the use of a deadly weapon (Counts
16 and 17). The State then filed notice of its intent to seek the death penalty.
Weber's jury trial was held in February 2003. The State presented the evidence
summarized above. Weber called several witnesses to testify in his defense, including child
forensic psychiatrist Dr. Rayna Rogers. Dr. Rogers reviewed a variety of materials related to
the case, including the videotaped interview between M. and LVMPD detectives. She
criticized one interviewing female detective for not maintaining the stance of a neutral
investigator, for adopting the role of M.'s advocate, for suggesting information to M., and for
asking M. leading questions.
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121 Nev. 554, 568 (2005) Weber v. State
After five days of deliberations, the jury returned a verdict finding Weber guilty of all 17
felony counts, including two counts of first-degree murder with the use of a deadly weapon
for the deaths of A. and Kim.
Penalty phase
The State called three witnesses during Weber's penalty hearing. A Sergeant with the
LVMPD testified about Weber's criminal history. As a juvenile, Weber had several arrests
and was convicted in 1990 of burglary, conspiracy to commit burglary, and possession of
stolen property. As an adult, Weber had multiple arrests and convictions in both California
and Nevada. Most of these offenses involved property crimes. In 1992, Weber was convicted
of four felonies: two counts of burglary, attempted second-degree burglary, and possession of
stolen property. In 1994, Weber was again convicted of felony possession of stolen property.
The following year, he was convicted of two more felonies: burglary and grand larceny. In
2000, Weber was convicted of one gross-misdemeanor count of malicious destruction of
private property for an incident at his and Kim's home.
C. testified that he missed his brother A., saying: He was fun to be around. He was one of
those kids where, if you were down, he would come in the room, put a smile on your face.
C. added:
He was a handsome kid. He had girls that liked him. He planned on having kids
when he grew up and having a family life and all that good stuff and going to college
and having nice cars and friends and family to hang around with. And now he doesn't
have that opportunity.
About his mother, C. said:
Yeah. My mom may have had drug problems, but like everybody, people have
problems and they can be helped, and she never had the opportunity to be helped with
them.
I don't want to say she was a bad person. She never brought drugs in the house or
never involved us with the drugs, so she was a good parent.
If we wanted to wear what neighbor kids wore to school, name brand clothes, she
worked the extra hours to put name brand clothes on us, so she would make sure she
put forth that effort.
Kim's half sister testified that Kim had the type of personality that, like A. in a lot of
ways, she would walk into a room and just light it up.
Weber called several witnesses for his case in mitigation. Psychologist Dr. Louis Etcoff
testified that based on his evaluations, which included interviews with Weber and his
mother, Weber's "childhood history was normal, medically and behaviorally."
........................................
121 Nev. 554, 569 (2005) Weber v. State
tions, which included interviews with Weber and his mother, Weber's childhood history was
normal, medically and behaviorally. On the other hand, Dr. Etcoff added that Weber's
parents separated when he was only one year old, his father spent numerous years in prison,
and his mother was sent to prison for a while when he was in kindergarten. Dr. Etcoff
testified that Weber likely had obsessive compulsive disorder and was more likely to be
suicidal than most people, but Weber was not depressed or psychotic, and there was no
indication that he experienced any physical or sexual abuse as a child. Although Weber had a
prior criminal record, Dr. Etcoff noted that Weber did not have a previous history of
violencehis prior crimes were mostly property offenses. Dr. Etcoff concluded that Weber
will likely be a quiet, self-effacing, isolated prisoner, not prone to making trouble or
aggressive or violent; possibly the type of prisoner who would be taken advantage of by
stronger prisoners. On cross-examination, Dr. Etcoff testified that Weber denied having
deviant sexual thoughts.
Weber's two aunts, Linda Bailey and Susan Berthiaume, essentially testified that Weber
was a well adjusted and [h]appy go lucky, loving, smiling child. According to Susan
Berthiaume, when Weber was previously in prison, he finished his education and bettered
himself. Weber's cousins, Donald Berthiaume and Nancy Roberts, also testified. Donald
Berthiaume pleaded: I don't want him to die. He's like a brother to me. Roberts said that
Weber came from a close-knit family and that as a child he wouldn't pick a fight with
anybody. She added that Weber's family would continue to have contact with him while he
was in prison.
Finally, a letter written by Weber's mother was read. She wrote that she loved her son and
that Weber's father had abused him as a toddler. She also wrote that Weber was moved
around a lot while growing up, living at times in Illinois, Kentucky, California, and
Nevada. The letter concluded: I beg you to spare his life.
The jury unanimously found 13 aggravators in A.'s murder. Aggravators one through eight
each provided that before the penalty hearing Weber had been convicted of a felony
involving the use or threat of violence to the person of another. These first eight aggravators
were based, respectively, on the following felonies charged in the amended indictment:
sexual assault on a child under the age of 14 (Count 1 of the amended indictment), sexual
assault on a child under the age of 16 (Count 2), sexual assault on a child under the age of 16
(Count 3), first-degree kidnapping of M. (Count 10), sexual assault on a child under the age
of 16 (Count 11), first-degree kidnapping of A. (Count 13), attempted murder of C. with use
of a deadly weapon (Count 16), and attempted murder of Froman with use of a deadly
weapon (Count 17).
........................................
121 Nev. 554, 570 (2005) Weber v. State
Aggravators nine through eleven provided that Weber committed the murder while
engaged in the commission of a burglary or first-degree kidnapping and that he killed the
person murdered. These aggravators were based, respectively, on burglary (Count 9 of the
amended indictment), first-degree kidnapping of M. (Count 10), and first-degree kidnapping
of A. (Count 13).
Aggravator twelve provided that the murder involved the torture or mutilation of A.
Finally, aggravator thirteen provided that Weber had, in the immediate proceeding, been
convicted of more than one offense of murder.
Jurors also found 13 mitigating circumstances, including: Weber had an unstable
upbringing; his family loved him; his family would suffer as a result of the imposition of a
death sentence; he had a history of good behavior at the Clark County Detention Center and
the Nevada State Prison; he had no prior history of crimes of violence; his age at the time of
his prior criminal history; his current age; he did not resist arrest; he had a normal upbringing;
his lack of financial stability; his display of emotion during the penalty phase.
The jury found that the aggravating circumstances outweighed the mitigating
circumstances and sentenced Weber to death for A.'s murder.
In regard to Kim's murder, the State alleged 12 aggravating circumstances. With the
exception of torture, the aggravators charged in Kim's murder were identical to those charged
in A.'s murder. Although the jury found all 12 aggravators and that the aggravating
circumstances outweighed the mitigating circumstances, it returned a sentence of life in
prison without the possibility of parole for Kim's murder.
DISCUSSION
I. The denial of appellant's motion to sever the charges against him
Weber contends that the district court erred in denying his motion to sever the charges
against him. We conclude that the charges were properly joined.
[Headnotes 1-3]
The decision to join or sever charges is within the discretion of the district court, and an
appellant carries the heavy burden of showing that the court abused that discretion.
1
Error
resulting from misjoinder of charges is harmless unless the improperly joined charges had a
substantial and injurious effect on the jury's verdict.
____________________

1
Floyd v. State, 118 Nev. 156, 164, 42 P.3d 249, 255 (2002); see also Tabish v. State, 119 Nev. 293, 302, 72
P.3d 584, 589-90 (2003).
........................................
121 Nev. 554, 571 (2005) Weber v. State
charges had a substantial and injurious effect on the jury's verdict.
2
Even with charges that
otherwise could be joined under NRS 173.115, a district court should order severance where
joinder would cause unfair prejudice to the defendant.
3
Therefore, we must determine
whether there was a proper basis to join the charges here and, if so, whether unfair prejudice
still mandated severance.
Basis for joinder
NRS 173.115 provides:
Two or more offenses may be charged in the same indictment or information in a
separate count for each offense if the offenses charged . . . 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.
In this case, we are presented with the application of the language in subsection 2: Based on
two or more acts or transactions connected together or constituting parts of a common scheme
or plan.
Weber concedes that the 17 felony counts for which he was indicted could be properly
joined in three groups of charges, but he maintains that these groups should have been
severed from each other. The three groups are: (1) the charges concerning his sexual
misconduct and abuse of M. before April 4, 2002; (2) the charges concerning the murders of
A. and Kim on April 4; and (3) the charges concerning his attack on C. and Froman on April
14. The sexual assault of M. on April 4, he argues, could have been joined as part of a
common scheme or plan with either the first group of charges or the second, but not both.
Weber contends that the prior sexual misconduct and the murders were not parts of a
common scheme or plan. He also argues that the mere fact that the last sexual act with M.
took place on the day of the murders does not create a common scheme or plan between the
first two groups. As to the third group, he contends that the events of April 14 were born of
the circumstances of the moment; motivated by and done in response to events as they
unfolded at that time, and shared no common scheme or plan with the April 4 offenses or the
prior sexual misconduct.
We agree that, while joinder of charges within these three groups was justified because the
offenses in each group shared a scheme or plan common to that group, no overarching
scheme or plan common to the three groups was demonstrated.
____________________

2
Tabish, 119 Nev. at 302, 72 P.3d at 590.

3
See Floyd, 118 Nev. at 164, 42 P.3d at 255; see also NRS 174.165(1).
........................................
121 Nev. 554, 572 (2005) Weber v. State
or plan common to that group, no overarching scheme or plan common to the three groups
was demonstrated.
[Headnote 4]
Determining whether a common scheme or plan existed in this, or any, case requires
fact-specific analysis. And such analysis depends on the meaning of the pertinent statutory
language scheme or plan. According to Black's Law Dictionary, a scheme is a design or
plan formed to accomplish some purpose; a system.
4
A plan is a method of design or
action, procedure, or arrangement for accomplishment of a particular act or object. Method of
putting into effect an intention or proposal.
5
We conclude that these definitions pertain to
scheme or plan as used in NRS 173.115(2). Thus, purposeful design is central to a scheme
or plan,
6
though this does not mean that every scheme or plan must exhibit rigid consistency
or coherency. We recognize that a person who forms and follows a scheme or plan may have
to contend with contingencies, and therefore a scheme or plan can in practice reflect some
flexibility and variation but still fall within an overall intended design. Nevertheless, we
conclude that in this case the facts fail to show that Weber had a single scheme or plan that
encompassed his ongoing sexual misconduct, his violence on April 4, and his violence on
April 14.
[Headnote 5]
The 17 felony counts charged offenses that spanned a period of about five years, beginning
as early as 1997. Although there is no dispute that Weber's sexual misconduct and abuse of
M. over this span of time evinced a common scheme, his crimes on April 4 and April 14,
2002, did not fall into this scheme, except perhaps the April 4 kidnap and sexual assault of
M. Although these crimes emerged from the context of Weber's sexual misconduct, the State
did not show that they composed part of his scheme of sexually exploiting M. Instead, the
April 4 crimes reflect Weber's recognition that his scheme of surreptitious sexual abuse was
unraveling.
Weber's attacks on C. and Froman on April 14 followed the murders of April 4, but the
State did not show that the burglary and attacks actually shared a common scheme or plan
with the murders. While the April 14 crimes occurred in the context of the preceding murders
and sexual misconduct, Weber's attacks that day appear to be as much a response to discovery
as a furtherance of a scheme or plan extending back to the earlier murders.
____________________

4
Black's Law Dictionary 936 (abr. 6th ed. 1991).

5
Id. at 796.

6
This is consistent with our interpretation of plan as used in NRS 48.045(2). See Richmond v. State, 118
Nev. 924, 933-34, 59 P.3d 1249, 1255 (2002).
........................................
121 Nev. 554, 573 (2005) Weber v. State
We conclude that the three groups of crimes did not constitute a common scheme or plan
and joinder cannot be sustained on that ground. However, the question remains: were the
three groups of acts nevertheless connected together under NRS 173.115(2)?
[Headnotes 6, 7]
We have not addressed the connected together language in the statute, and it is a term
that calls for more precise definition. We hold that for two charged crimes to be connected
together under NRS 173.115(2), a court must determine that evidence of either crime would
be admissible in a separate trial regarding the other crime. We have recognized this
cross-admissibility as a basis for joinder of charges in some of our prior decisions.
7
We now
expressly employ it to define connected together under NRS 173.115(2). We conclude that
the groups of crimes charged and proven in this case are connected together because evidence
of each group would have been relevant and admissible at separate trials of the other crimes.
Generally, evidence of other uncharged acts by a defendant are not admissible at trial. As
NRS 48.045(2) provides: Evidence of other crimes, wrongs or acts is not admissible to
prove the character of a person in order to show that he acted in conformity therewith. But
the statute does provide that other-act evidence may . . . be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident. To admit such evidence, we have held that it must be
relevant, be proven by clear and convincing evidence, and have probative value that is not
substantially outweighed by the risk of unfair prejudice.
8
In this case, the evidence for all the
crimes was clear and convincing. We now turn to whether the evidence of one group of
crimes would have been relevant at a separate trial regarding crimes in the other groups, and
if so, whether joinder resulted in undue prejudice.
Relevancy
[Headnote 8]
We conclude that under NRS 48.045(2) evidence of Weber's various criminal acts would
have been relevant in separate trials to prove his other crimes. It is evident that after sexually
abusing M. for years, Weber murdered or attempted to murder those who appeared to threaten
to end or expose this long-running abuse. Thus, Weber's desire to continue and conceal that
abuse or to punish those who were thwarting it provided the motive for the murders of M.
____________________

7
E.g., Honeycutt v. State, 118 Nev. 660, 668, 56 P.3d 362, 367 (2002); Floyd, 118 Nev. at 163-64, 42 P.3d at
254-55.

8
Butler v. State, 120 Nev. 879, 889, 102 P.3d 71, 78 (2004); Tinch v. State, 113 Nev. 1170, 1176, 946 P.2d
1061, 1064-65 (1997).
........................................
121 Nev. 554, 574 (2005) Weber v. State
Weber's desire to continue and conceal that abuse or to punish those who were thwarting it
provided the motive for the murders of M.'s brother and mother and the later attempted
murder of her other brother and his guardian. Likewise, evidence of the murders and the
attempted murders was probative of Weber's sexual abuse of M., showing his consciousness
of guilt regarding the abuse and lack of consent by M. Furthermore, evidence that Weber
attacked C. and Froman was probative as to the identity of the perpetrator of the earlier,
unwitnessed murders of C.'s mother and brother at the same house, particularly given Weber's
warning to Froman that he would kill [C.] too. In turn, evidence of the earlier murders was
relevant to show his intent on April 14 to kill C. and Froman as well as his consciousness of
guilt and fugitive status in regard to the murders.
[Headnotes 9, 10]
The State also argues that evidence of other acts would have been cross-admissible in
separate trials to tell the complete story of charged crimes pursuant to NRS 48.035(3). We
reject this argument. NRS 48.035(3) provides: Evidence of another act or crime which is so
closely related to . . . a crime charged that an ordinary witness cannot describe . . . the crime
charged without referring to the other act or crime is admissible, with a cautionary
instruction if requested. This basis for admissibility is extremely narrow, as we have stated
before
9
and as the plain language of the statute makes evident. First, the statute applies to
testimony by an actual witness who cannot describe the charged crime without referring to
another uncharged act; it does not contemplate a hypothetical witness or an abstract
viewpoint from which two or more acts might be considered intertwined. The State has not
shown how any specific witness in this case could not describe one group of crimes without
referring to the others. Moreover, the statute refers to a witness's ability to describenot
explaina charged crime. Thus, to the extent that the prosecution might want to introduce
evidence of other acts to make sense of or provide a context for a charged crime, as opposed
to simply introduce an account of events and conduct observed by a witness, NRS 48.035(3)
is not a basis for admissibility.
The question of unfair prejudice
[Headnotes 11, 12]
Finally, even if charges could otherwise be properly joined, severance may still be
mandated where joinder would result in unfair prejudice to the defendant.
10
To establish
that joinder was [unfairly] prejudicial 'requires more than a mere showing that severance
might have made acquittal more likely.
____________________

9
Tabish, 119 Nev. at 307, 72 P.3d at 593.

10
See Floyd, 118 Nev. at 164, 42 P.3d at 255; see also NRS 174.165(1).
........................................
121 Nev. 554, 575 (2005) Weber v. State
[unfairly] prejudicial requires more than a mere showing that severance might have made
acquittal more likely.'
11
Rather, the defendant carries the heavy burden of showing an
abuse of discretion by the district court.
12

[Headnotes 13, 14]
We conclude that Weber fails to meet his burden of showing that he was unfairly
prejudiced by the joinder of charges. The jury was properly instructed in regard to the
multiple charges as follows: Each charge and the evidence pertaining to it should be
considered separately. The fact that you may find a defendant guilty or not guilty as to one of
the offenses charged should not control your verdict as to any other . . . offense charged.
Weber has given us no reason to abandon the customary presumption that his jury followed
this instruction.
13

In addition, prejudice from joinder of charges requiring reversal is more likely in a close
case because it may prevent jurors from making a reliable judgment about guilt.
14
Our
review of the record shows that none of the charges against Weber presented a close case; on
the contrary, the evidence was strong and conclusive in regard to all three groups of crimes.
This is not an instance where due process was violated by combining charges in a weak case
with charges in a strong case to help bolster the former.
15

[Headnote 15]
Weber nevertheless argues that joinder unfairly prejudiced him by preventing him from
developing a theory of self-defense and testifying on his own behalf in regard to the
attempted murder charges relating to his attack upon C. and Froman. Severance is not
required simply because a defendant wishes to testify on one charge but remain silent on
another.
16
Weber therefore has the burden to present sufficient information regarding the
testimony he wished to give on the April 14 counts and his reasons for not testifying on the
other counts to show this court that his claim of prejudice is genuine and to allow us to
intelligently weigh his interest in testifying against considerations of judicial economy.
17
Weber has raised this claim in a perfunctory manner and fails to make such a showing.
____________________

11
Floyd, 118 Nev. at 164, 42 P.3d at 255 (quoting United States v. Wilson, 715 F.2d 1164, 1171 (7th Cir.
1983)).

12
Id.

13
See Collman v. State, 116 Nev. 687, 722, 7 P.3d 426, 448 (2000).

14
Tabish, 119 Nev. at 305, 72 P.3d at 591-92.

15
Cf. id. at 305, 72 P.3d at 592.

16
Honeycutt, 118 Nev. at 668, 56 P.3d at 367.

17
See id. at 668, 56 P.3d at 367-68.
........................................
121 Nev. 554, 576 (2005) Weber v. State
In sum, we conclude that the district court did not abuse its discretion by denying Weber's
motion to sever.
II. The improper admission of hearsay evidence
Weber contends that the district court improperly admitted hearsay testimony during trial.
He objects to the following testimony by Robin Thornton, relating what Kim told Thornton
on the day of Kim's murder.
She had told me that a boy had called for [M.]; that T.J. had answered it and went
crazy, cussed out the kid on the phone; proceeded to call M. names and call her a slut
and racial gestures, to her going out with black guys.
And M. told Kim. Kim was mad. She told T.J.: [M.] is going to be able to talk to
boys and go out with boys. You are not her boyfriend; you're my boyfriend. You need
to start acting like a father figure, if you're in her life, and not her boyfriend. . . .
And she was going to drive her and her boyfriend to wherever they wanted to go on
a date, the movies or
Before this testimony was admitted, Weber objected citing the multiple layers of hearsay
contained in the statement. The State maintained:
It's our position they are not hearsay; we are not offering those statements for the
truth of the matter. We are offering them specifically to show an effect on the hearer,
the defendant. We are not offering those statements to prove that Kim was, in fact,
going to allow M. to date; that she was, in fact going to facilitate the dating process. It
is important . . . to show the defendant's mental state, to show how the defendant
reacted to M. entering the dating process. So these statements are offered to show the
effect they had on the defendant.
The district court agreed and ruled that Thornton's testimony was not hearsay because it was
not being offered for the truth of the matter asserted. The court then instructed the jury that
Thornton's testimony could only be used to show the effect of Kim's statements on Weber.
We conclude that Thornton's testimony contained inadmissible hearsay and should not
have been admitted, but that the error does not warrant reversal.
Generally, hearsay is an out-of-court statement offered in evidence to prove the truth of
the matter asserted.
18
Hearsay is inadmissible unless it falls within one of several
exceptions.
____________________

18
NRS 51.035; Franco v. State, 109 Nev. 1229, 1236, 866 P.2d 247, 252 (1993).
........................................
121 Nev. 554, 577 (2005) Weber v. State
missible unless it falls within one of several exceptions.
19
Hearsay included within hearsay
is not excluded under the hearsay rule if each part of the combined statements conforms to an
exception . . . .
20
Hearsay evidence is traditionally excluded because it is not subject to the
usual tests to show the credibility of the declarant. Lacking is cross-examination to ascertain a
declarant's perception, memory and truthfulness.
21

The State and the district court's positionthat Thornton's testimony simply related
statements by Kim to Weber that were not offered for the truth of the matter asserted but only
to show their effect upon Weberfails to take into account the multiple levels of hearsay
contained in that testimony. Thornton did not testify simply about a statement that Kim made
directly to her. She testified also about earlier statements that, according to Kim, Kim made to
Weber; Weber made to Kim, M., and M.'s friend; and M. made to Kim and Weber. Thornton
herself had not been present for or heard any of these earlier statements. The district court's
ruling failed to recognize that Thornton's testimony contained statements by three
declarantsWeber, M., and Kiminvolving as many as three levels of hearsay. The
statements by each declarant require independent analysis to determine whether Thornton's
testimony was properly admitted in whole or part.
[Headnotes 16, 17]
The alleged statements furthest removed from Thornton's direct knowledge were Weber's
initial remarks on the telephone to M.'s friend and his and M.'s remarks in the ensuing
argument. Weber's remarks are statements by a party opponent, which are excepted from the
hearsay rule.
22
The State argues on this basis that Thornton's reference to his remarks was
proper, but the State disregards the three levels of hearsay present. The exception applies to
the first level of hearsay, testimony by the direct percipient of the statements, in this case, M.
But this exception does not extend to the successive layers of hearsay in Thornton's
testimony.
23
Neither Kim nor Thornton heard Weber's remarks, so absent a basis for Kim to
relate M.'s statement and a basis for Thornton to relate Kim's statement, the State could not
introduce evidence of Weber's remarks by way of Thornton. The State has not proffered any
such bases. No prejudice resulted, however, because evidence of Weber's remarks was
properly introduced through M.'s testimony, which was subject to cross-examination by
Weber.
____________________

19
NRS 51.065(1); NRS 51.035; Franco, 109 Nev. at 1236, 866 P.2d at 252.

20
NRS 51.067.

21
Deutscher v. State, 95 Nev. 669, 684, 601 P.2d 407, 417 (1979).

22
NRS 51.035(3)(a).

23
See NRS 51.067.
........................................
121 Nev. 554, 578 (2005) Weber v. State
[Headnote 18]
Thornton also never heard the statements made by M.; she learned of them through Kim.
Therefore, there must be a hearsay exception that applies to Kim's recounting to Thornton of
M.'s remarks and another exception that applies to Thornton's testimony about that
recounting. On appeal, the State argues that it was not concerned with the truth of M.'s
statements, only their effect on Kim. The State also argues that M.'s statements were
admissible as excited utterances. Even assuming this is so, it is only a basis for Kim, not
Thornton, to testify about the remarks. Again, however, no prejudice is discernible because
M. testified, subject to cross-examination, that she told her mother about her dispute with
Weber and that as a consequence Kim confronted Weber and the two quarreled.
[Headnote 19]
Finally, we consider Kim's own statements, apart from any references to M.'s and Weber's
remarks. But there are still two levels of hearsay to Kim's own statements because in speaking
to Thornton she also related earlier statements she allegedly made to Webersuch as, she
was going to drive M. and her boyfriend on dates. Thornton did not hear those earlier
statements directly, so a hearsay exception is necessary for Kim to relate them to Thornton
and another is necessary for Thornton to testify about them.
[Headnote 20]
As noted above, the State maintains and the district court agreed that these statements by
Kim to Weber were not being offered for the truth of the matter asserted but only to show the
effect of the statements upon Weber. It is true that the hearsay rule does not exclude a
statement merely offered to show that the statement was made and the listener was affected
by the statement.
24
But this exception applies only to Kim's statements to Weber, not to her
later statement to Thornton. That is, under this exception, Kim could have testified about her
own out-of-court statements to Weber to help the State prove that he heard and reacted to the
statements, not to prove the truth of the matter asserted, e.g., that Kim truly intended to drive
M. on dates.
But Kim's statements to Thornton about what Kim told Weber were being offered for the
truth of the matter asserted, that is, Kim actually made earlier statements to Weber. In order
for the jurors to evaluate the effect of Kim's statements upon Weber, the jurors had to accept
as true that Kim had made those statements. Thornton could not testifyand be
cross-examinedon that crucial matter because she had no direct knowledge of it. Kim's
statement that she talked to Weber is inadmissible hearsay.
____________________

24
Wallach v. State, 106 Nev. 470, 473, 796 P.2d 224, 227 (1990).
........................................
121 Nev. 554, 579 (2005) Weber v. State
she talked to Weber is inadmissible hearsay. But we conclude that any prejudice resulting
from its admission was minimal because the same evidence was introduced through M.'s
testimony. Although M. did not testify to the specific statements Kim made to Weber, she
was able to testify that Kim confronted Weber and quarreled with him about his treatment of
M.
[Headnote 21]
Thornton's testimony also had a single level of hearsay in regard to Kim's statements that
did not involve references to earlier statements by Weber, M., or Kim herself. It appears that
Kim told Thornton directly that she was mad about Weber's dealings with M. and that she
intended to drive M. on dates. We conclude that these statements reflected Kim's state of
mind just before her murder and were relevant to the State's theory of why Weber murdered
Kim. They were therefore admissible under NRS 51.105(1), which provides: 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.
[Headnote 22]
In sum, the testimony by Thornton at issue comprised largely inadmissible hearsay
evidence.
25
When testimony has been improperly admitted in violation of the hearsay rule,
we must determine whether the error was harmless beyond a reasonable doubt:
26
Evidence
against the defendant must be substantial enough to convict him in an otherwise fair trial, and
it must be said without reservation that the verdict would have been the same in the absence
of error.
27
We conclude without reservation that even if Thornton's hearsay testimony had
been excluded the verdict here would have been the same.
First, most of the evidence provided by Thornton was also provided to the jury by M.'s
testimony. Second, M.'s remaining testimony, the images of M. found on Weber's computer,
the forensic evidence recovered from the house, and the testimony of C. and Froman
constitute overwhelming independent evidence of Weber's guilt. Therefore, even without
Thornton's hearsay testimony, the jury would have had ample evidence to convict Weber and
to show that on April 3 and 4, 2002, Weber believed that his ongoing sexual abuse of M.
____________________

25
Because we conclude that much of the testimony was inadmissible, we do not address whether the
admission of the testimony violated the Confrontation Clause. See U.S. Const. amend. VI (In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .).

26
See Franco, 109 Nev. at 1237, 866 P.2d at 252; see also United States v. Nielsen, 371 F.3d 574, 581 (9th
Cir. 2004).

27
Homick v. State, 112 Nev. 304, 316, 913 P.2d 1280, 1288 (1996).
........................................
121 Nev. 554, 580 (2005) Weber v. State
ual abuse of M. was threatened and supporting the inference that this belief motivated his
subsequent crimes.
III. The improper denial of appellant's challenges of prospective jurors for cause
Weber contends that the district court erroneously denied his challenges to two members
of the venire for cause, depriving him of his right to a fair trial. We conclude that the district
court erred but that Weber has not demonstrated any resulting prejudice.
[Headnotes 23, 24]
District courts have broad discretion in deciding whether to remove prospective jurors
for cause.
28
The test for evaluating whether a juror should have been removed for cause is
whether a prospective juror's views would prevent or substantially impair the performance
of his duties as a juror in accordance with his instructions and his oath.'
29
Here, Weber
contends that prospective jurors number 40 and number 127 should have been removed under
this standard.
The record shows that prospective juror number 40 repeatedly expressed doubt that she
could fairly consider all four penalty options, in the event of a first-degree murder conviction,
and even indicated that she could not consider a penalty that allowed parole for a person
found guilty of the crimes with which Weber was charged. She also expressed her belief that
the death penalty was imposed too humanely and that a murderer should suffer as the victim
suffered. Although in response to questions by the prosecutor she stated that she could
consider all four penalty options, she did not maintain that position when questioned again by
defense counsel. When the district court described her as flip flopping and complained, I
don't know where you stand, the prospective juror said, I guess it's the way the questions
are put. Nevertheless, the court denied Weber's challenge for cause, and eventually he used a
peremptory challenge to excuse the prospective juror.
Prospective juror number 127 expressed preconceived opinions about the strength of the
State's case and Weber's likely guilt, acknowledging that he had learned of the case in the
media. His remarks showed that he did not fully accept the burden of proof that the State had
to meet to overcome Weber's presumption of innocence. The prospective juror stated, for
example: The judge has presented, theoretically, you [the defense] don't have to say
anything.
____________________

28
Leonard v. State, 117 Nev. 53, 67, 17 P.3d 397, 406 (2001); cf. NRS 16.060.

29
Leonard, 117 Nev. at 65, 17 P.3d at 405 (quoting Wainwright v. Witt, 469 U.S. 412, 424 (1985) (internal
quotation omitted)); see also NRS 16.050; NRS 175.036.
........................................
121 Nev. 554, 581 (2005) Weber v. State
thing. Realistically, I feel you do to discredit. The district court admonished the
prospective juror, You can't judge a case by how many witnesses a side puts on, and the
prosecutor attempted to rehabilitate the prospective juror through some hypothetical
questions. The district court then denied Weber's challenge for cause, and Weber excused the
prospective juror with a peremptory challenge.
[Headnote 25]
We conclude that the district court erred in denying Weber's challenges to these
prospective jurors. Neither was able to state without reservation that she or he had
relinquished views previously expressed which were at odds with their duty as impartial
jurors. Detached language considered alone is not sufficient to establish that a juror can be
fair when the juror's declaration as a whole indicates that she could not state unequivocally
that a preconception would not influence her verdict.
30

[Headnote 26]
Weber claims that his right to due process was violated, but he has not shown that he was
prejudiced by the district court's error. Weber was able to remove both prospective jurors
with peremptory challenges. Although he appears to have exhausted his peremptory
challenges during voir dire, he does not allege or demonstrate that any jurors actually
empanelled were not fair and impartial. Any claim of constitutional significance must focus
on the jurors who were actually seated, not on excused jurors. Because Weber does not
establish that any of the jurors who sat in judgment against him were not fair and impartial,
his claim warrants no relief.
31

IV. The jury instruction on flight
Weber contends that the jury was erroneously instructed on flight in regard to his actions
after the April 2002 crimes. He moved unsuccessfully to strike the instruction. We conclude
that his contention has no merit.
[Headnotes 27-29]
A jury may properly receive an instruction regarding a defendant's flight so long as it is
supported by the evidence.
32
We have cautioned that flight "signifies something more than
a mere going away.
____________________

30
See Thompson v. State, 111 Nev. 439, 442, 894 P.2d 375, 377 (1995).

31
See Ross v. Oklahoma, 487 U.S. 81, 88-89 (1988); Wesley v. State, 112 Nev. 503, 511, 916 P.2d 793, 799
(1996); Thompson v. State, 102 Nev. 348, 350, 721 P.2d 1290, 1291 (1986) ([A]ppellant has not demonstrated
that any other jurors proved unacceptable and would have been excused had an additional peremptory challenge
been available.).

32
Potter v. State, 96 Nev. 875, 875-76, 619 P.2d 1222, 1222 (1980); McGuire v. State, 86 Nev. 262, 266, 468
P.2d 12, 15 (1970).
........................................
121 Nev. 554, 582 (2005) Weber v. State
cautioned that flight signifies something more than a mere going away. It embodies the idea
of going away with a consciousness of guilt, for the purpose of avoiding arrest.
33
Because
of the possibility of undue influence by such an instruction, this court carefully scrutinizes the
record to determine if the evidence actually warranted the instruction.
34

[Headnote 30]
Here, jury instruction number 51 provided:
The flight of a person immediately after the commission of a crime is not sufficient
in itself to establish his guilt, but is a fact which, if proved, may be considered by you in
the light of all other proved facts in deciding the question of his guilt or innocence. The
weight to which such circumstance is entitled is a matter for the jury to determine.
This instruction itself is appropriate.
35
But Weber asserts that incompetence on the part of
the police delayed his arrestnot any attempt on his part to flee. There is ample evidence to
the contrary.
The State showed that Weber abandoned his car at a casino parking lot on the day of the
murders and left Las Vegas on a bus. Over the next week, he traveled to California, Oregon,
Washington, Idaho, and Utah. He purchased a fake moustache while in Seattle. Weber
returned to Las Vegas sometime on April 12 and broke a police seal and entered his and
Kim's home. Two days later he attacked C. and Froman and immediately disappeared again
until he was arrested two weeks later, hiding out in a trailer. Given this evidence, Weber's
behavior after the crimes constituted more than a mere going away, and it was proper to
instruct the jury regarding flight.
V. The denial of appellant's motion to suppress and the adequacy of the search warrants
permitting the seizure of evidence from his computer
Weber maintains that the district court improperly denied his motion to suppress the
evidence of child pornography seized from his computer. He contends that two search
warrants authorizing the computer search were constitutionally defective because they were
based on unsupported and misleading probable cause statements. At the very least, Weber
maintains that the district court was required to hold a hearing on his motion before denying
it. We conclude that this claim is without merit.
____________________

33
State v. Rothrock, 45 Nev. 214, 229, 200 P. 525, 529 (1921).

34
Miles v. State, 97 Nev. 82, 85, 624 P.2d 494, 496 (1981).

35
See id. at 84-85 & n.1, 624 P.2d at 495-96 & n.1 (concluding that no error occurred in giving an identical
instruction).
........................................
121 Nev. 554, 583 (2005) Weber v. State
[Headnotes 31, 32]
The Nevada Constitution and the United States Constitution require all government
searches to be reasonable and all warrants to be based on probable cause.
36
[N]o warrant
shall issue but on probable cause, supported by Oath or Affirmation, particularly describing
the place or places to be searched, and the person or persons, and thing or things to be
seized.
37
Probable cause requires trustworthy facts and circumstances which would cause a
person of reasonable caution to believe that it is more likely than not that the specific items to
be searched for are subject to seizure and at the place to be searched.
38
This court will not
overturn a probable cause finding unless the evidence in its entirety provides no substantial
basis for the magistrate's finding.
39

[Headnote 33]
The first warrant in question was prepared by and based upon an affidavit by LVMPD
Detective Sherwood and permitted search of any computer(s) or computer-related storage
media, as well as paperwork and credit card records in Weber's name in his home, that could
be associated with false identification. District Judge Nancy Saitta issued the warrant on April
8, 2002. Detective Sherwood's affidavit in support of probable cause stated in part:
It was learned through the investigation that the computer in the living[ ]room area was
the computer that was used by Weber. It was also learned that Weber is very computer
literate. It is known by your affiant that persons that have computers and fixations with
children may access web sites that are pornographic in nature. It is also common for
these types of persons to send electronic mail or be involved in Chat Groups
regarding child pornography.
LVMPD Homicide Detectives also received information that Weber utilizes the
computer to produce and manufacture false identities that would [aid] and abet in his
efforts to evade capture. Weber has been known by his associates to use false
identification in the past.
Detective Sherwood's affidavit was based upon statements made by M. and by Kim's
friend Robin Thornton. During an interview with LVMPD investigators on April 8, M. told
them that Weber could make a fake I.D. and had at least like twelve or thirteen" credit
cards in his name.
____________________

36
Nev. Const. art. 1, 18; U.S. Const. amend. IV.

37

38
Keesee v. State, 110 Nev. 997, 1002, 879 P.2d 63, 66 (1994); see also Illinois v. Gates, 462 U.S. 213,
238-39 (1983); U.S. v. Collins, 61 F.3d 1379, 1384 (9th Cir. 1995).

39
Garrettson v. State, 114 Nev. 1064, 1068-69, 967 P.2d 428, 431 (1998).
........................................
121 Nev. 554, 584 (2005) Weber v. State
teen credit cards in his name. That same day, Thornton told investigators that Weber and
Kim had used fraudulent credit cards extensively in the past, that Weber was very computer
literate, and that he made a lot of money with a scam over the Internet on his computer.
Given these two statements and Detective Sherwood's own statements of professional
knowledge and experience,
40
the detective's affidavit provided a substantial basis for the
district judge's initial finding of probable cause to search the computer.
[Headnote 34]
Pursuant to that first warrant, LVMPD Forensic Investigator Larry Smith searched Weber's
computer on April 18. When he discovered several depictions of what he believed was child
pornography, including photos of M., Investigator Smith ceased his search and wrote an
affidavit for an additional warrant to continue the search to specifically look for child
pornography and related materials. District Judge Valorie Vega signed this warrant on April
23, and the search resumed. Based on Investigator Smith's discovery of child pornography
during his initial computer search, probable cause existed for this second warrant.
[Headnote 35]
Weber maintains that the district court was required to hold an evidentiary hearing on his
motion to suppress before deciding it. We have held that a defendant is not entitled to an
evidentiary hearing [under Franks v. Delaware
41
] 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.
42
Here, even assuming the two
warrants were based on defective probable cause, Weber has failed to make even a minimal
showing of bad faith, intentional or reckless material falsehoods on the part of the
investigators. Thus, Weber was not entitled to a Franks hearing on his motion challenging the
warrants' validity. The district court properly denied Weber's motion without an evidentiary
hearing.
VI. Other issues
Weber argues that his penalty hearing should have been bifurcated. We have rejected this
argument before, most recently in McConnell v. State.
43
We decline to reconsider the issue.
____________________

40
See generally U.S. v. Gil, 58 F.3d 1414, 1418 (9th Cir. 1995) (stating that judges may rely upon the training
and experience of affiant law enforcement officers in determining probable cause).

41
438 U.S. 154 (1978).

42
Garrettson, 114 Nev. at 1068, 967 P.2d at 430.

43
120 Nev. 1043, 1061-62, 102 P.3d 606, 619 (2004).
........................................
121 Nev. 554, 585 (2005) Weber v. State
Weber also claims that he had a right to argue last to the jury during his penalty hearing
and the district court improperly denied his motion to do so. This claim has no merit. As we
have repeatedly explained, NRS 175.141(5) requires that counsel for the State open and
conclude argument.
44

Weber contends that the State's notice of intent to seek the death penalty was flawed
because Nevada's death penalty sentencing scheme is unconstitutional. The district court
denied his motion to strike the notice. Weber argues that the death penalty scheme is
unconstitutional because it fails to narrow the class of death-eligible defendants, fails to
require a probable cause finding to support the State's alleged aggravating circumstances, fails
to protect the innocent, permits relaxed evidentiary standards, fails to require the jury to
identify all mitigating circumstances considered during deliberations, allows cruel and
unusual punishment, and violates international law. Weber's arguments do not persuade us to
revisit our prior determinations that the death penalty scheme is constitutional.
45

VII. Mandatory review of the death sentence
This court is required pursuant to NRS 177.055(2) to review every death sentence and
consider the following three questions:
(c) Whether the evidence supports the finding of an aggravating circumstance or
circumstances;
(d) Whether the sentence of death was imposed under the influence of passion,
prejudice or any arbitrary factor; and
(e) Whether the sentence of death is excessive, considering both the crime and the
defendant.
Whether the evidence supported the aggravating circumstances
We conclude that the evidence supported the finding of the 13 aggravating circumstances
in this case.
[Headnote 36]
Aggravators one through eight were based on NRS 200.033(2), which provides in part that
first-degree murder is aggravated when it was committed by a person who has been convicted
of a felony involving the use or threat of violence. Weber argues that only a single
aggravating circumstance can be based upon this subsection, but we have previously
rejected this argument.
____________________

44
E.g., Hernandez v. State, 118 Nev. 513, 534, 50 P.3d 1100, 1114 (2002).

45
See, e.g., Leonard, 117 Nev. at 82-83, 17 P.3d at 415-16; Gallego v. State, 117 Nev. 348, 370, 23 P.3d
227, 242 (2001); see also Vanisi v. State, 117 Nev. 330, 344, 22 P.3d 1164, 1173-74 (2001) (holding that jurors
are not required to specify what mitigating circumstances they have found); United States v. Mechanik, 475 U.S.
66, 70 (1986) (where defendants were convicted
........................................
121 Nev. 554, 586 (2005) Weber v. State
tion, but we have previously rejected this argument.
46
The eight aggravators here were
founded on felonies found by the jury after the guilt phase of Weber's trial: (1) the sexual
assault of M. between January 1, 1997, and December 1, 1998; (2) and (3) the sexual assaults
of M. between January 1, 2000, and April 3, 2002; (4) the first-degree kidnapping of M. on
April 4, 2002; (5) the sexual assault on M. on April 4; (6) the first-degree kidnapping of A. on
April 4; (7) the attempted murder of C. on April 14; and (8) the attempted murder of Froman
on April 14. We conclude that the record shows that Weber used or threatened violence
during the commission of these felonies, but the evidence relating to aggravators two and
three warrants some discussion.
Although the use or threat of violence often occurs in sexual assault, neither is a necessary
element of the offense.
47
The record here reflects no evidence of overt violence or overt
threats of violence by Weber against M. during the two sexual assault convictions that
occurred between January 1, 2000, and April 3, 2002. However, the record does show that M.
experienced trauma and violence during Weber's first sexual assault on her in 1997 or 1998.
At that time, M. was in elementary school and prepubescent, and she bled and screamed.
Weber told M. to keep it secret. Further, Weber's sexual assaults occurred against M.'s will.
Weber was much superior to M. in physical strength, as well as older. He was also convicted
of destroying property for kicking in the front door of Kim's home in May 2000. For years M.
did not tell anyoneinitially not even investigatorsabout Weber's sexual abuse of her
because she was scared. Finally, deadly violence by Weber against M.'s family materialized
on April 4, 2002. We conclude that the totality of this evidence was sufficient for a
reasonable jury to infer that the two sexual assaults in question included at least implicit
threats of violence, allowing their use as valid aggravators in this case.
48

____________________
after trial beyond a reasonable doubt, probable cause undoubtedly existed to bind them over for trial, so any
error in the grand jury proceedings connected to the charging decision was harmless beyond a reasonable doubt);
People v. Hillhouse, 40 P.3d 754, 782 (Cal. 2002) (rejecting a claim that the United States is bound by the
International Convention Against All Forms of Racial Discrimination in death penalty cases).

46
See Riley v. State, 107 Nev. 205, 216-17, 808 P.2d 551, 557-58 (1991).

47
See NRS 200.366(1); McNair v. State, 108 Nev. 53, 57, 825 P.2d 571, 574 (1992) (Physical force is not a
necessary element in the commission of the crime of rape.).

48
See Randolph v. State, 117 Nev. 970, 984, 36 P.3d 424, 433 (2001) (it is permissible for the jurors to draw
reasonable inferences from the evidence); cf. Collman, 116 Nev. at 711, 7 P.3d at 441 (Circumstantial
evidence alone may support a judgment of conviction.).
........................................
121 Nev. 554, 587 (2005) Weber v. State
[Headnote 37]
Aggravators nine through eleven were based on NRS 200.033(4), which provides in
relevant part that first-degree murder is aggravated when it was committed while the person
was engaged in burglary, invasion of the home or kidnapping in the first degree, and the
person charged . . . [k]illed or attempted to kill the person murdered. Weber contends that
this aggravator is invalid because it makes every felony murder situation eligible for the
death penalty. In our recent decision in McConnell, we held that a felony may not be used
both to establish first-degree murder and to aggravate the murder to capital status.
49
Because Weber was convicted of deliberate, premeditated murder and/or murder by torture,
not felony murder, our holding in McConnell is not implicated. We conclude that the
evidence supported finding that Weber killed A. and committed the murder during his
burglary of his and Kim's home, during his kidnapping of M., and during his kidnapping of A.
[Headnotes 38, 39]
Aggravator twelve was based on NRS 200.033(8), which provides that first-degree murder
is aggravated when it involved torture of the victim. Torture requires that the murderer must
have intended to inflict pain beyond the killing itself.
50
Torture involves a calculated intent
to inflict pain for revenge, extortion, persuasion or for any sadistic purpose.
51
Here,
evidence showed that Weber not only killed A. by suffocation, but that he bound his hands
and legs together with layers of duct tape, placed weights on him, duct-taped his eyes and
mouth shut, but left his nostrils open while a black plastic bag was placed over his head. The
autopsy of A.'s body revealed that he bled and vomited through his nostrils, struggled to free
himself, and suffered a slow death. This evidence shows that Weber acted in a calculated and
sadistic manner that caused A. great pain beyond the killing itself.
[Headnote 40]
Aggravator thirteen was based on NRS 200.033(12): The defendant has, in the immediate
proceeding, been convicted of more than one offense of murder . . . . The evidence supported
this aggravator because Weber was convicted of the murders of both Kim and A.
____________________

49
120 Nev. at 1073, 102 P.3d at 627.

50
Domingues v. State, 112 Nev. 683, 702, 917 P.2d 1364, 1377 (1996).

51
Id. at 702 n.6, 917 P.2d at 1377 n.6.
........................................
121 Nev. 554, 588 (2005) Weber v. State
Whether the death sentence was imposed under any improper influence or was
excessive
[Headnote 41]
We see no indication that Weber's death sentence was imposed under the influence of
passion, prejudice, or any arbitrary factor. On the contrary, the record shows that Weber had a
discerning jury that distinguished Kim's murder from A.'s, choosing to impose death only for
the latter. A. was a young teenager, lured by Weber to his death with the promise of money
from his mother. And the death A. suffered was particularly slow and agonizing. These are
only two of the objective factors the jury could have considered in distinguishing between the
murders.
Additionally, solid circumstantial and direct evidence supported Weber's convictions and
aggravating conduct, including pornographic photos of his own misconduct with M., DNA
evidence proving his sexual abuse of M., finger and palm prints found on duct tape and
plastic bags linking him to the murders of A. and Kim, and the testimony of many witnesses.
While the facts of this case certainly involve emotions, the record does not show the jury
acted under any improper influence.
Finally, considering both Weber and his crime, we conclude that his sentence of death is
not excessive. Without any reasonable provocation, Weber murdered A., a 15-year-old boy
who trusted him. A. was a typical teenage boy who liked girls, skateboarding, and video
games; his murder was untimely, senseless, and brutal. Weber also destroyed a family,
murdering the mother of three children after sexually abusing the young daughter over a
five-year period. Exacerbating these crimes was his attempt to murder 17-year-old C. and
Froman on the day of A. and Kim's funeral. Given the appalling nature and circumstances of
A.'s murder and Weber's character as revealed by all his crimes, death is not an excessive
sentence for Weber.
CONCLUSION
We affirm Weber's judgment of conviction and sentence of death.
Maupin, Gibbons, Douglas and Parraguirre, JJ., concur.
Rose, J., with whom Hardesty, J., agrees, concurring:
I agree with the analysis in the majority opinion on all issues, except two. First, I disagree
with its conclusion that it was proper to join the counts stemming from the events of April 14
with the other counts. The reasons given for why the April 14 incident is admissible at the
trial of the sexual assault/murder counts are generally unconvincing to me, and the counts
relating to the April 14 incident should have been tried separately. But since the statement
Weber made on April 14 would have been admissible at the trial of the other charges to
show consciousness of guilt and as an admission against interest, the error of joinder was
harmless because the jury would have received some information about the subsequent
conflict and none of the counts presented a close case of guilt.
........................................
121 Nev. 554, 589 (2005) Weber v. State
Weber made on April 14 would have been admissible at the trial of the other charges to show
consciousness of guilt and as an admission against interest, the error of joinder was harmless
because the jury would have received some information about the subsequent conflict and
none of the counts presented a close case of guilt.
1

Second, I would like to give a narrower definition to the term connected together by
including considerations of whether the two crimes are truly related to each other and the
prejudice caused the defendant by joinder, as well as whether evidence of the crimes is clearly
cross-admissible.
2
My concern with adopting the standard of cross-admissibility is that it
may present little restriction on the wholesale joining of numerous disparate criminal acts
together for trial. When we look at the admissibility of prior bad acts in a criminal trial, a
form of cross-admissibility that is governed by statute, we see that the standard has become a
very expansive one.
NRS 48.045 states that character evidence, usually in the form of prior bad acts evidence,
is inadmissible to prove conduct but that prior bad acts are admissible for other purposes such
as proving motive, opportunity, intent, preparation, plan, knowledge, identity or absence of
mistake or accident. It is a general rule, with lots of exceptions. Our jurisprudence starts off
well enough by declaring that the admission of prior bad or criminal acts at trial is disfavored
and should be strictly limited.
We have often held that the use of uncharged bad act evidence to convict a
defendant is heavily disfavored in our criminal justice system because bad acts are often
irrelevant and prejudicial and force the accused to defend against vague and
unsubstantiated charges. The principal concern with admitting such acts is that the jury
will be unduly influenced by the evidence, and thus convict the accused because it
believes the accused is a bad person.
3

In practice, however, we have seen a broad interpretation of the exceptions contained in NRS
48.045, with the prosecution continually offering prior bad acts committed by a defendant.
And too often, the district courts are willing to permit the admission of prior bad act
evidence. Once admitted, the district court's decision is cloaked with the presumption of
propriety and will not be disturbed unless it is manifestly wrong.
4
The end result is that this
court usually affirms the introduction of prior bad act evidence, even when its admissibility
may seem marginal, or when the prior bad act is remote in time.
____________________

1
See Tabish v. State, 119 Nev. 293, 307-09, 72 P.3d 584, 593-94 (2003).

2
NRS 173.115(2).

3
Tavares v. State, 117 Nev. 725, 730, 30 P.3d 1128, 1131 (2001) (footnote omitted).

4
Gallego v. State, 101 Nev. 782, 789, 711 P.2d 856, 861 (1985); Brinkley v. State, 101 Nev. 676, 679-80,
708 P.2d 1026, 1028-29 (1985).
........................................
121 Nev. 554, 590 (2005) Weber v. State
even when its admissibility may seem marginal,
5
or when the prior bad act is remote in time.
6

Our recent decision in Tabish v. State
7
is a good example of this point and the close
relationship between NRS 48.045 and cross-admissibility. Tabish and a codefendant were
charged with the robbery and murder of Ted Binion, and included in the information were
counts against Tabish alleging the kidnapping, beating, and extortion of a Leo Casey that
happened two months earlier. The district court refused to sever the counts, and one issue on
appeal was whether the district court erred in not severing the Casey counts from the Binion
counts. Although the only defendant involved in both crimes was Tabish, the prosecutor
argued that the evidence contained in the Casey counts was admissible under NRS 48.045 at
the murder trial to show motive, plan, and identity. We concluded that although the Casey
counts arguably had some relevance to the murder charges, this evidence was far more
prejudicial than probative, and therefore the district court committed reversible error in not
severing the counts for trial.
8
In my view, this case demonstrates that a prior bad act should
have more than arguable relevance to the later crime before it is deemed cross-admissible and
that the prejudicial impact that joinder has on a defendant should be seriously considered, as
was done in Tabish.
I am hopeful that the district courts will be reluctant to join unrelated criminal acts for trial
unless it is shown that the evidence of both crimes is clearly cross-admissible, that the two
criminal incidents appear to be closely connected together, and that no substantial prejudice
will occur to the defendant.
____________________

5
See Honeycutt v. State, 118 Nev. 660, 672-73, 56 P.3d 362, 370 (2002) (affirming the district court's
decision admitting evidence of a prior, unrelated sexual assault).

6
Bolin v. State, 114 Nev. 503, 517-21, 960 P.2d 784, 793-96 (1998).

7
119 Nev. 293, 72 P.3d 584.

8
Id. at 308-09, 72 P.3d at 593-94.
____________
........................................
121 Nev. 591, 591 (2005) Phillips v. State
DONALD E. PHILLIPS, Appellant, v. THE STATE
No. 42177
September 15, 2005 119 P.3d 711
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of
aggravated stalking, twelve counts of extortion, and one count of preventing or dissuading a
witness from testifying. Eighth Judicial District Court, Clark County; John S. McGroarty,
Judge.
The supreme court, Becker, C. J., held that: (1) failure to properly instruct jury on
elements of libel, disgrace and secret under extortion statute created situation where jury was
permitted to consider legally insufficient theory of extortion in its deliberations, which, in
turn, required reversal of extortion convictions; (2) probative value of defendant's prior
convictions was outweighed by their prejudicial effect; and (3) error in admitting evidence of
defendant's prior convictions was harmless.
Rose, J., dissented in part.
Philip J. Kohn, Public Defender, and Ralph E. Baker, Howard S. Brooks, and Craig
D. Creel, Deputy Public Defenders, Clark County, for Appellant.
Brian Sandoval, Attorney General, Carson City; David J. Roger, District Attorney,
and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
If several theories of criminal liability are presented to the jury and one is legally
insufficient or unconstitutional, a general verdict cannot stand regardless of whether the
other theories are legally sufficient and factually supported. Conversely, if the theories
are all legally sufficient, a general verdict can stand even if sufficient evidence supports
only one of the theories.
2. Criminal Law.
Jurors are not generally equipped to determine whether a particular theory of
conviction submitted to them is contrary to law, including whether, for example, the
action in question fails to come within the statutory definition of the crime.
3. Extortion and Threats.
A demand for money to refrain from publishing a true claim of common heritage does
not constitute extortion by libel. NRS 205.320(3).
A statement must be false to constitute libel under the extortion statute. NRS
205.320(3).
........................................
For purposes of extortion statute, which states that person is guilty of extortion if,
with intent to gain something, he directly or indirectly threatens to expose or impute to
any person any deformity or disgrace, or to expose any secret, the term disgrace
means to humiliate or cause loss of favor or standing, and the term secret means a
fact that is unfavorable to the interest of a person and unknown to the public and that a
person would wish to conceal. NRS 205.320(4), (5).
6. Criminal Law.
District court's failure to properly instruct jury on elements of libel, disgrace and
secret under extortion statute created situation where jury was permitted to consider
legally insufficient theory of extortion in its deliberations, which, in turn, required
reversal of extortion convictions. General verdict form did not specify which theory of
extortion was used to convict defendant, jury could have convicted defendant on legally
insufficient theory that a true claim constituted libel, or jury might have concluded that
making a true claim constituted a crime without ever finding that its exposure would
subject victim to disgrace or that claim was an unfavorable secret likely to induce
victim to pay to prevent its disclosure. NRS 205.320(3)-(5).
7. Criminal Law.
In determining whether to admit evidence of prior bad acts, the trial court must
conduct a hearing on the matter outside the presence of the jury and on the record. NRS
48.045(2).
8. Criminal Law.
Evidence of prior bad acts is only admissible when: (1) the incident is relevant to the
crime charged, (2) the act is proven by clear and convincing evidence, and (3) the
probative value of the evidence is not substantially outweighed by the danger of unfair
prejudice. NRS 48.045(2).
9. Criminal Law.
The admissibility of prior bad acts evidence is within the discretion of the trial court
and its decision will not be disturbed on appeal unless it is manifestly wrong. NRS
48.045(2).
10. Criminal Law.
Evidence admitted under common scheme or plan exception to rule that evidence of
defendant's prior bad acts is inadmissible must relate to the scheme or plan surrounding
defendant's commission of the charged crime. NRS 48.045(2).
11. Criminal Law.
Evidence admitted under the absence of mistake exception to rule that evidence of
defendant's prior bad acts is inadmissible must tend to show defendant's knowledge of a
fact material to the crime charged. NRS 48.045(2).
12. Criminal Law.
For purposes of determining admissibility of prior bad acts evidence, events remote in
time from the charged incident have less relevance in proving later intent. NRS
48.045(2).
13. Criminal Law.
Defendant's prior convictions for attempted robbery and illegal possession of a
concealed weapon were not admissible under exceptions to rule that evidence of
defendant's prior bad acts is inadmissible for common scheme or plan or absence of
mistake, in prosecution for extortion, aggravated stalking, and preventing or
dissuading a witness from testifying or producing evidence. Convictions did not tend to
prove a common scheme or plan to extort, stalk, or dissuade anyone from testifying, nor
were convictions relevant to mistake or accident. NRS 48.045(2).
........................................
14. Criminal Law.
Probative value of defendant's prior convictions for attempted robbery and illegal
possession of a concealed weapon and testimony regarding these convictions was
outweighed by their prejudicial effect, in prosecution for extortion, aggravated stalking,
and preventing or dissuading a witness from testifying or producing evidence. Events at
issue took place between nine and seventeen years before defendant began his
communications with victim and involved theft, not extortion, and descriptions of
weapons used in prior incidents enhanced prejudicial effect of prior convictions. NRS
48.045(2).
15. Criminal Law.
Error in admitting evidence of defendant's prior convictions for attempted robbery and
illegal possession of a concealed weapon was harmless, in prosecution for extortion,
aggravated stalking, and preventing or dissuading a witness from testifying or
producing evidence, as there was overwhelming evidence of defendant's guilt, including
defendant's postmarked and hand-delivered letters, his voice messages, and his threats
to victim and victim's director of security.
OPINION
In this appeal, we consider the meaning of the terms libel, disgrace and secret
as used in Nevada's extortion statute, NRS 205.320. We conclude that libel refers to the
publication of a false statement of fact, disgrace means to humiliate or cause loss of favor
or standing, and secret means a fact that is unfavorable to the interest of a person and
unknown to the public and that a person would wish to conceal.
Because the district court failed to properly instruct the jury about the elements of
extortion, resulting in a verdict based on a legally insufficient theory of culpability, we
conclude that the extortion convictions must be reversed and remanded for a new trial.
We further conclude that the district court erred in admitting prior bad acts evidence,
but this error was harmless as to the remaining counts of aggravated stalking and preventing
or dissuading a witness from testifying, and we therefore affirm those convictions.
FACTS
Between September 2000 and June 2001, Donald E. Phillips sent a number of letters
to, and left several voicemail messages for, hotel developer Stephen Wynn, both at Wynn's
residence and Wynn's offices. In the letters, Phillips claimed he was Wynn's half-brother and
was entitled to half of the money Wynn allegedly inherited from their father. Several of the
letters contained threats stating that if Wynn did not comply with his requests, Phillips would
reveal their family's story, including accusations of crimes committed by Wynn or his father,
to law enforcement authorities and the media.
........................................
committed by Wynn or his father, to law enforcement authorities and the media.
When Phillips' demands were ignored, Phillips threatened to kill or injure Wynn if
Wynn did not pay him money. Phillips also threatened Wynn's director of security, Scott
Werwinski, claiming he would get Werwinski for going to the police and cooperating with
the prosecuting authorities.
On August 1, 2001, Phillips was indicted on one count of aggravated stalking,
eighteen counts of extortion, and one count of dissuading a witness from testifying or
producing evidence. The extortion counts in the indictment contained the same language,
alleging Phillips:
[D]irectly or indirectly threaten[ed] to accuse STEVEN [sic] WYNN with a crime
and/or to injure STEVEN [sic] WYNN and/or to publish or connive at publishing any
libel; and/or to expose or impute to STEVEN [sic] WYNN'S disgrace and/or a secret of
STEVEN [sic] WYNN'S, with the intent to extort and/or gain money and/or United
States currency, to wit: by defendant writing letters and/or correspondence demanding
money from STEVEN [sic] WYNN while threatening to expose the said STEVEN [sic]
WYNN to false claims of heritage and/or make false claims to law enforcement officers
and/or the media.
Phillips filed a motion in the district court seeking a DNA comparison with Wynn to
determine whether Phillips' heritage claims (i.e., that Phillips was Wynn's half-brother) were
false. Not wishing to subject Wynn to a DNA analysis, the State argued that extortion was a
crime of threat and that the truth or falsity of the threat did not matter. Nevertheless, the State
filed an amended indictment in which it altered the language charging extortion. The new
language charged Phillips with extortion by, among other actions, threatening to expose the
said STEPHEN WYNN to alleged claims of common heritage.
1
As a result of the amended
indictment, the district court denied Phillips' motion for a DNA analysis.
In its case-in-chief, the State moved to admit evidence of prior bad acts committed by
Phillips; namely, a 1977 felony theft conviction, a 1978 armed robbery conviction, a 1983
attempted robbery conviction, a 1992 conviction for illegal possession of a concealed
weapon, and a 1994 auto theft conviction. After a Petrocelli
2
hearing, the district court
granted the State's motion in part, admitting evidence leading to the 19S3 conviction for
attempted robbery and the 1992 conviction for illegal possession of a concealed weapon.
____________________

1
The State subsequently filed additional amended indictments, however, the charging language of the extortion counts remained the
same, except to correct the misspelling of Wynn's first name.

2
Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985), modified in part on other grounds by Sonner v. State, 112 Nev. 1328,
1333-34, 930 P.2d 707, 711-
........................................
part, admitting evidence leading to the 1983 conviction for attempted robbery and the 1992
conviction for illegal possession of a concealed weapon.
At trial, three witnesses testified to events related to the 1983 attempted robbery
conviction. A bank teller testified that a man (later identified as Phillips) pushed in beside a
customer, shoved a bag at her, and ordered her to fill it. Phillips had his hand inside his coat,
implying that he had a gun. When the teller informed Phillips that the police would be
arriving in about two minutes, Phillips turned and left. Other witnesses testified as to how
Phillips was identified as the suspect and his conviction.
With respect to the 1992 possession of a concealed weapon conviction, a bar patron
testified that Phillips approached him and demanded that he buy Phillips a beer. When the
witness refused, Phillips reached into his pocket, pulled out a bullet, and placed it in front of
the witness and said that it had the witness' name on it. Phillips also pulled back his coat,
revealing a shoulder holster with a pistol, and threatened to blow [the witness'] head off if
he said anything. A police inspector testified to arresting Phillips and retrieving a .357 caliber
handgun from him, loaded with six rounds of .38 special ammunition. The inspector also
testified that a search produced eighteen more rounds of ammunition, a folding knife with a
three-and-a-half- to four-inch blade, a hunting knife with a four- to five-inch blade, and a
Swiss Army knife.
The State also called two of Phillips' relatives to testify about various threats he made
to them if they did not pay him money.
Letters Phillips sent to Wynn between September 6, 2000, and the end of June 2001,
were also admitted into evidence. The first batch of letters was postmarked in Oregon and
dated from September to November 2000. In these letters, Phillips asserted that he and Wynn
shared a biological father who had killed Wynn's mother and impregnated another woman
with Phillips. This father allegedly left an inheritance to both Wynn and Phillips, which
Phillips was attempting to claim. Phillips also requested that Wynn send him various sums of
money ranging from twenty-five to fifty thousand dollars. Phillips stated that he would
expose everything about their family if Wynn did not do the right thing. One letter indicated
that Phillips was coming to Las Vegas and demanded that Wynn provide Phillips with rooms
at the Bellagio hotel.
A second batch of letters was dated between December 2000 and March 28, 2001.
One was postmarked in San Francisco, a second contained no postmark, and a third was
postmarked in Las Vegas. These letters contained similar allegations as the first group and
also accused Wynn of being affiliated with the Mafia. Phillips demanded money and
threatened to go to the media and the Federal Bureau of Investigation {FBI) to expose
Wynn's alleged background and crimes if Wynn did not pay.
____________________
12 (1996), and superseded by statute on other grounds as stated in Thomas v. State, 120 Nev. 37, 45, 83 P.3d 818, 823 (2004).
........................................
Bureau of Investigation (FBI) to expose Wynn's alleged background and crimes if Wynn did
not pay.
Phillips sent a third batch of letters. In one letter, Phillips addressed Werwinski,
stating I might die in prison, but I will get you. Phillips also alleged that Wynn had
committed various violent crimes and continued to request money in return for Phillips'
silence.
Werwinski testified that he received the letters and listened to various voicemail
messages as part of the screening process used to review Wynn's mail and communications.
Werwinski stated that he investigated Phillips to determine what level of threat Phillips might
represent to the Wynn family. When the letters began to be postmarked from Las Vegas and a
letter with no postmark was received, Werwinski increased his activities as the absence of a
postmark suggested that this letter had been hand-delivered to Wynn's residence.
Werwinski wrote to Phillips' Las Vegas post office box instructing Phillips that all
future contact should be made only through Werwinski. Werwinski stated that he believed
Phillips was an absolute threat to the Wynns.
Evidence was also presented that a person identifying himself as either Donald
Phillips or Don Vici
3
left two voicemail messages on Werwinski's recorder at Wynn Resorts.
The messages contained a threat to kill Wynn. Werwinski informed Wynn and the police of
the voicemail messages.
Wynn testified that he had never met Phillips, was not related to him, and denied his
allegations. A Las Vegas police detective and an FBI agent testified that they could find no
substantiation for Phillips' allegations.
Phillips presented no evidence in his defense. His theory, based upon
cross-examination of the State's witnesses, was that he really did believe he was Wynn's
half-brother and that he did not intend to threaten Wynn, only to get what was allegedly
rightfully his from their alleged joint father's estate.
The jury returned a general verdict, finding Phillips guilty of one count of aggravated
stalking, twelve counts of extortion, and one count of preventing or dissuading a witness from
testifying or producing evidence. The jury acquitted Phillips on the remaining extortion
counts. Phillips was adjudicated as a habitual criminal and sentenced to a term of life in
prison with the possibility of parole after ten years on each count. The sentences on the one
count of aggravated stalking and six of the extortion counts were to run consecutively. The
sentences on the remaining six counts of extortion and the one count of preventing or
dissuading a witness from testifying or producing evidence were to run concurrently.
____________________

3
At times, Phillips used this name to sign his letters to Wynn.
........................................
DISCUSSION
Phillips raises two primary arguments on appeal: (1) a claim of common heritage does
not constitute extortion under any theory of culpability enumerated in Nevada's extortion
statute, and (2) the district court erred in admitting the testimony regarding his prior
convictions.
4

Extortion
Phillips asserts that the Nevada extortion statute does not impose criminal liability for
demanding money based upon a claim of common heritage with another person. Phillips
argues that if this were true, then every heir would be committing extortion by virtue of
demanding a share of an estate based upon common heritage. Phillips contends that a claim
of common heritage is not criminally actionable.
Because the jury entered only a general finding of guilt on the extortion charges,
Phillips argues that it is impossible to discern which theory of extortion the jury used to
convict him and that they therefore could have convicted him on the legally insufficient
theory of claiming a common heritage. Phillips asserts that the jury's general extortion
verdicts must be set aside.
The State argues that threatening to expose Wynn to alleged claims of common
heritage falls within the libel, disgrace or secret provisions of the statute and that there is no
possibility Phillips was convicted of extortion based upon legally insufficient acts.
[Headnotes 1, 2]
If several theories of criminal liability are presented to the jury and one is legally
insufficient or unconstitutional, a general verdict cannot stand regardless of whether the other
theories are legally sufficient and factually supported.
5
Conversely, if the theories are all
legally sufficient, a general verdict can stand even if sufficient evidence supports only one of
the theories.
6
Jurors are not generally equipped to determine whether a particular theory of
conviction submitted to them is contrary to lawwhether, for example, the action in question
. . . fails to come within the statutory definition of the crime."
____________________

4
Phillips also asserts that the amended indictments improperly charged him with a new or additional offense not considered by the
grand jury and that he was substantially prejudiced by the amendments. We have considered this issue and find it to be without merit.

5
Yates v. United States, 354 U.S. 298, 311-12 (1957), overruled on other grounds by Burks v. United States, 437 U.S. 1 (1978);
Stromberg v. California, 283 U.S. 359, 368 (1931); see also U.S. v. Garcia, 992 F.2d 409, 415-16 (2d Cir. 1993).

6
Griffin v. United States, 502 U.S. 46, 56-57 (1991); Turner v. United States, 396 U.S. 398, 420 (1970) ([W]hen a jury returns a
guilty verdict on an indictment charging several acts in the conjunctive, . . . the verdict stands if the evidence is sufficient with respect to
any one of the acts charged.).
........................................
inition of the crime.
7
Thus, we must ascertain whether a claim of common heritage,
standing alone, constitutes a crime under Nevada's extortion statute. If such a claim falls
within one of the enumerated methods for committing extortion, then a general verdict form
is sufficient. If it does not, then lack of a special verdict mandates reversal of the extortion
convictions.
NRS 205.320 defines extortion. A person is guilty of extortion if, with the intent to
gain something, he directly or indirectly threatens:
1. To accuse any person of a crime;
2. To injure a person or property;
3. To publish or connive at publishing any libel;
4. To expose or impute to any person any deformity or disgrace; or
5. To expose any secret . . . .
8

Claiming to be an individual's half-brother is not an accusation of a crime or an injury
to a person or property. Nor does it expose or impute to a person any deformity. To constitute
a factual basis for extortion, such a claim must therefore involve libel, disgrace or a secret.
The extortion statute does not contain a definition of libel. However, criminal libel
is defined in NRS 200.510,
9
which states:
1. A libel is a malicious defamation, expressed by printing, writing, signs, pictures or
the like, tending . . . to impeach the honesty, integrity, virtue, or reputation, or to
publish the natural defects of a living person . . . and thereby to expose them to public
hatred, contempt or ridicule.
. . . .
3. In all prosecutions for libel the truth may be given in evidence to the jury, and, if it
shall appear to the jury that the matter charged as libelous is true and was published for
good motive and for justifiable ends, the party shall be acquitted, and the jury shall
have the right to determine the law and the fact.
No definition is given for defamation; however, in the civil context, we have defined
defamation as a publication of a false statement of fact.
10
NRS 200.510 similarly implies
that libel must be false as truth may serve as the basis, in part, for an acquittal.
____________________

7
Griffin, 502 U.S. at 59 (emphasis added).

8
NRS 205.320.

9
NRS 200.510 is found in provisions of the statutes relating to publishing libel (NRS 200.550) or threatening
to publish libel (NRS 200.560).

10
........................................
The State argues that for purposes of extortion, a statement does not have to be false
to be libelous. However, the cases cited by the State for this proposition involve statutes
distinguishable from Nevada's extortion statute. The statutes in question did not contain a
libel provision and the true statements fell under other categories of the statutes.
11

[Headnotes 3, 4]
We conclude that a statement must be false to constitute libel under the extortion
statute. Thus, a demand for money to refrain from publishing a true claim of common
heritage does not constitute extortion by libel. We now turn to whether a claim of common
heritage would meet some other theory of extortion under the statute.
Revealing or falsely claiming that you are an individual's illegitimate half-brother may
fit within the statute's exposure to disgrace provision. A true claim of common heritage might
also be a secret under the statute. Neither term is defined in Nevada's criminal statutes.
[Headnote 5]
A dictionary defines disgrace as to humiliate or to cause to lose favor or
standing.
12
California, which has an extortion statute similar to Nevada's, has defined
secret to mean:
[T]he thing held secret must be unknown to the general public, or to some particular
part thereof which might be interested in obtaining knowledge of the secret; the secret
must concern some matter of fact, relating to things past, present, or future; the secret
must affect the threatened person in some way so far unfavorable to the reputation, or to
some other interest of the threatened person, that threatened exposure thereof would be
likely to induce him through fear to pay out money or property for the purpose of
avoiding the exposure.
13

[Headnote 6]
Although the State argued that the truth or falsity of Phillips' claim of common
heritage with Wynn was irrelevant, the jury was not instructed on why or how a true claim
would violate the statute.
____________________

11
See United States v. Von der Linden, 561 F.2d 1340, 1341 (9th Cir. 1977) (appellant charged with threatening to injure the
property and reputation of another); People v. Goldstein, 191 P.2d 102, 106-07 (Cal. Dist. Ct. App. 1948) (appellant charged with
threatening to accuse another of a crime); State v. Workman, 471 N.E.2d 853, 860-61 (Ohio Ct. App. 1984) (appellant charged with
threatening to expose any matter tending to subject another to hatred, contempt, or ridicule, or to damage his personal or business repute, or
to impair his credit); Wood v. Com., 382 S.E.2d 306, 307-08 (Va. Ct. App. 1989) (appellant charged with threatening to injure the
character of another).

12
Webster's Collegiate Dictionary 332 (10th ed. 1993).

13
People v. Lavine, 1 P.2d 496, 499 (Cal. Dist. Ct. App. 1931).
........................................
not instructed on why or how a true claim would violate the statute. The State presented
evidence that the claim was false, but it never made the distinction between a false claim
under the libel or disgrace provisions of the statute and a true claim under the disgrace or
secret provisions. Thus, the jury could have convicted Phillips on the legally insufficient
theory that a true claim constituted libel. In addition, the jury might have concluded that
making a true claim constituted a crime without ever finding that its exposure would subject
Wynn to disgrace or that the claim was an unfavorable secret likely to induce Wynn to pay to
prevent its disclosure.
14

We conclude that the district court's failure to properly instruct the jury on the
elements of libel, disgrace and secret under the statute created a situation where the jury was
permitted to consider a legally insufficient theory of extortion in its deliberations. Because the
general verdict form does not specify which theory of extortion was used to convict Phillips,
we reverse the extortion convictions per Yates v. United States,
15
United States v. Garcia,
16
and Griffin v. United States.
17

Evidence of prior bad acts
Phillips contends that the district court erred in admitting evidence surrounding his
prior convictions because they were irrelevant, prejudicial, and too remote in time. The State
argues that the evidence was admissible as proof of Phillips' intent, a common scheme or
plan, and absence of mistake or accident, and that the probative value of the evidence was not
outweighed by its prejudicial effect.
[Headnotes 7-9]
NRS 48.045(2) states that evidence of other crimes is not admissible to prove the
character of a person in order to show that he acted in conformity therewith, but it may be
admissible as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident. In determining whether to admit such evidence, the trial
court must conduct a hearing on the matter outside the presence of the jury and on the record.
18
Evidence of prior bad acts is only admissible when: (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.
____________________

14
Indeed, no evidence was ever presented that the claim was true, only that Phillips may have believed it to
be true.

15
354 U.S. 298.

16
992 F.2d 409.

17
502 U.S. 46.

18
See Petrocelli, 101 Nev. at 51-52, 692 P.2d at 507-08.
........................................
prejudice.
19
The admissibility of prior bad acts evidence under NRS 48.045 is within the
discretion of the trial court and its decision will not be disturbed on appeal unless it is
manifestly wrong.
20

[Headnotes 10-12]
Evidence admitted under the common scheme or plan exception must relate to the
scheme or plan surrounding the defendant's commission of the charged crime.
21
Evidence
admitted under the absence of mistake exception must tend to show the defendant's
knowledge of a fact material to the crime charged.
22
Finally, events remote in time from the
charged incident have less relevance in proving later intent.
23

[Headnote 13]
Phillips was charged with extortion, aggravated stalking,
24
and preventing or
dissuading a witness from testifying or producing evidence.
25
Evidence of the circumstances
leading to Phillips' 1983 and 1992 convictions does not tend to prove a common scheme or
plan to extort, stalk, or dissuade anyone from testifying in 2000 and 2001. Nor are the
convictions relevant to mistake or accident. They do tend, however, to rebut Phillips' claim
that he did not intend to extort money from Wynn but was only trying to claim what he
honestly thought was his due as Wynn's half-brother.
____________________

19

20
Mortensen v. State, 115 Nev. 273, 280, 986 P.2d 1105, 1110 (1999).

21
Cirillo v. State, 96 Nev. 489, 492, 611 P.2d 1093, 1095 (1980); see also Brinkley v. State, 101 Nev. 676, 679-80, 708 P.2d 1026,
1028 (1985) (The offense must tend to establish a preconceived plan which resulted in commission of the charged crime.).

22
Cirillo, 96 Nev. at 492, 611 P.2d at 1095.

23
Walker v. State, 116 Nev. 442, 447, 997 P.2d 803, 806-07 (2000) (concluding that events which were six and ten years old were
clearly remote in time and less relevant to defendant's intent at time of incident).

24
NRS 200.575(1) defines stalking as willfully or maliciously engaging in a course of conduct that would cause, and actually does
cause, a reasonable person to feel terrorized, frightened, intimidated or harassed. According to NRS 200.575(2), [a] person who commits
the crime of stalking and in conjunction therewith threatens the person with the intent to cause him to be placed in reasonable fear of death
or substantial bodily harm commits the crime of aggravated stalking.

25
NRS 199.230 defines the crime of preventing or dissuading a witness from testifying or producing
evidence as:
A person who, by persuasion, force, threat, intimidation, deception or otherwise, and with the intent to
obstruct the course of justice, prevents or attempts to prevent another person from appearing before any
court, or person authorized to subpoena witnesses, as a witness in any action, investigation or other
official proceeding, or causes or induces another person to absent himself from such a proceeding or
evade the process which requires him to appear as a witness to testify or produce a record, document or
other object . . . .
........................................
[Headnote 14]
Even if the convictions and testimony had probative value, Phillips argues that their
prejudicial effect outweighed any probative value. Phillips contends that the remoteness in
time of the convictions lessens their probative value and that the descriptions of the weapons
used in the prior incidents greatly enhanced their prejudicial effect. We agree.
The victims' testimony relating to those events, combined with the law enforcement
testimony, particularly the evidence relating to the weapons seized from Phillips, portrayed
Phillips as a violent individual. It was relevant to demonstrate that Phillips intended to extort
money from Wynn, not claim an alleged inheritance. However, the events took place between
nine and seventeen years before Phillips began his communications to Wynn and involved
theft, not extortion. We conclude that the danger of unfair prejudice from the evidence
substantially outweighed its probative value and that the district court manifestly abused its
discretion in admitting the evidence.
[Headnote 15]
Although the evidence relating to the attempted robbery and possession of a concealed
weapon charges should not have been admitted, we conclude any error was harmless.
Overwhelming evidence, including Phillips' postmarked and hand-delivered letters, move to
Las Vegas, voice messages, threats to Werwinski, and threats to Wynn support his
convictions. Thus, while we reverse the extortion convictions, we affirm the convictions for
aggravated stalking and dissuading a witness.
CONCLUSION
We conclude that, in the absence of a special verdict form and jury instructions on the
terms of libel, disgrace and secret, Phillips' extortion convictions could be based on a
legally insufficient theory of law. We therefore reverse the extortion convictions and remand
those counts for a new trial consistent with this opinion. Furthermore, the district court
improperly admitted prior bad acts evidence; however, this error is harmless in light of the
overwhelming evidence admitted at trial. Accordingly, we affirm Phillips' convictions on the
counts of aggravated stalking and dissuading a witness from testifying or producing evidence.
Gibbons, Douglas and Parraguirre, JJ., concur.
Maupin, J., with whom Hardesty, J., agrees, concurring:
I concur in the result reached by the majority. I write separately to point out an
additional error in the admission of evidence concerning Phillips' 1983 and 1992 convictions,
and the State's arguments thereon.
........................................
The prosecution clearly overplayed its hand in its closing remarks to the jury. As
noted by Justice Rose, the prosecutor argued that this case involved the same game, different
victim in referring to the prior convictions. This argument improperly treated the prior
misconduct as character evidence, not for the stated other purposes under NRS 48.045(2).
1
Going further, the State's justification for admission of the prior bad act evidence strains
credulityconduct leading to convictions years before was not part of a common scheme to
extort and stalk the victims in this case.
While I agree that the admission of the evidence and the arguments do not compel
reversal, I want to stress that there was no excuse for making arguments that endangered an
otherwise strong case.
Rose, J., concurring in part and dissenting in part:
I concur in the reversal of the extortion convictions for the reason stated, but I would
also reverse the aggravated stalking charges and dissuading a witness from testifying because
I do not believe the prior bad act evidence that was improperly admitted was harmless beyond
a reasonable doubt.
The State's first five witnesses testified about two prior incidents that resulted in
convictions against Mr. Phillips. The first was a 1982 incident where Phillips approached a
bank teller, shoved a bag at her, and told her to fill it up. Phillips had his hand in his coat,
implying that he had a gun. She asked loudly if this was a robbery and Phillips left. He was
arrested jogging away from the bank and apparently intoxicated. A gun was never found. The
second conviction was for the possession of a concealed weapon in 1991. Phillips approached
a patron at a bar in San Francisco and demanded that he buy him a beer. Phillips then reached
into his pocket, pulled out a bullet, and placed it in front of the patron, stating it had the
stranger's name on it. Phillips pulled his coat back and revealed a pistol in a shoulder holster.
Phillips then scooped up the change from the bar, told the man that if he said anything, he'd
blow his head off, and ran. Phillips was arrested and found in possession of a loaded revolver.
The man at the bar testified that Phillips was threatening, intimidating, and scary.
After the testimony about these two incidents, the jury could not help but have a vivid
picture of Phillips as a crazed, threatening, dangerous man who carries deadly weapons. This
is exactly the picture the prosecutor wanted the jury to have before she began presenting
witnesses about the charges against Phillips.
____________________

1
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. 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.
........................................
Early in her final argument, the prosecutor reminded the jury about these two prior
incidents.
He's threatened the bank teller before for money. When he realizes she says something
to the police, he turns and he walks out of there because he knows the police are
coming. . . .
He has a prior conviction for walking in and showing a .357 Magnum and saying I'm
going to blow your head off to which he went to prison. This defendant knows what it
means to say I'm going to kill him.
The prosecutor then called Phillips a slick scam artist and a manipulative con man and stated:
same game, different victim. The prosecution certainly did not think the evidence of these
two prior bad acts was inconsequential. Further, the argument same game, different victim
improperly treats the bad acts as character evidence, not for the stated other purpose under
NRS 48.045(2).
In Tavares v. State, we explained:
We have often held that the use of uncharged bad act evidence to convict a defendant
is heavily disfavored in our criminal justice system because bad acts are often irrelevant
and prejudicial and force the accused to defend against vague and unsubstantiated
charges. The principal concern with admitting such acts is that the jury will be unduly
influenced by the evidence, and thus convict the accused because it believes the
accused is a bad person.
1

When we make a rule of law, we have the corresponding obligation to enforce it.
Because I believe this prior bad act evidence had a substantial impact on the jury, I cannot
conclude that its presentation to the jury was harmless beyond a reasonable doubt.
2
Therefore, I would reverse and remand all convictions for a new trial.
____________________

1
117 Nev. 725, 730, 30 P.3d 1128, 1131 (2001) (footnote omitted).

2
Hymon v. State, 121 Nev. 200, 210, 111 P.3d 1092, 1099 (2005).
____________
........................................
121 Nev. 605, 605 (2005) Waid v. Dist. Ct.
FREDERICK WAID; M. NAFEES NAGY, M.D.; NOEL A. GAGE; and GAGE & GAGE,
LLP, Petitioners, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE
OF NEVADA, in and for THE COUNTY OF CLARK, and THE HONORABLE
DAVID WALL, District Judge, Respondents, and VESTIN FUND I, LLC, a Nevada
Limited Liability Company; VESTIN FUND II, LLC, a Nevada Limited Liability
Company; and DANIEL TABAS, an Individual, Real Parties in Interest.
No. 42322
September 22, 2005
119 P.3d 1219
Original petition for a writ of mandamus challenging a district court order that
disqualified counsel.
The supreme court held that: (1) determining whether prior and current matters are
substantially related requires a court to make a factual determination concerning the scope of
the former representation, evaluate whether it is reasonable to infer that the confidential
information allegedly given would have been given to a lawyer representing a client in those
matters, and determine whether that information is relevant to the issues raised in the present
litigation; (2) trial court did not abuse its discretion in determining that the current matter was
substantially related to prior litigation in which attorney represented affiliate of predecessors
to lender and assignees; and (3) trial court did not abuse its discretion in concluding that
attorney represented assignees' predecessors.
Petition denied.
Lemons Grundy & Eisenberg and Robert L. Eisenberg, Reno, for Petitioners.
Beckley Singleton, Chtd., and Ike Lawrence Epstein and Daniel F. Polsenberg, Las
Vegas; Paul R. Connaghan, Las Vegas, for Real Parties in Interest.
1. Appeal and Error; Attorney and Client.
The district court has broad discretion in attorney disqualification matters, and the
supreme court will not overturn its decision absent an abuse of that discretion.
2. Mandamus.
Attorney disqualification orders are properly challenged through a petition for a writ
of mandamus.
Disqualification under conflict of interest rule is warranted only if a prior
representation and the current representation are substantially related. SCR 159.
The burden of proving that two matters are substantially related falls on the party
seeking disqualification of attorney for conflict of interest. SCR 159.
........................................
121 Nev. 605, 606 (2005) Waid v. Dist. Ct.
A superficial similarity between the two matters is not sufficient to warrant
disqualification of attorney based on conflict of interest; rather, the focus is properly on
the precise relationship between the present and former representation. SCR 159.
To determine whether attorney's prior and current matters are substantially related and
attorney has disqualifying conflict of interest, a court must (1) make a factual
determination concerning the scope of the former representation, (2) evaluate whether it
is reasonable to infer that the confidential information allegedly given would have been
given to a lawyer representing a client in those matters, and (3) determine whether that
information is relevant to the issues raised in the present litigation. SCR 159.
District court ruling on motion by lender's assignees to disqualify guarantors' attorney
did not abuse its discretion in determining that the current matter was substantially
related to prior litigation in which attorney represented corporate affiliate of
predecessors to lender and assignees and which involved alleged Ponzi scheme claimed
to be relevant to suit against guarantors; the court reasonably inferred that confidential
and likely quite sensitive information was given to attorney during the prior
representation. SCR 159.
Generally, a lawyer representing a corporate entity represents only the entity, not its
officers, directors, or shareholders, and not any related entities such as parents,
subsidiaries, or sister companies.
The inquiry into whether an attorney-client relationship has been established is very
fact-specific.
10. Attorney and Client; Corporations.
A successor corporation succeeds to the prior corporation's rights and liabilities,
including the prior corporation's right to protect confidential information transmitted to
the prior corporation's counsel.
District court in ruling on motion by lender's assignees to disqualify guarantors'
attorney did not abuse its discretion in concluding that attorney represented assignees'
predecessors when representing their affiliate in connection with prior alleged Ponzi
scheme; the only documentation of scope of prior representation was an affidavit that
attorney acquired confidential information while representing the affiliates during the
prior litigation. SCR 159.
1

OPINION
Per Curiam:
This original petition for a writ of mandamus challenges a district court order
disqualifying petitioner Noel Gage and his firm, petitioner Gage & Gage, LLP, from
representing petitioners Frederick Waid and M.
____________________

1
The Honorable Ron Parraguirre, Justice, voluntarily recused himself from participation in the decision of this matter.
........................................
121 Nev. 605, 607 (2005) Waid v. Dist. Ct.
petitioner Gage & Gage, LLP, from representing petitioners Frederick Waid and M. Nafees
Nagy, defendants in the underlying action. We conclude that petitioners have not
demonstrated that the district court abused its discretion in ordering disqualification. First, we
adopt the Seventh Circuit's test for evaluating when a prior matter and a current matter are
substantially related, and we determine that the district court did not abuse its discretion in
this regard. Second, petitioners have not met their burden to demonstrate that the district
court's conclusion, that the real parties in interest Vestin Fund I and Vestin Fund II were
Gage's former clients, was arbitrary or capricious. Accordingly, we deny the petition.
FACTS
In the underlying district court complaint, filed in late 2002, Vestin Fund I and Vestin
Fund II, along with real party in interest Daniel Tabas, seek to collect on personal guarantees
for an $11.5 million loan. The original lender, Vestin Mortgage, Inc., assigned its interest in
the loan to the Vestin Funds and Tabas. Apparently, the borrower, SBG Group, defaulted and
filed bankruptcy, and so the Vestin Funds and Tabas made demand on the guarantors, Waid
and Nagy. The defenses asserted in Waid and Nagy's answer include waiver and estoppel, a
defective demand under the governing guaranty agreements, and oral agreements to extend
the loan until new financing could be found, all of which would preclude enforcement of the
guaranties. The parties conducted an early case conference under NRCP 16.1 and filed a
report.
In October 2003, approximately one month before the discovery cutoff, Waid and
Nagy substituted Noel Gage as their counsel, in place of their former attorney. Gage
immediately served a supplemental NRCP 16.1 disclosure that listed several additional
witnesses. These witnesses were officers and employees of the Vestin Funds and business
entities affiliated with the Vestin Funds: Vestin Mortgage, Inc., and Vestin Group, Inc. Vestin
Mortgage is the manager of the Vestin Funds and is wholly owned by Vestin Group (which is
a publicly traded corporation).
In describing the anticipated testimony of each of these newly disclosed witnesses,
Gage included the following language:
[The witness] is also expected to testify as to his knowledge of any lawsuits against or
investigations by state and federal authorities into the above named individuals and
entities, and the outcome of such lawsuits/investigations. [The witness] is also expected
to testify as to his knowledge of the Ponzi scheme being conducted by the above
named individuals and entities and its effect on Defendants, the underlying loan, the
alleged underlying guaranty, and why these matters are extremely relevant to this
matter.
........................................
121 Nev. 605, 608 (2005) Waid v. Dist. Ct.
The Vestin Funds filed a motion to disqualify Gage and his firm. The motion was
supported by an affidavit by Vestin Group's in-house counsel, Paul Connaghan, detailing
Gage's representation of the Vestin affiliates in certain prior litigation that occurred in
1999.
The 1999 litigation arose from Vestin Group CEO Michael Shustek's former role as
CEO of an entity called Del Mar Mortgage, Inc. Two news articles appearing in Las Vegas
papers in 1997 referenced an anonymous letter that accused Del Mar of running a Ponzi
scheme. Shustek was quoted in the articles as denying the allegations.
It appears that in 1999, the Nevada authorities seized control of Del Mar and its assets
and placed them under conservatorship. Shustek hired Noel Gage to file suit against several
state departments, divisions and employees; Shustek was the only named plaintiff.
According to petitioners, state personnel sexually harassed Del Mar's female
employees during their investigation of Del Mar. They contend that Shustek's purpose in
filing his action was to stop the harassment and seek damages for it. In contrast, the Vestin
Funds assert that the suit's purpose was to recover Del Mar's seized assets.
Gage undisputedly represented both Shustek and Del Mar in the 1999 litigation. The
Vestin Funds allege that Gage participated in confidential meetings between several
high-level Del Mar employees, and thereby gained confidential information about Del Mar
and the alleged Ponzi scheme. Gage was also given a copy of the anonymous letter referenced
in the 1997 newspaper articles. Vestin Group's in-house counsel, Paul Connaghan, who was
then outside counsel, also represented Del Mar and Shustek.
The 1999 case was resolved in March 1999 by a stipulation between Shustek and the
State of Nevada. The stipulation makes no reference to state personnel's alleged sexual
harassment of Del Mar employees. Rather, under the stipulation, the state returned Del Mar's
assets and permitted Del Mar to continue operating under certain conditions, most notably
that Del Mar would stop promising new investors that they could recover their investment in
forty-eight hours. Also, Shustek's involvement with Del Mar was limited. The stipulation was
approved by Del Mar, which agreed to be bound by its terms. Finally, the stipulation was also
approved by other Del Mar affiliates, including Sunderland Acquisition Corporation and
Capsource, Inc., which similarly agreed to be bound by its terms.
According to the Vestin Funds, Sunderland is Vestin Group's predecessor, and
Capsource is Vestin Mortgage's predecessor. They do not specify exactly how the successions
took place. But it appears that several of the former high-level Del Mar employees who
allegedly participated in meetings with Gage during the 1999 litigation are now officers
for one or more of the Vestin entities.
........................................
121 Nev. 605, 609 (2005) Waid v. Dist. Ct.
allegedly participated in meetings with Gage during the 1999 litigation are now officers for
one or more of the Vestin entities. In addition, Michael Shustek is now the CEO of Vestin
Group, and he also serves as the resident agent for Vestin Fund I. As noted above, Vestin
Mortgage serves as the manager of both Vestin Fund I and Vestin Fund II.
The district court held a hearing and thereafter entered an order disqualifying Gage
and his firm. The district court stated that based on the information presented to it, a
substantial relationship existed between the issues before the court and Gage's prior
representation of the [Vestin Funds'] Affiliates, and thus disqualification was warranted.
This writ petition followed.
DISCUSSION
[Headnotes 1, 2]
Petitioners maintain that the district court improperly disqualified Gage.
Disqualification in this matter is governed by SCR 159,
2
which provides:
Rule 159. Conflict of interest: Former client. A lawyer who has formerly
represented a client in a matter shall not thereafter:
1. Represent another person in the same or a substantially related matter in which that
person's interests are materially adverse to the interests of the former client unless the
former client consents, preferably in writing, after consultation; or
2. Use information relating to the representation to the disadvantage of the former
client except as Rule 156 would permit with respect to a client or when the information
has become generally known.
The district court has broad discretion in attorney disqualification matters, and this court will
not overturn its decision absent an abuse of that discretion.
3
Attorney disqualification orders
are properly challenged through a petition for a writ of mandamus.
4

[Headnotes 3-5]
Disqualification under SCR 159 is warranted only if a prior representation and the
current representation are substantially related.
____________________

2
In addition, if Gage is disqualified under SCR 159, then under SCR 160's imputed disqualification rule, the firm of Gage & Gage is
likewise disqualified. This opinion does not separately analyze imputed disqualification under SCR 160, because the parties do not dispute
that if Gage is disqualified, then so is his firm.

3
Brown v. Dist. Ct., 116 Nev. 1200, 14 P.3d 1266 (2000); Robbins v. Gillock, 109 Nev. 1015, 862 P.2d 1195 (1993).

4
Leibowitz v. Dist. Ct., 119 Nev. 523, 78 P.3d 515 (2003).
........................................
121 Nev. 605, 610 (2005) Waid v. Dist. Ct.
The burden of proving that two matters are substantially related falls on the party seeking
disqualification.
5
We have recognized that
[i]n proving that a prior representation is substantially related to present litigation,
however, the moving party is not required to divulge the confidences actually
communicated, nor should a court inquire into whether an attorney actually acquired
confidential information in the prior representation which is related to the current
representation. The court should instead undertake a realistic appraisal of whether
confidences might have been disclosed in the prior matter that will be harmful to the
client in the later matter.
6

A superficial similarity between the two matters is not sufficient to warrant disqualification;
rather, the focus is properly on the precise relationship between the present and former
representation.
7

[Headnote 6]
The Seventh Circuit has formulated a three-part test for determining when a former
and present matter are substantially related, which has been adopted by at least two state
supreme courts, Illinois and Missouri.
8
The Seventh Circuit test requires the trial court to do
the following: (1) make a factual determination concerning the scope of the former
representation, (2) evaluate whether it is reasonable to infer that the confidential information
allegedly given would have been given to a lawyer representing a client in those matters, and
(3) determine whether that information is relevant to the issues raised in the present litigation.
9
As this framework is useful in analyzing former client conflicts of interest, we adopt it for
Nevada.
[Headnote 7]
Here, the district court concluded that the former representation encompassed
allegations that Del Mar and its affiliates, officers and directors were involved in a Ponzi
scheme. Consequently, it was reasonable for the district court to infer that confidential and
likely quite sensitive information was given to Gage during the prior representation. Finally,
petitioner's supplemental NRCP 16.1
____________________

5
See Robbins, 109 Nev. at 1017, 862 P.2d at 1197.

6
Id. at 1018, 862 P.2d at 1197 (citations omitted).

7
Id.; see also Hawkins v. 8th District Court, 67 Nev. 248, 216 P.2d 601 (1950); Boyd v. Second Judicial District Court, 51 Nev. 264,
274 P. 7 (1929); Coles v. Arizona Charlie's, 973 F. Supp. 971 (D. Nev. 1997).

8
See Westinghouse Elec. Corp. v. Gulf Oil Corp., 588 F.2d 221 (7th Cir. 1978), cited in In re Carey, 89 S.W.3d 477 (Mo. 2002); see
also Schwartz v. Cortelloni, 685 N.E.2d 871 (Ill. 1997) (citing LaSalle Nat. Bank v. County of Lake, 703 F.2d 252 (7th Cir. 1983), for the
same three-part test).

9
Westinghouse, 588 F.2d at 225.
........................................
121 Nev. 605, 611 (2005) Waid v. Dist. Ct.
disclosure itself proclaims that information concerning the alleged Ponzi scheme, the
subject of the prior representation, is extremely relevant to the current litigation. Thus, the
district court did not abuse its discretion in determining that the 1999 litigation and the
current matter are substantially related.
[Headnotes 8-10]
But for disqualification to be appropriate, Gage must have represented a client in the
1999 litigation. Generally, a lawyer representing a corporate entity represents only the entity,
not its officers, directors, or shareholders, and not any related entities such as parents,
subsidiaries or sister companies.
10
But the inquiry into whether an attorney-client
relationship has been established is very fact-specific, and so in various situations, courts
have found a sufficient connection to warrant the lawyer's disqualification.
11
Also, a
successor corporation succeeds to the prior corporation's rights and liabilities, including
the prior corporation's right to protect confidential information transmitted to the prior
corporation's counsel.
____________________

10
Restatement (Third) of the Law Governing Lawyers 131 cmt. b (2000); Boyd, 51 Nev. at 269-70, 274 P. at 8-9 (dismissing
challenge to disqualification of lawyer who had worked for company with its former officer from representing the officer against the
company); Bobbitt v. Victorian House, Inc., 545 F. Supp. 1124 (N.D. Ill. 1982); BNYCP v. Superior Court (Parsons Corp.), 70 Cal. Rptr.
2d 419 (Ct. App. 1997); Jesse v. Danforth, 485 N.W.2d 63 (Wis. 1992); cf. Palmer v. Pioneer Inn Assocs., Ltd., 118 Nev. 943, 59 P.3d
1237 (2002) (holding that SCR 182 prohibits attorney contact with certain employees of a represented company, those who are most likely
to possess confidential information). We note that the primary concern in Palmer, protection of employees with confidential information, is
different from the issue of whether an attorney-client relationship has been established between a company's lawyer and its affiliate, officer,
director or employee.

11
Restatement (Third) of the Law Governing Lawyers 14 cmt. f, 131 cmt. b; Teradyne, Inc. v. Hewlett-Packard, 20 U.S.P.Q.2d
(BNA) 1143 (N.D. Cal. 1991) (disqualifying from opposing parent corporation in patent litigation (1) firm that represented wholly owned
subsidiary and (2) firm that represented parent's pension and benefit plans, when parent exercised substantial control over matters handled
by the firms) (not reported in F. Supp.); Baxter Diagnostics, Inc. v. AVL Scientific Corp., 798 F. Supp. 612 (C.D. Cal. 1992) (disqualifying
attorneys who had previously represented parent corporation from representing plaintiffs against subsidiary, when case involved challenge
to validity of patent for which attorneys had generated opinions for parent); Gould, Inc. v. Mitsui Min. & Smelting Co., 738 F. Supp. 1121
(N.D. Ohio 1990) (holding that counsel for parent corporation had a conflict in action against defendant corporation because counsel also
represented a subsidiary of defendant corporation); Arpadi v. First MSP Corp., 628 N.E.2d 1335 (Ohio 1994) (holding that attorneys for
limited partnership and its general partner owed duties to limited partners); Oswall v. Tekni-Plex, Inc., 691 A.2d 889 (N.J. Super. Ct. App.
Div. 1997) (disqualifying firm from representing company's former president in action by former employee against company because
company's asserted defense was adverse to president); G.F. Industries v. American Brands, 583 A.2d 765 (N.J. Super. Ct. App. Div. 1990)
(disqualifying parent corporation's counsel that had performed extensive services for subsidiary from defending parent in action by
subsidiary's buyer); cf. Dow Chemical Co. v. Mahlum, 114 Nev. 1468, 970 P.2d 98 (1998) (noting that Dow Corning attorneys were
conflicted from representing parent Dow Chemical and that client's waiver of conflict had not been timely presented).
........................................
121 Nev. 605, 612 (2005) Waid v. Dist. Ct.
a successor corporation succeeds to the prior corporation's rights and liabilities, including the
prior corporation's right to protect confidential information transmitted to the prior
corporation's counsel.
12

[Headnote 11]
The district court concluded that Gage had previous[ly] represent[ed] the [Vestin
Funds'] Affiliates. Petitioners assert that insufficient evidence supports the district court's
conclusion concerning the relationship between the business entities that Gage represented in
the 1999 litigation and the Vestin Funds. But the Vestin Funds' motion to disqualify Gage
included Connaghan's affidavit, which states that Gage acquired confidential information
while representing the Vestin affiliates during the 1999 litigation. Petitioners did not
dispute the claim or provide a contrary affidavit.
NRAP 21(a) imposes upon a party seeking extraordinary relief the burden of
providing a statement of the facts necessary to an understanding of the issues presented by
the application . . . and copies of any order or opinion or parts of the record which may be
essential to an understanding of the matters set forth in the petition. We recently emphasized
a petitioner's duties under this rule in Pan v. District Court,
13
in which we stated:
The reasons for NRAP 21(a)'s requirements are simple. A petition for writ relief
invokes this court's original jurisdiction. Our review in a writ proceeding is limited to
the argument and documents provided by the parties. If essential information is left out
of the petition and accompanying documentation, we have no way of properly
evaluating the petition. We routinely receive and deny writ petitions that fail to comply
with NRAP 21(a). The time and energy expended reviewing these deficient petitions
wastes this court's valuable and limited judicial resources.
Here, the only documentation before us concerning the scope of Gage's 1999
representation supports the district court's order. Connaghan's affidavit states that Gage
represented not only Del Mar and Shustek, but also Sunderland and Capsource, and that
Vestin Group and Vestin Mortgage are the successors to those entities. Also, the stipulation
that resolved the 1999 litigation supports the Vestin Funds' assertions concerning the subject
of the prior representation because it sets forth only terms concerning the return of Del Mar's
assets and does not mention the alleged harassment of Del Mar's employees. Petitioners did
not provide a copy of the 1999 complaint or any other documentation to support their claims
concerning the prior case's subject matter or the scope of Gage's representation.
____________________

12
NRS 49.105(1); U.S. v. Nabisco, Inc., 117 F.R.D. 40 (E.D.N.Y. 1987); Oswall, 691 A.2d at 894-95.

13
120 Nev. 222, 229, 88 P.3d 840, 844 (2004) (citations omitted).
........................................
121 Nev. 605, 613 (2005) Waid v. Dist. Ct.
claims concerning the prior case's subject matter or the scope of Gage's representation.
Indeed, petitioners' opposition to the district court disqualification motion does not contain
any affidavits supporting petitioners' contentions about the 1999 litigation. Under these
circumstances, we are not persuaded that the district court abused its discretion in
determining that the real parties in interest were former clients within the scope of SCR 159.
We conclude that petitioners have not demonstrated that the district court manifestly
abused its discretion in disqualifying Gage and his firm and thus extraordinary relief is not
warranted. Accordingly, we deny the petition.
____________
121 Nev. 613, 613 (2005) Potter v. Potter
THOMAS POTTER, Appellant, v. SVETLANA POTTER, aka
SVETLANA EVELEIGH, Respondent.
No. 42488
September 22, 2005
119 P.3d 1246
Appeal from a post-decree order granting respondent's motion to relocate with the
minor child to California. Eighth Judicial District Court, Family Court Division, Clark
County; T. Arthur Ritchie Jr., Judge.
The supreme court, Becker, C. J., held that relocation statute did not govern request to
relocate by wife who had joint physical custody of child.
Gayle F. Nathan, Las Vegas, for Appellant.
Theodore P. Williams, Las Vegas, for Respondent.
Rebecca L. Burton, Las Vegas; Ecker & Kainen, Chtd., and Edward L. Kainen, Las
Vegas; Bruce I. Shapiro, Henderson, for Amicus Curiae Family Law Section of the State Bar
of Nevada.
Brenda J. Erdoes, Legislative Counsel, and William L. Keane, Principal Deputy
Legislative Counsel, Carson City, for Amicus Curiae State Legislature.
Statutory interpretation is a question of law subject to de novo review.
2. Statutes.
When the language of a statute is clear and unambiguous, its apparent intent must be
given effect.
........................................
3. Statutes.
When a statute is ambiguous, the Legislature's intent is the controlling factor in
statutory interpretation, and in such instances, the court may look to legislative history
to ascertain the Legislature's intent.
4. Child Custody.
Statute requiring custodial parent seeking to relocate with child to obtain written
consent of noncustodial parent or obtain court permission to relocate with child if
noncustodial parent refuses to grant consent did not govern request to relocate with
child by former wife who shared joint physical custody of child with husband; rather,
wife was required to file motion for primary physical custody in which court would
determine whether child's relocation to California with wife would be in child's best
interest. NRS 125.510(2), 125C.200.
5. Child Custody.
When a parent with joint physical custody of a child wishes to relocate outside of
Nevada with the child, the parent must move for primary physical custody for the
purposes of relocating. NRS 125.510(2).
6. Child Custody.
On a motion for primary physical custody by a parent with joint custody for the
purposes of relocating with the child, the district court must determine whether the
moving parent will be relocating outside of Nevada with the child if he or she obtains
primary custody. NRS 125.510.
7. Child Custody.
On a motion for primary physical custody by a parent with joint physical custody for
the purposes of relocating with the child, the district court may consider, among other
factors, the locales of the parents and whether one parent had de facto primary custody
of the child prior to the motion. NRS 125.510.
8. Child Custody.
The moving party on a motion for primary physical custody of the child for the
purposes of relocating with the child has the burden of establishing that it is in the
child's best interest to reside outside of Nevada with the moving parent as the primary
physical custodian. NRS 125.510(2).
9. Child Custody.
In ruling on a motion for primary physical custody for the purposes of relocating with
the child by a parent with joint physical custody, the issue is whether it is in the best
interest of the child to live with parent A in a different state or parent B in Nevada.
NRS 125.510(2).
OPINION
This appeal involves whether Nevada's relocation statute, NRS 125C.200, applies to
parties who share joint physical custody of their minor children. We conclude that it does not.
When one parent in a joint physical custody arrangement desires to move outside of Nevada
with the minor children, the correct procedure is to file a motion for change of custody under
NRS 125.510(2) for the purpose of relocation. The district court must then determine whether
the best interests of the children are better served by living outside of Nevada with the
relocating parent as the primary physical custodian or living in Nevada with the
nonmoving parent having primary physical custody.
........................................
the best interests of the children are better served by living outside of Nevada with the
relocating parent as the primary physical custodian or living in Nevada with the nonmoving
parent having primary physical custody. Because the district court improperly applied NRS
125C.200 to the instant joint physical custody case, we reverse the district court's order
granting relocation and remand for the district court to apply the best interest of the child
standard in accordance with this opinion and NRS 125.510(2).
FACTS
Appellant Thomas Potter and respondent Svetlana Potter, a/k/a Svetlana Eveleigh,
were married in 1994. They had one child, who was born in 1995. Shortly after the child was
born, Svetlana and Thomas divorced. At the time of the divorce, Svetlana was awarded
primary physical custody of the child. Thomas and Svetlana shared joint legal custody.
In 1996, the parties executed a stipulation and order regarding a parenting plan,
agreeing to share joint physical and legal custody. According to the district court record, from
1996 to 2003, the parties experienced no custody problems, and both parents were actively
involved with the child.
In 2003, Svetlana received an employment offer from a California hospital for a
registered nurse position at a higher salary than she received in a similar position in Las
Vegas. She filed a 125C.200 petition to relocate with the child to Corona, California.
Additionally, Svetlana expressed a desire to obtain a nurse anesthesiologist degree from a
California school, a degree program that is not available in Las Vegas, and for which her
future employer would pay a significant portion of the expenses.
Thomas opposed the petition, arguing that the Legislature amended the relocation
statute in 1999 so that it no longer applied to joint physical custody arrangements. Thomas
asserted that Svetlana could not file a relocation petition unless she first successfully moved
for primary custody. Thomas also contended that Svetlana could not show that it was in the
child's best interest for Svetlana to have primary physical custody. Thomas claimed that, to
the contrary, he should receive primary physical custody, as living in Nevada with him was in
the child's best interest.
At the time of the evidentiary hearing in this matter, Svetlana had already relocated to
Corona, and the child was splitting his time between Corona and Las Vegas. The parties
introduced significant evidence to the district court regarding the benefits and disadvantages
of the move and its effect on the child.
1

____________________

1
Because the district court applied the wrong statute and standard in evaluating Svetlana's petition, we do not address the evidence
presented, as it has no bearing on the legal issue presented to us.
........................................
The district court treated the petition as an NRS 125C.200 relocation petition, failing
to address Thomas' arguments that, under the amended version of NRS 125C.200, Svetlana
could not file a relocation petition without first having primary physical custody.
Accordingly, the court performed an analysis consistent with the relocation factors articulated
in Schwartz v. Schwartz,
2
ultimately concluding that the weight of the evidence supported
granting Svetlana's relocation petition. Consequently, the district court granted primary
physical custody to Svetlana and provided for significant contact and visitation between
Thomas and the child. The district court continued the existing joint legal custody.
DISCUSSION
On appeal, Thomas alleges that the district court abused its discretion by granting
Svetlana's relocation petition and by denying Thomas' motion for a change of custody.
According to Thomas, the district court erred by applying NRS 125C.200 to a situation
involving joint physical custody. Svetlana now concedes that NRS 125C.200 does not apply
to joint physical custody situations,
3
but she nevertheless argues that the district court's order
should be affirmed, as the court inherently found that it was in the child's best interest to
award primary physical custody to Svetlana, and because there is substantial evidence in that
regard to support that finding.
Although the parties now agree that the relocation statute does not apply to joint
physical custody arrangements, they do not agree on what happens when a parent wishes to
sever joint physical custody, seek primary physical custody, and relocate with the child out of
state. We address this issue so as to clarify the law on this point.
[Headnotes 1-3]
Statutory interpretation is a question of law subject to de novo review.
4
When the
language of a statute is clear and unambiguous, its apparent intent must be given effect.
5
However, [w]hen a statute is ambiguous, the legislature's intent is the controlling factor in
statutory interpretation.
6
In such instances, this court may look to the legislative history to
ascertain the Legislature's intent.
7

____________________

2
107 Nev. 378, 812 P.2d 1268 (1991).

3
In her appellate briefs, Svetlana argues that the district court properly decided this case under the Schwartz factors; however, at the
time of oral argument, Svetlana conceded that NRS 125C.200 does not apply to joint physical custody cases.

4

5
Metz v. Metz, 120 Nev. 786, 791-92, 101 P.3d 779, 783 (2004).

6
State, Dep't Human Res. v. Estate of Ullmer, 120 Nev. 108, 114, 87 P.3d 1045, 1049 (2004).

7
See Beazer Homes Nevada, Inc. v. Dist. Ct., 120 Nev. 575, 582, 97 P.3d 1132, 1137 (2004).
........................................
Today, NRS 125C.200 states:
If custody has been established and the custodial parent intends to move his residence
to a place outside of this State and to take the child with him, he must, as soon as
possible and before the planned move, attempt to obtain the written consent of the
noncustodial parent to move the child from this State. If the noncustodial parent refuses
to give that consent, the custodial parent shall, before he leaves this State with the child,
petition the court for permission to move the child. The failure of a parent to comply
with the provisions of this section may be considered as a factor if a change of custody
is requested by the noncustodial parent.
The statute does not define the term custodial parent and contains no reference to shared or
joint custody. In contrast, the statute, which was previously found at NRS 125A.350, read:
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.
(Emphases added.) NRS 125A.350 equally applied to parents with primary physical custody
and to parents who shared joint physical custody, resulting in decisional law that applied to
all custodial arrangements.
8
However, the amended statute, NRS 125C.200, specifically
omits the language regarding joint custody and instead focuses on custodial and
noncustodial parents.
[Headnote 4]
As conceded by Svetlana, on its face, NRS 125C.200 does not apply to joint physical
custody. Even if the statute were ambiguous, the legislative history indicates that the
amendment was specifically proposed to address perceived problems with respect to NRS
125C.200's application in joint custody arrangements.
9
The legislative history clearly shows
that the Legislature intended that NRS 125C.200 apply only to primary physical custody
situations; that is, where there is a custodial parent and a noncustodial parent.
____________________

8
Blaich v. Blaich, 114 Nev. 1446, 1449, 971 P.2d 822, 824 (1998).

9
See Hearing on A.B. 544 Before the Senate Comm. on Judiciary, 70th Leg., at 10 (Nev., April 27, 1999).
........................................
custody situations; that is, where there is a custodial parent and a noncustodial parent.
10

Accordingly, we conclude that a parent sharing joint physical custody is not eligible to
petition to relocate with a minor child under NRS 125C.200. Instead, as the legislative history
indicates, courts must apply NRS 125.510(2) and the best interest of the child standard to
such situations.
11

[Headnote 5]
When a parent with joint physical custody of a child wishes to relocate outside of
Nevada with the child, the parent must move for primary physical custody for the purposes of
relocating.
12
The district court must consider the motion for primary custody under the best
interest of the child standard established for joint custody situations in NRS 125.510 and
Truax v. Truax.
13
Any order for joint custody may be modified or terminated by the court . .
. if it is shown that the best interest of the child requires the modification or termination.
14

[Headnotes 6-9]
In considering this motion, the district court must determine whether the moving
parent will be relocating outside of Nevada with the child if he or she obtains primary
custody.
15
The district court may also consider, among other factors, the locales of the
parents and whether one parent had de facto primary custody of the child prior to the motion.
The moving party has the burden of establishing that it is in the child's best interest to reside
outside of Nevada with the moving parent as the primary physical custodian. The issue is
whether it is in the best interest of the child to live with parent A in a different state or parent
B in Nevada.
In this case, the district court erred by applying NRS 125C.200 in a joint physical
custody arrangement. Svetlana urges us to affirm the district court's order because evidence
was presented that it was in the child's best interest for Svetlana to be awarded primary
physical custody and live in California.
____________________

10
Hearing on A.B. 544 Before the Assembly Comm. on Judiciary, 70th Leg., at 3 (Nev., April 5, 1999).

11
Id. at 3-4.

12
Any undecided petition for relocation in a joint custody case pending before the district court as of the date of this opinion should
be treated as though the party had moved for primary custody, regardless of the form or title of the document.

13
110 Nev. 437, 874 P.2d 10 (1994).

14
NRS 125.510(2) (emphasis added); see also Truax, 110 Nev. at 438-39, 874 P.2d at 11.

15
Such a finding is necessary to avoid frivolous attempts to change custody based upon a false claim of relocation.
........................................
ical custody and live in California. We disagree. Although testimony regarding the child's
best interest was introduced, the district court did not utilize the Truax factors in its analysis
and made no finding that the move was in the child's best interest. Nor can we infer such a
finding from the record.
Therefore, we reverse the district court's order and remand this case so that the district
court can determine whether it is in the child's best interest to live in California with Svetlana
as the primary custodian or to live in Nevada with Thomas as the primary physical custodian.
16

Rose, Maupin, Gibbons, Douglas, Hardesty and Parraguirre, JJ., concur.
____________
121 Nev. 619, 619 (2005) Miller v. Wilfong
ROBERT MILLER, Appellant, v. SHERRY RENEE
WILFONG, Respondent.
No. 43140
September 22, 2005
119 P.3d 727
Appeal from a district court order awarding attorney fees in a paternity action. Eighth
Judicial District Court, Family Court Division, Clark County; Cheryl B. Moss, Judge.
Putative father filed action seeking determination of paternity and joint physical
custody of child. The district court awarded primary physical custody, child support, and
attorney fees to child's mother. Father appealed. The supreme court, Hardesty, J., held that:
(1) awards of attorney fees to pro bono counsel are proper, provided a legal basis exists and
proper factors are applied in making the award; (2) parties seeking attorney fees in family law
cases must support their fee request with affidavits or other evidence that meets the factors in
Brunzell v. Golden Gate National Bank, 85 Nev. 345, 455 P.2d 31 (1969), and Wright v.
Osburn, 114 Nev. 1367, 970 P.2d 1071 (1998); (3) application of Sargeant v. Sargeant, 88
Nev. 223, 495 P.2d 618 (1972), is limited to divorce proceedings; (4) in paternity actions,
district courts may award attorney fees under statute permitting court to apportion the
costs of litigation among the parties; {5) district court did not abuse its discretion in
awarding mother $3,000 in attorney fees; and {6) imposition of sanction of $500 on
father's attorney, personally, was warranted on appeal.
____________________

16
In this case, the Legislature of the State of Nevada and the Family Law Section of the State Bar of Nevada filed amicus curiae briefs
in response to our request for their participation in this case. In its brief, the Family Law Section requested that this court address: (1) the
definition of joint physical custody, (2) whether joint physical custody for the purposes of NRS 125C.200 has to be equal, (3) whether a
specific time share constitutes joint physical custody, and (4) whether joint physical custody is defined by the courts or by the parties.
Because these issues were not raised in the context of this appeal, however, we decline to review them at this time.
........................................
award attorney fees under statute permitting court to apportion the costs of litigation among
the parties; (5) district court did not abuse its discretion in awarding mother $3,000 in
attorney fees; and (6) imposition of sanction of $500 on father's attorney, personally, was
warranted on appeal.
Affirmed.
Kelleher & Kelleher, LLC, and John T. Kelleher, Las Vegas, for Appellant.
Willick Law Group and Marshal S. Willick, Las Vegas, for Respondent.
Clark County Legal Services Program, Inc., and Barbara E. Buckley, Las Vegas, for
Amici Curiae Clark County Legal Services and Clark County Pro Bono Project.
1. Divorce.
An award of attorney fees in divorce proceedings will not be overturned on appeal
unless there is an abuse of discretion by the district court.
2. Costs.
A party is not precluded from recovering attorney fees solely because his or her
counsel served in a pro bono capacity.
3. Costs.
Awards of attorney fees to pro bono counsel are proper provided a legal basis exists
and proper factors are applied in making the award.
4. Costs.
Attorney fees are not recoverable unless allowed by express or implied agreement or
when authorized by statute or rule.
5. Costs.
While it is within the trial court's discretion to determine the reasonable amount of
attorney fees under a statute or rule, in exercising that discretion, the court must
evaluate the factors set forth in Brunzell v. Golden Gate National Bank, 85 Nev. 345,
455 P.2d 31 (1969).
6. Costs.
When courts determine the appropriate attorney fee to award in civil cases, they must
consider various factors, including the qualities of the advocate, the character and
difficulty of the work performed, the work actually performed by the attorney, and the
result obtained.
7. Divorce.
Parties seeking attorney fees in family law cases must support their fee request with
affidavits or other evidence that meets the factors in Brunzell v. Golden Gate National
Bank, 85 Nev. 345, 455 P.2d 31 (1969), which set forth factors to be considered in
determining reasonable value of attorney services, and Wright v. Osburn, 114 Nev.
1367, 970 P.2d 1071 (1998), which held that disparity in income must also be
considered.
8. Divorce.
Application of Sargeant v. Sargeant, 88 Nev. 223, 495 P.2d 618 (1972), in which
supreme court noted a financial hardship concern in concluding that district court had
not abused its discretion in awarding approximately $50,000 in attorney fees to the
wife in a divorce proceeding, is limited to divorce proceedings.
........................................
approximately $50,000 in attorney fees to the wife in a divorce proceeding, is limited to
divorce proceedings.
9. Children Out-of-Wedlock.
In paternity actions, district courts may award attorney fees under statute permitting
court to apportion the costs of litigation among the parties. NRS 126.171.
10. Statutes.
When a statute has a definite and ordinary meaning, the supreme court will not look
beyond the statute's plain language.
District court did not abuse its discretion in awarding mother $3,000 in attorney fees
in purported father's paternity action; mother's counsel was an able advocate, the work
was difficult, the result was favorable to mother, counsel provided the equivalent of
$27,000 in time in representing mother, and there was a disparity in income. NRS
126.171.
Imposition of sanction of $500 or five hours of pro bono service on adjudicated
father's attorney, personally, was warranted on appeal in paternity action, where father
did not provide any citations to the record in the opening appellate brief and provided
only one document in the appendix, substance of the brief, set forth in three pages,
lacked relevant facts and legal analysis, brief was submitted on stationery from a
nonexistent firm, and attorney failed to correct deficiencies after he was directed to do
so by supreme court; brief was notably deficient and untimely. NRAP 28(a)(4),
30(b)(2).
The supreme court expects all appeals to be pursued with high standards of diligence,
professionalism, and competence and may impose sanctions against appellate counsel
for failing to comply with the rules of appellate procedure. NRAP 28(a)(4), 30.
OPINION
In this opinion, we conclude that awards of attorney fees to pro bono counsel are
proper, provided a legal basis exists and proper factors are applied in making the award. We
further hold that in paternity actions, district courts may award attorney fees under NRS
126.171.
FACTS
Sherry Wilfong met Robert Miller, and the two dated but never married or
cohabitated. Wilfong became pregnant and gave birth to a daughter in December 2002. The
parties do not dispute the child's paternity. After the child was born, Miller filed a petition to
determine paternity. Miller served the petition on Wilfong after the welfare office sought to
recoup funds given to Wilfong from Miller.
........................................
Miller. Miller also sought joint physical custody of the child. During the district court
hearings, pro bono counsel represented Wilfong, and Miller appeared in proper person.
Following several hearings, the district court awarded the parties joint legal custody and
Wilfong primary physical custody and child support. The court also awarded Wilfong's
counsel $3,000 in attorney fees under our decision in Sargeant v. Sargeant.
1
Miller appeals,
challenging the attorney fee award.
DISCUSSION
[Headnote 1]
We have previously recognized that an award of attorney fees in divorce proceedings
will not be overturned on appeal unless there is an abuse of discretion by the district court.
2

[Headnote 2]
Initially, we conclude that a party is not precluded from recovering attorney fees
solely because his or her counsel served in a pro bono capacity. While Nevada law has been
silent on this issue, many courts have concluded that an award of attorney fees is proper, even
when a party is represented without fee by a nonprofit legal services organization.
3

In addition to the various state courts, the United States Supreme Court has concluded
that an award of attorney fees to a nonprofit legal services organization is to be calculated
according to the prevailing market rate, stating that Congress did not intend the calculation
of fee awards to vary depending on whether plaintiff was represented by private counsel or by
a nonprofit legal services organization.
4

We agree with these courts and conclude that significant public policy rationales
support awarding fees to counsel, regardless of counsel's service in a pro bono capacity. First,
the fact that a government institution or private charity has provided legal assistance
should not absolve other responsible parties of their financial obligations.
____________________

1
88 Nev. 223, 495 P.2d 618 (1972).

2
Schwartz v. Schwartz, 107 Nev. 378, 386, 812 P.2d 1268, 1273 (1991); Kantor v. Kantor, 116 Nev. 886, 896, 8 P.3d 825, 831
(2000).

3
Martin v. Tate, 492 A.2d 270, 274 (D.C. 1985); In re Marriage of Brockett, 474 N.E.2d 754, 756 (Ill. App. Ct. 1984); Butler v.
Butler, 376 So. 2d 287, 287 (Fla. Dist. Ct. App. 1979); In re Marriage of Gaddis, 632 S.W.2d 326, 329 (Mo. Ct. App. 1982); Ferrigno v.
Ferrigno, 279 A.2d 141, 142 (N.J. Super. Ct. Ch. Div. 1971); Sellers v. Wollman, 510 F.2d 119, 123 (5th Cir. 1975) (holding that it is
proper to award attorney fees to legal aid society in Truth-in-Lending Act action); Folsom v. Butte County Ass'n of Governments, 652 P.2d
437, 447 n.26 (Cal. 1982) (concluding that an attorney fee award is proper to a legal service organization in a suit to enforce a public
transportation law).

4
Blum v. Stenson, 465 U.S. 886, 894 (1984).
........................................
ernment institution or private charity has provided legal assistance should not absolve other
responsible parties of their financial obligations. For example, when pro bono counsel assist a
parent in a custody or child support dispute, the wealthier parent should not be relieved of an
obligation to pay attorney fees. Further, in domestic matters, one partner has often created or
contributed to the other partner's limited financial means by leaving the household, failing to
remit child support, drawing funds from a shared account, or other similar conduct. In those
cases, if fees are not awarded to pro bono counsel, a wealthier litigant would benefit from
creating conditions that force the other party to seek legal aid. In addition, pro bono counsel
serve an important role in the legal system's attempt to address the unmet needs of indigent
and low-income litigants within our state. To impose the burden of the cost of litigation on
those who volunteer their services, when the other party has the means to pay attorney fees,
would be unjust.
[Headnotes 3, 4]
Although we conclude that attorney fee awards to pro bono counsel are proper, two
requirements must still be met before granting such an award. First, [i]t is well established in
Nevada that attorney's fees are not recoverable unless allowed by express or implied
agreement or when authorized by statute or rule.
5
Thus, parties represented by pro bono
counsel seeking attorney fees must identify the legal basis for the award.
[Headnotes 5-7]
Second, while it is within the trial court's discretion to determine the reasonable
amount of attorney fees under a statute or rule, in exercising that discretion, the court must
evaluate the factors set forth in Brunzell v. Golden Gate National Bank.
6
Under Brunzell,
when courts determine the appropriate fee to award in civil cases, they must consider various
factors, including the qualities of the advocate, the character and difficulty of the work
performed, the work actually performed by the attorney, and the result obtained.
7
We take
this opportunity to clarify our jurisprudence in family law cases to require trial courts to
evaluate the Brunzell factors when deciding attorney fee awards.
8
Additionally, in Wright v.
Osburn, this court stated that family law trial courts must also consider the disparity in
income of the parties when awarding fees.
9
Therefore, parties seeking attorney fees in
family law cases must support their fee request with affidavits or other evidence that
meets the factors in Brunzell and Wright.
____________________

5
Schouweiler v. Yancey Co., 101 Nev. 827, 830, 712 P.2d 786, 788 (1985).

6
85 Nev. 345, 349, 455 P.2d 31, 33 (1969).

7
Id. at 349, 455 P.2d at 33.

8
See Ellett v. Ellett, 94 Nev. 34, 40, 573 P.2d 1179, 1182-83 (1978).

9
114 Nev. 1367, 1370, 970 P.2d 1071, 1073 (1998).
........................................
torney fees in family law cases must support their fee request with affidavits or other
evidence that meets the factors in Brunzell and Wright.
[Headnote 8]
In this case, the district court granted attorney fees under our Sargeant v. Sargeant
10
decision. In Sargeant, we concluded that the district court had not abused its discretion in
awarding approximately $50,000 in attorney fees to the wife in a divorce proceeding. We
noted that without the district court's assistance, the wife would have been required to
liquidate her savings and jeopardize her financial future in order to meet her adversary in
court on an equal basis.
11
Sargeant does not apply in paternity cases; its application is
limited to divorce proceedings. Additionally, even if Sargeant were not limited to the divorce
context, the financial hardship concern is not present here, as Wilfong was represented in the
proceedings by pro bono counsel. Thus, Sargeant was an inappropriate basis on which to
award fees.
[Headnote 9]
While Sargeant was not an appropriate basis on which to award attorney fees in this
case, NRS 126.171 authorized the fee award. This statute provides that [in paternity actions,]
[t]he court may order reasonable fees of counsel . . . to be paid by the parties in proportions
and at times determined by the court. NRS 126.171 is based on section 16 of the Uniform
Parentage Act (UPA).
12
The comment to section 16 explains that the provision permits the
court to apportion the cost of litigation among the parties.
13

[Headnote 10]
When a statute has a definite and ordinary meaning, this court will not look beyond
the statute's plain language.
14
NRS 126.171 and section 16 of the UPA are clear and
unambiguous concerning the division of counsel fees between the parties.
[Headnote 11]
The district court did not abuse its discretion in awarding Wilfong $3,000 in attorney
fees. The record reveals that Wilfong's counsel is an able advocate, the work was difficult,
the result was favorable to Wilfong and counsel provided the equivalent of $27,000 in
time in representing Wilfong.
____________________

10
88 Nev. 223, 495 P.2d 618.

11
Id. at 227, 495 P.2d at 621.

12
See Hearing on S.B. 294 Before Senate Comm. on Judiciary, 60th Leg., at 2 (Nev., March 14, 1979) (statement of Walt Lloyd,
Deputy Attorney General, that the bulk of S.B. 294 is the UPA, with some modifications).

13
Unif. Parentage Act 16 cmt. (1973), 9B U.L.A. 480 (Master Edition 2001).

14
Harris Assoc. v. Clark County Sch. Dist., 119 Nev. 638, 641-42, 81 P.3d 532, 534 (2003).
........................................
counsel is an able advocate, the work was difficult, the result was favorable to Wilfong and
counsel provided the equivalent of $27,000 in time in representing Wilfong.
15
The district
court found that there was a disparity in income.
[Headnote 12]
The final issue we consider is Wilfong's contention that errors in Miller's brief justify
an award of sanctions. Various Nevada Rules of Appellate Procedure apply to briefs
submitted to this court. NRAP 28(a)(4), for example, requires that an appellant's brief include
an argument that contains the contentions of the appellant with respect to the issues
presented, and the reasons therefor, with citations to the authorities, statutes and parts of the
record relied on. NRAP 30 requires the filing of an appendix and provides that [i]f an . . .
appendix is so inadequate that justice cannot be done without requiring inclusion of
documents in the respondent's appendix which should have been in the appellant's appendix .
. . the court may impose monetary sanctions.
16

[Headnote 13]
Further, as we recognized in Barry v. Lindner, [t]his court expects all appeals to be
pursued with high standards of diligence, professionalism, and competence and may
impose sanctions against appellate counsel for failing to comply with the [NRAP]. We
intend to impress upon the members of the bar our resolve to end the lackadaisical practices
of the past and to enforce the [NRAP].' We again must impress upon the practitioners . . . that
we will not permit flagrant [NRAP] violations . . . .
17

Miller's brief, signed by John T. Kelleher, is notably deficient and untimely. Several
errors in the brief suggest that appellant's counsel carelessly prepared the brief. Miller does
not provide any citations to the record in the opening brief and provides only one document,
the order granting attorney fees, in the appendix. The substance of the brief, set forth in three
pages, lacks relevant facts and legal analysis. For instance, page 4 of the opening brief is
titled Respondent's Answering Brief, and Kelleher mixes various law office addresses
throughout the brief. The brief is submitted on stationery from a nonexistent firm. Kelleher
failed to correct these deficiencies after he was directed to do so by this court.
Further, a review of the docket sheet for this appeal shows that counsel failed to
diligently pursue the appeal. The notice of appeal was filed in April 2004; however, by
September 2004, counsel had failed to file an opening brief.
____________________

15
Wilfong did not challenge the amount of attorney fees through a cross-appeal. Thus, this court does not
consider whether additional fees may have been warranted.

16
NRAP 30(g)(2).

17
Barry v. Lindner, 119 Nev. 661, 671-72, 81 P.3d 537, 543-44 (2003) (quoting Smith v. Emery, 109 Nev.
737, 743, 856 P.2d 1386, 1390 (1993)).
........................................
was filed in April 2004; however, by September 2004, counsel had failed to file an opening
brief. Counsel was contacted by this court and was given fifteen days to file and serve the
requisite documents. In October, this court again contacted Kelleher, returning the filed brief
because of a missing table of contents and table of cases. This court again notified Kelleher
that the appendix was deficient and failed to meet the requirements in NRAP 30(b)(2).
On these facts, there is little doubt that Miller's pursuit of this appeal was wholly
deficient and worthy of sanctions. Wilfong argues that Miller's deficiencies caused Wilfong's
counsel to assume the financial burden of adequately preparing the court to consider the
issues raised on appeal. Wilfong further argues that a monetary fine would be ineffective in
curtailing the blatant rule violations demonstrated by Kelleher. To discourage like conduct in
the future and to reiterate that this court will not tolerate lackadaisical practices in the pursuit
of appellate relief, we impose sanctions on Miller's counsel personally. Thus, we sanction
John T. Kelleher in the sum of $500. Kelleher shall remit the sum to the Clark County Pro
Bono Project within thirty days of the date that this opinion is filed and shall file written
proof of payment with the clerk of this court within the same time period.
18
Additionally,
this matter shall be referred to the State Bar of Nevada for investigation of any appropriate
disciplinary action.
CONCLUSION
We affirm the judgment of the district court
19
and conclude that attorney fee awards
to pro bono counsel are proper, provided that a legal basis exists and the proper factors are
applied to support an award. Attorney fees may be awarded in paternity actions pursuant to
NRS 126.171.
____________________

18
In lieu of payment of the monetary sanction, Kelleher may provide five hours of pro bono service to the Clark County Pro Bono
Project within ninety days from the date this opinion is filed.

19
Rosenstein v. Steele, 103 Nev. 571, 575, 747 P.2d 230, 233 (1987) (stating that this court will affirm the order of the district court
if it reached the correct result, albeit for different reasons).
____________
.......................................
121 Nev. 627, 627 (2005) DeStefano v. Berkus
MARK DeSTEFANO, Appellant, v. MATTHEW BERKUS,
JIM GERMAIN, and JAMES LEAVITT, Respondents.
No. 43969
September 22, 2005
119 P.3d 1238
Appeal from a declaratory judgment in an election law matter. Eighth Judicial District
Court, Clark County; Lee A. Gates, Judge.
Candidates for office of state university regent sought declaratory judgment that other
candidate was not a resident of district in question and was, thus, unqualified to hold office in
that district. The district court declared defendant ineligible to serve if elected. Defendant
appealed. The supreme court held that statute setting forth a new expedited procedure by
which election candidates' qualifications for office could be contested did not conflict with
existing statute giving district court authority to hear declaratory relief actions concerning
questions of a candidate's residency, and thus district court had jurisdiction.
Affirmed.
Harold P. Gewerter, Esq., Ltd., and Harold P. Gewerter and Wendy E. Miller, Las
Cremen Law Offices and Frank J. Cremen, Las Vegas, for Respondents.
The supreme court reviews issues of statutory construction de novo.
2. Statutes.
When a statute's language is plain and unambiguous, and the statute's meaning clear
and unmistakable, the courts are not permitted to look beyond the statute for a different
or expansive meaning or construction.
3. Statutes.
Whenever it is possible to do so, the supreme court will interpret two potentially
conflicting statutes in harmony with one another.
4. Declaratory Judgment.
Statute setting forth a new expedited procedure by which election candidates'
qualifications for office could be contested did not conflict with existing statute giving
district court authority to hear declaratory relief actions concerning questions of a
candidate's residency, and thus district court had jurisdiction to consider declaratory
judgment action challenging residency of candidate for office of state university regent.
The two statutes differed in scope and available remedy, and provided alternative and
equally viable methods of resolving challenges to a candidate's declaration of residency.
NRS 281.050, 293.182.
5. Statutes.
When the Legislature enacts a statute, the supreme court presumes that it does so with
full knowledge of existing statutes relating to the same subject.
........................................
OPINION
1

Per Curiam:
In this appeal, we determine whether the enactment of NRS 293.182 in 2001, by
setting forth a new procedure by which election candidates' qualifications may be contested,
rendered invalid the district court's authority to hear declaratory relief actions concerning
questions of a candidate's residency under an existing statute, NRS 281.050. We conclude
that the two statutes provide alternative and equally viable methods of resolving challenges to
a candidate's declaration of residency.
In May 2004, appellant Mark DeStefano filed a declaration for candidacy for the
office of University of Nevada Regent, District 13. Later that year, in early August, the other
candidates for District 13, respondents Matthew Berkus, Jim Germain, and James Leavitt (the
candidates), filed an action for declaratory judgment, asserting that DeStefano was not a
resident of District 13 and requesting the district court to therefore declare him unqualified to
hold office in that district.
In September 2004, the district court entered a declaratory judgment under NRS
281.050(3), in which it found that DeStefano actually resided not at the District 13 address
that he had listed on his declaration for candidacy, but rather at an address located in District
7. Accordingly, the court determined that DeStefano was not eligible to serve as a
representative of District 13. Subsequently, even though the district court simply declared
DeStefano ineligible to serve if elected, DeStefano's name was removed from the general
election ballot.
DeStefano appealed. Because it was too late, by the time the appeal proceeded, to
place DeStefano's name back on the general election ballot, this court allowed only his
challenge to the validity of NRS 281.050 to proceed.
DISCUSSION
DeStefano argues that the district court lacked jurisdiction to consider the candidates'
action because NRS 293.182 provides the exclusive method for challenging a candidate's
qualifications for office before an election. Moreover, DeStefano contends that because NRS
293.182 provides the exclusive method, the candidates' action was barred because they failed
to file their written challenge within the time period articulated in that statute.
____________________

1
We have determined, under NRAP 34(f), that oral argument is not warranted in this case.
........................................
challenge within the time period articulated in that statute. In contrast, respondents argue that
the district court correctly determined that it had jurisdiction to consider the challenge to
DeStefano's residency under NRS 281.050(3).
[Headnotes 1-3]
This court reviews issues of statutory construction de novo.
2
It is well established
that when a statute's language is plain and unambiguous, and the statute's meaning clear and
unmistakable, the courts are not permitted to look beyond the statute for a different or
expansive meaning or construction.
3
Further, whenever it is possible to do so, this court will
interpret two potentially conflicting statutes in harmony with one another.
4

NRS 281.050 governs general matters relating to residency for purposes of eligibility
for office; subsection 3 provides that [t]he district court has jurisdiction to determine the
question of residence in an action for declaratory judgment. NRS 293.182, on the other
hand, governs written challenges concerning candidates' qualifications; subsection 1 allows
an elector to file a challenge to a person's candidacy for elected office on the grounds that
the person fails to meet any qualification required for the office pursuant to the Constitution
or a statute of this State, including, without limitation, a requirement concerning age or
residency. The NRS 293.182 challenge, however, must be filed not later than 5 days after
the last day the person may withdraw his candidacy.
5
A person may withdraw his candidacy
no later than seven days (excluding Saturdays, Sundays, and holidays) after the last day for
filing for candidacy for that office.
6
The last day for DeStefano to file for his candidacy in
District 13 was May 14, 2004.
7
Consequently, any challenge under NRS 293.182 was due
approximately two months before respondents' declaratory relief action was filed.
8

[Headnote 4]
DeStefano asserts that NRS 293.182 and NRS 281.050 are in conflict, given that NRS
293.182 limits the time within which a party can challenge a candidate's qualifications, and
NRS 281.050 does not. He argues that applying NRS 281.050 to a pre-election challenge
would render NRS 293.1S2's timeline a nullity.
____________________

2
State, Div. of Insurance v. State Farm, 116 Nev. 290, 293, 995 P.2d 482, 484 (2000).

3
Id. at 293, 995 P.2d at 485.

4
Williams v. Clark County Dist. Attorney, 118 Nev. 473, 485, 50 P.3d 536, 543 (2002).

5
NRS 293.182(1).

6
NRS 293.202.

7
See NRS 293.177(1).

8
See NRS 293.182; Williams, 118 Nev. at 477-79, 50 P.3d at 539-40 (excluding Saturdays, Sundays, and holidays from the five-day
calculation).
........................................
challenge would render NRS 293.182's timeline a nullity. We disagree.
The language of NRS 281.050 is clear and unmistakablea party may bring a
declaratory action to challenge the claimed residency of a candidate at any time. And the
language of NRS 293.182 is also clear and unmistakablea person requesting election
officials to remove a candidate's name from the ballot because that candidate is not statutorily
qualified must do so within a specified time frame.
While the two statutes apply to the same subjectquestions of a candidate's
residencythey do not conflict, since they differ in scope and available remedy. Specifically,
NRS 293.182 applies to challenges on grounds that the candidate fails to meet any required
qualification, while NRS 281.050 only applies to the residency requirement. Moreover, a
written challenge under NRS 293.182 is filed with the filing officer and then forwarded to the
Attorney General or a district attorney, who will petition the court only upon a determination
that probable cause exists to support the challenge. A successful challenge requires the
removal of the candidate's name from the ballot and precludes the candidate from taking
office.
In contrast, NRS 281.050(3) simply allows a party, at his own expense, to seek a
declaratory judgment to determine the residency of the candidate. Although practically, the
declaratory judgment may defeat the candidate's election, it does not necessarily render NRS
293.182's simpler and potentially less costly procedure to remove a name from the ballot a
nullity. In fact, in Williams v. Clark County District Attorney,
9
one justice acknowledged
that NRS 281.050(3) offers an alternative legal path available to those who have not filed a
challenge [within NRS 293.182's time limit]. And as respondents point out, they did not ask
the district court to remove DeStefano's name from the ballot in this case because that remedy
is only available under NRS 293.182.
10
Rather, they only asked the district court to issue a
declaratory judgment on DeStefano's residency and whether he is eligible to hold office.
____________________

9
118 Nev. 473, 488, 50 P.3d 536, 546 (2002) (Rose, J., concurring in part and dissenting in part).

10
5. If . . . the court determines by a preponderance of the evidence that the challenge is valid or that
the person otherwise fails to meet any qualification required for the office pursuant to the Constitution or
a statute of this State, or if the person fails to appear at the hearing:
(a) The name of the person must not appear on any ballot for the election for the office for which he
filed the declaration of candidacy or acceptance of candidacy; and
(b) The person is disqualified from entering upon the duties of the office for which he filed the
declaration of candidacy or acceptance of candidacy.
........................................
[Headnote 5]
When the Legislature enacts a statute, this court presumes that it does so with full
knowledge of existing statutes relating to the same subject.'
11
NRS 293.182's legislation
was passed in 2001, after the Legislature expressly acknowledged the existence of NRS
281.050, without any indication that the new procedure was intended to replace any part of
that existing statute.
12
Thus, since NRS 281.050(3) does not supplant or conflict with NRS
293.182, we conclude that it provides a viable alternative method of resolving a question of a
candidate's residency.
In addition, we note that not only does NRS 281.050(3)'s declaratory relief provision
provide a viable alternative to NRS 293.182 for resolving questions of residency, but policy
reasons also suggest that it could be helpful in maintaining public confidence in the election
system. Candidates for an elected office are required, both constitutionally and statutorily, to
possess certain requirements considered important to the function of that office. The
expedited procedure under NRS 293.182 is meant to ensure that a qualifications challenge
potentially affecting the names to be printed on an election ballot will be resolved within an
adequate period before the election so that the ballots can be timely prepared and distributed.
13
But discovering and resolving questions of a candidate's residency may require much more
effort and a much less perfunctory analysis than challenges to other possible qualifications,
like age, party registration, or educational background.
14
NRS 281.050(3)'s declaratory
judgment provision, while posing no threat to the administration of ballots, can nevertheless
affect the public awareness pertaining to a candidate's eligibility to hold office and is an
important tool in maintaining trust and integrity in the election process of this state.
CONCLUSION
Accordingly, as the plain language of NRS 281.050(3) grants the district court
jurisdiction to determine a candidate's residency in declaratory judgment actions, we affirm
the district court's order.
____________________

11
State Farm, 116 Nev. at 295, 995 P.2d at 486 (quoting City of Boulder v. General Sales Drivers, 101 Nev. 117, 118-19, 694 P.2d
498, 500 (1985)).

12
See Hearing on A.B. 487 Before the Senate Comm. on Government Affairs, 71st Leg. (Nev., May 2, 2001).

13
See Hearing on A.B. 487 Before the Senate Comm. on Government Affairs, 71st Leg. (Nev., May 2, 2001).

14
See generally Williams v. Clark County Dist. Attorney, 118 Nev. 473, 481-83, 50 P.3d 563, 541-42 (2002) (discussing candidate
residency requirements under NRS 281.050 and NRS 293.1755 and recognizing that the statutes contemplate both the objective question of
location and the subjective question of intent).
____________
........................................
121 Nev. 632, 632 (2005) Amazon.com v. Magee
AMAZON.COM, Appellant, v. DEE DEE
MAGEE, Respondent.
No. 42860
September 22, 2005
119 P.3d 732
compensation case. First Judicial District Court, Carson City; William A. Maddox, Judge.
Employer petitioned for review of decision of an appeals officer of the Department of
Administration awarding claimant temporary total disability benefits for periods when she
was able to return to work on a part-time basis. The district court denied the petition.
Employer appealed. The supreme court, Douglas, J., held that: (1) claimant was entitled to
temporary partial disability benefits, rather than temporary total disability benefits; and (2)
statute setting forth standards regarding when an employer, by offering modified
employment, can cease making temporary total disability payments should not be used to
calculate the amount of temporary total disability benefits.
[Rehearing denied January 11, 2006]
Littler Mendelson and Roger L. Grandgenett II, Las Vegas, and Karyn M. Taylor,
Reno, for Appellant.
Kinney & Levinson and Beth L. Levinson, Reno, for Respondent.
The supreme court independently reviews the application of statutes governing
workers' compensation disability payments. NRS 616C.475, 616C.500(1).
An employer who provides a temporarily totally disabled employee with a post-injury
job that is similar in hours, location and gross pay to the job the employee held
pre-injury, and who gives adequate consideration to the employee's post-injury
limitations, can cease paying the employee temporary total disability benefits in the
amount of 66 2/3 percent of the employee's pre-injury wage. NRS 616C.475.
Claimant was entitled to temporary partial disability benefits, at the rate set forth in
temporary partial disability statute, rather than temporary total disability benefits, for
periods during which she was released to light-duty work under a four-hour workday
restriction; claimant's physical disability and work limitations did not prevent her from
earning wages. NRS 616A.340, 616C.475, 616C.500(1).
Statute setting forth standards regarding when an employer, by offering modified
employment, can cease making temporary total disability payments should not be
used to calculate the amount of temporary total disability benefits.
........................................
payments should not be used to calculate the amount of temporary total disability
benefits. NRS 616C.475(8).
OPINION
In this appeal, we consider whether an employee who is treated for injuries sustained
on the job is considered temporarily totally disabled or temporarily partially disabled when
she is able to return to work on a part-time basis. We conclude that a worker released to work
with restrictions is only temporarily partially disabled; therefore, her position and salary need
not comport with NRS 616C.475,
1
which sets forth standards regarding when an employer,
by offering modified employment, can cease making temporary total disability payments.
Thus, a temporarily partially disabled employee must be compensated at the rate set forth in
NRS 616C.500(1).
On April 18, 2001, respondent Dee Dee Magee injured her right wrist while working
at her job with appellant Amazon.com in Fernley, Nevada. Magee sought treatment at a local
emergency room, and after an examination, the treating physician diagnosed her injury as
possible carpal tunnel syndrome, placed her in a forearm splint and prescribed naproxen. No
x-rays were taken at that time.
On April 23, 2001, Magee sought further medical advice regarding the cause and
extent of her injury. After an examination, Magee was advised that her symptoms did not
coincide with obvious carpal tunnel syndrome but that she should continue to wear the
forearm splint for two weeks. The physician noted that Magee should be placed on restricted
duty, without elaborating on the nature of the restrictions.
From May 14 to June 10, 2001, Magee visited several physicians. At the conclusion
of each visit, Magee was released to light-duty work subject to certain physical restrictions
and limitations. After a June 11, 2001 visit, Magee was released to light-duty work with a
four-hour-a-day work restriction.
____________________

1
The Nevada Legislature amended NRS 616C.475 in 2003 and 2005. For this appeal, the court relies on the 1999 version of NRS
616C.475 in effect at the time of Magee's claim. All other sections of the Nevada Revised Statutes cited in this opinion remain as they were
in 1999.
........................................
On August 13, 2001, Magee underwent corrective surgery on her right wrist.
Following the surgery, she experienced pain in her left hand and was subsequently diagnosed
with carpal tunnel syndrome in her left wrist. Consequently, Magee underwent a second
surgery to repair her left wrist. On October 30, 2001, Magee was released to full-duty work
with no restrictions.
Before the initial wrist injury, Magee worked approximately ten hours per day, four
days a week, for a total of forty hours per week. She was paid $10.00 per hour for a gross
weekly wage of $400.00. After her initial wrist injury, when Magee was restricted in the
number of hours she could work, she still earned $10.00 an hour. The record indicates that
her daily and weekly hours varied, but that she generally never worked more than four hours a
day or sixteen hours a week.
Magee eventually submitted workers' compensation claims for the injuries to her
wrists. Amazon.com never disputed Magee's diagnosis or that her condition was the result of
her employment. Ultimately, Amazon.com's insurer
2
made separate determinations
regarding Magee's claims.
For the period of May 5 through October 30, 2001, the insurer found that Magee was
eligible for temporary partial disability benefits under NRS 616C.500, with at least two
periods when she was eligible for temporary total disability benefits. The first period of
Magee's temporary total disability, which began after the right-wrist surgery on August 13,
2001, was terminated on August 24, 2001, because she returned to light-duty work and
collected temporary partial disability benefits. Temporary total disability benefits were
reinstated on October 3, 2001, due to Magee's left-wrist surgery, but were terminated on
October 16, 2001, after her physician released her to light-duty work. Finally, based upon her
release to full-duty work with no restrictions on October 30, 2001, all benefits ceased.
Magee administratively appealed the insurer's determinations to a workers'
compensation hearing officer with the Nevada Department of Administration, asserting
generally that under NRS 616C.475, she was entitled to temporary total disability benefits for
the entire period of May 5, 2001, through October 30, 2001. The hearing officer disagreed
and affirmed the insurer's previous determinations.
Magee then appealed the hearing officer's decision to an appeals officer, arguing that
for the periods during which she was restricted to working four hours a day, she was entitled
to either temporary total disability benefits in the amount of 66 2/3 percent of her average
monthly salary with no work requirement, or her preinjury gross salary while she worked
her modified schedule.
____________________

2
At all relevant times, Amazon.com was self-insured through Kemper Insurance. However, this opinion will refer to the insurer
separately.
........................................
injury gross salary while she worked her modified schedule. The appeals officer agreed and
reversed the hearing officer's decision. Relying on NRS 616C.475(8), the appeals officer
ordered Amazon.com to pay Magee her pre-injury gross wage, approximately $400.00 a
week, for the periods when Magee was restricted to working four hours a day.
Amazon.com then filed a petition for judicial review with the district court, arguing
that the appeals officer erred in applying NRS 616C.475(8) to calculate Magee's benefits. The
district court denied Amazon.com's petition, stating, NRS 616C.475(8) was the proper
statute to apply to the calculation of payment in this case. Amazon.com now appeals the
district court's order denying its petition.
DISCUSSION
[Headnote 1]
This court independently reviews the application of the statutes governing disability
payments.
3
Therefore, we address this matter anew, without deference to the district court's
conclusions.
4
Additionally, we note that this court has consistently upheld the plain
meaning of the statutory scheme in workers' compensation laws. '
5

NRS 616C.475(1) establishes the compensation owed to an employee who is
classified as temporarily totally disabled and states that the employee is entitled to receive
for the period of temporary total disability, 66 2/3 percent of the average monthly wage.
6
Under NRS 616C.475(5), however, temporary total disability benefits 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;
____________________

3
Washoe Co. School Dist. v. Bowen, 114 Nev. 879, 882, 962 P.2d 1233, 1235 (1998).

4
See General Motors v. Jackson, 111 Nev. 1026, 1029, 900 P.2d 345, 348 (1995) (A statute should always be construed to avoid
absurd results. (citing Moody v. Manny's Auto Repair, 110 Nev. 320, 325, 871 P.2d 935, 938 (1994))).

5
Construction Indus. v. Chalue, 119 Nev. 348, 352, 74 P.3d 595, 597 (2003) (quoting Barrick Goldstrike Mine v. Peterson, 116 Nev.
541, 545, 2 P.3d 850, 852 (2000) (quoting SIIS v. Prewitt, 113 Nev. 616, 619, 939 P.2d 1053, 1055 (1997))).

6
See Bd. of County Comm'rs v. CMC of Nevada, 99 Nev. 739, 744, 670 P.2d 102, 105 (1983) (Courts must construe statutes and
ordinances to give meaning to all of their parts and language. (citing State ex rel. List v. AAA Auto Leasing, 93 Nev. 483, 568 P.2d 1230
(1977))).
........................................
(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 . . . .
7

The modified job must meet the requirements of NRS 616C.475(8), which mandates
that the position:
(a) Is substantially similar to the employee's position at the time of his injury in
relation to the location of the employment and the hours he is required to work; and
(b) Provides a gross wage that is:
(1) If the position is in the same classification of employment, equal to the
gross wage the employee was earning at the time of his injury; or
(2) If the position is not in the same classification of employment,
substantially similar to the gross wage the employee was earning at the time of his
injury.
[Headnote 2]
When NRS 616C.475 is read in its entirety, an employer who provides a temporarily
totally disabled employee with a post-injury job that is similar in hours, location and gross
pay to the job the employee held pre-injury, and who gives adequate consideration to the
employee's post-injury limitations, can cease paying the employee temporary total disability
benefits in the amount of 66 2/3 percent of the employee's pre-injury wage. However, NRS
616C.475 only applies to employees who are considered temporarily totally disabled. A total
disability occurs when an employee is injured as a result of an accident arising out of and in
the course of employment which prevents the covered worker from engaging, for
remuneration or profit, in any occupation for which he is or becomes reasonably fitted by
education, training or experience.
8

[Headnote 3]
Here, Magee was unable to earn her pre-injury wages due to her doctor's decision to
restrict her work to a four-hour workday. However, although she was unable to earn her total
pre-injury wages, her disability was partial, not total.
____________________

7
NRS 616C.475(7) specifies what information [a] certification of disability must contain and requires that the certification be
signed by a treating physician or chiropractor.

8
NRS 616A.340; see also 82 Am. Jur. 2d Workers' Compensation 382, at 353 (2003) ( [T]emporary total disability' is a condition
that temporarily incapacitates a worker from performing any work at any gainful employment . . . .); id. 380, at 351 ([D]isability is
partial rather than total where the claimant is still capable of gainful employment subject to the disability, even though the disability
prevents the claimant from returning to his or her former employment. (footnote omitted)).
........................................
wages, her disability was partial, not total.
9
When her physician released her to light-duty
employment, even with the four-hour workday restriction, Magee was not entitled to
temporary total disability benefits, because her physical disabilities and work limitations, for
the most part, did not prevent her from earning wages.
10
At those times she was only
partially disabled. Accordingly, the insurer correctly calculated Magee's compensation for the
period in which her work hours were restricted by applying NRS 616C.500(1), the temporary
partial disability statute.
11

In reversing the hearing officer's determination, the appeals officer erroneously
concluded that Magee was temporarily totally disabled during the time periods when she was
restricted to working four hours a day. The appeals officer compounded the error by
misconstruing NRS 616C.475(8) to mean that while Magee was temporarily totally disabled,
Amazon.com was obligated to pay her gross salary she earned before her injury.
[Headnote 4]
NRS 616C.475(8) should not be used to calculate the amount of temporary total
disability benefits. Rather, it serves to define whether a job offered by an employer to a
temporarily totally disabled employee enables the employer to cease temporary total disability
payments to the injured employee.
When read in conjunction with the other sections of NRS 616C.475, NRS
616C.475(8) merely allows an employer to make productive use of an injured employee in
lieu of paying that employee 66 2/3 percent of the employee's gross pay while the employee
remains temporarily totally disabled. This use is accomplished by offering a properly
classified, temporarily totally disabled employee a position similar in location, pay and
position to the job held pre-injury.
____________________

9
See Bumble Bee Seafoods v. Director, Office of Wkrs.', 629 F.2d 1327, 1328 (9th Cir. 1980) (The degree of physical impairment is
measured by its impact on the worker's earning capacity.).

10
Cf. Nevada Indus. Comm'n v. Taylor, 98 Nev. 131, 132, 642 P.2d 598, 599 (1982) (holding that when an injured employee is
released for work by his physician, the release constituted a determination by competent medical authority that the employee was capable of
gainful employment; therefore, temporary total disability [payments] must cease).

11
NRS 616C.500(1) states:
Except as otherwise provided in subsection 2 and NRS 616C.175, 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, is entitled to receive for a temporary partial disability the
difference between the wage earned after the injury and the compensation which the injured person would
be entitled to receive if temporarily totally disabled when the wage is less than the compensation, but for
a period not to exceed 24 months during the period of disability.
........................................
disabled employee a position similar in location, pay and position to the job held pre-injury.
The reliance on and interpretation of NRS 616C.475 in this instance would lead to the
absurd result of requiring Amazon.com to pay Magee, who was capable of some gainful
employment, her pre-injury gross wage of $400.00 while she worked a fraction of her
pre-injury hours. Accordingly, the hearing officer was correct in affirming the insurer's
determination that Magee was entitled to temporary partial disability benefits for the periods
during which she was under a four-hour-a-day work restriction, at a rate calculated under
NRS 616C.500(1).
We therefore reverse the district court's order denying Amazon.com's petition for
judicial review and remand for further proceedings consistent with this opinion.
Maupin and Parraguirre, JJ., concur.
____________
121 Nev. 638, 638 (2005) Gaxiola v. State
JOSE GAXIOLA, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 42258
September 22, 2005
119 P.3d 1225
Appeal from a judgment of conviction, pursuant to a jury verdict, of five counts of
sexual assault of a minor under the age of fourteen years and two counts of lewdness with a
child under the age of fourteen years. Eighth Judicial District Court, Clark County; Michael
L. Douglas, Judge.
The supreme court, Becker, C. J., held that: (1) statute allowing for admission of
child-victim's statements to mother and uncle regarding acts of sexual abuse by defendant did
not violate Confrontation Clause, (2) there was no requirement that testimony of child-victim
be corroborated, (3) conviction for lewdness that was based on defendant's recanted
confession to police violated corpus delicti rule, (4) conviction for lewdness was redundant to
conviction for sexual assault, (5) prosecutor was precluded from asking witness to comment
on credibility of another person, (6) prosecutor's question to witness regarding credibility of
another was not plain error, (7) prosecutor's comments regarding defendant's failure to recant
prior statement to police following arrest constituted improper comment on defendant's
post-arrest silence, and (8) improper comment on defendant's post-arrest silence was not plain
error.
........................................
Maupin, J., dissented in part.
Philip J. Kohn, Public Defender, and Amy Dreifus Coffee, R. Roger Hillman, and
Gary H. Lieberman, Deputy Public Defenders, Clark County, for Appellant.
James Tufteland, Chief Deputy District Attorney, and Thomas M. Carroll, Deputy District
1. Criminal Law.
Statute allowing for admission of child-victim's statements to mother and uncle
regarding acts of sexual abuse by defendant did not violate Confrontation Clause in
case where child-victim testified at trial and was subject to cross-examination. U.S.
Const. amend. 6; NRS 51.385.
2. Assault and Battery.
There was no requirement that testimony of child-victim of sexual assault be
corroborated, and victim's testimony alone, if believed beyond reasonable doubt, was
sufficient to sustain guilty verdicts.
3. Criminal Law.
The failure to clearly object on the record to a jury instruction precludes appellate
review; however, the supreme court has the discretion to address an error if it was plain
and affected the defendant's substantial rights.
4. Criminal Law.
In conducting plain error review, the supreme court must examine whether there was
error, whether the error was plain or clear, and whether the error affected the
defendant's substantial rights.
5. Criminal Law.
For an error to be plain, it must, at a minimum, be clear under current law.
6. Criminal Law.
Conviction for lewdness with child under age of fourteen years that was based on
defendant's recanted confession to police that child-victim came up to him and touched
his penis through his shorts violated corpus delicti rule, where victim did not testify that
defendant made him touch defendant's penis, and none of witnesses testified that child
had told them that defendant made victim touch his penis.
7. Criminal Law.
In reviewing a challenge to the sufficiency of the evidence to support a conviction, the
question for the reviewing 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.
8. Criminal Law.
The jury determines the weight and credibility to give conflicting testimony.
9. Criminal Law.
The corpus delicti of a crime must be proven independently of the defendant's
extrajudicial admissions.
........................................
10. Criminal Law.
The proof independent of a defendant's extrajudicial admissions sufficient to establish
the corpus delicti of a crime may be circumstantial evidence, and it need not be beyond
a reasonable doubt; a slight or prima facie showing, permitting the reasonable inference
that a crime was committed, is sufficient.
11. Criminal Law.
If the proof, independent of a defendant's extrajudicial admissions, makes a prima
facie showing that a crime has been committed, the accused's admissions may then be
considered to strengthen the case on all issues.
12. Criminal Law.
Conviction for lewdness with child under age of fourteen years was redundant
conviction for sexual assault, and thus, could not be sustained, absent any evidence
showing that act of lewdness, in this case defendant's fondling of child-victim's penis,
was not merely incidental to act of sexual assault. NRS 201.230.
13. Criminal Law.
The crimes of sexual assault and lewdness are mutually exclusive and convictions for
both based upon a single act cannot stand; however, separate and distinct acts of sexual
assault may be charged as separate counts and result in separate convictions even
though the acts were the result of a single encounter and all occurred within a relatively
short time.
14. Criminal Law.
In a prosecution for lewdness and sexual assault, the State has the burden to show that
the lewdness was not incidental to the sexual assault. NRS 201.230.
15. Criminal Law.
The supreme court may consider sua sponte plain error which affects the defendant's
substantial rights, if the error either: (1) had a prejudicial impact on the verdict when
viewed in context of the trial as a whole, or (2) seriously affects the integrity or public
reputation of the judicial proceedings.
16. Criminal Law.
The level of prosecutorial misconduct necessary to reverse a conviction depends upon
how strong and convincing is the evidence of guilt; if the issue of guilt or innocence is
close and if the State's case is not strong, prosecutor misconduct will probably be
considered prejudicial.
17. Criminal Law.
Prosecutor was precluded from asking witness if another witness was lying.
18. Criminal Law.
Prosecutor's question to witness whether another person would be lying if they said
that witness would lie for defendant was not plain error, in trial for sexual assault of
child under age of fourteen years and lewdness with child under age of fourteen years,
where prosecutor did not act with wrongful intent and error was not prejudicial.
19. Criminal Law.
Prosecutor's question to defendant as to whether defendant told police after arrest that
he made up prior statement in which he admitted sexual misconduct, together with
prosecutor's comment during closing argument that defendant failed to recant statement
after arrest, constituted improper comment on defendant's post-arrest silence, in trial for
sexual assault upon child under age of fourteen years and lewdness with child under age
of fourteen years. U.S. Const. amend. 5.
........................................
20. Criminal Law.
The prosecution is forbidden at trial to comment upon an accused's election to remain
silent following his arrest and after he has been advised of his rights. U.S. Const.
amend. 5.
21. Criminal Law.
The prohibition against comments upon a defendant's post-arrest silence does not
apply to cross-examination that merely inquires into prior inconsistent statements; such
questioning makes no unfair use of silence, because a defendant who voluntarily speaks
after receiving Miranda warnings has not been induced to remain silent. U.S. Const.
amend. 5.
22. Criminal Law.
The supreme court will not reverse a conviction when the State comments on
post-arrest silence if the comments were harmless beyond a reasonable doubt. U.S.
Const. amend. 5.
23. Criminal Law.
Comments on post-arrest silence are not harmless in cases that rest solely on the
defendant's word versus the victim's word. U.S. Const. amend. 5.
24. Criminal Law.
Prosecutor's impermissible comment on defendant's post-arrest silence regarding
defendant's failure to inform police upon arrest for sexual assault upon child under age
of fourteen years and lewdness with child under age of fourteen years that previous
statement in which he admitted sexual misconduct was made up was not plain error,
where jury had already heard evidence that defendant had given statement
one-and-a-half months prior to arrest, and therefore, had plenty of time to recant. U.S.
Const. amend. 5.
Before Becker, C. J., Maupin and Parraguirre, JJ.
OPINION
Appellant Jose Gaxiola was charged with and convicted of five counts of sexual
assault of a minor under the age of fourteen years and two counts of lewdness with a child
under the age of fourteen years. On appeal, he asserts the following assignments of error: (1)
NRS 51.385, which allows admission of a child sexual assault victim's statements to third
parties, violates the Confrontation Clause of the United States Constitution;
1
(2) jury
instructions stating that a sexual assault victim's testimony need not be corroborated unduly
emphasize one witness's testimony; (3) one of his lewdness convictions violates the corpus
delicti rule; (4) his lewdness convictions are redundant to the sexual assault convictions; and
(5) multiple instances of prosecutorial misconduct.
2

____________________

1
U.S. Const. amend. VI.

2
Gaxiola also argues: (1) the district court erred in refusing to grant a mistrial based upon an unsolicited witness reference to possible
bad acts occurring
........................................
We conclude that: (1) the admission of a child-victim's statements to third parties
pursuant to NRS 51.385 does not violate the Confrontation Clause when the child-victim
testifies at trial; (2) the no-corroboration instruction was not improper; (3) one of the
lewdness convictions violates the corpus delicti rule; (4) the remaining lewdness conviction
was redundant; and (5) while some prosecutorial misconduct occurred, it did not rise to the
level of plain error warranting reversal. Accordingly, we affirm the convictions for sexual
assault and reverse the convictions for lewdness.
FACTS
Gaxiola was convicted of sexually assaulting a seven-year-old child related to him.
Gaxiola was twenty-one years old at the time of the assaults.
During the summer of 2001, the child was to spend a week at his relatives' home. Two
adults, another minor child (E.G.), and Gaxiola resided in the home. E.G., who was related to
the child-victim, agreed to babysit the child for the week.
The child, who was nine years old at the time of the trial, testified that Gaxiola
sexually assaulted him during his first or second night at the house. The child testified that he
and E.G. were asleep in E.G.'s room when Gaxiola came and got him. E.G. did not wake up.
Gaxiola called it a game, enticing the child with a promise to allow him to play video games
in the morning. The child accompanied Gaxiola to Gaxiola's room and Gaxiola closed the
door.
According to the child, Gaxiola had the child perform fellatio on him. Gaxiola then
had the child lie down on his side, and Gaxiola lay down behind him. Gaxiola anally
penetrated the child. The child testified that the first time Gaxiola anally penetrated him it
hurt, but the second time Gaxiola went slowly and it did not hurt. The child clearly stated that
the anal penetration occurred on two different occasions, but he was not certain if both
occurrences happened that night. After Gaxiola anally penetrated the child, Gaxiola put his
penis in the child's mouth. At trial, the child stated that he thought Gaxiola touched the child's
penis with Gaxiola's hand, however the child did not give any specifics of when and how this
occurred in relation to the other sexual activities.
E.G. and Gaxiola relayed a very different account of that night. E.G. testified that she
did not sleep at all that night and that the child only left the room to use the bathroom. When
the child did not return from the bathroom within five minutes, E.G. went to check on him.
____________________
in California, (2) the district court abused its discretion by refusing to allow him to obtain a psychological examination of the child-victim,
and (3) the district court abused its discretion by denying Gaxiola's motion to strike his statement to the police. We have considered these
arguments and conclude they are without merit.
........................................
check on him. E.G. discovered the child in Gaxiola's room, lying on the bed next to Gaxiola
and asking to play video games. When Gaxiola refused to allow the child to play, he became
upset, and E.G. returned him to her room.
Gaxiola testified that he called the child's mother the next day to come and pick up the
child. Gaxiola claimed that the child said something gross or nasty the night before and
Gaxiola did not want him in the house. The child's mother denied that Gaxiola called her. She
and her sister stated that when they went by the house to drop off some clothes for the child,
the child came out of the house and said that he did not want to stay there any longer.
In August 2001, while the child was staying at his aunt's house, he told his young
cousins that he had sex with Gaxiola. The next morning, one of the cousins told the child's
uncle about the incident. He initiated a discussion with the child regarding the comment. The
child became very emotional and eventually relayed the events of the night at E.G.'s house.
The child said that Gaxiola made him perform fellatio on Gaxiola, Gaxiola rubbed the child's
penis, and Gaxiola anally penetrated the child. The child claimed that Gaxiola also put the
child's penis in his mouth. When asked whether it had only occurred the one time, the child
responded that it had been ongoing. The child stated that he had not told anyone because
Gaxiola threatened that if he told, the child would go to the devil.
The uncle informed the child's mother about the discussion, and she questioned the
child. She testified that the child told her that Gaxiola put his penis in the child's mouth, put
the child's penis in his mouth, and anally penetrated the child. The child's mother then called
the police.
Phyllis Suiter, a board certified pediatric and family nurse practitioner from the
SAINT (Sexual Abuse Investigative Team) program, interviewed and examined the child.
The child stated that Gaxiola touched and caressed the child's penis with his hand. The child
claimed that Gaxiola anally penetrated him two different times. The child stated the first time
was a long time ago and that the first time hurt, but the second time did not. The child stated
that Gaxiola put the child's penis in his mouth two different times, but not the same time
Gaxiola anally penetrated him. Gaxiola made the child put Gaxiola's penis in his mouth one
time.
During the physical examination, Suiter found anal injuries. Suiter discovered that the
child's inner sphincter was dilated. Further, she discovered scar tissue from a second-degree
injury. The scarring indicated that the injury was approximately one to two months old. Suiter
examined the child a second time approximately two weeks later to evaluate the appearance
of the scarring after the passage of time. Suiter concluded that it was consistent with her
earlier findings.
........................................
with her earlier findings. Suiter testified that the child's injuries were consistent with the
allegations and made a determination that abuse was probable.
The police also interviewed the child. Detective Gina Chandler testified that the child
stated that Gaxiola rubbed the child's penis, anally penetrated him twice, put his penis in the
child's mouth, and put the child's penis in his mouth two times.
Subsequently, Gaxiola consented to a police interview. Gaxiola told the police that the
child frequently exhibited inappropriate sexual behavior. Originally, Gaxiola told the police
that the only sexual contact between him and the child was when the child attempted to touch
Gaxiola's penis through his pants. Gaxiola claimed that he told the child not to do that and he
informed the child's mother, but she just laughed. Gaxiola told the detectives that he was
willing to take a lie detector test.
As the interview progressed, Gaxiola changed his story. He claimed that the child had
come into his room when he was asleep, took Gaxiola's penis from his boxers, and touched it.
Gaxiola stated that another time the child came into his room when he was asleep, removed
Gaxiola's penis from his boxers, and put it in the child's mouth. Gaxiola told the detectives
that the child laid down in front of Gaxiola while Gaxiola was sleeping on his side, reached
around and put Gaxiola's penis in the child's anus. When the detectives asked how Gaxiola
became aroused to enable this act, he stated that every guy gets hard when he sleeps. Gaxiola
stated that he woke up before ejaculating. Gaxiola denied any other incidents of anal
penetration. Gaxiola stated that the child attempted to put his penis in Gaxiola's mouth a
couple of times while Gaxiola was asleep, but Gaxiola woke up when he felt something
against his lips and stopped the child. Gaxiola was arrested approximately 1 1/2 months after
the interview.
Gaxiola was charged with seven counts. Counts one and two were for sexual assault
by Gaxiola committing fellatio upon the child. Count three was for sexual assault by Gaxiola
placing his penis in the child's mouth. Counts four and five were for sexual assault by Gaxiola
inserting his penis into the child's anal opening. Count six was for lewdness based on Gaxiola
fondling the child's penis. Count seven was for lewdness based on making the child fondle
Gaxiola's penis.
At the beginning of the trial, outside the jury's presence, the State told the court that it
planned to have the child's mother and uncle testify regarding the child's statements. The
State and the defense agreed that it was not necessary to have a hearing as required by NRS
51.385 since the child was going to testify. The district court stated that admission of the
statements was predicated on the child testifying.
........................................
At trial, Gaxiola stated that he never touched the child. Gaxiola testified that he only
told a different story to the police because he was willing to say anything to go home because
the police were threatening and intimidating him. Gaxiola testified that he was able to provide
so many details that were consistent with the child's story because the child's mother had told
the details to his mother, who then relayed them to him.
The jury found Gaxiola guilty on all of the counts, and the district court entered a
judgment of conviction. For the sexual assault convictions, Gaxiola was sentenced to serve
five concurrent life sentences with the possibility of parole in twenty years. For the lewdness
convictions, Gaxiola was sentenced to serve two life sentences with the possibility of parole
in ten years. One of the lewdness sentences is to run concurrently with the sexual assault
sentences and the other is to run consecutively.
DISCUSSION
Gaxiola contends that: (1) NRS 51.385 violates the Confrontation Clause of the Sixth
Amendment of the United States Constitution, (2) the district court erred by instructing the
jury that a sexual assault victim's uncorroborated testimony could sustain a guilty verdict, (3)
one of his lewdness convictions should be reversed because it violates the corpus delicti rule,
(4) his lewdness convictions are redundant to the sexual assault convictions, and (5) the
prosecutor committed multiple acts constituting prosecutorial misconduct.
[Headnote 1]
Gaxiola asserts that his right to confrontation was violated when the district court
admitted testimony about the child-victim's statements to his mother, his uncle, Suiter and
Detective Chandler. Gaxiola argues that NRS 51.385
3
violates the Confrontation Clause of
the Sixth Amendment of the United States Constitution and the United States Supreme
Court's recent decision in Crawford v.
____________________

3
1. In addition to any other provision for admissibility made by statute or rule of court, a statement
made by a child under the age of 10 years describing any act of sexual conduct performed with or on the
child or any act of physical abuse of the child is admissible in a criminal proceeding regarding that act of
sexual conduct or physical abuse if:
(a) The court finds, in a hearing out of the presence of the jury, that the time, content and
circumstances of the statement provide sufficient circumstantial guarantees of trustworthiness; and
(b) The child testifies at the proceeding or is unavailable or unable to testify.
........................................
Washington.
4
The State counters that the Confrontation Clause and the Crawford decision
do not bar admission of the statements so long as the declarant is present at trial to defend or
explain the statement. We agree with the State.
The Confrontation Clause of the Sixth Amendment states, In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against
him . . . .
5
In Crawford, the Supreme Court held that extrajudicial testimonial statements by
a witness are barred under the Confrontation Clause unless the defendant had a prior
opportunity to cross-examine the witness,
6
thereby rejecting the test it had previously
established in Ohio v. Roberts.
7
However, Crawford does not overrule the Court's
pre-existing Confrontation Clause jurisprudence, enunciated in Ohio v. Roberts, and its
progeny, as it applies to nontestimonial statements.
8

The Court was also careful to explain that, when the declarant appears for
cross-examination at trial, the Confrontation Clause places no constraints at all on the use of
his prior testimonial statements.
9
The Court stated that the Confrontation Clause does not
bar admission of a statement so long as the declarant is present at trial to defend or explain
it.
10

In this case, the child testified at the trial and was subject to cross-examination. Based
on these circumstances, we conclude that Crawford is not implicated.
11

Gaxiola also argues that in People v. Price
12
the California Court of Appeal held
that, under the Confrontation Clause, a defendant must have a prior opportunity to
cross-examine the declarant before the declarant's extrajudicial statements may be admitted.
Gaxiola argues that he did not have a prior opportunity to cross-examine the child because the
child testified after the statements were admitted. The State claims that Price is
distinguishable because it concerned an unavailable declarant.
____________________

4
541 U.S. 36 (2004).

5
U.S. Const. amend. VI. The Confrontation Clause applies to the states by way of the Due Process Clause of the Fourteenth
Amendment. Pointer v. Texas, 380 U.S. 400, 403 (1965).

6
541 U.S. at 68.

7
448 U.S. 56, 66 (1980) (holding that the admissibility of all hearsay evidence is conditioned on whether it falls under a firmly rooted
hearsay exception or bears particularized guarantees of trustworthiness).

8
U.S. v. McClain, 377 F.3d 219, 221 n.1 (2d Cir. 2004) (citation omitted).

9
Crawford, 541 U.S. at 60 n.9.

10
Id.

11
For this reason, we do not address whether all of the child's statements were testimonial in nature or the constitutionality of the
statute in situations where a child is unable or unavailable to testify.

12
15 Cal. Rptr. 3d 229 (Ct. App. 2004).
........................................
We conclude that Gaxiola's argument is without merit. In Price, the court held that the
Confrontation Clause was not violated when statements from an unavailable declarant were
admitted at trial because the defendant not only had the opportunity to cross-examine her at
the preliminary hearing, but he vigorously did so and presented that transcript in support of
his defense.
13
Price does not support Gaxiola's argument that the declarant's statement is
only admissible after the declarant testifies at trial.
14

Accordingly, we conclude that NRS 51.385, as applied to the specific facts of this
case, does not violate the Confrontation Clause.
15

No corroboration jury instruction
[Headnote 2]
Gaxiola contends that the district court erred by instructing the jury as follows:
There is no requirement that the testimony of a victim of sexual offenses be
corroborated, and his testimony standing alone, if believed beyond a reasonable doubt,
is sufficient to sustain a verdict of guilty.
Gaxiola contends that the instruction is problematic because: (1) it unfairly focuses the jury's
attention on and highlights a single witness's testimony, as did the Lord Hale instruction
that was deemed improper in Turner v. State;
16
(2) it presents a concept used in appellate
review that is irrelevant to a jury's function as fact-finder; and (3) the technical term of
uncorroborated, implied by the instruction, misleads and confuses the jury because it has
several alternative definitions.
[Headnotes 3-5]
The State counters that appellate review is precluded because Gaxiola did not object
to this instruction at trial. Further, the State contends that this court, along with several other
courts, has approved of this instruction and that because courts across the nation are split
on the issue, any error was not plain at the time the instruction was given and reversal
thus is not appropriate.
____________________

13
Id. at 239.

14
Cf. California v. Green, 399 U.S. 149, 157 (1970) (the literal right to confront' the witness at the time of
trial . . . forms the core of the values furthered by the Confrontation Clause).

15
Gaxiola also argues that his conviction should be reversed because the district court failed to hold a hearing
pursuant to NRS 51.385 before admitting the child's statements to the third parties. We do not reach this issue
because Gaxiola waived it below.

16
111 Nev. 403, 403-04, 892 P.2d 579, 579 (1995). The Lord Hale instruction provided:
A charge such as that made against the defendant in this case is one, which, generally speaking, is easily
made, and once made, difficult to disprove even if the defendant is innocent. From the nature of a case
........................................
approved of this instruction and that because courts across the nation are split on the issue,
any error was not plain at the time the instruction was given and reversal thus is not
appropriate.
Generally, the failure to clearly object on the record to a jury instruction precludes
appellate review. However, this court has the discretion to address an error if it was
plain and affected the defendant's substantial rights. In conducting plain error review,
we must examine whether there was error, whether the error was plain or clear, and
whether the error affected the defendant's substantial rights.
17

For an error to be plain, it must, at a minimum,' be clear under current law.'
18

This court has repeatedly stated that the uncorroborated testimony of a victim, without
more, is sufficient to uphold a rape conviction.
19
Furthermore, other courts have approved
jury instructions to that effect.
20
Moreover, we conclude that the instruction is significantly
different from a Lord Hale instruction. Lord Hale instructions amount to a commentary
on the evidence, by telling a jury that a category of witness testimony should be given greater
scrutiny. A no corroboration instruction does not tell the jury to give a victim's testimony
greater weight, it simply informs the jury that corroboration is not required by law.
____________________
such as this, the complaining witness and the defendant are usually the only witnesses. Therefore, the
prosecuting witness['] testimony should be examined with caution.
Id.

17
Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003) (internal quotation marks omitted) (footnotes omitted); see also NRS
178.602.

18
U.S. v. Weintraub, 273 F.3d 139, 152 (2d Cir. 2001) (quoting U.S. v. Feliciano, 223 F.3d 102, 115 (2d Cir. 2000)).

19
State v. Gomes, 112 Nev. 1473, 1481, 930 P.2d 701, 706 (1996); Washington v. State, 112 Nev. 1067, 1073, 922 P.2d 547, 551
(1996); Hutchins v. State, 110 Nev. 103, 109, 867 P.2d 1136, 1140 (1994); Rembert v. State, 104 Nev. 680, 681, 766 P.2d 890, 891
(1988); Deeds v. State, 97 Nev. 216, 217, 626 P.2d 271, 272 (1981); Henderson v. State, 95 Nev. 324, 326, 594 P.2d 712, 713 (1979);
Bennett v. Leypoldt, 77 Nev. 429, 432, 366 P.2d 343, 345 (1961); Martinez v. State, 77 Nev. 184, 189, 360 P.2d 836, 838 (1961); State v.
Diamond, 50 Nev. 433, 437, 264 P. 697, 698 (1928).

20
State v. Dukette, 444 A.2d 547, 549 (N.H. 1982) (stating that the trial judge did not abuse its discretion by instructing the jury,
immediately after the victim testified that there were no eyewitnesses to the sexual assault and the defendant did not achieve sexual
emission, that no corroboration of the alleged victim's testimony is necessary to convict); Stallworth v. State, 258 S.E.2d 611, 612 (Ga. Ct.
App. 1979) (rejecting defendant's argument that the trial court failed to fairly explain the requirement of corroboration because there is no
requirement of corroboration of victim's testimony in a rape case, and trial court properly instructed jury on that issue).
........................................
The California Supreme Court discussed this distinction in People v. Gammage.
21
The court considered the propriety of a no corroboration instruction and a Lord Hale
instruction. The court concluded that while the Lord Hale instruction was improper, it was
appropriate to continue giving the no corroboration instruction since it performs an
important role.
22
Although the historical imbalance between victim and accused in sexual
assault prosecutions has been partially redressed in recent years, there remains a continuing
vitality in instructing juries that there is no legal requirement of corroboration.
23
The court
explained that the reasonable doubt standard places a heavy burden of persuasion on a
complaining witness whose testimony is uncorroborated and that while the no
corroboration instruction does not affect that standard, all of the instructions together strike a
balance that protects the rights of both the defendant and the complaining witness.'
24

Similarly, the Court of Appeals of Michigan also approved the use of a no
corroboration instruction in People v. Smith.
25
In Smith, defense counsel had argued to the
jury that, because of the strength of the defendant's alibi, it should insist on corroborating
evidence. The court of appeals stated that, under those circumstances, the trial court properly
instructed the jury that it could convict the defendant of sexual conduct on the basis of the
alleged victim's uncorroborated testimony.
26

Gaxiola argues that we approved the combined use of a Lord Hale instruction and
two no corroboration instructions in May v. State.
27
However, May only states that the
instructions concerning corroboration correctly stated the law and that it was not error to give
them to the jury.
28
May does not suggest that the use of combined instructions is required or
approved of in sexual assault cases, and Turner subsequently disapproved of the Lord Hale
instruction.
We conclude that the district court did not err by giving the no corroboration
instruction. The instruction is a correct statement of Nevada law. Further, we agree with the
Supreme Court of California in that the instruction does not unduly focus the jury's attention
on the victim's testimony.
____________________

21
828 P.2d 682 (Cal. 1992).

22
Id. at 687.

23
Id. (citation omitted).

24
Id. (citation omitted).

25
385 N.W.2d 654, 657 (Mich. Ct. App. 1986).

26
Id.

27
89 Nev. 277, 278-79, 510 P.2d 1368, 1369 (1973), overruled by Turner, 111 Nev. at 404, 892 P.2d at 580.

28
Id. at 279, 510 P.2d at 1369.
........................................
tention on the victim's testimony. Jurors mistakenly assume that they cannot base their
decision on one witness's testimony even if the testimony establishes every material element
of the crime. Therefore, it is appropriate for the district court to instruct the jurors that it is
sufficient to base their decision on the alleged victim's uncorroborated testimony as long as
the testimony establishes all of the material elements of the crime.
Corpus delicti rule (count sevenlewdness)
[Headnote 6]
Gaxiola argues that there is insufficient evidence to support count seven (child
fondling Gaxiola's penis) because the only evidence supporting the charge was Gaxiola's
statement to the police, which he recanted at trial. Gaxiola contends that the conviction
violates the corpus delicti rule.
[Headnotes 7-11]
The question for the reviewing 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.'
29
The jury determines the
weight and credibility to give conflicting testimony.
30
The corpus delicti of a crime must be
proven independently of the defendant's extrajudicial admissions.
31

The independent proof may be circumstantial evidence . . . , and it need not be beyond
a reasonable doubt. A slight or prima facie showing, permitting the reasonable
inference that a crime was committed, is sufficient. If the independent proof meets this
threshold requirement, the accused's admissions may then be considered to strengthen
the case on all issues.
32

Gaxiola told the police that the child would come up to him and touch Gaxiola's penis
through his boxer shorts, but Gaxiola recanted this statement at trial, and the child did not
testify that Gaxiola made him touch Gaxiola's penis. Further, none of the witnesses testified
that the child said that Gaxiola made him touch Gaxiola's penis. During the police interview,
the police asked the child whether he performed this act, but the transcripts indicate that the
child's responses were not audible and it is impossible to tell what those responses were.
____________________

29
Mason v. State, 118 Nev. 554, 559, 51 P.3d 521, 524 (2002) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

30
Deeds v. State, 97 Nev. 216, 217, 626 P.2d 271, 272 (1981).

31
Doyle v. State, 112 Nev. 879, 892, 921 P.2d 901, 910 (1996), overruled on other grounds by Kaczmarek v. State, 120 Nev. 314,
333, 91 P.3d 16, 29 (2004).

32
Id. (quoting People v. Alcala, 685 P.2d 1126, 1136 (Cal. 1984) (citations omitted)).
........................................
that the child's responses were not audible and it is impossible to tell what those responses
were. Accordingly, there is no evidence, outside of Gaxiola's police interview statement, that
this act occurred. Thus, Gaxiola's conviction on count seven violates the corpus delicti rule,
and we reverse the conviction.
Redundancy of the lewdness convictions
[Headnote 12]
Gaxiola contends that this court should reverse the two lewdness convictions since the
conduct was a mere prelude to the sexual assaults. Since we disposed of count seven above, it
is not necessary for us to reach the issue of whether that conviction is redundant. Therefore,
we will only address whether count six (lewdness by Gaxiola fondling the child's penis) is
redundant to the sexual assault convictions.
The State contends that charges for sexual assault and lewdness may be sustained
even when they occur in a single encounter, unless the lewdness occurred incidental to the
sexual assault. The State contends that due to the child's age, it is almost impossible to
pinpoint the timing and sequence of events; nevertheless, the child testified to repeated acts of
abuse occurring over a period of time.
[Headnote 13]
The crimes of sexual assault and lewdness are mutually exclusive and convictions
for both based upon a single act cannot stand.
33
However, separate and distinct acts of
sexual assault may be charged as separate counts and result in separate convictions even
though the acts were the result of a single encounter and all occurred within a relatively short
time.
34

This court has considered the redundancy of a lewdness conviction to a sexual assault
conviction in several cases. In Wright v. State, the accused attempted to sexually assault the
victim but stopped when a car passed by the area of the assault.
35
After the car passed, the
accused resumed his assault.
36
This court affirmed convictions for both attempted sexual
assault and sexual assault despite the short time period between the acts.
37
In Townsend v.
____________________

33

34
Wright v. State, 106 Nev. 647, 650, 799 P.2d 548, 549-50 (1990).

35
Id. at 650, 799 P.2d at 549.

36
Id.

37
Id. at 650, 799 P.2d at 549-50; see also Wicker v. State, 95 Nev. 804, 806, 603 P.2d 265, 267 (1979) (explaining that, statutorily,
the accused performed separate acts and could be convicted of a separate offense for each act notwithstanding the short period of time
between acts).
........................................
State, this court affirmed separate convictions for fondling a victim's breasts and digitally
penetrating the victim's vagina.
38
This court stated that because Townsend stopped
[fondling the child's breasts] before proceeding further, separate acts of lewdness occurred.
39

However, in Crowley v. State, the defendant rubbed the victim's penis through the
victim's pants, put his hand inside the victim's underwear and touched the victim's penis, and
pulled down the victim's pants and performed fellatio on the victim.
40
This court reversed
Crowley's conviction for lewdness, explaining that unlike Wright and Townsend, Crowley
never interrupted his actions.
41
By touching and rubbing the male victim's penis, Crowley
sought to arouse the victim and create willingness to engage in sexual conduct. Crowley's
actions were not separate and distinct; they were a part of the same episode.
42
In Ebeling v.
State, this court reversed Ebeling's conviction for lewdness after determining that the
touching of Ebeling's penis on the victim's buttocks was incidental to the sexual assault by
anal penetration.
43

In this case, it is impossible to determine whether the lewdness was incidental to the
sexual assault because the child did not testify regarding the sequence of events. We cannot
tell from the child's testimony whether the touching was separate and distinct as in Wright
and Townsend or a continuous act merged with a sexual assault as in Crowley and Ebeling.
The State argues that, due to the child's age and the difficulties of relying on a victim
under the age of ten, this court should apply the rule of Cunningham v. State, where we held
that, because time is not an essential element of sexual assault, attempted sexual assault or
lewdness with a minor, it is not necessary to allege the exact date; a time frame is appropriate.
44
In addition, the State cites to People v. Jones,
45
where the California Supreme Court
wrote, It must be remembered that even generic testimony . . . outlines a series of specific,
albeit undifferentiated, incidents each of which amounts to a separate offense, and each of
which could support a separate criminal sanction. The California court held that a conviction
would be sustained so long as a victim is able to describe the kind of act committed, the
number of acts committed and the general time period in which they were committed.
____________________

38
103 Nev. 113, 121, 734 P.2d 705, 710 (1987).

39
Id.

40
120 Nev. 30, 34, 83 P.3d 282, 285 (2004).

41
Id. at 34, 83 P.3d at 285-86.

42
Id. at 34, 83 P.3d at 285.

43
120 Nev. 401, 404, 91 P.3d 599, 601 (2004).

44
100 Nev. 396, 400, 683 P.2d 500, 502 (1984).

45
792 P.2d 643, 654 (Cal. 1990).
........................................
scribe the kind of act committed, the number of acts committed and the general time period in
which they were committed.
However, neither Cunningham nor Jones addresses the issue of redundancy.
Cunningham and Jones are sufficiency of the evidence cases. These cases acknowledge that
child-victims have more difficulty being as precise about times, places and details, but they
do not relieve the prosecution of its duty to provide enough detail so that the elements of the
crime are proven beyond a reasonable doubt. If we apply the same rationale to a redundancy
analysis, no lewdness conviction would ever be redundant.
[Headnote 14]
The wording of NRS 201.230, Nevada's lewdness statute, further supports our
analysis. NRS 201.230(1) defines lewdness as any lewd or lascivious act, other than acts
constituting the crime of sexual assault. (Emphasis added.) The State has the burden to show
that the defendant committed a crime
46
and in the case of lewdness, the statute indicates that
part of this burden is to show that the lewdness was an act other than a sexual assault.
Therefore, we conclude that the State has the burden, at trial, to show that the lewdness was
not incidental to the sexual assault. In this case, the State failed to present any evidence
regarding the sequence of events and under what circumstances the lewdness occurred. The
child only indicated Gaxiola fondled the child's penis. The child did not indicate if this
occurred on a separate day or time frame from the child's statement that Gaxiola placed the
child's penis in Gaxiola's mouth. Accordingly, we conclude that the State failed to prove that
Gaxiola's lewdness conviction for touching the child's penis is not redundant to the sexual
assault conviction involving fellatio performed upon the child, and the lewdness conviction
must be vacated.
Prosecutorial misconduct
[Headnotes 15, 16]
Gaxiola raises several alleged incidents of prosecutorial misconduct.
47
However,
Gaxiola failed to object to the alleged incidents at trial. Therefore, we analyze his contentions
under the plain error rule.
____________________

46
State v. Walker, 109 Nev. 683, 685, 857 P.2d 1, 2 (1993).

47
Only two are specifically addressed in this opinion. We have considered Gaxiola's remaining arguments
that the prosecutor acted improperly by: (1) offering his personal opinions, (2) misstating evidence regarding
corroboration, (3) commenting on Gaxiola's failure to take a polygraph in response to Gaxiola's direct testimony
regarding willingness to submit to a polygraph, (4) stating the child was a good, credible kid, and (5)
discussing penalty or punishment. We conclude these arguments are without merit.
........................................
This court has long held that, as a general rule, the failure to make timely objections [to
prosecutorial misconduct] and to seek corrective instructions during trial [precludes
appellate consideration]. But we may consider sua sponte plain error which affects the
defendant's substantial rights, if the error either: (1) had a prejudicial impact on the
verdict when viewed in context of the trial as a whole, or (2) seriously affects the
integrity or public reputation of the judicial proceedings.
The level of misconduct necessary to reverse a conviction depends upon how strong
and convincing is the evidence of guilt. If the issue of guilt or innocence is close, if the
state's case is not strong, prosecutor misconduct will probably be considered
prejudicial.
48

[Headnote 17]
First, Gaxiola contends that the prosecutor committed misconduct when he asked E.G.
if someone said that she had said she would lie for Gaxiola, would they be lying? Gaxiola
argues that it is improper to ask one witness if another witness was lying.
This court considered this issue for the first time in Daniel v. State,
49
which was
decided after Gaxiola's trial concluded. In Daniel, this court adopted a rule prohibiting
prosecutors from asking a defendant whether other witnesses have lied or from goading a
defendant to accuse other witnesses of lying, except where the defendant during direct
examination has directly challenged the truthfulness of those witnesses.
50
In that case, this
court employed a harmless error review since the defense had objected to the question at trial.
51
However, this court noted that, because we had never adopted a rule, the prosecutor did
not act with wrongful intent and the error was not prejudicial.
52

[Headnote 18]
In this case, the prosecutor improperly asked the witness if another witness was lying.
However, as in Daniel, we conclude that the prosecutor did not act with wrongful intent and
the error did not affect Gaxiola's substantial rights.
53

[Headnote 19]
Second, Gaxiola alleges that the prosecutor committed misconduct by asking
questions about his post-arrest silence. At trial, the prosecutor attempted to use Gaxiola's
interview statements to impeach his trial testimony.
____________________

48
Rowland v. State, 118 Nev. 31, 38, 39 P.3d 114, 118-19 (2002) (internal quotations and citations omitted).

49
119 Nev. 498, 78 P.3d 890 (2003).

50
Id. at 519, 78 P.3d at 904.

51
Id.

52
Id.

53
NRS 178.602.
........................................
prosecutor attempted to use Gaxiola's interview statements to impeach his trial testimony.
Gaxiola maintained that he had lied during the police interview but that he was telling the
truth on the stand. The prosecutor then asked Gaxiola whether he called the police when he
got home after the interview to tell them he lied, whether he called them in the
month-and-a-half after the interview and before he was arrested to recant, and whether he told
them after his arrest that he had made up the story.
On appeal, Gaxiola argues that the last question constituted an unconstitutional
comment on his post-arrest silence. Gaxiola also contends that the prosecutor's comments
regarding his failure to recant after arrest in closing statements infringed upon his rights to
post-arrest silence.
[Headnotes 20-23]
It is well settled that the prosecution is forbidden at trial to comment upon an
accused's election to remain silent following his arrest and after he has been advised of his
rights . . . .
54
In Doyle v. Ohio, the Supreme Court concluded that a prosecutor violated a
defendant's right to remain silent by cross-examining the defendant as to why he did not tell
the police upon being arrested that he had been set up.
55
The Court wrote, Silence in the
wake of [Miranda] warnings may be nothing more than the arrestee's exercise of these
Miranda rights.
56
In such circumstances, it would be fundamentally unfair and a
deprivation of due process to allow the arrested person's silence to be used to impeach an
explanation subsequently offered at trial.
57
However,
Doyle does not apply to cross-examination that merely inquires into prior inconsistent
statements. Such questioning makes no unfair use of silence, because a defendant who
voluntarily speaks after receiving Miranda warnings has not been induced to remain
silent. As to the subject matter of his statements, the defendant has not remained silent
at all.
58

Finally, [t]his court will not reverse a conviction when the state comments on post-arrest
silence if the comments were harmless beyond a reasonable doubt. However, comments on
post-arrest silence are not harmless in cases which rest solely on the defendant's word versus
the victim's word.'
59

____________________

54
McGee v. State, 102 Nev. 458, 461, 725 P.2d 1215, 1217 (1986).

55
426 U.S. 610 (1976).

56
Id. at 617.

57
Id. at 618.

58
Anderson v. Charles, 447 U.S. 404, 408 (1980).

59
Washington v. State, 112 Nev. 1054, 1060, 921 P.2d 1253, 1257 (1996) (quoting Coleman v. State, 111 Nev. 657, 664, 895 P.2d
653, 657-58 (1995)).
........................................
[Headnote 24]
In this case, the prosecutor's question and argument regarding Gaxiola's failure to
recant his interview after arrest was an improper comment on post-arrest silence. After being
arrested, Gaxiola had the right to remain silent and not talk to the police about his case.
60
However, the prosecutor's questions regarding Gaxiola's failure to change his statement in the
month-and-a-half prior to his arrest were permissible.
The fact that Gaxiola had plenty of time to correct his statement prior to trial was
already before the jury. In addition, this is not a case based solely on the victim's word;
physical evidence also established anal penetration.
61
Accordingly, we conclude that the
misconduct does not constitute plain error because it did not affect Gaxiola's substantial
rights.
CONCLUSION
We conclude that the admission of the child's statements to third parties did not
violate Gaxiola's right to confrontation since the child testified at trial. We also conclude that
the district court did not err by instructing the jury that a sexual assault victim's testimony
does not have to be corroborated to sustain a guilty verdict and that any acts of prosecutorial
misconduct did not affect Gaxiola's substantial rights. Finally, we conclude that Gaxiola's
lewdness conviction for count six is redundant to the sexual assault convictions and that the
lewdness conviction for count seven violates the corpus delicti rule.
Accordingly, we affirm Gaxiola's convictions for sexual assault and reverse his
lewdness convictions.
Parraguirre, J., concurs.
Maupin, J., concurring in part and dissenting in part:
I concur in the result reached by the majority. I disagree, however, that the questioning
of Gaxiola concerning his failures to recant his admittedly false statements to police before
and after his arrest violated his Fifth Amendment right to remain silent. Thus, in my view, it
was unnecessary to engage in a harmless error analysis on this issue.
____________________

60
Miranda v. Arizona, 384 U.S. 436, 444 (1966).

61
See King v. State, 113 Nev. 454, 467-68, 937 P.2d 55, 63-64 (1997).
____________
......................................
121 Nev. 657, 657 (2005) Sandstrom v. Dist. Ct.
WAYNE SANDSTROM, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, in and for THE COUNTY OF WASHOE, and THE
HONORABLE JEROME M. POLAHA, District Judge, Respondents, and THE
STATE OF NEVADA, Real Party in Interest.
No. 45153
September 22, 2005
119 P.3d 1250
Original petition for a writ of certiorari or in the alternative a writ of mandamus
challenging the district court's order reversing and remanding a justice court order granting
petitioner's motion to dismiss a misdemeanor criminal complaint.
The supreme court held that: (1) justice court's order dismissing misdemeanor
criminal complaint was final, appealable judgment; and (2) district court had jurisdiction over
State's appeal from justice court's order dismissing misdemeanor criminal complaint.
Petition denied.
Jeremy T. Bosler, Public Defender, and Chris C. Fortier, Deputy Public Defender,
Washoe County, for Petitioner.
Brian Sandoval, Attorney General, Carson City; Richard A. Gammick, District
Attorney, and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Real Party in
Interest.
1. Criminal Law.
Justice court's order dismissing misdemeanor criminal complaint was final, appealable
judgment, for purposes of determining whether district court had jurisdiction over
appeal, where dismissal resolved criminal prosecution and left nothing for future
consideration. Const. art. 6, 8; NRS 177.015(1)(a).
2. Criminal Law.
District court had jurisdiction over State's appeal from justice court's order dismissing
misdemeanor criminal complaint, under statute permitting appeal from justice court to
district court from final judgment. Const. art. 6, 8; NRS 177.015(1)(a).
3. Criminal Law.
Statute governing defendant's right to appeal to district court from order of justice
court in criminal cases did not preclude district court from exercising appellate
jurisdiction over State's appeal from justice court's order dismissing misdemeanor
criminal complaint. NRS 177.015(1)(a), 189.010.
4. Criminal Law.
The district courts are vested with jurisdiction to consider appeals from orders of the
municipal courts granting motions to dismiss misdemeanor criminal complaints. NRS
5.073(1).
........................................
OPINION
Per Curiam:
This original petition for a writ of certiorari or in the alternative a writ of mandamus
challenges the district court's jurisdiction to entertain an appeal by the State from a justice
court order granting a motion to dismiss a misdemeanor criminal complaint. Because of the
absence of any specific case law interpreting the statute at issue, we have addressed the merits
of the petition in this published opinion. We hold that the district courts have jurisdiction
under NRS 177.015 to review on appeal orders of the justice courts granting motions to
dismiss misdemeanor criminal complaints. Accordingly, we deny this petition.
FACTS
On April 30, 2003, the Washoe County District Attorney filed a complaint in the
justice court charging petitioner Wayne Sandstrom with several misdemeanor county code
violations, including operating a business without a license, storing a commercial vehicle in a
residential area, and outdoor storage and/or display of an inoperable vehicle.
1
Subsequently,
Sandstrom filed a motion to dismiss the complaint, which the justice court granted. The State
unsuccessfully sought reconsideration of the justice court order and then timely appealed the
order granting the motion to dismiss to the district court. On June 7, 2004, the district court
reversed the justice court order and remanded the matter for further proceedings. After
unsuccessfully pursuing reconsideration of the district court's order, Sandstrom filed a motion
to strike the order on the ground that the district court lacked jurisdiction to entertain the
State's appeal. On March 30, 2005, the district court denied Sandstrom's motion to strike,
concluding that it had jurisdiction to entertain the State's appeal pursuant to NRS 177.015.
Sandstrom then filed the instant petition with this court. The State subsequently filed an
answer to the petition as directed by this court.
DISCUSSION
Sandstrom argues that the district court lacked jurisdiction to consider the State's
appeal because no statutory authority allows for it. The power of the district courts to
entertain appeals from justice court orders is firmly rooted in the Nevada Constitution, as well
as in our case law. Our State Constitution bestows on the Legislature the authority to
prescribe by law the manner, and determine the cases in which appeals may be taken from
Justices and other courts."
____________________

1
According to Sandstrom, the justice court convicted him in a different case on March 27, 2003, of operating a business without a
proper license.
........................................
mine the cases in which appeals may be taken from Justices and other courts.
2
More
specifically, district courts are granted exclusive final appellate jurisdiction in cases arising
in Justices Courts and such other inferior tribunals as may be established by law.
3
This
court has long recognized this constitutional edict.
4

In accord with this constitutional mandate, the Legislature has defined by statute the
parameters of the district courts' appellate jurisdiction respecting criminal misdemeanor cases
originating in justice court. NRS 177.015 provides in pertinent part:
The party aggrieved in a criminal action may appeal only as follows:
1. Whether that party is the State or the defendant:
(a) To the district court of the county from a final judgment of the justice court.
This court has not directly addressed the issue of whether the State may appeal to the
district court from a justice court order granting a motion to dismiss a misdemeanor criminal
complaint. However, we have considered, without commenting on the jurisdictional issue, a
petition for extraordinary relief challenging on other grounds an order of the district court
affirming a justice court order granting a motion to dismiss a criminal complaint.
5

[Headnote 1]
The plain language of NRS 177.015(1)(a) clearly vests the district court with final
appellate jurisdiction over a final judgment of the justice court, regardless of whether the
party appealing is the State or the defendant. The only remaining question is whether the
justice court order granting Sandstrom's motion to dismiss the complaint constituted a final
judgment. We conclude that it did.
We have defined a final order as one that disposes of all issues and leaves nothing for
future consideration.
6
Here, the order of the justice court finally resolved the criminal
prosecution by dismissing the complaint and left nothing for future consideration.
____________________

2

3
Id. 6.

4
See Floyd v. District Court, 36 Nev. 349, 354, 135 P. 922, 924 (1913) (stating that the constitutional grant of final appellate
jurisdiction to the district court is also a prescription that the district court must assume final appellate jurisdiction in cases arising in a
justice court, and hence it is the duty which the district court cannot either refuse or divest itself of); see also Mazade v. Justice Court, 41
Nev. 481, 482-83, 172 P. 378, 379 (1918); Bancroft v. Pike, 33 Nev. 53, 80, 110 P. 1, 2 (1910).

5
See State of Nevada v. Dist. Ct., 116 Nev. 127, 130, 994 P.2d 692, 694 (2000); State of Nevada v. District Court, 114 Nev. 739,
740-41, 964 P.2d 48, 48-49 (1998).

6
See Castillo v. State, 106 Nev. 349, 351, 792 P.2d 1133, 1134 (1990) (holding that [a]n appeal in a criminal case lies from the final
judgment of the district court, not from an order finally resolving an issue in a criminal
........................................
ing the complaint and left nothing for future consideration. Accordingly, we conclude that the
order granting Sandstrom's motion to dismiss constituted a final, appealable judgment
pursuant to NRS 177.015(1)(a).
[Headnote 2]
Sandstrom nonetheless challenges the district court's jurisdiction to consider the
State's appeal on several fronts. First, he contends that NRS 177.015 is inapplicable because
it only applies when there has been a conviction. However, the plain language of the statute
permits an appeal from a final judgment and does not specifically require a judgment of
conviction. Thus, we conclude that the plain language of NRS 177.015(1)(a) belies this claim.
Second, Sandstrom contends that NRS 177.015 is contrary to a number of this court's
previous decisions holding that the right to appeal is statutory and no right to appeal exists
where no statute or court rule provides for an appeal.
7
We conclude, however, that NRS
177.015(1)(a) does indeed authorize the State to appeal from an order granting a motion to
dismiss a misdemeanor criminal complaint. We therefore reject this argument.
Sandstrom also argues that the district court's application of NRS 177.015 was
misplaced because subsection 3 of the statute affords only a defendant the right to appeal, not
the State. Ostensibly, there is a conflict within NRS 177.015 between subsections 1(a) and 3.
The latter provides that [t]he defendant only may appeal from a final judgment or verdict in
a criminal case. We conclude, however, that subsection 1(a) of the statute is more
appropriately read as vesting the district courts with the same appellate jurisdiction as is
granted to this court in subsection 1(b), while subsection 3 of the statute applies only to final
judgments of conviction or verdicts in criminal cases.
8

[Headnote 3]
Finally, Sandstrom argues that the district court lacked jurisdiction to entertain the
State's appeal because Chapter 189 of the Nevada Revised Statutes governs the procedures in
appeals to the district court from cases arising in the justice court.
____________________
case); cf. Elsman v. Elsman, 54 Nev. 28, 30, 3 P.2d 1071, 1072 (1931) (stating that a final judgment in a civil case disposes of all issues
and leaves nothing for future consideration).

7
Sandstrom cites to Phelps v. State, 111 Nev. 1021, 900 P.2d 344 (1995), Castillo, 106 Nev. 349, 792 P.2d 1133, Taylor Constr. Co.
v. Hilton Hotels, 100 Nev. 207, 678 P.2d 1152 (1984), and Kokkos v. Tsalikis, 91 Nev. 24, 530 P.2d 756 (1975), to support his argument.

8
NRS 177.015(1)(b) permits either the State or the defendant to appeal [t]o the Supreme Court from an order of the district court
granting a motion to dismiss, a motion for acquittal or a motion in arrest of judgment, or granting or refusing a new trial.
........................................
district court from cases arising in the justice court. Specifically, he directs this court's
attention to NRS 189.010, which provides:
Except as otherwise provided in NRS 177.015, a defendant in a criminal action tried
before a justice of the peace may appeal from the final judgment therein to the district
court of the county where the court of the justice of the peace is held, at any time within
10 days from the time of the rendition of the judgment.
Thus, Sandstrom argues, this provision, in conjunction with NRS 177.015(3), bestows the
right to appeal only on a defendant, not the State. We reject this view. Sandstrom ignores the
express language in NRS 189.010 stating that its provisions apply [e]xcept as otherwise
provided in NRS 177.015. Moreover, NRS 189.010 functions primarily to specify the time
in which an appeal may be taken, not to define the scope of the district courts' appellate
jurisdiction over judgments rendered in the justice courts.
[Headnote 4]
Based on the foregoing discussion, we expressly hold that the district courts are
statutorily authorized pursuant to NRS 177.015(1)(a) to consider appeals from orders of the
justice courts granting motions to dismiss misdemeanor criminal complaints. In addition, we
expressly extend our holding to include appeals taken by the State from orders of municipal
courts granting motions to dismiss misdemeanor criminal complaints. Our Constitution vests
final appellate jurisdiction in the district courts not only over cases arising in justice courts
but also over those arising in other inferior tribunals as may be established by law.
9
Such
an extension of our holding is grounded in existing statutory and case law. NRS 266.595
provides that [a]ppeals to the district court may be taken from any final judgment of the
municipal court in accordance with the provisions of NRS 5.073. NRS 5.073(1) requires:
The practice and proceedings in the municipal court must conform, as nearly as
practicable, to the practice and proceedings of justices' courts in similar cases. An
appeal perfected transfers the action to the district court for trial anew, unless the
municipal court is designated as a court of record as provided in NRS 5.010. The
municipal court must be treated and considered as a justice court whenever the
proceedings thereof are called into question.
Consistent with this statutory mandate, we have also recognized that procedures governing
appeals from final judgments rendered in municipal courts also conform to the procedures
applicable to justice courts.
____________________

9
Nev. Const. art. 6, 6; see also id. 8.
........................................
municipal courts also conform to the procedures applicable to justice courts.
10
Consequently,
inasmuch as the proceedings and practice in municipal courts must conform to those in the
justice courts, we conclude that the district courts are also vested with jurisdiction to consider
appeals from orders of the municipal courts granting motions to dismiss misdemeanor
criminal complaints.
CONCLUSION
Under NRS 177.015(1)(a), the State has a statutory right to appeal and the district
court has jurisdiction to consider the State's appeal from a justice court order granting a
motion to dismiss a misdemeanor criminal complaint. Therefore, the district court did not
exceed its jurisdiction in considering the State's appeal. Additionally, our holding applies to
cases where the State seeks to appeal to the district court from a municipal court order
granting a motion to dismiss a misdemeanor criminal complaint. Accordingly, we deny the
petition.
____________
121 Nev. 662, 662 (2005) Whealon v. Sterling
ROBERT WHEALON, Appellant, v. DEAN STERLING
and MARY ELLEN STERLING, Respondents.
No. 43582
September 22, 2005
119 P.3d 1241
Appeal from a district court order granting summary judgment in a contract action.
Eighth Judicial District Court, Clark County; Jeffrey D. Sobel, Judge.
Agent for producers of stage show brought suit for unpaid fees. After granting
producers leave to file an amended answer and cross-complaint, the district court granted
producers' motion for summary judgment. Agent appealed. The supreme court, Hardesty, J.,
held that: (1) district court did not abuse its discretion in permitting producers to amend their
answer and cross-complaint to add previously omitted affirmative defense; (2) term
employment, for purposes of statute regulating private employment agencies, is service
performed in exchange for wages, salary, or commissions; and (3) agent was not required to
hold an employment agency license, and thus fact that agent did not have such a license did
not render producers' oral contract to compensate agent unenforceable.
____________________

10
See Root v. City of Las Vegas, 85 Nev. 326, 327, 454 P.2d 894, 894 (1969); State Ex Rel. Digby v. Dist. Ct., 69 Nev. 186, 187,
244 P.2d 866, 866 (1952).
........................................
DaCorsi & Placencio, P.C., and John R. DaCorsi and Valerie A. Macris, Las Vegas,
for Appellant.
Dean Sterling, in Proper Person.
Mary Ellen Sterling, Las Vegas, in Proper Person.
1. Pleading.
District court did not abuse its discretion in permitting producers of stage show to
amend their answer and cross-complaint to add previously omitted affirmative defense,
in agent's action for unpaid fees; agent was given the opportunity to respond to
producers' motion to amend pleadings, and failed to demonstrate any prejudice resulting
from the amendment.
2. Appeal and Error; Pleading.
A district court's ruling on a motion to amend pleadings rests within the court's sound
discretion and will not be disturbed on appeal absent a showing of abuse of discretion.
3. Pleading.
An affirmative defense not raised in the pleadings is ordinarily deemed waived, unless
the opposing party is given reasonable notice and an opportunity to respond. NRCP
8(c).
4. Pleading.
An affirmative defense can be considered if not pleaded if fairness so dictates and
prejudice will not follow.
5. Pleading.
Once a responsive pleading is filed, a party may amend its pleading only with leave of
the court.
The supreme court reviews an order of summary judgment de novo.
7. Judgment.
Summary judgment is appropriate when a review of the record in the light most
favorable to the nonmoving party extinguishes all issues of material fact.
Essential question on appeal from grant of summary judgment is whether genuine
issues of material fact were created by pleadings and proof offered.
Construction of a statute is a question of law subject to de novo review.
10. Statutes.
Words in a statute will generally be given their plain meaning, unless such a reading
violates the spirit of the act.
11. Statutes.
When a statute is clear on its face, courts may not go beyond the statute's language to
consider legislative intent.
12. Statutes.
It is the duty of supreme court, when possible, to interpret provisions within a
common statutory scheme harmoniously with one another in accordance with the
general purpose of those statutes and to avoid unreasonable or absurd results, thereby
giving effect to the Legislature's intent.
........................................
Term employment, for purposes of statute regulating private employment agencies,
is service performed in exchange for wages, salary, or commissions. NRS 611.020(2),
611.030.
Agreements arranged by an agent that do not involve the performance of services in
exchange for wages, salary, or commissions, such as an independent contract or a
premises lease, are not covered by the private employment agencies statutes. NRS
611.020(2), 611.030.
Agent who arranged for producers to enter into a lease agreement with a hotel to rent
space in which to perform a stage show was not required to hold an employment agency
license under statutes regulating private employment agencies, and thus fact that agent
did not have an employment agency license did not render producers' oral contract to
compensate agent unenforceable, where producers paid rent for space, and hotel paid no
wages, salary, or commissions to producers; agent did not furnish information to
persons seeking employment or employees. NRS 611.020(2), 611.030.
OPINION
In this opinion, we define the term employment for purposes of the statutes
regulating private employment agencies.
1
Because employment is service performed for
wages, we conclude that an agent for a hotel stage show is not required to hold an
employment agency license under the statutes.
Respondent Dean Sterling performs an x-rated comedy stage show under the name of
Dr. Naughty. After one evening's performance, Sterling met appellant Robert Whealon at a
Las Vegas nightclub. Whealon and Sterling discussed the future of the Dr. Naughty show and
entered into an oral contract whereby Whealon alleges that he agreed to be the show's agent in
exchange for twenty percent of the gross receipts less the casino and entertainment tax. Dean
Sterling and respondent Mary Ellen Sterling (the Sterlings) dispute the agreement's twenty
percent fee term, contending that the agreement was for a twelve percent promoter's fee based
on the ticket sales, minus taxes, plus an agent fee of three percent.
Whealon thereafter found a new venue for the show, which resulted in a lounge lease
agreement for the Sterlings. Under that agreement, the Sterlings paid the rent for the lounge
space and produced the show but otherwise operated as a separate entity.
____________________

1
NRS 611.020-611.320.
........................................
duced the show but otherwise operated as a separate entity. The hotel paid no wages to the
Sterlings.
Although the Sterlings paid Whealon a fifteen percent fee between June and
November 1999, Whealon brought suit against them for unpaid fees, seeking the difference
between the twenty percent agent fee he asserts was due under the oral agreement and the
fifteen percent fee he received. During the course of the proceedings, Whealon repeatedly
claimed that he was the show's agent but admitted that he had never applied for an
employment agency license from the Nevada Labor Commissioner.
2

In their initial answer and cross-complaint, the Sterlings failed to raise a violation of
the private employment agencies statutes as an affirmative defense. They were later granted
leave to file an amended answer and cross-complaint, which included an affirmative defense
based on Whealon's failure to secure an employment agency license under the statutes.
Thereafter, the Sterlings moved for summary judgment.
Ultimately, the district court granted summary judgment to the Sterlings, finding that
Whealon had violated the statutory licensing requirements for private employment agencies,
thereby rendering the oral agreement unenforceable. Whealon appeals.
DISCUSSION
Amendment of answer and cross-complaint
[Headnote 1]
Whealon first argues that the district court abused its discretion by granting the
Sterlings' motion to amend their pleadings to raise a previously omitted affirmative defense.
We disagree.
[Headnote 2]
A district court's ruling on a motion to amend pleadings rests within the court's sound
discretion and will not be disturbed absent a showing of abuse of discretion.
3

[Headnotes 3-5]
NRCP 8(c) requires that all affirmative defenses be raised in the pleadings, stating in
pertinent part, a party shall set forth affirmatively . . . any other matter constituting an
avoidance or affirmative defense. An affirmative defense not raised in the pleadings is
ordinarily deemed waived,
4
unless the opposing party is given "reasonable notice and an
opportunity to respond."
____________________

2
See NRS 611.030; NRS 611.070.

3
Pierce Lathing Co. v. ISEC, Inc., 114 Nev. 291, 296, 956 P.2d 93, 96 (1998).

4
Second Baptist Ch. v. First Nat'l Bank, 89 Nev. 217, 219-20, 510 P.2d 630, 631 (1973); Tobler & Oliver Constr. v. Nevada St.
Bank, 89 Nev. 269, 271, 510 P.2d 1364, 1365 (1973).
........................................
reasonable notice and an opportunity to respond.
5
Therefore, an affirmative defense can
be considered (if not pleaded) if fairness so dictates and prejudice will not follow.
6
The
notice and opportunity to respond requirements may be satisfied if the opposing party is given
time to file a response to a motion to amend the pleadings.
7
Once a responsive pleading is
filed, a party may amend its pleading only with leave of the court.
8

In this case, Whealon was given the opportunity to respond to the Sterlings' motion to
amend the pleadings. Further, Whealon failed to demonstrate any prejudice resulting from the
amendment. Accordingly, the district court did not abuse its discretion in permitting the
Sterlings to amend their answer and cross-complaint to add the affirmative defense that the
contract was void because of Whealon's failure to comply with Nevada's private employment
agencies statutes.
Private employment agency licensing requirements
Whealon argues that it was error for the district court to grant summary judgment
because the private employment agencies statutes are limited to employment resulting in the
traditional employer-employee relationship and do not apply to independent contracts or
leases. We agree.
[Headnotes 6-8]
This court reviews an order of summary judgment de novo.
9
Summary judgment is
appropriate when a review of the record in the light most favorable to the nonmoving party
extinguishes all issues of material fact.
10
[T]he essential question on appeal is whether
genuine issues of material fact were created by pleadings and proof offered.
11

[Headnotes 9-12]
Further, [t]he construction of a statute is a question of law subject to de novo
review.'
12
The words in a statute will generally be given their plain meaning, unless
such a reading violates the spirit of the act, and when a statute is clear on its face, courts
may not go beyond the statute's language to consider legislative intent."
____________________

5
Williams v. Cottonwood Cove Dev. Co., 96 Nev. 857, 860, 619 P.2d 1219, 1221 (1980).

6
Ivory Ranch v. Quinn River Ranch, 101 Nev. 471, 473, 705 P.2d 673, 675 (1985).

7
See Williams, 96 Nev. at 860-61, 619 P.2d at 1221.

8
Kantor v. Kantor, 116 Nev. 886, 891, 8 P.3d 825, 828 (2000).

9
United Nat'l Ins. Co. v. Frontier Ins. Co., 120 Nev. 678, 683, 99 P.3d 1153, 1156 (2004).

10
Id.

11
Yeager v. Harrah's Club, Inc., 111 Nev. 830, 833, 897 P.2d 1093, 1094 (1995).

12
California Commercial v. Amedeo Vegas I, 119 Nev. 143, 145, 67 P.3d 328, 330 (2003) (quoting County of Clark v. Upchurch,
114 Nev. 749, 753, 961 P.2d 754, 757 (1998)).
........................................
ally be given their plain meaning, unless such a reading violates the spirit of the act, and when
a statute is clear on its face, courts may not go beyond the statute's language to consider
legislative intent.
13
It is the duty of this court, when possible, to interpret provisions within
a common statutory scheme harmoniously with one another in accordance with the general
purpose of those statutes and to avoid unreasonable or absurd results, thereby giving effect
to the Legislature's intent.
14

An employment agency is prohibited from conducting business in this state without a
license.
15
NRS 611.020(2), part of the private employment agencies statutes, defines
employment agency as a person who, for a charge, [f]urnishes information to a person
seeking employment or employees. Although the statutes do not define the terms
employment or employ, they do define gross cash wage from employment as wages
and salary, commissions and other supplemental compensation, excluding tips and bonuses.
16

Webster's dictionary defines employment as activity in which one engages or is
employed, an instance of such activity, or the act of employing: the state of being
employed.
17
Various courts have accepted these definitions, adding that [t]he term
employment' connotes service or that which engages one's time or attention.
18
The
definition of employment, particularly in the context of the private employment agencies
statutes, necessarily requires the word employ to be defined. Employ is defined as to use
or engage the services of, to provide with a job that pays wages or a salary, or to devote
to or direct toward a particular activity or person.
19

[Headnotes 13, 14]
We conclude that, consistent with its plain meaning, the term employment applies
to individuals who perform services in exchange for wages, salary or commissions. Other
agreements arranged by an agent, such as an independent contract or a premises lease, are not
covered by the private employment agencies statutes.
____________________

13
Pellegrini v. State, 117 Nev. 860, 873-74, 34 P.3d 519, 528 (2001).

14
Washington v. State, 117 Nev. 735, 739, 30 P.3d 1134, 1136 (2001).

15
NRS 611.030.

16
NRS 611.020(3).

17

18
State v. Roth, 44 N.E.2d 456, 458 (Ohio 1942), cited in Whitney v. State, Employment Security Dep't, 105 Nev. 810, 815, 783 P.2d
459, 462 (1989) (Steffen, J., dissenting); Davis v. Lincoln County, 219 N.W. 899, 900 (Neb. 1928); Geneva-Pearl Oil & Gas Co. v.
Hickman, 296 P. 954, 955 (Okla. 1931); Slocum Straw Works v. Industrial Commission, 286 N.W. 593, 597 (Wis. 1939).

19
........................................
[Headnote 15]
Here, while the amount of compensation required under the oral agreement is
disputed, there is no question that Whealon did not furnish information to persons seeking
employment or employees but rather arranged an agreement by which the Sterlings were
able to enter into a lease agreement with the hotel to rent space in which to perform the Dr.
Naughty show. The Sterlings paid rent for the lounge space, and the hotel paid no wages,
salary or commissions to the Sterlings.
Accordingly, Whealon's actions under the oral agreement were not subject to the
licensing requirements of Nevada's private employment agencies statutes, and we reverse the
order of the district court granting summary judgment and remand this matter for further
proceedings.
____________
121 Nev. 668, 668 (2005) May v. Anderson
GILDA MAY, Individually; and WADE MAY, Individually and as Special Administrator for
the ESTATE OF SEBORA MARIE MAY, Appellants, v. CURTIS CLINT
ANDERSON; CURTIS L. ANDERSON; DARLENE ANDERSON; and
CALIFORNIA CASUALTY INDEMNITY EXCHANGE, Respondents.
No. 42204
September 22, 2005
119 P.3d 1254
Appeal from a district court judgment in a tort action. Eighth Judicial District Court,
Clark County; Ronald D. Parraguirre, Judge.
Automobile accident victim's parents who refused to sign release brought wrongful
death action against driver and his parents, even though the parties had reached settlement
agreement. The district court entered judgment in accordance with the settlement. The
supreme court, Hardesty, J., held that: (1) as a matter of first impression, an enforceable
settlement agreement cannot exist when the parties have not agreed to the essential terms of
the release because these provisions constitute a material term of the settlement contract; and
(2) the agreement was enforceable despite refusal of victim's parents to sign release.
Affirmed.
Hall Jaffe & Clayton, LLP, and Michael R. Hall, Las Vegas; Harris & Schwartz and
Ralph A. Schwartz, Las Vegas, for Appellants.
........................................
Pearson, Patton, Shea, Foley & Kurtz, P.C., and Michele A. Kiraly and W. Randolph
Patton, Las Vegas, for Respondents.
1. Compromise and Settlement.
A release's essential terms are material and therefore required for an enforceable
settlement agreement to exist.
Because a settlement contract is formed when the parties have agreed to its material
terms, even though the exact language is finalized later, a party's refusal to later execute
a release document after agreeing upon the release's essential terms does not render the
settlement agreement invalid.
Because a settlement agreement is a contract, its construction and enforcement are
governed by principles of contract law.
4. Contracts.
Basic contract principles require, for an enforceable contract, an offer and acceptance,
meeting of the minds, and consideration.
5. Contracts.
With respect to contract formation, preliminary negotiations do not constitute a
binding contract unless the parties have agreed to all material terms.
6. Contracts.
A valid contract cannot exist when material terms are lacking or are insufficiently
certain and definite.
7. Contracts.
A contract can be formed when the parties have agreed to the material terms, even
though the contract's exact language is not finalized until later.
A court cannot compel compliance with a settlement agreement when material terms
remain uncertain; the court must be able to ascertain what is required of the respective
parties.
Contract interpretation is subject to a de novo standard of review.
10. Contracts.
The question of whether a contract exists is one of fact.
The supreme court must defer to the district court's findings regarding existence of
contract unless they are clearly erroneous or not based on substantial evidence.
12. Release.
What is considered an essential term of a release varies with the nature and
complexity of the case and must, therefore, be determined on a case-by-case basis.
An enforceable settlement agreement cannot exist when the parties have not agreed to
the essential terms of the release because these provisions constitute a material term of
the settlement contract.
14. Attorney and Client; Compromise and Settlement; Insurance.
Settlement agreement between automobile accident victim's surviving parents, alleged
tortfeasor, his parents, and liability insurer was enforceable, even though victim's
parents refused to sign release of all claims and wanted admission of liability by alleged
tortfeasor. The attorney for victim's parents had authority to negotiate on their behalf
and accepted the offer in writing, the finalized release document merely reiterated
the release terms of the accepted settlement agreement, and the parties had agreed
upon essential terms of release of all claims.
........................................
offer in writing, the finalized release document merely reiterated the release terms of
the accepted settlement agreement, and the parties had agreed upon essential terms of
release of all claims.
OPINION
[Headnotes 1, 2]
In this case, all parties agreed to the essential terms of a release in reaching a global
settlement, but three parties later refused to execute the release document. We therefore
consider whether the essential terms of a release are a material part of a settlement agreement,
without which the settlement agreement is never formed, or whether the release's terms are
inconsequential in determining whether the parties have reached a settlement agreement. We
conclude that the release's essential terms are material and therefore required for an
enforceable settlement agreement to exist. However, what is an essential release term
necessarily varies with the nature and complexity of the case. Because a settlement contract is
formed when the parties have agreed to its material terms, even though the exact language is
finalized later, a party's refusal to later execute a release document after agreeing upon the
release's essential terms does not render the settlement agreement invalid.
FACTS
On January 21, 2001, respondent Curtis Clint Anderson (Curtis) was driving a vehicle
owned by his parents, respondents Darlene and Curtis L. Anderson (the Andersons), when he
lost control, causing a rollover accident. Sebora Marie May, Angela Baffa, Peter Budahl, and
Shemeela Sherow were passengers in the car. All of the passengers sustained injuries; Sebora
Marie May's were fatal.
The Andersons were insured by California Casualty Indemnity Exchange (CCIE).
Their policy covered liability for injuries up to $100,000 per person and $300,000 per
occurrence.
All parties hired separate counsel shortly after the accident. Gilda and Wade May,
individually, and Wade May as special administrator for the estate of Sebora Marie May (the
Mays), hired attorney Ralph Schwartz. With the Mays' consent, Schwartz commenced
negotiations for a global settlement of all the claims against Curtis and the Andersons arising
out of the accident. CCIE offered to pay the full policy limit of $300,000 to the injured
parties in exchange for a general release of all claims and a covenant not to sue.
........................................
offered to pay the full policy limit of $300,000 to the injured parties in exchange for a general
release of all claims and a covenant not to sue. Schwartz agreed.
On September 5, 2001, Schwartz faxed a letter to the other parties' counsel, stating:
It is my understanding that we have reached an equitable division of Curtis Anderson's
policy limits as follows:
Sebora Marie May $100,000.00
Peter Budahl $100,000.00
Angela Baffa $ 72,500.00
Shemeela Sherow $ 27,500.00
If the above distribution of settlement funds is acceptable, please sign below and return
via fax to my office as soon as possible so that I may submit it to [the Andersons'
attorney].
The other attorneys signed and returned the letter to Schwartz. Schwartz then faxed the
signed letters to Curtis' and the Andersons' attorney. On one of the fax cover sheets, Schwartz
wrote that he had attached the parties' consents to the distribution of the policy limits, and he
requested that the Andersons' attorney immediately forward the release and settlement drafts.
The Andersons' attorney then sent letters to Peter's, Angela's and Shemeela's attorneys,
along with Schwartz, confirming the settlement amount and including a full, final, and
general release of all claims. Peter, Angela and Shemeela executed the documents and
received payment from CCIE.
The Mays, however, refused to execute the documents or accept payment. The form of
the general release was unacceptable to them because: (1) it did not contain an admission of
liability by Curtis, and (2) it extinguished all claims and rights against Curtis and all persons
who might have culpability or liability for the accident. Wade May acknowledged that he had
authorized Schwartz to negotiate a settlement with the Andersons but never agreed to release
Curtis, in part, because he felt such a release could jeopardize any possibility of convincing
the police to prosecute Curtis for his daughter's death.
Unable to resolve the disagreement over the release document's final language, the
Mays filed an action in district court against Curtis and the Andersons, alleging wrongful
death and negligence. Curtis and the Andersons answered, asserting that the claim was settled
and seeking specific performance of the settlement agreement. Additionally, CCIE, relying on
the settlement agreement, interpleaded the balance of the insurance proceeds.
Following a bench trial, the district court found that Schwartz had authority to bind
the Mays and that CCIE had offered to settle the claims by paying the full insurance proceeds
for a general release of all claims and a covenant not to sue.
........................................
release of all claims and a covenant not to sue. Additionally, the district court determined that
the execution of a release document was not necessary to enforce an otherwise valid
settlement agreement. Consequently, the district court determined that the parties had entered
into a legally enforceable settlement agreement providing for a general release of all claims
and entered judgment in accordance with the proposed settlement. The Mays appeal.
DISCUSSION
Whether the essential terms of a release constitute a material term of a settlement
agreement is a matter of first impression in Nevada.
[Headnotes 3-8]
Because a settlement agreement is a contract, its construction and enforcement are
governed by principles of contract law.
1
Basic contract principles require, for an enforceable
contract, an offer and acceptance, meeting of the minds, and consideration.
2
With respect to
contract formation, preliminary negotiations do not constitute a binding contract unless the
parties have agreed to all material terms.
3
A valid contract cannot exist when material terms
are lacking or are insufficiently certain and definite.
4
A contract can be formed, however,
when the parties have agreed to the material terms, even though the contract's exact language
is not finalized until later.
5
In the case of a settlement agreement, a court cannot compel
compliance when material terms remain uncertain.
6
The court must be able to ascertain what
is required of the respective parties.
7

[Headnotes 9-11]
Contract interpretation is subject to a de novo standard of review.
8
However, the
question of whether a contract exists is one of fact, requiring this court to defer to the district
court's findings unless they are clearly erroneous or not based on substantial evidence.
____________________

1
Reichelt v. Urban Inv. & Dev. Co., 611 F. Supp. 952, 954 (N.D. Ill. 1985).

2
Keddie v. Beneficial Insurance, Inc., 94 Nev. 418, 421, 580 P.2d 955, 956 (1978) (Batjer, C. J., concurring).

3
M & D Balloons, Inc. v. Courtaulds, PLC, No. 90-C-834, 1990 WL 186077, *3 (N.D. Ill. Nov. 21, 1990).

4
Matter of the Estate of Kern, 107 Nev. 988, 991, 823 P.2d 275, 277 (1991); Richards v. Oliver, 328 P.2d 544, 552 (Cal. Dist. Ct.
App. 1958).

5
Higbee v. Sentry Ins. Co., 253 F.3d 994, 998 (7th Cir. 2001).

6
Chappell v. Roth, 548 S.E.2d 499, 500 (N.C. 2001).

7
Richards, 328 P.2d at 552.

8
Diaz v. Ferne, 120 Nev. 70, 73, 84 P.3d 664, 665-66 (2004); Grand Hotel Gift Shop v. Granite St. Ins., 108 Nev. 811, 815, 839
P.2d 599, 602 (1992).
........................................
less they are clearly erroneous or not based on substantial evidence.
9

[Headnote 12]
There is little doubt that release terms are generally thought to be material to any
settlement agreement.
10
The majority of courts have held that the essential terms of a release
are necessary to a settlement agreement's formation and that the parties have not reached a
settlement when the release terms are still in dispute.
11
However, what is considered an
essential term of a release varies with the nature and complexity of the case and must,
therefore, be determined on a case-by-case basis.
12

In a Florida case, Nichols v. Hartford Insurance Co. of the Midwest,
13
the parties
agreed that there would be a release but failed to discuss whether it would include
indemnification language. The court stated, Where the language of a release is disputed
and the parties fail to reach an agreement as to the character, nature, or type of release to be
used, an essential element of the agreement is not established.'
14
The court went on to
recognize that not all of the details of the release need to be absolutely decided so long as the
parties agree upon the essential terms; in that case, the indemnification language constituted
an essential term.
15

Likewise, in Bontigao v. Villanova University,
16
the court determined that a
settlement agreement was not enforceable, even though the parties had agreed upon the
settlement amount and negotiated over many of its terms, because the scope of the release
remained an unresolved material term.
17

[Headnote 13]
We agree with the Nichols and Bontigao courts that an enforceable settlement
agreement cannot exist when the parties have not agreed to the essential terms of the
release because these provisions constitute a material term of the settlement contract.
____________________

9
James Hardie Gypsum, Inc. v. Inquipco, 112 Nev. 1397, 1401, 929 P.2d 903, 906 (1996), overruled on other grounds by Sandy
Valley Assocs. v. Sky Ranch Estates, 117 Nev. 948, 955 n.6, 35 P.3d 964, 968-69 n.6 (2001).

10
See Inamed Corp. v. Kuzmak, 275 F. Supp. 2d 1100, 1125 (C.D. Cal. 2002).

11
Cheverie v. Geisser, 783 So. 2d 1115, 1119 (Fla. Dist. Ct. App. 2001); Kohn v. Jaymar-Ruby, Inc., 28 Cal. Rptr. 2d 780 (Ct. App.
1994); Doi v. Halekulani Corp., 276 F.3d 1131, 1138 (9th Cir. 2002); Abbott Laboratories v. Alpha Therapeutic Corp., 164 F.3d 385, 388
(7th Cir. 1999); Bontigao v. Villanova University, 786 F. Supp. 513, 515-16 (E.D. Pa. 1992).

12
See Giovo v. McDonald, 791 So. 2d 38, 40 (Fla. Dist. Ct. App. 2001).

13
834 So. 2d 217, 218-19 (Fla. Dist. Ct. App. 2002).

14
Id. at 220 (quoting Cheverie, 783 So. 2d at 1119).

15
Id. at 219.

16
786 F. Supp. 513 (E.D. Pa. 1992).

17
Id. at 515-16.
........................................
agreed to the essential terms of the release because these provisions constitute a material term
of the settlement contract. Release terms are not a mere formality. They are an important
reason why a party enters into a settlement agreement. If the prevention of future litigation is
one of the primary goals of a settlement, the essential terms of the release needed to achieve
that goal are material to the settlement agreement.
Although some courts have stated that the terms of a release are inconsequential in
determining whether the parties have reached an agreement, these cases are either
distinguishable from the instant case or treat a release as a mere formality. For example, in
Earnest & Stewart, Inc. v. Codina,
18
a case involving offers of judgment, the court held that
the dismissal and releases referred to in the offer [of judgment] were not conditions' of the
settlement, but rather mechanical and legally inconsequential means of effecting it. They thus
should be regarded as mere surplusage, the existence of which should not affect substantial
rights.
19
Earnest is not analogous to this case. Unlike the effect of the pre-litigation
settlement agreement here, once a case has been filed in court, the bar to re-litigating that case
after an offer of judgment has been accepted does not depend on the terms of a release but
rather on the claim preclusion effect of res judicata.
20

[Headnote 14]
Here, the parties agreed upon the essential terms of the release. The district court
found that CCIE made an offer to pay the full policy proceeds in exchange for a general
release of all claims and a covenant not to sue. Schwartz had authority to negotiate on behalf
of the Mays and accepted the offer in writing. The finalized release document prohibiting the
Mays from pursuing any action, not just against the Andersons, but also against Curtis and all
other parties who could be liable for the tragic accident, merely reiterates the release terms of
the accepted settlement agreement.
21
Regardless of the release document's language,
however, since the parties agreed upon the essential terms of the release, i.e., all claims, an
enforceable settlement agreement exists. The fact that the Mays refused to sign the
proposed draft release document is inconsequential to the enforcement of the
documented settlement agreement.
____________________

18
732 So. 2d 364 (Fla. Dist. Ct. App. 1999).

19
Id. at 366.

20
See Willerton v. Bassham, 111 Nev. 10, 17-18, 889 P.2d 823, 827-28 (1995); In re Connaught Properties, Inc., 176 B.R. 678
(Bankr. D. Conn. 1995); Bayou Fleet, Inc. v. Alexander, 234 F.3d 852 (5th Cir. 2000); Ghiringhelli v. Riboni, 213 P.2d 17 (Cal. Dist. Ct.
App. 1950); Wheeler v. Trefftzs, 39 Cal. Rptr. 507 (Ct. App. 1964).

21
See, e.g., Russ v. General Motors Corp., 111 Nev. 1431, 1435-39, 906 P.2d 718, 720-23 (1995).
........................................
the Mays refused to sign the proposed draft release document is inconsequential to the
enforcement of the documented settlement agreement.
22
The district court was able to
determine what was required of the respective parties under the release terms of the
settlement agreement and properly compelled compliance by dismissing the Mays' action.
Accordingly, we affirm the district court's judgment.
____________
121 Nev. 675, 675 (2005) Nevada Serv. Employees Union v. Orr
NEVADA SERVICE EMPLOYEES UNION/SEIU LOCAL 1107, Appellant, v. IRIS ORR;
and
STATE OF NEVADA EMPLOYEE-MANAGEMENT RELATIONS BOARD, Respondents.
IRIS ORR, Cross-Appellant, v. NEVADA SERVICE EMPLOYEES UNION/SEIU
LOCAL 1107; and UNIVERSITY MEDICAL CENTER, Cross-Respondents.
No. 42025
September 29, 2005
119 P.3d 1259
Appeal and cross-appeal from a district court order granting in part and denying in
part petitions for judicial review of an administrative decision by the Employee-Management
Relations Board. Eighth Judicial District Court, Clark County; Allan R. Earl, Judge.
Employee filed a complaint with the Employee-Management Relations Board,
seeking an injunction precluding her termination without a pre-termination hearing. The
Board found that employer terminated employee without conducting the required
pre-termination hearing, and employer filed a petition for judicial review. The district court
affirmed the Board's findings of fact and conclusions of law, but reversed the Board's award
of back pay and insurance premium benefits. Union appealed, and employee cross-appealed.
The supreme court held that union's failure to acknowledge or sign employee's letter
requesting pre-termination hearing constituted a willful interference with or restraint of
employee's attempt to exercise her rights under the collective bargaining agreement.
Affirmed.
____________________

22
Hagrish v. Olson, 603 A.2d 108, 110 (N.J. Super. Ct. App. Div. 1992).
........................................
Patricia S. Waldeck, Las Vegas, for Appellant/Cross-Respondent Nevada Service
Employees Union.
General, Carson City, for Respondent Employee-Management Relations Board.
John J. Tofano, Las Vegas, for Respondent/Cross-Appellant Orr.
Alverson Taylor Mortensen Nelson & Sanders and Diane Carr Roth and Kristol B.
Ginapp, Las Vegas, for Cross-Respondent University Medical Center.
When reviewing an administrative decision, appellate court reviews the evidence in
the record to determine whether the agency's decision was in excess of its authority,
affected by errors of law, arbitrary or capricious, or otherwise characterized by an abuse
of discretion.
Appellate courts review issues of law de novo, but on factual issues, appellate courts'
review is limited to the evidence contained in the record, and appellate courts will not
substitute their judgment for that of the agency.
On factual disputes, appellate courts review the agency record for substantial
evidence, and substantial evidence is described as evidence which a reasonable
person could accept as adequate to support a conclusion.
Union's decision not to sign employee's letter requesting a pre-termination hearing
under the collective bargaining agreement was not a judgment call or good-faith
interpretation of the collective bargaining agreement because, under the agreement,
signing off on employee's request was a ministerial act that did not require the exercise
of judgment, and consequently, union's failure to acknowledge or sign employee's letter
constituted a willful interference with or restraint of employee's attempt to exercise her
rights under the collective bargaining agreement.
Employer's failure to obtain the union's signature and provide employee with a
pre-termination hearing, as required by collective bargaining agreement, constituted
willful interference with employee's attempt to exercise her rights under the collective
bargaining agreement.
Pursuant to collective bargaining agreement providing that, when employer wishes to
terminate employee, that employee is placed on suspension without pay pending
outcome of a pre-termination hearing, Employee-Management Relations Board only
had authority to restore employee, who was terminated without pre-termination hearing,
to her previous status of suspended without pay, and Board exceeded its authority when
it ordered employer to pay employee back salary and reimburse her for health insurance
premiums she paid. NRS 288.110(2).
........................................
OPINION
Per Curiam:
In this appeal, we consider whether an employer and a union can be held liable for
willfully interfering with an employee's rights under a collective bargaining agreement when
through inaction they failed to provide the employee with a pre-termination hearing on her
request. We affirm the district court's decision and conclude that such inaction amounted to
willful interference with the employee's attempt to exercise her rights under the collective
bargaining agreement.
FACTS
Iris Orr was employed as an X-ray technician by University Medical Center (UMC), a
local government employer in Las Vegas, Nevada. Orr was a nonunion employee, but her
position is governed by the collective bargaining agreement between UMC and the Nevada
Service Employees Union, Local 1107 (the Union). On July 27, 2000, UMC suspended Orr
pending termination for allegedly releasing patient information without authorization, leaving
the hospital without authorization, and insubordination.
Orr's attorney wrote to UMC's Director of Human Resources requesting a
pre-termination hearing under Article 9 of the collective bargaining agreement. Orr signed the
letter acknowledging her request for a hearing. A copy of the letter was then forwarded to the
Union's Executive Director. UMC's Labor and Employee Relations Manager testified that a
copy of the letter was also forwarded to the Union's Chief Steward for the unit where Orr
works. Under the collective bargaining agreement, the grievance process begins when the
chief steward signs the letter for the Union and returns a copy to UMC. The Union, however,
never returned a signed copy of Orr's letter to UMC, and after ten days, UMC assumed that
Orr waived her right to a pre-termination hearing and terminated her employment.
Consequently, Orr filed a complaint with the Employee-Management Relations Board
(the Board) seeking an injunction precluding her termination without a pre-termination
hearing, the restoration of her benefits, the award of reasonable costs and attorney fees, and
such other relief as justified. Following a hearing, the Board entered its decision and order
finding that: (1) Orr was an employee covered under the collective bargaining agreement
between UMC and the Union; {2) she requested a pre-termination hearing within the
10-day period specified in Article 9, Step 2 of that agreement; {3) the Union made a
conscious decision not to sign Orr's letter in contravention of the agreement; {4) UMC was
aware of Orr's request; {5) due to the Union's failure to sign the letter, UMC considered
the hearing waived; and {6) UMC terminated Orr without conducting the required
pre-termination hearing.
........................................
UMC and the Union; (2) she requested a pre-termination hearing within the 10-day period
specified in Article 9, Step 2 of that agreement; (3) the Union made a conscious decision not
to sign Orr's letter in contravention of the agreement; (4) UMC was aware of Orr's request;
(5) due to the Union's failure to sign the letter, UMC considered the hearing waived; and (6)
UMC terminated Orr without conducting the required pre-termination hearing. The Board
further determined that, under NRS 288.270(1)(a) and NRS 288.140, UMC and the Union
willfully interfered with and restrained Orr's rights under the collective bargaining agreement.
The Board directed UMC to restore all of Orr's benefits, provide back pay from the
date of termination, and reimburse Orr the cost of medical insurance incurred as a result of
her termination. The Board further ordered both the Union and UMC to comply with the
arbitration provisions of the collective bargaining agreement in an expedited manner and
allowed Orr to waive the pre-termination hearing and proceed directly to arbitration. Finally,
the Board ordered the Union and UMC to reimburse Orr for attorney fees and costs related to
this matter.
Both the Union and UMC filed petitions for rehearing, which the Board denied. UMC
filed a petition for judicial review in which the Union, Orr, and the Board participated. The
district court affirmed the Board's findings of fact and conclusions of law and its award of
attorney fees and costs, as well as its decision to allow Orr to waive the pre-termination
hearing and proceed directly to arbitration. However, the district court reversed the Board's
award of back pay and insurance premium benefits, concluding that such an award was
outside the Board's authority under NRS 288.110. The Union appealed the district court's
order, and Orr cross-appealed.
1

DISCUSSION
The Board's decision
[Headnotes 1-3]
When reviewing an administrative decision, this court reviews the evidence in the
record to determine whether the agency's decision was in excess of its authority, affected by
errors of law, arbitrary or capricious, or otherwise characterized by an abuse of discretion.
2
We review issues of law de novo.
3
However, on factual issues, our review is limited to the
evidence contained in the record, and we will not substitute our judgment for that of the
agency.
____________________

1
UMC filed a separate reply to Orr's cross-appeal. Therefore, as applicable in this opinion, we will consolidate the Union's and
UMC's arguments.

2
NRS 233B.135(3).

3
See Clements v. Airport Authority, 111 Nev. 717, 722, 896 P.2d 458, 461 (1995).
........................................
record, and we will not substitute our judgment for that of the agency.
4
Thus, on factual
disputes, we review the record for substantial evidence.
5
Substantial evidence is described as
evidence which a reasonable [person] could accept as adequate to support a conclusion.'
6

NRS 288.270 prohibits a government employer, such as UMC, or an employee
organization, such as the Union, from willfully interfer[ing] with, restrain[ing] or coerc[ing]
any employee in the exercise of any right guaranteed under NRS Chapter 288.
7
Under NRS
288.140(2), an employee may act on his or her own behalf without union representation, but
any action taken on a request or in adjustment of a grievance shall be consistent with the
terms of an applicable negotiated agreement.
8

Under Article 9, Step 2 of the collective bargaining agreement between the Union and
UMC, an employee, or the Union on behalf of the employee, may file a formal written
grievance within ten days of the adverse employment action. The agreement states that after a
written grievance is received, [a]ll actions and time limits will start upon Human Resources'
receipt of the Chief Steward's or field representative's signature. The inclusion of the
signature requirement provides a starting point for the timing of all actions and grievances,
and without that signature no further action on a matter occurs. Therefore, the signature
requirement is not obviated merely because the Union received a copy of Orr's letter.
It is uncontroverted that Orr requested but never received a pre-termination hearing.
The Union does not dispute that it failed to sign off on Orr's request letter, and UMC admits
that it failed to obtain the Union's signature. The express terms of the collective bargaining
agreement require the Union to sign the letter to begin the grievance process and UMC to
provide a pre-termination hearing. As part of providing a pre-termination hearing, UMC was
required to obtain a signature from the Union. This requires more action by UMC than simply
waiting for the Union to act.
____________________

4
NRS 233B.135(1), (3); Secretary of State v. Tretiak, 117 Nev. 299, 305, 22 P.3d 1134, 1138 (2001).

5
SIIS v. Swinney, 103 Nev. 17, 20, 731 P.2d 359, 361 (1987).

6
State, Emp. Security v. Hilton Hotels, 102 Nev. 606, 608 n.1, 729 P.2d 497, 498 n.1 (1986) (quoting Robertson Transp. Co. v.
P.S.C., 159 N.W.2d 636, 638 (Wis. 1968)).

7
NRS 288.270(1)(a), (2)(a).

8
The recognition of an employee organization for negotiation, pursuant to this chapter, does not
preclude any local government employee who is not a member of that employee organization from acting
for himself with respect to any condition of his employment, but any action taken on a request or in
adjustment of a grievance shall be consistent with the terms of an applicable negotiated agreement, if any.
........................................
[Headnote 4]
Thus, the Board did not err in concluding that the Union and UMC failed to act in
accord with the express terms of the collective bargaining agreement.
9
The Union's decision
not to sign Orr's letter requesting a pre-termination hearing was not a judgment call or
good-faith interpretation of the collective bargaining agreement. Under the agreement,
signing off on the request is a ministerial act that does not require the exercise of judgment.
10
This is especially the case for nonunion employees because their right to a pre-termination
hearing will be denied by the Union's refusal to sign off on a request.
We have previously noted that [w]illful' is a word of many meanings, its
construction often being influenced by its context.'
11
According to Black's Law Dictionary,
willful describes actions that are [v]oluntary and intentional, but not necessarily
malicious.
12
We adopted this definition in the context of judicial ethics, stating that willful
misconduct occurs when the actor knows he or she is violating a judicial Canon or rule of
professional conduct and acts contrary to that Canon or rule, and rejecting the idea that bad
faith or malice is required.
13

____________________

9
The Union argues that it is inconsistent to fault UMC for not providing Orr with a pre-termination hearing while also stating that
until the Union signs the document, no time limits begin to run. According to the Union, only one of the two of them may be at faultthe
Union for not returning the required signature or UMC for not providing the requested pre-termination hearing. The problem with this
argument is that once an employee requests a pre-termination hearing, both prerequisites must occur. Under the express terms of the
collective bargaining agreement, the Union has an obligation to sign off so that the process may begin, and UMC is required to provide a
pre-termination hearing before terminating the employee; however, in this instance neither occurred. The logic of the Union's argument
fails because, under NRS Chapter 288, by entering into a collective bargaining agreement, the parties are bound by the terms of that
agreement.

10
The Union argues that its conduct need not be error free, because if its conduct was merely negligent, it did not breach the duty
of fair representation. The Union further argues that if its actions were based on a good-faith interpretation of the collective bargaining
agreement and not made in reckless disregard of an employee's rights, it did not violate NRS 288.140 and NRS 288.270. We disagree.
There is a significant difference between cases where a union makes a judgment between two alternative courses of action and cases where
a union utterly fails to complete a required ministerial act. In the present case, it was not the Union's failure to notify that amounted to
negligence, but its willful disregard for the procedures stated in the plain language of the collective bargaining agreement.

11
Matter of Fine, 116 Nev. 1001, 1021, 13 P.3d 400, 413 (2000) (quoting Screws v. United States, 325 U.S. 91, 101 (1945) (citing
Spies v. United States, 317 U.S. 492, 497 (1943))).

12
Black's Law Dictionary 1593 (7th ed. 1999).

13
Fine, 116 Nev. at 1022, 13 P.3d at 413-14.
........................................
[Headnote 5]
Therefore, the record adequately supports the Board's determination that the Union's
failure to acknowledge or sign Orr's letter constituted a willful interference with or restraint of
Orr's attempt to exercise her rights under the collective bargaining agreement. We further
conclude that the Board's conclusion that UMC willfully interfered with Orr's exercise of her
rights by failing to obtain the Union's signature and failing to provide Orr with a
pre-termination hearing is supported by substantial evidence.
The Board's authority
Orr argues, in her cross-appeal, that the district court erred in finding that the Board
exceeded its statutory authority under NRS 288.110 when it awarded back pay and benefits.
We review the interpretation of a statute de novo.
14
The plain language of NRS 288.110(2)
provides the Board with the authority to order any person to refrain from the action
complained of or to restore to the party aggrieved any benefit of which he has been deprived.
[Headnote 6]
According to Article 10, paragraph 3 of the collective bargaining agreement, when
UMC wishes to terminate an employee covered under the agreement, that employee is placed
on suspension without pay pending the outcome of a pre-termination hearing. In this case, the
pre-termination hearing never occurred. Under NRS 288.110(2) the Board only had the
authority to restore Orr to her previous status of suspended without pay. Therefore, the
district court did not err in determining that the Board exceeded its statutory authority when it
ordered UMC to pay Orr back salary and reimburse her for health insurance premiums she
paid. Once Orr is returned to her rightful position of being suspended without pay pending a
pre-termination hearing, the results of that hearing or any subsequent arbitration, will
determine whether her suspension pending termination was without cause.
15
Finally, we
agree with the Board that permitting Orr to waive the pre-termination hearing and
proceed directly to arbitration is appropriate under the terms of the collective bargaining
agreement.
____________________

14
NRS 233B.135(3); Diamond v. Swick, 117 Nev. 671, 674, 28 P.3d 1087, 1089 (2001).

15
Orr argues that an arbitrator is without the power to provide such a remedy. However, Article 9, Step 3, paragraph (2)(b) of the
collective bargaining agreement specifically authorizes an arbitrator to issue an award retroactive to the date of the alleged violation or
date of filing of the grievance. Orr's citation to Reno Police Protective Assoc. v. City of Reno, 102 Nev. 98, 102, 715 P.2d 1321, 1324
(1986), is equally unpersuasive because the officer in that case was demoted, not suspended without pay, making the award of back pay
appropriate.
........................................
with the Board that permitting Orr to waive the pre-termination hearing and proceed directly
to arbitration is appropriate under the terms of the collective bargaining agreement.
CONCLUSION
The record adequately supports the Board's determination that the Union's failure to
acknowledge or sign Orr's letter and UMC's failure to obtain the Union's signature and
provide Orr with a pre-termination hearing constituted willful interference with Orr's attempt
to exercise her rights under the collective bargaining agreement. We further conclude that the
Board exceeded its statutory authority when it ordered UMC to pay Orr back salary and
reimburse her for health insurance premiums she paid. Accordingly, we affirm the judgment
of the district court.
____________
121 Nev. 682, 682 (2005) Lader v. Warden
PHILIP SCOTT LADER, Appellant, v. WARDEN, NORTHERN NEVADA
CORRECTIONAL CENTER, DAVID MELIGAN, Respondent.
No. 41895
October 6, 2005
120 P.3d 1164
Rehearing of an appeal from a district court order denying a post-conviction petition
for a writ of habeas corpus. Second Judicial District Court, Washoe County; Jerome Polaha,
Judge.
The supreme court, Hardesty, J., held that as matter of first impression, under
governing enhancement statutes, defendant's two prior felony convictions for DUI could be
used to enhance to felony his current conviction for DUI and also, in same proceeding, to
adjudicate him a habitual criminal.
Affirmed.
Charles C. Diaz, Reno, for Appellant.
Brian Sandoval, Attorney General, Carson City; Richard A. Gammick, District
Attorney, and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for
Respondent.
1. Automobiles.
Under governing enhancement statutes, defendant's two prior felony convictions for
driving under influence of alcohol (DUI) could be used to enhance to felony his current
conviction for DUI and also, in same proceeding, to adjudicate him as habitual
criminal. NRS 207.010; NRS 484.3792 (2004).
........................................
2. Criminal Law.
A claim of ineffective assistance of counsel presents a mixed question of law and fact
that is subject to independent review. U.S. Const. amend. 6.
3. Criminal Law.
A trial court's factual findings will be given deference by the supreme court on appeal,
so long as they are supported by substantial evidence and are not clearly wrong.
4. Criminal Law.
To establish that counsel's assistance was ineffective, a defendant must satisfy a
two-part test; first, he must demonstrate that his trial or appellate counsel's performance
was deficient, falling below an objective standard of reasonableness, and second, he
must show prejudice. U.S. Const. amend. 6.
5. Criminal Law.
Where a claim of ineffective assistance involves trial counsel, prejudice is
demonstrated by showing that, but for trial counsel's errors, there is a reasonable
probability that the result of the proceedings would have been different. U.S. Const.
amend. 6.
6. Criminal Law.
Where a claim of ineffective assistance involves appellate counsel, prejudice is
demonstrated by showing that an omitted issue had a reasonable probability of success
on appeal. U.S. Const. amend. 6.
7. Criminal Law.
Statutory interpretation is a question of law subject to independent review.
8. Statutes.
When the language of a statute is clear, the supreme court will ascribe to the statute its
plain meaning and not look beyond its language.
9. Statutes.
When the language of a statute is ambiguous, the intent of the Legislature is
controlling.
10. Statutes.
When the language of a statute is ambiguous, the supreme court will interpret the
statute's language in accordance with reason and public policy.
11. Statutes.
When the scope of a criminal statute is at issue, ambiguity should be resolved in favor
of the defendant.
12. Statutes.
When a specific statute is in conflict with a general one, the specific statute will take
precedence.
Adjudication of a defendant as a habitual criminal under the habitual criminal statute
was intended to increase and supersede the punishment for a recidivist criminal beyond
any sentence he would otherwise face. NRS 207.010.
14. Statutes.
Although ambiguity in a criminal statute should generally be resolved in a defendant's
favor, this maxim of construction will not prevail when an unreasonable result follows.
15. Criminal Law.
Defendant's claim that trial court erred in relying on copies of his prior felony
convictions for driving under influence of alcohol (DUI) at his sentencing hearing to
adjudicate him a habitual offender was barred on appeal from denial of his
post-conviction petition for writ of habeas corpus; claim should have been raised by
defendant on direct appeal from conviction, defendant did not make showing of
good cause and prejudice, and defendant did not show that denial of his claim on
procedural grounds would result in fundamental miscarriage of justice.
........................................
his sentencing hearing to adjudicate him a habitual offender was barred on appeal from
denial of his post-conviction petition for writ of habeas corpus; claim should have been
raised by defendant on direct appeal from conviction, defendant did not make showing
of good cause and prejudice, and defendant did not show that denial of his claim on
procedural grounds would result in fundamental miscarriage of justice. NRS
34.810(1)(b)(2).
16. Criminal Law.
The supreme court's rejection on direct appeal of defendant's claims that trial court
abused its discretion in adjudicating him a habitual criminal and that his sentence was
cruel and excessive were law of the case and barred relitigation of same claims on
appeal from denial of defendant's post-conviction petition for writ of habeas corpus.
OPINION ON REHEARING
1

The primary issue we address in this appeal is appellant Philip Lader's post-conviction
claim that his trial and appellate counsel were ineffective for failing to adequately argue that
his two prior felony convictions for driving under the influence of alcohol (DUI) in Nevada
could not be used to enhance a subsequent DUI conviction to a felony, pursuant to NRS
484.3792, and in the same criminal proceeding adjudicate him a habitual criminal, pursuant
to NRS 207.010. Lader argues that such dual use or stacking of prior felony DUI
convictions to achieve habitual criminal adjudication is prohibited because NRS 484.3792
provides a specific enhancement scheme for recidivist DUI offenders, while NRS 207.010
provides for a more general habitual criminal determination.
We disagree. NRS 484.3792 and NRS 207.010 are compatible, and neither statute
precludes the application of one to the other. Moreover, the argument advanced by Lader
would lead to an unreasonable result that is contrary to both the purpose of habitual criminal
adjudication and the interests of protecting the public from recidivist DUI offenders. We
therefore affirm the district court's denial of Lader's claim on this issue, as well as its denial
of several other claims raised by Lader seeking post-conviction relief.
____________________

1
On June 15, 2005, we entered an order affirming in part, reversing in part, and remanding this matter for further evidentiary
proceedings. Thereafter, we entered an order granting the State's petition for rehearing and withdrawing our order of June 15, 2005. We
now issue this opinion in place of the prior order of June 15, 2005.
........................................
FACTS
Lader has a long history of problems with alcohol and driving. The record reveals that
he was first convicted of DUI in 1989 in California and was sentenced to probation and an
alcohol program. He was convicted of another DUI in California that year and again
sentenced to probation and an alcohol program. In April 1994, he was convicted of a third
DUI in Renohis first felony. He served more than a year in prison for that conviction. In
January 1996, he was convicted of a fourth DUI in Renohis second felonyand was
sentenced to a prison term of 26 to 56 months. He was released in July 1998.
On October 23, 1999, Lader was arrested in Reno for his fifth DUI. He was found
guilty of a third felony DUI offense after a jury trial on February 2, 2000.
2
This conviction
carried a mandatory prison term of 1 to 6 years.
3
At his sentencing hearing the following
month, the State admitted, without objection, exhibits of Lader's two prior felony DUI
convictions in Nevada. Over the objection of both Lader and his trial counsel, however, the
district court adjudicated Lader a habitual criminal and sentenced him to serve a term in
prison of 8 to 20 years, which was the maximum sentence it could impose under the law.
4

Lader filed a direct appeal in this court, which was dismissed.
5
He filed a
post-conviction petition for a writ of habeas corpus in the district court in proper person. The
district court later appointed counsel who eventually filed a supplement to the petition. On
June 27, 2002, a lengthy hearing was held after which the district court dismissed all of
Lader's post-conviction claims except onewhether Lader's prior felony DUI convictions
were properly used to enhance his instant DUI conviction to a felony pursuant to NRS
484.3792 and then also to adjudicate him a habitual criminal pursuant to NRS 207.010.
After additional briefing on the matter, the district court issued an order on July 3,
2003, denying Lader relief on this claim, reasoning that the provisions of NRS 4S4.3792
and NRS 207.010 are fully compatible and lead "to the rational result that a more culpable
drunk driver receives greater punishment."
____________________

2
Lader was originally found guilty of committing three felony offenses: driving under the influence of intoxicating liquor, driving
while having 0.10 percent or more by weight of alcohol in his blood, and having a blood alcohol content of 0.10 percent by weight of
alcohol in his blood within two hours of driving. The district court later merged these three felonies into a single offense of violating NRS
484.379 and NRS 484.3792.

3
NRS 484.379(1)(c).

4
See NRS 193.130; NRS 207.010; see also Breault v. State, 116 Nev. 311, 314, 996 P.2d 888, 889 (2000).

5
Lader v. State, Docket No. 35936 (Order Dismissing Appeal, July 26, 2000).
........................................
soning that the provisions of NRS 484.3792 and NRS 207.010 are fully compatible and lead
to the rational result that a more culpable drunk driver receives greater punishment. This
appeal followed.
DISCUSSION
[Headnote 1]
Lader contends on appeal that his two prior felony DUI convictions in Nevada could
not be properly used to enhance his instant DUI offense to a felony and, at the same time,
adjudicate him a habitual criminal. He refers to the dual use of his prior felony DUI
convictions as enhancement stacking and maintains that the district court erroneously
denied his claim that his trial and appellate counsel were ineffective for failing to adequately
raise this issue.
[Headnotes 2, 3]
A claim of ineffective assistance of counsel presents a mixed question of law and fact
that is subject to independent review.
6
However, a district court's factual findings will be
given deference by this court on appeal, so long as they are supported by substantial evidence
and are not clearly wrong.
7

[Headnotes 4-6]
To establish that counsel's assistance was ineffective, a petitioner must satisfy a
two-part test.
8
First, he must demonstrate that his trial or appellate counsel's performance
was deficient, falling below an objective standard of reasonableness.
9
Second, he must show
prejudice.
10
Where the claim involves trial counsel, prejudice is demonstrated by showing
that, but for trial counsel's errors, there is a reasonable probability that the result of the
proceedings would have been different.
11
Where the claim involves appellate counsel,
prejudice is demonstrated by showing that an omitted issue had a reasonable probability of
success on appeal.
12
Both parts of the test do not need to be considered if an insufficient
showing is made on either one.
13

____________________

6
Kirksey v. State, 112 Nev. 980, 987, 923 P.2d 1102, 1107 (1996).

7
Riley v. State, 110 Nev. 638, 647, 878 P.2d 272, 278 (1994).

8
Strickland v. Washington, 466 U.S. 668, 687 (1984); Kirksey, 112 Nev. at 987-88, 923 P.2d at 1107.

9
Strickland, 466 U.S. at 687-88.

10
Id. at 687.

11
Id. at 694.

12
Kirksey, 112 Nev. at 998, 923 P.2d at 1114.

13
........................................
We have not previously addressed the relation, if any, between NRS 484.3792 and
NRS 207.010 as presented under the facts of this case. Other jurisdictions have decided this
issue and reached opposite conclusions.
14
Resolution of this dispute requires the court to
interpret its own state statutes and is not an issue of constitutional dimension.
15

[Headnotes 7-10]
Statutory interpretation is a question of law subject to independent review.
16
When
the language of a statute is clear, we will ascribe to the statute its plain meaning and not look
beyond its language.
17
However, when the language of a statute is ambiguous, the intent of
the Legislature is controlling.
18
In such instances, we will interpret the statute's language in
accordance with reason and public policy.
19

[Headnotes 11, 12]
We also keep in mind two maxims of statutory construction. When the scope of a
criminal statute is at issue, ambiguity should be resolved in favor of the defendant.
20
And
when a specific statute is in conflict with a general one, the specific statute will take
precedence.
21

Here, Lader argues that the specific enhancement provisions of NRS 484.3792
supersede the more general enhancement provisions found in NRS 207.010. Because the
Legislature provided an internal graduated enhancement scheme for repeat DUI offenders in
NRS 484.3792, Lader argues, the Legislature intended to prohibit the dual use or stacking
of prior felony DUI convictions to achieve both a felony DUI conviction and habitual
criminality pursuant to NRS 207.010.
22
Rather, he maintains that NRS 484.3792 provides
the exclusive penalty scheme for DUI offenders, no matter how many DUI convictions a
defendant incurs.
____________________

14
Compare People v. Coronado, 906 P.2d 1232 (Cal. 1995), People v. Bewersdorf, 475 N.W.2d 231 (Mich.
1991), and State v. Ewanchen, 799 S.W.2d 607 (Mo. 1990), with Lawson v. State, 746 S.W.2d 544 (Ark. 1988),
State v. Anaya, 933 P.2d 223 (N.M. 1996), and Carroll v. Solem, 424 N.W.2d 155 (S.D. 1988).

15
See State v. Chapman, 287 N.W.2d 697, 699 (Neb. 1980).

16
State v. Kopp, 118 Nev. 199, 202, 43 P.3d 340, 342 (2002).

17
Banegas v. SIIS, 117 Nev. 222, 225, 19 P.3d 245, 247 (2001).

18
Id.

19
Id.

20
Demosthenes v. Williams, 97 Nev. 611, 614, 637 P.2d 1203, 1204 (1981).

21
Gaines v. State, 116 Nev. 359, 365, 998 P.2d 166, 170 (2000).

22
Because Lader was adjudicated a habitual criminal pursuant to NRS 207.010, we conclude that his
arguments on appeal based upon NRS 207.012 are misplaced.
........................................
offenders, no matter how many DUI convictions a defendant incurs.
The relevant language of NRS 484.3792 provides:
1. Unless a greater penalty is provided pursuant to NRS 484.3795, a person who
violates the provisions of NRS 484.379 [proscribing DUI]:
. . . .
(c) For a third or subsequent offense within 7 years, is guilty of a category B felony
and shall be punished by imprisonment in the state prison for a minimum term of not
less than 1 year and a maximum term of not more than 6 years . . . .
(Emphasis added.)
Lader focuses our attention on the phrase third or subsequent offense and asserts
that this language supports his argument. This phrase plainly encompasses any DUI offense
after a defendant's secondwhether it is his third or thirteenth. Yet, NRS 484.3792 is silent
as to whether DUI offenses are to be included or excluded from the purview of NRS 207.010,
the habitual criminal statute.
Turning to the relevant language of NRS 207.010, it provides:
1. Unless the person is prosecuted pursuant to NRS 207.012 or 207.014, a person
convicted in this state of:
(a) Any crime of which fraud or intent to defraud is an element, or of petit larceny, or
of any felony, who has previously been two times convicted, whether in this state or
elsewhere, of any . . . felony . . . is a habitual criminal and shall be punished for a
category B felony by imprisonment in the state prison for a minimum term of not less
than 5 years and a maximum term of not more than 20 years.
(Emphasis added.)
We have previously interpreted the meaning of the phrase any felony in NRS
207.010(1)(a) to be plain and clear
23
and upheld the application of this habitual criminal
statute to a broad range of felony convictions. Nothing in the plain language of NRS 207.010
excludes a felony DUI conviction pursuant to NRS 484.3792 from its purview. Rather, the
scope of the phrase any felony appears on its face to include a felony DUI.
Although the language of NRS 484.3792 and NRS 207.010 is clear and unambiguous
when read in isolation, when read together the two phrases third or subsequent offense
found in NRS 484.3792 and any felony found in NRS 207.010 appear to compete. We
conclude that there is no conflict creating an ambiguity.
____________________

23
See Hardison v. State, 84 Nev. 125, 129, 437 P.2d 868, 871 (1968).
........................................
[Headnote 13]
Adjudication of a defendant as a habitual criminal pursuant to NRS 207.010 was
intended to increase and supersede the punishment for a recidivist criminal beyond any
sentence he would otherwise face.
24
To shield DUI offenders from habitual criminal
adjudication, as Lader urges, would thwart the very purpose of NRS 207.010.
Moreover, numerous other criminal statutes in Nevada contain graduated
enhancement provisions, many of which employ subsequent offense language similar to
that found in NRS 484.3792.
25
The language and structure of NRS 484.3792 are therefore
not unique. Extending Lader's argument to its logical conclusion would mean not only that a
recidivist drunk driver could never be adjudicated a habitual criminal based on violations of
NRS 484.3792 aloneno matter how many DUI convictions he incurredbut that recidivist
offenders under similar statutes could not be adjudicated habitual criminals as long as their
subsequent offenses were simply repeated violations of that single statute. We conclude that
such an interpretation of NRS 484.3792 and NRS 207.010 advances an unreasonable result
that is contrary to the interests of protecting Nevada's citizens and its visitors from the
dangers of recidivist drunk drivers, as well as other recidivist criminals.
[Headnote 14]
Although ambiguity in a criminal statute should generally be resolved in a defendant's
favor, this maxim of construction will not prevail when an unreasonable result follows.
Lader's arguments advance such a result. Rather, we conclude that the provisions of NRS
484.3792 and NRS 207.010 are compatible, not in conflict. Any effort by Lader's trial or
appellate counsel to more thoroughly argue this issue would have met no success.
26
We
therefore conclude that the district court properly denied Lader relief on his claim that his trial
and appellate counsel were ineffective on this basis.
____________________

24
See Tanksley v. State, 113 Nev. 997, 1004, 946 P.2d 148, 152 (1997); Lisby v. State, 82 Nev. 183, 189-90,
414 P.2d 592, 596 (1966).

25
See, e.g., NRS 200.485 (domestic battery); NRS 200.5099 (elder abuse); NRS 200.730 (possession of
child pornography); NRS 201.195 (soliciting a minor to engage in crimes against nature); NRS 201.210 (open or
gross lewdness); NRS 201.220 (indecent or obscene exposure); NRS 202.300 (use or possession of a firearm by
a child); NRS 202.350 (manufacture, importation, or possession of a dangerous weapon or carrying a concealed
weapon without a permit); NRS 453.321 (sale or manufacture of a controlled substance); NRS 453.336
(possession of a controlled substance); NRS 453.401 (conspiracy to commit an offense involving a controlled
substance).

26
The record reveals some discussion during Lader's sentencing hearing between his trial counsel and the
district court as to whether Nevada's statutes permit the adjudication of a recidivist DUI offender as a habitual
criminal.
........................................
Lader also raises several other claims of ineffective assistance of counsel regarding
alleged trial errors including the failure to adequately prepare and present a viable defense;
the failure to properly challenge on various grounds the testimony of a State witness; the
failure to object to a remark by the prosecutor; the failure to present mitigating evidence at his
sentencing hearing, such as evidence of his character, his medical records, and testimony by a
psychological expert; the failure to argue that the State engaged in a vindictive prosecution
against him; and the failure to argue that his prior felony DUI convictions were nonviolent in
nature and improperly relied upon to establish habitual criminality.
We have carefully reviewed each of these claims, and we conclude that they were
either insufficiently pleaded below
27
or lacked the necessary showing of deficient
performance by counsel and prejudice to entitle Lader to post-conviction relief.
28
The district
court did not err by denying Lader relief based upon them.
In addition to his claims of ineffective assistance of counsel, Lader also appeals from
the district court's denial of other post-conviction claims he raised.
[Headnote 15]
Lader contends that the district court erred in relying upon copies of his 1994 and
1996 felony DUI convictions at his sentencing hearing to adjudicate him a habitual criminal
because the district court failed to make any specific factual findings as to whether those prior
convictions were constitutionally valid. This claim, however, should have been raised by
Lader on direct appeal and is now barred from review pursuant to NRS 34.810(1)(b)(2)
absent a showing of good cause and prejudice.
29
Lader fails to make such a showing. Nor
does he show that the denial of his claim on procedural grounds would result in a
fundamental miscarriage of justice.
30
The district court did not err by denying relief on this
claim.
[Headnote 16]
Lader also contends that the district court abused its discretion in adjudicating him a
habitual criminal and that his sentence was cruel and excessive. However, this court already
rejected these claims on direct appeal. Our prior determinations are the law of the case and
bar relitigation of these issues.
____________________

27
See Hargrove v. State, 100 Nev. 498, 502, 686 P.2d 222, 225 (1984).

28
See Strickland, 466 U.S. at 687-88, 697; Kirksey, 112 Nev. at 987-88, 998, 923 P.2d at 1107, 1113-14.

29
Evans v. State, 117 Nev. 609, 646-47, 28 P.3d 498, 523 (2001); NRS 34.810(3).

30
See Mazzan v. Warden, 112 Nev. 838, 842, 921 P.2d 920, 922 (1996).
........................................
the case and bar relitigation of these issues.
31
These claims were also properly denied below.
CONCLUSION
NRS 484.3792 and NRS 207.010 do not create a dual use or stacking of prior felony
DUI convictions to render a subsequent DUI conviction a felony and then also to establish
habitual criminality in the same proceeding. Rather, the purpose of habitual criminal
adjudication and the interest of protecting the public from recidivist DUI offenders support an
increased punishment beyond the sentence imposed by the underlying felony. Lader's trial and
appellate counsel were not ineffective with respect to this issue. We therefore affirm the
district court's denial of post-conviction relief on this claim, as well as Lader's other claims.
____________
121 Nev. 691, 691 (2005) Howard v. City of Las Vegas
OSCAR HOWARD, Appellant, v. CITY OF
LAS VEGAS, Respondent.
No. 42652
October 6, 2005
120 P.3d 410
Appeal from a district court order denying a petition for judicial review regarding
firefighters' disability benefits. Eighth Judicial District Court, Clark County; Valorie Vega,
Judge.
The supreme court, Hardesty, J., held that retired firefighter's entitlement to
occupational disease benefits did not include compensation for temporary total disability
benefits.
Affirmed.
Greenman Goldberg Raby & Martinez and Lisa M. Anderson and John A. Greenman,
Las Vegas, for Appellant.
Santoro, Driggs, Walch, Kearney, Johnson & Thompson and Daniel L. Schwartz, Las
Vegas, for Respondent.
Retired firefighter's entitlement to occupational disease benefits following heart
attack, which occurred eight years after he retired, did not include compensation for
temporary total disability benefits, where retired firefighter was not earning any wages
at time of heart attack. NRS 617.050, 617.420, 617.457(1).
____________________

31
Hall v. State, 91 Nev. 314, 315-16, 535 P.2d 797, 798-99 (1975).
........................................
The supreme court's scope of review of an administrative decision is the same as that
of the district court.
When reviewing administrative decision, supreme court generally is limited to
determining, based on the record, whether the administrative body abused its discretion.
The supreme court reviews questions of law de novo when reviewing administrative
agency's decision.
When a retired workers' compensation claimant becomes eligible for occupational
disease benefits, the claimant is entitled to receive medical benefits but may not receive
any disability compensation if the claimant is not earning any wages. NRS 617.420.
OPINION
In this opinion, we consider the extent to which a firefighter who retires and,
thereafter, suffers a heart attack, is entitled to temporary total disability benefits. Although
Nevada law is clear that retired firefighters who sustain a disability post-retirement are
entitled to medical benefits,
1
we conclude that the Legislature's method for calculating
compensation precludes an award for temporary total disability benefits when the retired
firefighters are not earning wages at the time of the disability.
Appellant Oscar Howard was employed continuously for over twenty-five years with
the Las Vegas Fire Department. Eight years after Howard retired, he suffered a heart attack
and filed a claim for temporary total disability benefits with the respondent City of Las Vegas
(the city). After the city denied his claim, Howard filed an administrative appeal. The appeals
officer affirmed the denial of disability benefits, concluding that since Howard was retired at
the time of the heart attack, he was not actually incapacitated from any employment and had
no calculable average monthly wage.
In a subsequent petition for judicial review, the district court affirmed the appeals
officer's decision. Howard appeals.
____________________

1
See Gallagher v. City of Las Vegas, 114 Nev. 595, 600, 959 P.2d 519, 521 (1998).
........................................
DISCUSSION
[Headnotes 1-4]
This court's scope of review of an administrative decision is the same as that of the
district court. Generally, we are limited to determining, based on the record, whether the
administrative body abused its discretion.
2
Questions of law, however, we review de novo.
3

NRS 617.457(1) creates a conclusive presumption that heart disease in firefighters
who are employed for five or more years in a continuous, uninterrupted and salaried
position is an occupational disease arising out of and in the course of employment. In
Gallagher v. City of Las Vegas, we held that NRS 617.457(1)'s conclusive presumption
applies even when the heart disease is not discovered until after a firefighter has retired.
4
Consequently, we stated that firefighters with heart diseases are entitled to occupational
disease benefits as a matter of law.
5

Howard was employed in a continuous, uninterrupted and salaried firefighter position
for more than five years. Accordingly, the law entitles him to NRS 617.457's conclusive
presumption that his heart condition is an occupational disease arising out of and in the
course of his employment. While he is entitled to medical benefits, we must, however,
conclude that this entitlement does not extend to temporary total disability benefits because of
the Legislature's method for calculating the average monthly wage.
Temporary total disability benefits are paid at the rate of sixty-six and two-thirds
percent of the claimants' average monthly wage.
6
NRS 617.420 requires that disability
compensation be computed starting on the date of disability, providing:
No compensation may be paid under this chapter for disability which does not
incapacitate the employee for at least 5 cumulative days within a 20-day period from
earning full wages, but if the incapacity extends for 5 or more days within a 20-day
period, the compensation must then be computed from the date of disability. The
limitations in this section do not apply to medical benefits, which must be paid from the
date of application for payment of medical benefits.
____________________

2
Apeceche v. White Pine Co., 96 Nev. 723, 725, 615 P.2d 975, 977 (1980).

3
See City of Reno v. Reno Police Protective Ass'n, 118 Nev. 889, 894, 59 P.3d 1212, 1216 (2002).

4
114 Nev. at 601-02, 959 P.2d at 522-23.

5
Id. at 602, 959 P.2d at 523.

6
NRS 616C.475(1).
........................................
In Mirage v. State, Department of Administration,
7
we held that an employee
becomes eligible for temporary total disability benefits on the date the employee is unable to
continue working because of an occupational disease. The employee's average monthly wage
for purposes of calculating occupational disease benefits is based on the applicable
employment period preceding the date of the disablement. Further, NRS 617.420 precludes a
claimant from receiving disability compensation for an occupational disease if the claimant
has not actually been incapacitated from earning wages for at least five cumulative days in a
twenty-day period.
[Headnote 5]
Thus, under NRS 617.420, when a retired claimant becomes eligible for occupational
disease benefits, the claimant is entitled to receive medical benefits but may not receive any
disability compensation if the claimant is not earning any wages. This is so for two reasons.
First, retirement benefits are not included in NRS 617.050's definition of compensation.
And no other provision suggests that retirement benefits should be included within the
meaning of wages.
8

Second, a retiree usually has lost no salary due to the impairment. However, the
claimant may lose money in the form of medical expenses attributable to the work-related
disability; for these expenses, NRS 617.420 provides no prohibition. As we held in
Gallagher, retired claimants will still be able to claim medical expenses, despite not being
entitled to receive compensation based on lost wages.
9

We note that this approach has been followed in both California and New Hampshire.
California statutorily defines the terms salary and wage or salary to exclude health
benefits, retirement benefits, life insurance, vacation time, sick leave, perquisites of all kinds,
and reimbursement of expenses
10
from the calculation of compensation. Thus, in
California, a person's retirement benefits are not to be included in a calculation of disability
compensation.
11

____________________

7
110 Nev. 257, 260-61, 871 P.2d 317, 319 (1994).

8
See, e.g., NAC 616C.420 (defining average monthly wage as the total gross value of all money, goods
and services received by an injured employee from his employment to compensate him for his time or services
and is used as the base for calculating the rate of compensation for the injured employee); NAC 616C.423
(describing items included in average monthly wage but omitting retirement benefits).

9
We recognize that this court's opinion in Gallagher focused on the requisite payment of medical benefits;
however, Gallagher did not address payment of compensation following a work-related disability.

10
Cal. Government Code 16280 (West 1995).

11
See Van Voorhis v. Workmen's Compensation Appeals Board, 112 Cal. Rptr. 208 (Ct. App. 1974).
........................................
The Supreme Court of New Hampshire has also indicated that when a person is
voluntarily retired, retirement benefits are not included in a wage calculation for disability
purposes. Therefore, a retired New Hampshire claimant, like a retired Nevada claimant, is
effectively denied disability benefits because his weekly wage calculation amounts to zero.
12

Here, Howard's heart disease first manifested itself in the form of a heart attack eight
years after he retired from his employment as a firefighter. While under NRS 617.457(1)'s
presumption, Howard's heart attack was an occupational disease arising out of and in the
course of his employment entitling him to occupational disease benefits, the date of disability
under Mirage is the date of the heart attack. Therefore, the period immediately preceding the
heart attack is the date from which we must calculate Howard's disability benefits. Because
Howard was retired and not earning an actual wage at the time of his disability, from which a
lost wage may be calculated, he is not entitled to disability compensation in the form of lost
wages.
CONCLUSION
For the forgoing reasons, we conclude that a retired firefighter's entitlement to
occupational disease benefits does not include compensation for temporary total disability
benefits when the firefighter is not earning any wages. Accordingly, we affirm the order of
the district court.
____________
121 Nev. 695, 695 (2005) Rico v. Rodriguez
ARACELI PEREZ RICO, Appellant, v. JOSE
RODRIGUEZ, Respondent.
No. 42925
October 6, 2005
120 P.3d 812
Appeal from a district court order establishing child custody. Eighth Judicial District
Court, Family Court Division, Clark County; N. Anthony Del Vecchio, Judge.
Father of children born out of wedlock filed petition for determination of paternity,
child custody, child support, and visitation. The district court awarded joint legal and shared
physical custody of children to mother and father, and primary physical custody of children to
father. Mother appealed. The supreme court, Gibbons, J., held that: (1) in a matter of first
impression, a district court has the discretion to consider a parent's immigration status
and its derivative effects as a factor in determining custody; {2) substantial evidence
supported trial court's decision to award father primary physical custody of children; {3)
trial court's error in relying on erroneous legal memorandum prepared by father's counsel
in determining child custody award was harmless; {4) statute requiring that child custody
determinations be based solely on child's best interest did not violate equal protection
rights of mother, who was Mexican citizen who had illegally emigrated to the United
States; and {5) statute requiring that child custody determinations be based solely on
child's best interest did not violate mother's right to due process.
____________________

12
Appeal of Gelinas, 698 A.2d 1248, 1250-51 (N.H. 1977).
........................................
court has the discretion to consider a parent's immigration status and its derivative effects as a
factor in determining custody; (2) substantial evidence supported trial court's decision to
award father primary physical custody of children; (3) trial court's error in relying on
erroneous legal memorandum prepared by father's counsel in determining child custody
award was harmless; (4) statute requiring that child custody determinations be based solely on
child's best interest did not violate equal protection rights of mother, who was Mexican
citizen who had illegally emigrated to the United States; and (5) statute requiring that child
custody determinations be based solely on child's best interest did not violate mother's right to
due process.
Affirmed.
Beckley Singleton, Chtd., and Heidi J. Parry Stern and Daniel F. Polsenberg, Las
Xavier Gonzales, Las Vegas, for Respondent.
Ordinarily, an order denying a motion for reconsideration is not substantively
appealable.
2. Child Custody.
The district court has broad discretion in making child custody determinations, and
the supreme court will not disturb the district court's custody determination absent a
clear abuse of discretion; however, the supreme court must be satisfied that the district
court's determination was made for appropriate reasons.
The district court's factual determinations will not be set aside if supported by
4. Child Custody.
Since the child's best interests are paramount in custody matters, a district court has
the discretion to consider a parent's immigration status and its derivative effects as a
factor in determining custody.
Substantial evidence supported trial court's decision to award father primary physical
custody of children born out of wedlock, in proceeding commenced by him to
determine paternity, child custody, child support, and visitation; immigration status of
parties and its derivative effects for parties, i.e., that father was Mexican citizen who
had permanent resident status in the United States and mother was Mexican citizen who
had illegally emigrated to the United States, was but one factor considered, younger
child had medical and speech difficulties, mother had given older child responsibility to
care for younger child, children had been left with their maternal grandmother in
Mexico for significant periods of time, and father had ability to provide medical
insurance and stable schooling for children.
Trial court's reliance on erroneous legal memorandum prepared by father's counsel in
determining child custody award, which memorandum concluded that father, who was
lawful permanent resident in the United States, could obtain United States citizenship
on behalf of his children, born out of wedlock, if he were awarded physical custody
of children, when, in reality, father would initially have only the ability to file
paperwork necessary to apply for permanent residency for children regardless of
physical custody, was erroneous, in proceeding commenced by father to determine
paternity, child custody, child support, and visitation.
........................................
born out of wedlock, if he were awarded physical custody of children, when, in reality,
father would initially have only the ability to file paperwork necessary to apply for
permanent residency for children regardless of physical custody, was erroneous, in
proceeding commenced by father to determine paternity, child custody, child support,
and visitation.
Trial court's error in relying on erroneous legal memorandum prepared by father's
counsel in determining child custody award, which memorandum concluded that father,
who was lawful permanent resident in the United States, could obtain United States
citizenship on behalf of his children, born out of wedlock, if he were awarded physical
custody of children, when, in reality, father would initially have only the ability to file
paperwork necessary to apply for permanent residency for children regardless of
physical custody, was harmless, in proceeding commenced by father to determine
paternity, child custody, child support, and visitation. NRCP 61.
The supreme court reviews constitutional challenges de novo.
Threshold question in equal protection analysis is whether a statute effectuates
dissimilar treatment of similarly situated persons. Const. art. 1, 8(5); Const. art. 4,
21; U.S. Const. amend. 14.
In analyzing alleged equal protection violations, the level of scrutiny that applies
varies according to the type of classification created. Const. art. 1, 8(5); Const. art. 4,
21; U.S. Const. amend. 14.
For purposes of analyzing alleged equal protection violations, where a case presents
no judicially recognized suspect class or fundamental right that would warrant
intervention under a standard of strict scrutiny, or where it presents no quasi-suspect
class such as sex, illegitimates, or the poor that would warrant application of
intermediate level scrutiny, courts analyze the challenged law under the rational basis
test. Const. art. 1, 8(5); Const. art. 4, 21; U.S. Const. amend. 14.
A statute challenged as violative of equal protection meets rational basis review so
long as it is reasonably related to a legitimate government interest. Const. art. 1, 8(5);
Const. art. 4, 21; U.S. Const. amend. 14.
Where a law contains no classification or a neutral classification and is applied
evenhandedly, it may nevertheless be challenged as in reality constituting a device
designed to impose different burdens on different classes of persons, in violation of
equal protection. Const. art. 1, 8(5); Const. art. 4, 21; U.S. Const. amend. 14.
14. Child Custody; Constitutional Law.
Statute requiring that child custody determinations be based solely on child's best
interest did not facially violate Equal Protection Clause, as it created no classifications,
and set forth that child custody determinations should be based solely on the best
interest of the child. U.S. Const. amend. 14; NRS 125.480.
15. Child Custody.
The policy behind statute requiring that child custody determinations be based solely
on child's best interest is to ensure that minor children have frequent associations and a
continuing relationship with both parents after the parents have become separated or
have dissolved their marriage and to encourage the parents to share the rights and
responsibilities of child rearing.
........................................
and to encourage the parents to share the rights and responsibilities of child rearing.
NRS 125.480.
16. Children Out-of-Wedlock; Constitutional Law.
interest did not violate equal protection rights of mother, who was Mexican citizen who
had illegally emigrated to the United States, with respect to child custody dispute with
father, who was Mexican citizen who had permanent resident status in the United
States, concerning their out-of-wedlock children; trial court considered parents'
immigration status solely to determine children's best interests, there was nothing to
indicate that trial court's ultimate decision turned on mother's immigration status, and
trial court's consideration of parents' immigration status and its derivate effects on
children was one of several factors weighed in reaching custody determination. U.S.
Const. amend. 14; NRS 125.480.
Embedded within the Fourteenth Amendment is a substantive component that
provides heightened protection against government interference with certain
fundamental rights and liberty interests. U.S. Const. amend. 14.
The Equal Protection Clause prohibits discrimination based on alienage, nationality,
or race that does not meet strict judicial scrutiny. U.S. Const. amend. 14.
In a child custody dispute between two fit parents, the fundamental due process right
to the care and custody of the children is equal. U.S. Const. amend. 14.
20. Child Custody; Constitutional Law.
Since the fundamental due process interests of both parties in raising and educating
their children are identical, the dispute in child custody cases can be resolved best, if
not solely, by applying the best interest of the child standard. U.S. Const. amend. 14.
21. Children Out-of-Wedlock; Constitutional Law.
interest did not violate due process rights of mother, who was Mexican citizen who had
illegally emigrated to the United States, with respect to child custody dispute with
father, who was Mexican citizen who had permanent resident status in the United
States, concerning their out-of-wedlock children; mother and father stood on equal
footing before trial court when asserting their right to custody, trial court necessarily
considered all relevant factors when determining children's best interests, including
parties' immigration status, and nothing in record indicated that trial court's ultimate
decision turned primarily on mother's immigration status. U.S. Const. amend. 14; NRS
125.480.
OPINION
In this appeal, we examine whether a district court may consider a parent's
immigration status and its derivative effects as a factor in determining a child's best
interests.
........................................
in determining a child's best interests. Appellant Araceli Perez Rico contends that the district
court (1) abused its discretion by granting respondent Jose Rodriguez custody of the children
based, in part, upon an erroneous interpretation of a repealed immigration statute; and (2)
violated her due process and equal protection rights when it used her immigration status in
making the child custody determination. We are not persuaded that the district court abused
its discretion in making its custody determination or that appellant Rico's constitutional rights
were violated. Additionally, although the district court improperly considered respondent's
erroneous explanation of a repealed immigration statute, this error was harmless. We
therefore affirm the district court's order.
FACTS
Rico and Rodriguez are the unmarried parents of two minor children: M.P., born
March 26, 1993; and J.P., born April 25, 1995. Rico, M.P., and J.P. are citizens of Mexico.
From 1996 to 2003, Rico maintained primary physical custody of the children. In 2003, Rico
and the children illegally emigrated from Mexico to Las Vegas. After moving to Las Vegas,
M.P. and J.P. telephoned Rodriguez to ask if they could live with him. That summer,
Rodriguez filed a petition in district court for determination of paternity, custody, support,
and visitation. At the time of the proceedings, Rodriguez was a citizen of Mexico with
permanent legal residency in the United States and was living with his wife in the State of
Washington.
The district court conducted an evidentiary hearing concerning Rodriguez's petition.
After hearing the parties' arguments, the district court concluded that it needed more
information before making a custodial determination. The district court was mainly
concerned with the parties' living conditions and with Rodriguez's interaction with the
children. Consequently, the district court issued an order requesting independent studies of
Rico's and Rodriguez's living conditions and directing the parties to engage in mediation.
In Washington, Mary J. Hatzenbeler, a state social worker, studied Rodriguez's living
environment and interviewed the children. Hatzenbeler found that Rodriguez's home was
modest but adequate for the children's needs. While interviewing the children, Hatzenbeler
discovered that over the past six years, M.P. and J.P. were often placed in their maternal
grandmother's care in Mexico. These circumstances required M.P. to assume a parental role
for J.P. Further, Hatzenbeler had serious concerns about the lack of medical attention [for a
birth defect] and education provided to [J.P.]. She was primarily concerned with J.P.'s
speech impediment, lack of formal education, and inability even to say the alphabet.
........................................
alphabet. Overall, she noted that the children were happy and comfortable and that Rodriguez
and his wife treated them with love and respect.
In Nevada, Ingrid Sanchez, a Nevada social worker, appraised Rico's living conditions
and interviewed the children. In interviewing M.P. and J.P., Sanchez determined that for as
long as six or seven years, the children lived primarily with Rico's mother in Mexico.
Sanchez also found that Rico placed a majority of the parenting responsibilities of J.P. onto
M.P. As a consequence, M.P. was responsible for dressing, feeding, and looking out for J.P.
In addition, Sanchez observed that J.P. suffered from a speech impediment, which affected
his ability to interact with others and learn. She also concluded that Rico was unable to
provide the medical care necessary to correct J.P.'s physical condition. Further, she reported
that eight individuals, including Rico and the children, were living in a three-bedroom mobile
home owned by Rico's boyfriend. Notwithstanding the negative elements of the living
environment, Sanchez advised the court that Rico could provide a suitable home for her
children.
Thereafter, the district court held a second hearing on this matter. During this hearing,
the district court expressed deep concern about J.P.'s medical and speech difficulties, M.P.'s
role as J.P.'s substitute parent, Rico's immigration status, the availability of medical insurance
for the children, and the stability of the children's schooling.
Subsequently, the district court issued an order stating that joint legal and shared
physical custody would serve the children's best interests. Additionally, the court concluded it
was in the children's best interests to grant Rodriguez primary physical custody based on
Rodriguez's employment, his ability to provide medical insurance and stable schooling, and
Rico's immigration status. In particular, the district court noted Rodriguez's ability to lawfully
allow both minor children to immigrate and obtain the status of United States citizen. Rico
was awarded visitation.
[Headnote 1]
Before filing the present appeal, Rico moved the district court for reconsideration of
its custody determination. After a hearing, the district court denied the motion on the ground
that Rico's immigration status was not the primary factor used in awarding custody.
1
Specifically, the district court stated that the element of immigration was only one part of the
previous decision and that based on facts and circumstances beyond Rico's immigration
status, the court made the decision in the children's best interests.
____________________

1
Ordinarily, an order denying a motion for reconsideration is not substantively appealable. See Alvis v. State,
Gaming Control Bd., 99 Nev. 184, 660 P.2d 980 (1983). Accordingly, this appeal is taken from the November
6, 2003, order. Nevertheless, as the order denying reconsideration was entered before the appeal was taken, we
may consider the order denying reconsideration to the extent it clarified the November 6 order. NRAP 4(a)(1).
........................................
based on facts and circumstances beyond Rico's immigration status, the court made the
decision in the children's best interests. This timely appeal followed.
DISCUSSION
Rico argues that the district court abused its discretion by considering immigration
status and granting Rodriguez custody of the children based, in part, upon an erroneous
interpretation of federal law. We disagree.
Best interests of the children
[Headnotes 2, 3]
The district court has broad discretion in making child custody determinations, and we
will not disturb the district court's custody determination absent a clear abuse of discretion.
2
This court, however, must also be satisfied that the district court's determination was made
for appropriate reasons.
3
The district court's factual determinations will not be set aside if
supported by substantial evidence.
4

Under NRS 125.480(1), [i]n determining custody of a minor child . . . , the sole
consideration of the court is the best interest of the child. In determining the child's best
interests, the court may consider several factors, including which parent is more likely to
allow the child to have a continuing relationship with the noncustodial parent.
5

[Headnote 4]
We have not previously addressed the issue of considering a parent's immigration
status as a factor in determining the child's best interests for custody determination purposes.
Nothing suggests, however, that a district court cannot exercise its broad discretion and
consider a parent's immigration status in connection with the child's best interests.
6
Rather,
as with all balancing tests, the district court must weigh each factor that may affect the
consequences of placement. Since the child's best interests are paramount in custody matters,
we conclude that a district court has the discretion to consider a parent's immigration status
and its derivative effects as a factor in determining custody.
7

____________________

2
Primm v. Lopes, 109 Nev. 502, 504, 853 P.2d 103, 104 (1993).

3
Sims v. Sims, 109 Nev. 1146, 1148, 865 P.2d 328, 330 (1993).

4
Primm, 109 Nev. at 506, 853 P.2d at 105.

5
NRS 125.480(3)(a).

6
See In re Dependency of J.B.S., 863 P.2d 1344, 1349 (Wash. 1993); cf. NRS 125.480(1); Sims, 109 Nev. at
1148, 865 P.2d at 330.

7
In re Dependency of J.B.S., 863 P.2d at 1349; see Sims, 109 Nev. at 1148, 865 P.2d at 330.
........................................
[Headnote 5]
Here, the parents' immigration status was merely one factor the district court
considered in determining the children's best interests. The district court also considered J.P.'s
medical and speech difficulties, M.P.'s responsibility to care for J.P., the time the children
were left with Rico's mother in Mexico, Rodriguez's ability to provide medical insurance and
stable schooling for the children, Rico's and Rodriguez's living conditions, Rico's inability to
provide a healthy contact between Rodriguez and the children, and Rodriguez's employment.
[Headnotes 6, 7]
In addition, the district court considered the immigration status and its derivative
effects for both parents. Apparently, in attempting to understand these effects, the district
court erroneously interpreted a federal immigration law by mistakenly relying on a
memorandum of law prepared by Rodriguez's counsel. The memorandum concluded that
Rodriguez could obtain United States citizenship on behalf of his children if awarded
physical custody. In reality, Rodriguez, as a lawful permanent resident, would initially only
have the ability to file the paperwork necessary to apply for legal permanent residency for the
children regardless of physical custody.
8
Nevertheless, the district court clarified its ruling
regarding its reliance on the parties' immigration status, when denying Rico's motion for
reconsideration, by explaining that immigration was only one consideration in deciding
custody.
9

Balancing all these factors and relying on the reports provided by Hatzenbeler and
Sanchez, the district court granted Rodriguez primary physical custody based upon the
children's best interests. Substantial evidence exists in the record to support the district court's
decision to award Rodriguez custody.
Constitutional challenge
Rico also argues that the district court violated her equal protection and due process
rights by considering her immigration status in making the custody determination.
[Headnote 8]
This court reviews constitutional challenges de novo.
10
The rights to equal protection
and due process of law are guaranteed by the Fourteenth Amendment of the United States
Constitution and Article 1, Section S{5) and Article 4, Section 21 of the Nevada
Constitution.
____________________

8
8 U.S.C. 1153(a)(2) (2000); id. 1101(b)(1)(C).

9
To the extent that the district court relied on the erroneous legal memorandum, the error was harmless.
NRCP 61.

10
West v. State, 119 Nev. 410, 419, 75 P.3d 808, 814 (2003).
........................................
Article 1, Section 8(5) and Article 4, Section 21 of the Nevada Constitution. In particular, the
Fourteenth Amendment states that no State shall deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
Equal protection
[Headnotes 9-12]
The threshold question in equal protection analysis is whether a statute effectuates
dissimilar treatment of similarly situated persons.
11
In analyzing alleged equal protection
violations, the level of scrutiny that applies varies according to the type of classification
created.
12
Where a case presents no judicially recognized suspect class or fundamental right
that would warrant intervention under a standard of strict scrutiny or where it presents no
quasi-suspect class such as sex, illegitimates or the poor that would warrant application of
intermediate level scrutiny, we analyze the challenged law under the rational basis test.
13
A
statute meets rational basis review so long as it is reasonably related to a legitimate
government interest.
14

[Headnote 13]
But where a law contains no classification or a neutral classification and is applied
evenhandedly, it may nevertheless be challenged as in reality constituting a device designed
to impose different burdens on different classes of persons.
15

[Headnotes 14, 15]
In this case, the statute at issue, NRS 125.480, is facially neutral. It creates no
classifications and sets forth that child custody determinations should be based solely on the
best interest of the child. The policy behind NRS 125.480 is to ensure that minor children
have frequent associations and a continuing relationship with both parents after the parents
have become separated or have dissolved their marriage and to encourage the parents to share
the rights and responsibilities of child rearing.
16

____________________

11
Allen v. State, Pub. Emp. Ret. Bd., 100 Nev. 130, 135, 676 P.2d 792, 795 (1984).

12
Tarango v. SIIS, 117 Nev. 444, 454, 25 P.3d 175, 182 (2001).

13
Allen, 100 Nev. at 136, 676 P.2d at 795.

14
Tarango, 117 Nev. at 455, 25 P.3d at 182.

15
Phelps v. Phelps, 446 S.E.2d 17, 21 (N.C. 1994) (holding that custody determination statute creates no
classification of an older parent, either on its face or in its application).

16
NRS 125.480(3)(a).
........................................
[Headnote 16]
Additionally, Rico fails to assert a proper as applied challenge to the statute. Rico
presents no evidence of how the application of NRS 125.480 is designed to purposefully
discriminate against parents based on their immigration status. Child custody determinations
are by necessity made on a case-by-case basis. In this case, the district court considered the
parents' immigration status solely to determine the children's best interests. Furthermore,
there is nothing to indicate that the ultimate decision of the district court turned on Rico's
immigration status. The district court's consideration of both parents' immigration status and
its derivate effects on the children was one of several factors weighed in reaching the custody
determination. Rico has failed to demonstrate how the statute discriminates against her in the
context of the district court's child custody determination.
Due process
[Headnotes 17, 18]
Embedded within the Fourteenth Amendment is a substantive component that
provides heightened protection against government interference with certain fundamental
rights and liberty interests.'
17
The United States Supreme Court has recognized several
fundamental interests including the interest of parents in the care, custody, and control of
their children.
18
These fundamental interests apply to individuals regardless of their
immigration status.
19
Furthermore, the Equal Protection Clause of the Fourteenth
Amendment prohibits discrimination based on alienage, . . . nationality or race that does not
meet strict judicial scrutiny.
20

[Headnotes 19, 20]
In a custody dispute between two fit parents, the fundamental constitutional right to
the care and custody of the children is equal.
21
Since the fundamental interests of both
parties in raising and educating their children are identical, the dispute in such cases can be
resolved best, if not solely, by applying the best interest of the child standard.
22
In
McDermott v. Dougherty,
23
the Maryland Court of Appeals explained that the "best
interests of the child standard" applies when fit parents seek custody, and
____________________

17
Troxel v. Granville, 530 U.S. 57, 65 (2000) (plurality opinion) (quoting Washington v. Glucksberg, 521
U.S. 702, 720 (1997)).

18
Id.

19
Plyer v. Doe, 457 U.S. 202, 210 (1982) (stating that an individual is a person under the Fourteenth
Amendment regardless of immigration status).

20
Graham v. Richardson, 403 U.S. 365, 372 (1971) (footnote omitted).

21
See McDermott v. Dougherty, 869 A.2d 751, 770 (Md. 2004).

22
Id. at 771.

23
869 A.2d at 770.
........................................
Court of Appeals explained that the best interests of the child standard applies when fit
parents seek custody, and
each fit parent's constitutional right neutralizes the other parent's constitutional right,
leaving, generally, the best interests of the child as the sole standard to apply to these
types of custody decisions. Thus, in evaluating each parent's request for custody, the
parents commence as presumptive equals and a trial court undertakes a balancing of
each parent's relative merits to serve as the primary custodial parent; the child's best
interests tips the scale in favor of an award of custody to one parent or the other.
24

[Headnote 21]
Accordingly, Rico and Rodriguez stood on equal footing before the district court
when asserting their right to custody of their children. The district court necessarily
considered all relevant factors when determining the children's best interests, including the
parties' immigration status. After balancing all the factors, including, but not limited to,
Rico's immigration status, the district court determined that it was in the children's best
interests to live with Rodriguez. Nothing in the record indicates that the district court's
ultimate decision turned primarily on Rico's immigration status. Thus, the district court did
not violate Rico's due process rights in considering the effect of her immigration status on her
children.
Although we recognize that Rico is entitled to due process and equal protection, she
has simply not demonstrated that the district court's consideration of her immigration status
violated her constitutional rights or was a primary factor in the determination of her children's
best interests. Thus, we discern no constitutional violation here.
CONCLUSION
Nevada's standard for making custodial determinations is the child's best interests. In
evaluating the child's best interests, the district court has the discretion to consider a parent's
immigration status to determine its derivative effects on the children. Here, the district court
did not abuse its discretion in considering Rico's immigration status as a factor in awarding
Rodriguez custody of M.P. and J.P. pursuant to the best interests of the children. Further,
nothing in the record indicates that the district court inappropriately relied on Rico's alienage
in violation of her equal protection or due process rights. Therefore, we affirm the district
court's order.
Rose and Hardesty, JJ., concur.
____________________

24
Id. at 770.
____________
.......................................
121 Nev. 706, 706 (2005) Flores v. State
MARTHA FLORES, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 39413
October 20, 2005
120 P.3d 1170
Appeal from a judgment of conviction, entered upon a jury verdict, of first-degree
murder by child abuse. Eighth Judicial District Court, Clark County; Joseph T. Bonaventure,
Judge.
The supreme court, Maupin, J., held that: (1) nontestifying child witness's out-of-court
statements to police department's child abuse investigator and child protective services
investigator were testimonial, and thus admission of statements violated defendant's Sixth
Amendment right to confrontation; (2) trial court's error in admitting statements was not
harmless; (3) trial court did not abuse its discretion by admitting four autopsy photographs,
depicting the skull, scalp and peeled-back face of victim; and (4) trial court did not abuse its
discretion by permitting detective to draw a comparison between the emotional responses
exhibited by victim's father and defendant in response to victim's death.
Philip J. Kohn, Public Defender, and Robert L. Miller, Deputy Public Defender, Clark
1. Criminal Law.
Nontestifying child witness's out-of-court statements to police department's child
abuse investigator and child protective services investigator that defendant struck
victim and that the blow caused victim to strike her head and lose consciousness were
testimonial, and thus admission of statements violated defendant's Sixth Amendment
right to confrontation in prosecution for first-degree murder by child abuse; both
investigators were either police operatives or were tasked with reporting instances of
child abuse for prosecution, and thus reasonable person would have anticipated that
statements would be used for prosecutorial purposes. U.S. Const. amend. 6.
2. Criminal Law.
Nontestifying child witness's out-of-court statements to her foster mother that
defendant struck victim and that the blow caused victim to strike her head and lose
consciousness were nontestimonial, and thus admission of statements did not violate
defendant's Sixth Amendment right to confrontation in prosecution for first-degree
murder by child abuse; statements were spontaneously made at home while foster
mother was caring for witness, and thus were not such that a reasonable person would
have anticipated their use for prosecutorial purposes. U.S. Const. amend. 6.
........................................
3. Criminal Law.
Trial court's error, in violation of the Confrontation Clause, in admitting nontestifying
child witness's out-of-court statements to police department's child abuse investigator
and child protective services investigator that defendant struck victim and that the blow
caused victim to strike her head and lose consciousness was not harmless, in
prosecution for first-degree murder by child abuse; sole direct evidence of the assault of
victim came in the form of child witness's out-of-court statements. U.S. Const. amend.
6.
4. Criminal Law.
An appellate court may find some constitutional errors harmless where it is clear
beyond a reasonable doubt that the guilty verdict actually rendered in the case was
surely unattributable to the error.
5. Criminal Law.
In first-degree murder by child abuse prosecution, trial court did not abuse its
discretion by admitting four autopsy photographs, depicting the skull, scalp and
peeled-back face of victim; coroner specifically testified that he needed the photographs
to fully describe the autopsy and the injuries sustained by victim.
6. Criminal Law.
The admissibility of gruesome photographs showing wounds on the victim's body lies
within the sound discretion of the district court and, absent an abuse of that discretion,
the decision will not be overturned.
7. Criminal Law.
The admissibility of evidence is within the sound discretion of the trial court and will
not be disturbed unless manifestly wrong.
8. Criminal Law.
Failure to object will generally preclude appellate review of an issue unless plain error
affecting the defendant's substantial rights is shown.
9. Homicide.
Trial court did not abuse its discretion in first-degree murder by child abuse
prosecution by permitting detective to draw a comparison between the emotional
responses exhibited by victim's father and defendant in response to victim's death;
evidence regarding lack of remorse by defendant, who lived with father and victim, was
probative of her consciousness of guilt, and defendant elicited similar testimony from
State witnesses she asserted the trial court admitted in error.
10. Criminal Law.
Prior opportunity to cross-examine the declarant who made the out-of-court
statements sought to be admitted satisfies confrontation protection in part. U.S. Const.
amend. 6.
11. Criminal Law.
When the declarant appears for cross-examination at trial, the Confrontation Clause
places no constraints at all on the use of his prior out-of-court testimonial statements.
OPINION
The trial jury below found appellant Martha Flores (Flores) guilty of first-degree
murder by child abuse. The victim was her five-year-old stepdaughter, Zoraida Flores.
........................................
five-year-old stepdaughter, Zoraida Flores. Postmortem findings confirmed that the child had
been physically abused, that her death was caused by blunt-force trauma to the head, and that
Flores was present during the events surrounding the child's demise. Flores, however, denied
any wrongdoing in connection with the child's death. The only direct proof in support of the
State's theory of murder by child abuse came in the form of surrogate hearsay testimony,
through which Flores's five-year-old daughter became her mother's accuser without testifying
at trial. Thus, we examine the admissibility of such surrogate testimony under the recent
United States Supreme Court decision in Crawford v. Washington.
1

We conclude that, per Crawford, the admission of the daughter's hearsay statements
violated the Confrontation Clause of the Sixth Amendment to the United States Constitution,
that the violation was not harmless beyond a reasonable doubt, and that Flores is therefore
entitled to a new trial.
Jose and Martha Flores resided together in a Las Vegas apartment with Jose's
five-year-old daughter Zoraida, Martha's daughters and mother, and an infant. Jose Flores
worked to support the family, and Martha Flores stayed home to take care of the children. The
record reflects that the family labored under the considerable stress of cramped living
arrangements and economic pressures. On January 28, 2001, while Jose was away at work,
emergency medical personnel responded to the apartment to provide assistance to Zoraida.
Finding no pulse or breath intake, paramedics attempted to resuscitate the child but were
unsuccessful. A postmortem examination of the body revealed numerous bruises and bite
marks at different stages of healing. The coroner concluded that death was occasioned by
blunt trauma to the head.
Flores provided Las Vegas Metropolitan Police Department (LVMPD) detectives with
her account of the events in question, stating first that she found Zoraida that morning in her
bedroom in distress and having trouble breathing. Upon taking the child in her arms, she
found that Zoraida was limp and damp, as if she had wet the bed. Flores claimed that she
took Zoraida into the master bathroom and attempted to revive her with water from the
shower and by waving rubbing alcohol under her nose. According to Flores, she then went to
a neighbor for help because she did not understand what was wrong with the child and had no
telephone in her apartment. Flores acknowledged that she had previously tried to cover a
bruise around Zoraida's eye with makeup when they went out in public, in part to avoid
questions from police.
____________________

1
541 U.S. 36, 59 (2004) (holding that testimonial hearsay statements of a witness who does not appear at trial
are inadmissible under the Confrontation Clause of the Sixth Amendment unless the witness is unavailable to
testify, and the defendant has had a prior opportunity to cross-examine the witness).
........................................
to cover a bruise around Zoraida's eye with makeup when they went out in public, in part to
avoid questions from police.
Upon further investigation, officers found wet, urine-stained children's clothing and
an open bottle of rubbing alcohol. They also observed standing water in the shower and on
the bathroom floor. Crime scene investigators found no evidence of blood or physical damage
to the shower or bathroom walls. This investigation supported Flores's version of the incident.
The only eyewitness to these events was Flores's daughter, Sylvia. Sylvia later told
child abuse investigators and her foster mother, Yolanda Diaz, that Flores struck Zoraida
during a struggle in a bathroom shower, that the blow caused the child to strike her head and
lose consciousness, and that Zoraida never woke up.
The State charged Flores with one count of first-degree murder by child abuse. After
conducting a hearing during which Sylvia and Diaz testified, the district court granted the
State's pretrial motion to admit Sylvia's out-of-court statements under NRS 51.315(1).
2
In
this, the district court found that Sylvia was unavailable as a witness, observing that, based
upon her emotional state, she did not wish to discuss the case and that it's very obvious to
the court, she'll not talk about it. The court also found strong assurances of the accuracy of
the statements, given their consistency and corroboration by medical experts. Accordingly,
Sylvia did not testify at trial. Rather, the State introduced Sylvia's hearsay statements through
the testimony of LVMPD child abuse investigator Sandy Durgin, Child Protective Services
investigator Carolyn Godman, and Yolanda Diaz.
Durgin testified at trial to Sylvia's statements that she heard Zoraida crying in the
bathroom and her mother trying to get Zoraida to take a shower, and that Zoraida was struck
by her mother[,] and that her head hit the door and she fell to the ground and didn't get up
again. Durgin stated that she utilized open-ended questions during the interview and tried
not to influence Sylvia's statements. Godman testified to Sylvia's statements that Zoraida hit
Flores on the leg during an argument; that Flores struck Zoraida causing the child to fall to
the floor; and that, when Zoraida did not respond, Flores and Sylvia carried her to a bed in the
apartment. Although Godman agreed that her interview was not optimal because of
prompting to obtain verbal responses, she stressed that Sylvia provided specific information
about the assault in response to several open-ended inquiries. Diaz testified to a later
spontaneous statement by Sylvia that Zoraida peed on her pants and my mom hit her, took
her in the shower and hit her, and Zoraida slipped and hit her head.
____________________

2
A statement is not excluded by the hearsay rule if:
(a) Its nature and the special circumstances under which it was made offer strong assurances of
accuracy; and
(b) The declarant is unavailable as a witness.
........................................
Zoraida peed on her pants and my mom hit her, took her in the shower and hit her, and
Zoraida slipped and hit her head. And my mom gave her some medicine and she never
woke up.
In addition, a police witness described Flores's comparative lack of remorse at the loss
of the child, and Jose Flores testified that neither Flores nor her family attended the funeral.
Dr. Elizabeth Richitt, a psychologist, testified for the defense. Although criticizing
Godman's interview techniques, Dr. Richitt agreed that Sylvia consistently recounted the core
facts giving rise to the prosecution.
The jury found Flores guilty of first-degree murder by child abuse. Thereafter, the
district court entered judgment on the verdict and sentenced Flores to a term of life
imprisonment with the possibility of parole in twenty years. As part of the judgment, the
district court awarded Flores credit for 344 days spent in local custody prior to sentencing,
ordered genetic marker testing, and ordered that Flores pay $3,000 in restitution. Flores filed
her timely notice of appeal.
Flores seeks reversal and a new trial, contending that the district court improperly
admitted Sylvia's hearsay statements, failed to replace the panel of prospective jurors after
exposure to a prejudicial influence in the courtroom, erred in admitting gruesome autopsy
photographs, evidence that Flores and her family failed to attend Zoraida's funeral, and
testimony from police that compared the emotional reactions of Flores and her husband, and
finally, that the district court committed judicial misconduct.
DISCUSSION
This appeal primarily concerns a claim that admission of evidence pursuant to a
general, or residual, exception to the rule against hearsay violated the Confrontation Clause of
the Sixth Amendment to the United States Constitution.
By way of history, the Confrontation Clause did not apply to the states prior to the
1965 United States Supreme Court case of Pointer v. Texas.
3
Until then, confrontation rights
in state courts were largely protected under the state formulations of the hearsay rule.
4
In
1980, the Court handed down its decision in Ohio v. Roberts,
5
which largely defined federal
confrontation rights in terms that mirrored hearsay doctrine.
____________________

3
380 U.S. 400, 407-08 (1965).

4
For example, in Nevada, hearsay is [a]n out-of-court statement offered at trial to prove the truth of the
matter asserted in the statement . . . and is inadmissible unless it falls within one of the recognized exceptions to
the hearsay exclusionary rule. Franco v. State, 109 Nev. 1229, 1236, 866 P.2d 247, 252 (1993) (citing NRS
51.035, 51.065).

5
448 U.S. 56 (1980), overruled in part by Crawford, 541 U.S. at 36.
........................................
terms that mirrored hearsay doctrine. Because the Roberts approach allowed admission of
hearsay statements without the benefit of actual confrontation, i.e., cross-examination, the
Court recently, in Crawford v. Washington,
6
overturned Roberts to the extent that it related
to testimonial statements.
7
This change in doctrine came in response to a national debate
over the original intent of the framers of the Sixth Amendment, and the differing
considerations underlying hearsay doctrine and the Confrontation Clause. Certainly,
Crawford will have considerable impact upon the prosecution of criminal cases in Nevada.
Admission of hearsay testimony and the Confrontation Clause
The district court in this case admitted the three hearsay statements under NRS
51.315(1), based upon Sylvia's unavailability and the court's findings that the statements
were reliable. NRS 51.315(1) provides:
A statement is not excluded by the hearsay rule if:
(a) Its nature and the special circumstances under which it was made offer strong
assurances of accuracy; and
(b) The declarant is unavailable as a witness.
Sylvia was the only eyewitness to the events in question. Because the State presented Sylvia's
account through surrogates, thus avoiding any cross-examination, and because the
Confrontation Clause applies to the states through the Fourteenth Amendment under Pointer,
the district court's ruling implicated Flores's confrontation rights under Roberts, which was
the controlling precedent at the time of the ruling.
Ohio v. Roberts
In Roberts, the United States Supreme Court articulated two criteria under the Sixth
Amendment for the admission of hearsay statements where the declarant is unavailable for
cross-examination.
8
First, the prosecution must demonstrate that the declarant is unavailable.
9
Second, the district court may admit the hearsay statement if it either: (1) falls within a
firmly rooted hearsay exception, or (2) the statement reflects particularized guarantees of
trustworthiness.
10
Thus, as noted, Roberts largely embraced federal hearsay doctrine as
the formula for evaluating whether violations of the Confrontation Clause had occurred.
____________________

6
541 U.S. 36.

7
The early evolution from Pointer through Roberts and its progeny is related in Richard D. Friedman,
Confrontation: The Search for Basic Principles, 86 Geo. L.J. 1011, 1014-15 (1998).

8
448 U.S. at 66; see also Bockting v. State, 109 Nev. 103, 108, 847 P.2d 1364, 1367 (1993).

9
448 U.S. at 66.

10
Id.
........................................
embraced federal hearsay doctrine as the formula for evaluating whether violations of the
Confrontation Clause had occurred.
11

Flores asserts that the district court erred in admitting Sylvia's out-of-court hearsay
statements because they were highly unreliable under the Roberts test, thus violating her
Sixth Amendment right of confrontation. While we disagree with Flores's assessment of
reliability under Roberts and would affirm the district court under the Roberts test, we are
compelled to examine the propriety of admitting the three hearsay statements under Crawford
v. Washington, which, during the pendency of this appeal, overruled Roberts with respect to
testimonial hearsay.
12
Because the district court adhered to the then-valid Roberts test when
it made the critical rulings below, and because Crawford changes the entire construct under
which hearsay evidence, including hearsay evidence involving child declarants, may be
introduced without offense to the Confrontation Clause, the transition from Roberts to
Crawford is briefly discussed below.
Application of Ohio v. Roberts to cases involving child witnesses
In the modern context, prosecutorial agencies nationwide have developed the concept
of victimless prosecutions in cases involving child witnesses.
13
Under Roberts, surrogates
could testify to out-of-court statements made by child witnesses who, because of age or
immaturity, might be too intimidated to testify in court. In Idaho v. Wright, the United States
Supreme Court addressed this prosecutorial approach by setting forth a nonexclusive set of
factors to guide consideration of the trustworthiness of a child witness's hearsay statements:
(1) spontaneity and consistent repetition, (2) the mental state of the declarant, (3) use of
terminology unexpected of a child of a similar age, and (4) lack of motive to fabricate.
14

NRS 51.385 tracks the Idaho v. Wright model:
1. In addition to any other provision for admissibility made by statute or rule of court,
a statement made by a child under the age of 10 years describing any act of sexual
conduct performed with or on the child or any act of physical abuse of the child is
admissible in a criminal proceeding regarding that act of sexual conduct or physical
abuse if:
____________________

11
See Fed. R. Evid. 807; see also Friedman, supra note 7, at 1020-21.

12
The appellate briefs in this matter were submitted prior to the decision in Crawford. Because the Court
decided Crawford while this direct appeal was pending, we must apply it in this case. See Griffith v. Kentucky,
479 U.S. 314, 328 (1987) (holding that new rules of federal constitutional law apply retroactively to all cases
pending on direct appeal). After initial briefing by the parties was completed, this court permitted the parties to
file supplemental argument addressing the applicability of the Crawford decision.

13
See Robert P. Mosteller, Crawford v. Washington: Encouraging and Ensuring the Confrontation of
Witnesses, 39 U. Rich. L. Rev. 511, 607 (2005).

14
497 U.S. 805, 821-22 (1990).
........................................
performed with or on the child or any act of physical abuse of the child is admissible in
a criminal proceeding regarding that act of sexual conduct or physical abuse if:
(a) The court finds, in a hearing out of the presence of the jury, that the time, content
and circumstances of the statement provide sufficient circumstantial guarantees of
trustworthiness; and
(b) The child testifies at the proceeding or is unavailable or unable to testify.
2. In determining the trustworthiness of a statement, the court shall consider, without
limitation, whether:
(a) The statement was spontaneous;
(b) The child was subjected to repetitive questioning;
(c) The child had a motive to fabricate;
(d) The child used terminology unexpected of a child of similar age; and
(e) The child was in a stable mental state.
In Bockting v. State, a child sexual assault case in which the State presented the victim's
account through surrogate testimony, we upheld the validity of NRS 51.385 under Roberts
and Wright.
15

Crawford v. Washington
Between 1980 and 2004, courts nationwide followed the lead of Roberts. As noted,
we did so as well, applying Roberts in Bockting. Over time, it became apparent to members
of the Court and commentators that the admission of testimonial hearsay statements under
Roberts substituted judicial determinations of reliability for the actual confrontation
contemplated by the drafters of the Confrontation Clause. Interestingly, as we observed in
Bockting, under Wright and Roberts the Confrontation Clause does not invariably require the
right to confront.
16
Thus, arguably, an improper conflation of the Confrontation Clause and
ordinary hearsay doctrine had evolved.
17
Finally, in 2004, concluding that the use of
reliability determinations under Roberts served to undermine an accused's right to
confront witnesses under the Sixth Amendment, and agreeing that this practice subverted
the original intent of its drafters, the Supreme Court issued its opinion in Crawford v.
____________________

15
109 Nev. at 108-09, 847 P.2d at 1367-68.

16
Id. at 108, 847 P.2d at 1367. The great lengths taken in Bockting to analyze NRS 51.385 under Roberts
indicates this court's concern over Roberts' treatment of the Confrontation Clause.

17
In an article published in 1998, Professor Richard Friedman lamented the melding of the right to
confrontation with ordinary hearsay doctrine under Roberts:
Even if a statement does not fall within a firmly rooted exception [to the hearsay rule], it may yet
satisfy the reliability test of Roberts if it is supported by particularized guarantees of trustworthiness.
Once again we see the Confrontation Clause being conformed to ordinary hearsay doctrine. The language
is strikingly similar to the key phrase of
........................................
the use of reliability determinations under Roberts served to undermine an accused's right to
confront witnesses under the Sixth Amendment, and agreeing that this practice subverted the
original intent of its drafters, the Supreme Court issued its opinion in Crawford v.
Washington and overruled Roberts as applied to testimonial statements.
18
In summary, the
Court held that if a witness is unavailable to testify at trial and the out-of-court statements
sought to be admitted are testimonial, the Sixth Amendment Confrontation Clause requires
actual confrontation, i.e., cross-examination.
19
The Court stated:
Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers'
design to afford the States flexibility in their development of hearsay lawas does
Roberts, and as would an approach that exempted such statements from Confrontation
Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth
Amendment demands what the common law required: unavailability and a prior
opportunity for cross-examination. . . .
. . . [Thus, w]here testimonial statements are at issue, the only indicium of reliability
sufficient to satisfy constitutional demands is the one the Constitution actually
prescribes: confrontation.
20

The Court stressed that admissibility of testimonial evidence should not be subject to
what it characterized as amorphous and highly subjective judicial determinations of
reliability.
21
In this, the Court further observed:
Admitting statements deemed reliable by a judge is fundamentally at odds with the
right of confrontation. To be sure, the Clause's ultimate goal is to ensure reliability of
evidence, but it is a procedural rather than a substantive guarantee. It commands, not
that the evidence be reliable, but that reliability be assessed in a particular manner:
by testing in the crucible of cross-examination.
____________________
the residual hearsay exception as expressed in Federal Rule 807equivalent circumstantial guarantees
of trustworthiness.
Friedman, supra note 7, at 1020-21 (footnote omitted).

18
541 U.S. at 68. The question of what constitutes a testimonial hearsay statement is discussed infra.

19
Id. at 68-69.

20
Id.

21
Id. at 61, 63. The author of the Crawford majority, Justice Scalia, noted that the results reached in the
Court's confrontation cases have generally been compatible with the original intent of the Confrontation Clause,
i.e., [t]estimonial statements of witnesses absent from trial have been admitted only where the declarant is
unavailable, and only where the defendant has had a prior opportunity to cross-examine. Id. at 59. He goes on
to state, however, that the rationale of Roberts creates the potential for paradigmatic confrontation violations.
Id. at 60.
........................................
mands, not that the evidence be reliable, but that reliability be assessed in a particular
manner: by testing in the crucible of cross-examination. . . .
The Roberts test allows a jury to hear evidence, untested by the adversary process,
based on a mere judicial determination of reliability. It thus replaces the constitutionally
prescribed method of assessing reliability with a wholly foreign one. . . .
. . . .
Dispensing with confrontation because testimony is obviously reliable is akin to
dispensing with jury trial because a defendant is obviously guilty. This is not what the
Sixth Amendment prescribes.
22

A 1998 article by Professor Richard Friedman provides an illustration as to why the Court
ultimately reversed course in Crawford:
If, apart from reliability considerations, a given statement would fit within the
Confrontation Clause, I think it is most unsatisfactory to say to the accused, in effect:
Yes, we understand that you have not had an opportunity to cross-examine this
person who has made a testimonial statement against you. Do not trouble
yourself. The law in its wisdom deems the statement to be so reliable that
cross-examination would have done you little good.
23

To summarize, Crawford clearly rejects the notion that reliability determinations may
serve as a substitute for cross-examination of testimonial hearsay. With regard to such
statements, Crawford attempts to preserve the distinction between hearsay evidentiary
principles and the right of confrontation under the Sixth Amendment.
____________________

22
Id. at 61-62. As noted by Professor Friedman, a live witness is not excused from cross-examination merely
because a trial court might find the direct in-court testimony reliable. From this he identifies the anomaly of
preserving a rule that would admit a testimonial out-of-court statement that has never been cross-examined, on
such grounds. See Friedman, supra note 7, at 1028.

23
Friedman, supra note 7, at 1028-29. The majority opinion in Crawford stresses that the drafters of the
Confrontation Clause meant to address and prevent the potential injustices that might result from the use of ex
parte evidence. In this, the Court points to the Tudor era treason conviction of Sir Walter Raleigh, which was
based upon evidence given by an alleged accomplice in a letter and in an ex parte examination by government
authorities:
[T]he Framers had an eye toward politically charged cases like Raleigh'sgreat state trials where the
impartiality of even those at the highest levels of the judiciary might not be so clear. It is difficult to
imagine Roberts' providing any meaningful protection in those circumstances.
Crawford, 541 U.S. at 68.
........................................
Amendment.
24
While the protections afforded by the hearsay rules and the Confrontation
Clause overlap and generally protect similar values, their protections are not, as demonstrated
in Crawford, exactly congruent.
25

Testimonial hearsay
In abandoning the Roberts test for admission of testimonial hearsay, the Court
expressly declined to provide a comprehensive definition of that term.
26
The Court,
however, went on to identify several formulations of [a] core class of testimonial' hearsay
from the briefs submitted, including: (1) ex parte in-court testimony or its functional
equivalent, e.g., affidavits, custodial examinations, prior testimony that the defendant was
unable to cross-examine, or similar pretrial statements that declarants would reasonably
expect to be used prosecutorially; (2) extrajudicial statements . . . contained in formalized
testimonial materials, such as affidavits, depositions, prior testimony, or confessions' ; and
(3) statements that were made under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a later trial.'
27
The
Court also observed that under any definition ex parte testimony at a preliminary hearing is
testimonial and under even a narrow standard statements made to law enforcement officers
in the course of interrogations are testimonial.
28

Beyond exclusion of traditional hearsay exceptions such as the use of business
records, the examples provided in Crawford delineate no clear-cut method for determining
what type of hearsay statements are testimonial for the purpose of the Confrontation Clause.
Certainly, courts nationwide have encountered considerable difficulty in negotiating the fine
line between the testimonial examples and nontestimonial hearsay left for resolution under
Roberts.
29

____________________

24
The tendency to blur these principles is illustrated in Crowley v. State, 120 Nev. 30, 36-37, 83 P.3d 282,
287 (2004) (Maupin, J., concurring).

25
See California v. Green, 399 U.S. 149, 155-56 (1970); Crowley, 120 Nev. at 37 n.3, 83 P.3d at 287 n.3
(Maupin, J., concurring).

26
Crawford, 541 U.S. at 68 (We leave for another day any effort to spell out a comprehensive definition of
testimonial.' Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing,
before a grand jury, or at a former trial; and to police interrogations.).

27
Id. at 51-52 (quoting White v. Illinois, 502 U.S. 346, 365 (1992) (Thomas, J., concurring in part and
concurring in judgment); Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 3).

28
Id. at 52.

29
See, e.g., U.S. v. Lopez, 380 F.3d 538, 546-47 n.6 (1st Cir. 2004) (concluding that defendant's own
incriminatory remarks were nontestimonial), cert. denied, 543 U.S. 1074 (2005); U.S. v. Reyes, 362 F.3d 536,
540
........................................
As stated by the Chief Justice in Crawford:
The Court grandly declares that [w]e leave for another day any effort to spell out a
comprehensive definition of testimonial.' But the thousands of federal prosecutors
and the tens of thousands of state prosecutors need answers as to what beyond the
specific kinds of testimony the Court lists, is covered by the new rule. They need
them now, not months or years from now.
30

In short, Crawford requires trial and appellate courts around the country to determine on a
case-by-case basis whether statements are testimonial for Sixth Amendment purposes.
Unfortunately, over and above the examples provided by the Court, the academic
debate that preceded Crawford is instructive but not definitive. In Professor Friedman's view,
the issue is resolved based upon the hearsay declarant's intent; that is, regardless of whether
the statement is made to authorities, it is testimonial if the declarant anticipated, desired or
expected that it would be used in the prosecution or investigation of a crime.
31
Other
commentators, such as Professor Akhil Amar, take issue with Friedman's view and would
restrict the Confrontation Clause to those witnesses who make formalized statements to
authorities.
32

____________________
(8th Cir. 2004) (concluding that coconspirator statements made to government agents were nontestimonial), cert.
denied, 542 U.S. 945 (2004); Dednam v. State, ___ S.W.3d ___, ___, 2005 WL 23329 (Ark. Jan. 6, 2005)
(concluding that a statement presented to show the basis of a witness's actions, and not for the truth of the matter
asserted within, was nontestimonial); State v. Aguilar, 107 P.3d 377, 377 (Ariz. Ct. App. 2005) (holding that
excited utterances heard and testified to by lay witnesses were nontestimonial); People v. Sisavath, 13 Cal. Rptr.
3d 753, 757 (Ct. App. 2004) (concluding that videotaped testimony of four-year-old victim, taken by forensic
interview specialist in presence of government prosecuting and investigating officials after initiation of criminal
proceedings, was inadmissible); State v. Rivera, 844 A.2d 191, 201-02 (Conn. 2004) (holding that declaration
against penal interest made to close family member in confidence was nontestimonial); Demons v. State, 595
S.E.2d 76, 79-80 (Ga. 2004) (concluding that statements of murder victim to a friend before murder regarding
defendant's abusive tendencies towards victim were nontestimonial); State v. Ferguson, 607 S.E.2d 526, 528-29
(W. Va. 2004) (concluding that murder victim's statements made to nonofficial, noninvestigating witnesses that
defendant had threatened victim with physical harm prior to murder were nontestimonial because victim made
them prior to and apart from any investigation), cert. denied, 126 S. Ct. 332 (2005).

30
Crawford, 541 U.S. at 75 (Rehnquist, C. J., concurring) (citations omitted).

31
Friedman, supra note 7, at 1041-42.

32
See Akhil Reed Amar, Confrontation Clause First Principles: A Reply to Professor Friedman, 86 Geo.
L.J. 1045, 1045 (1998); Friedman, supra note 7, at 1014.
........................................
The Crawford majority seemingly embraces elements of both views.
33

The task set by the Court is not as daunting as claimed by judges and prosecutors in
the wake of Crawford. The Court has simply redirected the analytics necessary to resolve
issues under the Confrontation Clause. As discussed below, Crawford does not restrict the
scope of the term testimonial to formalized statements made to authorities, as suggested by
Professor Amar, and does not precisely restrict the term to statements made to authorities or
others with the actual intent or anticipation that the statement be used in the prosecution or
investigation of a crime, as suggested by Professor Friedman. These views, however, provide
some context for these determinations. With this in mind, we now turn to an examination of
whether Sylvia's statements were testimonial for the purposes of the Confrontation Clause. In
this, we will utilize the illustrations provided by the Court in Crawford.
[Headnote 1]
As noted, the first illustration includes ex parte in-court testimony, functional
equivalents such as affidavits, custodial examinations, prior testimony that the defendant was
unable to cross-examine, and similar pretrial statements that declarants would reasonably
expect to be used prosecutorially.
34
We conclude that Sylvia's statements to the three
surrogates do not qualify as testimonial under the first illustration. First, the statements to
the surrogates were not in the form of prior testimony or affidavits.
____________________

33
Needless to say, Crawford places in doubt the use of testimonial hearsay statements in criminal cases under
NRS 51.325 (former testimony), NRS 51.335 (statements under belief of impending death), NRS 51.345
(statements against interest), NRS 51.095 (excited utterances), and NRS 51.385 (statements by underage
children concerning sexual or physical abuse of the child). See Crawford, 541 U.S. at 56 n.6, 58 n.8. As noted
infra, Crawford also appears to invalidate our ruling in Bockting. Crawford does not appear to affect
admissibility of nonaccusatory statements under NRS 51.355 (statements of personal or family history), or
nonaccusatory hearsay evidence where the declarant's availability is irrelevant, to wit: NRS 51.115 (statements
made for purposes of medical diagnosis or treatment); NRS 51.125 (recorded recollection); NRS 51.135 (record
of regularly conducted activity); NRS 51.145 (absence of entry in records of regularly conducted activity); NRS
51.155 (public records and reports); NRS 51.165 (required reports); NRS 51.175 (absence of public record or
entry); NRS 51.185 (records of religious organizations); NRS 51.195 (marriage, baptismal and similar
certificates); NRS 51.205 (family records); NRS 51.215 (records of documents affecting interest in property);
NRS 51.225 (statements in documents affecting interest in property); NRS 51.235 (ancient documents); NRS
51.245 (market reports; commercial publications); NRS 51.255 (learned treatises); NRS 51.265 (reputation
concerning personal or family history); NRS 51.275 (reputation concerning boundaries or general history); NRS
51.285 (reputation as to character); NRS 51.295 (judgments of conviction); NRS 51.305 (judgment as to
boundaries or personal, family or general history).

34
Crawford, 541 U.S. at 51.
........................................
surrogates were not in the form of prior testimony or affidavits. Second, given Sylvia's age
and relationship to Flores, it is unlikely that she intended to testify through the surrogates or
that she reasonably expected that the statements would be used criminally against her
mother. Likewise, none of her statements were in a form described in the Court's second
illustration. They were not extrajudicial statements . . . contained in formalized testimonial
materials.'
35

We conclude, however, that two of Sylvia's statements were testimonial under the
third illustration, as they were statements that, under the circumstances of their making,
would lead an objective witness reasonably to believe that the statement would be available
for use at a later trial.'
36
Under the third illustration the Court impliedly establishes a
reasonable person test for when a declarant has made a testimonial statement. Applying this
third test, we conclude that the statements to Durgin and Godman were clearly testimonial
under Crawford because both were either police operatives or were tasked with reporting
instances of child abuse for prosecution. Thus, although the district court applied then current
doctrine when it admitted Sylvia's hearsay statements, this admission runs afoul of Crawford,
which we must apply under federal retroactivity rules.
37
With regard to the child's statements
to Ms. Diaz, we conclude that these statements, which were spontaneously made at home
while Ms. Diaz was caring for the child, were not such that a reasonable person would
anticipate their use for prosecutorial purposes. In this, we note Crawford's additional analysis
suggesting
that not all hearsay implicates the Sixth Amendment's core concerns. An off-hand,
overheard remark might be unreliable evidence and thus a good candidate for exclusion
under hearsay rules, but it bears little resemblance to the civil-law abuses the
Confrontation Clause targeted. On the other hand, ex parte examinations might
sometimes be admissible under modern hearsay rules, but the Framers certainly would
not have condoned them.
The text of the Confrontation Clause . . . applies to witnesses against the
accusedin other words, those who bear testimony. Testimony, in turn, is typically
[a] solemn declaration or affirmation made for the purpose of establishing or proving
some fact. An accuser who makes a formal statement to government officers bears
testimony in a sense that a person who makes a casual remark to an acquaintance
does not.
____________________

35
Id. at 51-52 (quoting White, 502 U.S. at 365 (Thomas, J., concurring)).

36
Id. at 52 (quoting Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 3)
(emphasis added).

37
See Griffith, 479 U.S. at 328; see also Richmond v. State, 118 Nev. 924, 929, 59 P.3d 1249, 1252 (2002).
........................................
formal statement to government officers bears testimony in a sense that a person who
makes a casual remark to an acquaintance does not.
38

We note in passing that the first and second illustrations and the Court's conclusions
regarding statements to authorities during interrogation seemingly meld the Friedman and
Amar views. The third illustration takes a more broad approach than that suggested in the
Amar view that testimonial statements must be made to the authorities and also provides
more confrontation protection than under Professor Friedman's intent based approach for
statements given to the authorities and others. Again, the third Crawford illustration sets up a
reasonable person test for when a declarant has made a testimonial statement. In line with
the Friedman view, statements falling within the third illustration are testimonial regardless of
whether such statements are made to authorities.
[Headnote 2]
To conclude, the district court admitted Sylvia's hearsay statements under NRS
51.315(1), a catchall provision in the Nevada evidence code, which provides that a
statement is not excluded by the hearsay rule if its nature and the special circumstances under
which it was made offer strong assurances of accuracy, and the declarant is unavailable as a
witness.
39
While this procedure, when utilized by the district court, was proper under
Roberts, and in partial compliance with Wright, it cannot pass muster under the new rule set
forth in Crawford.
The district court below considered corroborative medical evidence in assessing
reliability under Wright and Roberts. This was error under Wright.
40
However, the rule
prohibiting consideration of corroborative evidence in assessing reliability under Roberts
does not prohibit the district court on remand from considering the consistency of the Diaz
statements with those made to Godman and Durgin in its threshold determination of
admissibility of the Diaz statements. Although the Court stated in Wright that particularized
guarantees of trustworthiness must be shown from relevant circumstances, restricted to those
surrounding the making of the statement, the Court also stated that consistency of statements
is an important factor in determining admissibility.
____________________

38
Crawford, 541 U.S. at 51 (citations omitted).

39
Unavailability under this provision is governed by NRS 51.055.

40
See Bockting, 109 Nev. at 111 n.8, 847 P.2d at 1369 n.8 (noting that corroborating evidence may not be
considered in assessing the reliability of hearsay statements per Wright, 497 U.S. at 822); see also Brown v.
Uphoff, 381 F.3d 1219, 1225 (10th Cir. 2004) (concluding, post-Crawford, that state supreme court acted
contrary to clearly established law in relying upon corroboration evidence in its assessment of hearsay statements
by codefendant), cert. denied, 543 U.S. 1079 (2005).
........................................
important factor in determining admissibility.
41
In this, the Court relied upon State v.
Robinson,
42
affirming the trial court's use of other statements to determine reliability.
Accordingly, on remand, the district court must assess the admission of the Diaz
statement anew under Roberts; in doing so the court may include an assessment of the
consistency of the Diaz statements with the other statements that inculpated Flores.
43

Harmless error
[Headnotes 3, 4]
Having determined that the hearsay statements were testimonial under Crawford, we
must resolve whether the error compels reversal. Under Chapman v. California,
44
an
appellate court may find some constitutional errors harmless where it is clear beyond a
reasonable doubt that the guilty verdict actually rendered in the case was surely
unattributable to the error.
45

Admittedly, the State's case against Flores was convincing, including substantial
evidence of physical abuse; blunt trauma to the head; testimony from a neighbor of repeated
loud verbal altercations with expressions of terror coming from the children; testimony from
Zoraida's teacher concerning visible signs of abuse and Flores's admitted angst toward this
child. We conclude, however, that the error requires reversal because the sole direct evidence
of the assault came in the form of hearsay statements, two of which were admitted in
violation of Crawford's interpretation of the Confrontation Clause.
Miscellaneous claims of error
[Headnotes 5, 6]
Flores argues that the district court committed reversible error by admitting four
autopsy photos, depicting the skull, scalp and peeled-back face of the five-year old child."
____________________

41
Wright, 497 U.S. at 826-27.

42
735 P.2d 801, 811 (Ariz. 1987).

43
We recognize that Wright may be somewhat ambiguous in this regard. While the other statements relied
upon by the trial court in Robinson to assess reliability were otherwise admissible under a hearsay exception for
statements made for the purpose of medical treatment, that evidence was certainly corroborative and unrelated to
the circumstances under which the subject statement was admitted in that case. Thus, it seems that the Court
would allow use of corroborative statements of the declarant in assessing reliability of nontestimonial statements
under Roberts. See Crawford, 541 U.S. at 68 (Where nontestimonial hearsay is at issue, it is wholly consistent
with the Framers' design to afford the States flexibility in their development of hearsay lawas does Roberts,
and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether.).

44
386 U.S. 18, 24 (1967).

45
Sullivan v. Louisiana, 508 U.S. 275, 279 (1993).
........................................
peeled-back face of the five-year old child. The admissibility of gruesome photographs
showing wounds on the victim's body lies within the sound discretion of the district court
and, absent an abuse of that discretion, the decision will not be overturned.
46
Here, the
coroner specifically testified that he needed the photos to fully describe the autopsy and the
injuries sustained by the victim. Thus, admission of the contested photographs was well
within the discretion vested in the district court.
[Headnotes 7, 8]
Flores argues that the district court erred in permitting Jose Flores to testify that
neither Flores nor her family attended Zoraida's funeral. Flores lodged no objection to this
line of questioning. The admissibility of evidence is within the sound discretion of the trial
court and will not be disturbed unless manifestly wrong.
47
Additionally, failure to object
will [generally] preclude appellate review of an issue unless plain error affecting the
defendant's substantial rights is shown.
48

[Headnote 9]
Flores argues that the district court committed reversible error by permitting LVMPD
Detective Barry Jensen to draw a comparison between the emotional responses exhibited by
Jose and Flores in response to Zoraida's death. We find no manifest error in this ruling. First,
evidence regarding Flores's lack of remorse was probative of her consciousness of guilt.
Second, Flores elicited similar testimony from State witnesses she now asserts the district
court admitted in error.
We have also considered Flores's claims that the district court's comments constituted
judicial misconduct that poisoned the trial. While the trial court expressed its frustration with
defense counsel, its comments were not so inflammatory as to constitute judicial misconduct.
CONCLUSION
[Headnotes 10, 11]
Flores's primary accuser never testified at trial.
49
In short, the State proceeded below
under an approach akin to a victimless prosecution, under which surrogates testify in
order to protect child witnesses from trauma and intimidation.
____________________

46
Turpen v. State, 94 Nev. 576, 577, 583 P.2d 1083, 1084 (1978).

47
Wesley v. State, 112 Nev. 503, 512, 916 P.2d 793, 799 (1996).

48
Leonard v. State, 117 Nev. 53, 63, 17 P.3d 397, 403-04 (2001).

49
Prior opportunity to cross-examine satisfies confrontation protection in part. Crawford, 541 U.S. at 59.
Likewise, where the unavailability of the hearsay declarant was procured through the wrongdoing of the accused,
confrontation is probably forfeited. Id. at 62. Finally, when the declarant appears for cross-examination at trial,
the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. Id. at 60 n.9.
None of these permutations exist here.
........................................
prosecution, under which surrogates testify in order to protect child witnesses from trauma
and intimidation. Such prosecutions were only made possible under the Roberts analytical
construct. But Crawford unwinds Roberts. It is therefore evident that Crawford's unequivocal
statement of doctrine seemingly portends the demise of many victimless prosecutions.
Certainly, our prior ruling in Bockting, holding that NRS 51.385 is constitutional under
Roberts, cannot survive analysis under Crawford.
50

While Professor Freidman reluctantly suggests a procedure for the use of surrogate
witnesses to protect children and facilitate prosecutions involving reticent child witnesses,
51
Crawford contains no indication that such an approach would be validated by the Court. In
any event, that procedure was not made available to Flores.
Based upon the recent United States Supreme Court decision in Crawford v.
Washington, Flores is entitled to a new trial. Therefore, we reverse the judgment of
conviction and remand this matter to the district court for proceedings consistent with this
opinion.
Becker, C. J., Rose, Gibbons, Douglas, Hardesty and Parraguirre, JJ., concur.
____________________

50
See Bockting v. Bayer, 399 F.3d 1010, 1012, 1022 (9th Cir. 2005) (granting petitioner's writ of habeas
corpus because petitioner lacked opportunity to cross-examine child victim as required under new rule stated in
Crawford).

51
The Friedman article argues that the witness's physical availability should not be determinative of whether
a statement is testimonial. He offers one qualification to that proposition with certainty, where unavailability is
procured through the accused's wrongdoing. He offers two other possible qualifications: (1) where the prior
testimonial statement was made subject to an opportunity to cross-examine under oath, and (2) where the witness
is either too reluctant or intimidated to testify. The second possibility arguably provides a method by which child
witnesses could testify through surrogates:
The second possible qualification arises if the court believes, given an extremely unlikely prospect of
cross-examination being fruitful, that the accused's invocation of the confrontation right is probably based
on the anticipation that the witness would be too intimidated to testify at trial to the full detail of an
earlier testimonial statement. Arguably, in such a case, if the witness is available to testify at trial the
court should call the accused's bluff, admitting the prior statement and leaving it to the accused to call the
witness to the stand, if he really hopes that confrontation will be helpful. Such a procedure strikes me as
plausible, at least when the witness is a child, though I have grave qualms about it.
Friedman, supra note 7, at 1038.
____________
.......................................
121 Nev. 724, 724 (2005) Wood v. Safeway, Inc.
PAUL ALAN WOOD, Individually, and JUDY WOOD, Individually, and as Guardian ad
Litem for JANE DOE and as Guardian ad Litem for BABY DOE, Appellants, v.
SAFEWAY, INC.; ACTION CLEANING, INC.; and VOGA INCORPORATED, dba
ACTION CLEANING, INC., Respondents.
No. 40048
October 20, 2005
121 P.3d 1026
Appeal from district court orders granting summary judgment in a negligence-based
tort case. First Judicial District Court, Carson City; William A. Maddox, Judge.
Guardian ad litem of mentally handicapped store employee brought action against
store and company that provided janitorial services to store, seeking to recover for sexual
assault committed on store employee by janitorial company's employee. The district court
entered summary judgment in favor of defendants. Plaintiff appealed. The supreme court held
that: (1) slightest doubt standard for summary judgment is an incorrect statement of the law
and should not be used when analyzing motions for summary judgment, abrogating Parman
v. Petricciani, 70 Nev. 427, 272 P.2d 492 (1954); (2) as a matter of first impression, sexual
assault arose out of and in course of employment, and thus store was immune from
negligence claim under Nevada Industrial Insurance Act (NIIA); (3) janitorial services
company was immune from liability for sexual assault committed by its employee; and (4)
employee's criminal actions were a superseding cause that relieved janitorial services
company of liability for negligence.
Affirmed.
Maupin, J., dissented in part.
Bradley Drendel & Jeanney and William C. Jeanney and Mark C. Wenzel, Reno, for
Appellants.
Beesley, Peck, Matteoni & Cossitt, Ltd., and Paul A. Matteoni, Reno; Littler
Mendelson and Susan Heaney Hilden, Reno, for Respondent Safeway.
Watson Rounds and Brent H. Harsh and Kelly G. Watson, Reno, for Respondents
Action Cleaning and Voga, Inc.
The supreme court reviews a district court's grant of summary judgment de novo,
without deference to the findings of the lower court.
........................................
2. Judgment.
When a motion for summary judgment is made and properly supported, the
nonmoving party may not rest upon general allegations and conclusions, but must, by
affidavit or otherwise, set forth specific facts demonstrating the existence of a genuine
factual issue. NRCP 56(c).
3. Judgment.
Slightest doubt standard for summary judgment, under which summary judgment
would be precluded in the trial court upon the slightest doubt as to the operative facts,
is an incorrect statement of the law and should not be used when analyzing motions for
summary judgment; abrogating Parman v. Petricciani, 70 Nev. 427, 272 P.2d 492
(1954).
4. Judgment.
Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, admissions, and affidavits, if any, that are properly before the court
demonstrate that no genuine issue of material fact exists, and the moving party is
entitled to judgment as a matter of law. NRCP 56(c).
5. Judgment.
Substantive law controls which factual disputes are material and will preclude
summary judgment; other factual disputes are irrelevant to motion for summary
judgment. NRCP 56(c).
6. Judgment.
Factual dispute is genuine for purposes of summary judgment when the evidence is
such that a rational trier of fact could return a verdict for the nonmoving party. NRCP
56(c).
7. Judgment.
While the pleadings and other proof must be construed in a light most favorable to the
nonmoving party, that party bears the burden to do more than simply show that there is
some metaphysical doubt as to the operative facts in order to avoid summary judgment
being entered in the moving party's favor. NRCP 56(c).
8. Judgment.
Nonmoving party must, by affidavit or otherwise, set forth specific facts
demonstrating the existence of a genuine issue for trial or have summary judgment
entered against him. NRCP 56(c).
9. Judgment.
Upon motion for summary judgment, nonmoving party is not entitled to build a case
on the gossamer threads of whimsy, speculation, and conjecture. NRCP 56(c).
Injury is said to arise out of one's employment for purposes of Nevada Industrial
Insurance Act (NIIA) when there is a causal connection between the employee's injury
and the nature of the work or workplace; whether injury occurs within the course of
employment refers merely to the time and place of employment, i.e., whether the injury
occurs at work, during working hours, and while the employee is reasonably performing
his or her duties. NRS 616A.020(1), (2).
Workers' compensation statutes do not apply when the animosity or dispute which
culminates in the assault is imported into the place of employment from the injured
employee's private or domestic life, at least where the animosity is not exacerbated by
the employment.
........................................
Sexual assault of an employee falls within Nevada Industrial Insurance Act (NIIA) if
the nature of the employment contributed to or otherwise increased the risk of assault
beyond that of the general public; sexual assault is not within the NIIA, however, when
the animosity or dispute which culminates in the assault is imported into the place of
employment from the injured employee's private or domestic life, at least where the
animosity is not exacerbated by the employment. NRS 616A.005 et seq.
Injuries caused by sexual assault against store employee arose out of and in course of
her employment, and thus store was immune from employee's negligence action under
Nevada Industrial Insurance Act (NIIA); employee's employment brought her into
contact with the assailant who worked for company that provided janitorial services,
job duties requiring the employee to clean areas of store not open to public and to
collect shopping carts from parking lot increased her risk of assault, and assault was not
imported into the place of employment from employee's private or domestic life. NRS
616A.020.
Store claiming immunity from employee's negligence claim on grounds that
employee's workplace sexual assault injury was covered by exclusive provisions of
Nevada Industrial Insurance Act (NIIA) would be estopped from arguing that
employee's injuries were not covered under a workers' compensation claim. NRS
616A.005 et seq.
Company providing janitorial services to store was immune from liability for
intentional tort of sexual assault committed by company's employee against mentally
handicapped store worker; sexual assault was not committed in the course of the tasks
assigned to employee as a janitor, but was an independent venture outside the course
and scope of his employment, employee had no prior criminal history, and company
had not received complaints of sexual harassment regarding any employees in the past
ten years. NRS 41.745.
Whether an intentional act is reasonably foreseeable, such that employer is not entitled
to immunity from liability for intentional torts of employee, depends on whether one
has reasonable cause to anticipate such act and the probability of injury resulting
therefrom. NRS 41.745.
17. Negligence.
An intervening act is a superseding cause in a negligence action only if it is
unforeseeable.
Conduct of janitorial services company's employee in sexually assaulting store worker
was a superseding cause of worker's injury, and thus janitorial services company was
not liable for alleged negligent hiring, failure to train, and failure to supervise, where
employee's criminal actions were not reasonably foreseeable under the circumstances.
........................................
OPINION
Per Curiam:
Jane Doe, a mentally handicapped female, was working for Safeway Stores, Inc.,
when she was sexually assaulted by Emilio Ronquillo-Nino, who was employed by a
company that provided janitorial services at the Safeway where Doe worked. Doe, through
her guardian ad litem, filed a complaint against Safeway and Ronquillo-Nino's employer,
Action Cleaning, alleging five causes of action as a result of the sexual assault. The district
court granted summary judgment in favor of Safeway, determining that it was immune from
suit because of coverage provided by the Nevada Industrial Insurance Act (NIIA). The district
court also granted summary judgment in favor of Action Cleaning pursuant to NRS 41.745
because it was not liable for intentional torts committed by its employee and because
Ronquillo-Nino's intervening criminal acts were a superseding cause that relieved Action
Cleaning of responsibility.
We conclude that the district court properly granted summary judgment in favor of
Safeway and Action Cleaning. We also take this opportunity to clarify that the slightest
doubt standard in our summary judgment jurisprudence is an incorrect statement of the law
and should no longer be used when analyzing motions for summary judgment.
FACTS
Safeway hired Doe through the store's special hiring program to work as a part-time
courtesy clerk. Doe's I.Q. score is in the range of 68-70, qualifying her as mildly mentally
retarded. A program offered at Carson High School provided job coaches to assist Doe with
the hiring and orientation process, to transport her to and from work, and to provide her with
on-the-job training. Doe also received assistance from a job coach at Easter Seals and a
vocational rehabilitation counselor provided by the state. Doe was a minor when Safeway
initially hired her, but she turned 18 before the events that are the subject of this case.
As a courtesy clerk, Doe bagged groceries, cleaned and replenished supplies at the
check stands, cleaned the break room and various public areas of the store, and collected
shopping carts from the parking lot. Safeway paid Doe $5.45 an hour, and she received
regular paychecks made out in her name. Doe's employment duties required her to be in many
areas of the store, including the outside areas, at various times.
........................................
outside areas, at various times. She was working the swing shift (4 p.m. to midnight) at the
time of the assaults.
Before beginning her employment, Doe attended a daylong orientation session for
new employees where she received training specific to her job duties. The orientation also
covered information on Safeway's employment policies, including its policies on sexual
harassment in the workplace. One of Doe's job coaches attended the orientation session with
her and helped her to understand the materials and information presented. Doe worked at
Safeway part-time during high school and then full-time following her graduation in June
1998.
Doe met Ronquillo-Nino through her employment at Safeway. Ronquillo-Nino
worked as a nighttime janitor for Action Cleaning, a cleaning subcontractor hired by Building
One Service Solutions (Building One) to provide on-site cleaning services at the Safeway
store where Doe worked. Under its contract with Safeway, Building One is an independent
contractor.
On three separate occasions Ronquillo-Nino sexually assaulted Doe while she was at
work on the Safeway premises. The first assault occurred in a cleaning supply room, and the
second and third assaults occurred behind a dumpster while Doe was outside collecting
shopping carts from the parking lot. Ronquillo-Nino pleaded guilty to one count of attempted
sexual assault.
As a result of the sexual assaults, Doe became pregnant and gave birth to a healthy
child, who is now under the care of Doe and Alan and Judy Wood. The Woods and Doe,
through her guardian ad litem, (collectively Doe) filed a complaint alleging five causes of
action against Safeway and Action Cleaning: (1) negligent failure to train employees and
maintain a safe work environment; (2) negligent selection, appointment, training, supervision,
and retention of Emilio Ronquillo-Nino; (3) sexual harassment; (4) negligent infliction of
emotional distress; and (5) due to the above negligent acts, the Woods are now responsible
for the care and maintenance of Jane Doe and her child, Baby Doe.
Safeway and Action Cleaning filed separate motions for summary judgment. The
district court granted Safeway's motion for summary judgment, concluding that Doe's tort
claims against Safeway allege injuries that arose out of and during the course of her
employment and therefore her claims are barred by the NIIA, under NRS 616A.020(1)(2)
and NRS 616B.612(4). The district court subsequently granted Action Cleaning's motion for
summary judgment, concluding that Doe's claims were barred because Ronquillo-Nino's
intervening criminal acts were a superseding cause precluding liability and because, under
NRS 41.745, Action Cleaning is not liable for the intentional torts committed by one of its
employees. Doe filed a motion for reconsideration, which the district court denied.
........................................
the district court denied. Doe now appeals the district court's orders granting summary
judgment in favor of Safeway and Action Cleaning.
DISCUSSION
Standard of review
[Headnote 1]
This court reviews a district court's grant of summary judgment de novo, without
deference to the findings of the lower court.
1
Summary judgment is appropriate and shall be
rendered forthwith when the pleadings and other evidence on file demonstrate that no
genuine issue as to any material fact [remains] and that the moving party is entitled to a
judgment as a matter of law.
2
This court has noted that when reviewing a motion for
summary judgment, the evidence, and any reasonable inferences drawn from it, must be
viewed in a light most favorable to the nonmoving party.
3

The slightest doubt standard
Doe argues on appeal, however, that summary judgment is precluded in the trial court
when there is the slightest doubt as to the operative facts. The slightest doubt standard
became part of Nevada's summary judgment analysis in 1954, when this court quoted
language from a federal circuit court's decision in Doehler Metal Furniture Co. v. United
States.
4
Although we have continued to use that standard, courts and commentators have
criticized it as unduly limiting the use of summary judgment.
5

____________________

1
GES, Inc. v. Corbitt, 117 Nev. 265, 268, 21 P.3d 11, 13 (2001) (citing Caughlin Homeowners Ass'n v.
Caughlin Club, 109 Nev. 264, 266, 849 P.2d 310, 311 (1993)).

2
NRCP 56(c); Tucker v. Action Equip. and Scaffold Co., 113 Nev. 1349, 1353, 951 P.2d 1027, 1029 (1997).

3
Lipps v. Southern Nevada Paving, 116 Nev. 497, 498, 998 P.2d 1183, 1184 (2000) (citing Butler v.
Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663 (1985)).

4
149 F.2d 130 (2d Cir. 1945), quoted in Parman v. Petricciani, 70 Nev. 427, 436, 272 P.2d 492, 496 (1954).

5
See, e.g., Chubbs v. City of New York, 324 F. Supp. 1183, 1189 (E.D.N.Y. 1971) (Since courts are
composed of mere mortals they can decide matters only on the basis of probability, never on certainty. The
slightest doubt' test, if it is taken seriously, means that summary judgment is almost never to be useda pity in
this critical time of overstrained legal resources. (citing Frank, American Law: The Case for Radical Reform
146-52 (1969)); Goodman v. Brock, 498 P.2d 676, 679 (N.M. 1972) (noting that application of the slightest
doubt standard has resulted in a disregard of the clear language and a departure from the meaning and purpose
of Rule 56(c)); Hon. Charles E. Clark, Special Problems in Drafting and Interpreting Procedural Codes and
........................................
In 1986, the United States Supreme Court decided two cases that undermine the
slightest doubt standard: Celotex Corp. v. Catrett
6
and Anderson v. Liberty Lobby, Inc.
7
While not addressing the slightest doubt standard directly, the Supreme Court in Celotex
noted that Rule 56 should not be regarded as a disfavored procedural shortcut but instead
as an integral part of the Federal Rules as a whole, which are designed to secure the just,
speedy and inexpensive determination of every action.'
8
In Liberty Lobby, the Supreme
Court went further in abrogating the slightest doubt standard when it focused on the rule's
requirement that there be no genuine issues of material fact:
By its very terms [the summary judgment standard] provides that the mere existence of
some alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact.
. . . [T]he substantive law will identify which facts are material. Only disputes over
facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.
9

Liberty Lobby is incompatible with the slightest doubt standard because colorable evidence
may, in any given case, raise doubts as to a factual dispute between the parties while, at the
same time, not being probative on the operative facts that are significant to the outcome under
the controlling law.
10

[Headnote 2]
A number of this court's summary judgment cases employ language that seemingly
rejects the slightest doubt standard. This court has often stated that the nonmoving party
may not defeat a motion for summary judgment by relying " ' "on the gossamer threads of
whimsy, speculation and conjecture."
____________________
Rules, 3 Vand. L. Rev. 493, 504 (1950) (If this [standard] is to be applied as it is stated, there can hardly be a
summary judgment ever, for at least a slight doubt can be developed as to practically all things human.);
Charles A. Wright & Mary K. Kane, Law of Federal Courts 711 (6th ed. 2002) (characterizing the slightest
doubt standard as a rather misleading gloss on the rule).

6
477 U.S. 317 (1986).

7
477 U.S. 242 (1986).

8
Celotex, 477 U.S. at 327 (quoting Fed. R. Civ. P. 1).

9
Liberty Lobby, 477 U.S. at 247-48.

10
Cf. Schier v. Hertz Corp., 99 Nev. 474, 476, 663 P.2d 1185, 1186 (1983) (reversing summary judgment in
favor of a car rental company because the issue in the case was not whether rental company qualified as an
insurer under Nevada law but instead whether, under plaintiff's breach of contract claim, rental company was
obligated by the terms of lease agreement to provide liability coverage, which under Nevada law must also
include uninsured motorist coverage).
........................................
court has often stated that the nonmoving party may not defeat a motion for summary
judgment by relying on the gossamer threads of whimsy, speculation and conjecture. '
11
As this court has made abundantly clear, [w]hen a motion for summary judgment is made
and supported as required by NRCP 56, the nonmoving party may not rest upon general
allegations and conclusions, but must, by affidavit or otherwise, set forth specific facts
demonstrating the existence of a genuine factual issue.
12
The United States Supreme Court
employed similar language in Matsushita Electric Industrial Co. v. Zenith Radio.
13

[Headnotes 3-6]
We take this opportunity to put to rest any questions regarding the continued viability
of the slightest doubt standard. We now adopt the standard employed in Liberty Lobby,
14
Celotex,
15
and Matsushita.
16
Summary judgment is appropriate under NRCP 56 when the
pleadings, depositions, answers to interrogatories, admissions, and affidavits, if any, that are
properly before the court demonstrate that no genuine issue of material fact exists, and the
moving party is entitled to judgment as a matter of law.
17
The substantive law controls
which factual disputes are material and will preclude summary judgment; other factual
disputes are irrelevant.
18
A factual dispute is genuine when the evidence is such that a
rational trier of fact could return a verdict for the nonmoving party.
19

____________________

11
Pegasus v. Reno Newspapers, Inc., 118 Nev. 706, 713-14, 57 P.3d 82, 87 (2002) (quoting Posadas v. City
of Reno, 109 Nev. 448, 452, 851 P.2d 438, 442 (1993) (quoting Collins v. Union Fed. Savings & Loan, 99 Nev.
284, 302, 662 P.2d 610, 621 (1983))); Bulbman, Inc. v. Nevada Bell, 108 Nev. 105, 110, 825 P.2d 588, 591
(1992) (quoting Collins, 99 Nev. at 302, 662 P.2d at 621).

12
Pegasus, 118 Nev. at 713, 57 P.3d at 87; see Collins, 99 Nev. at 294, 662 P.2d at 618-19.

13
475 U.S. 574, 586 (1986). The Court stated:
When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply
show that there is some metaphysical doubt as to the material facts. In the language of the Rule, the
nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.
Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party,
there is no genuine issue for trial.
Id. (citations and footnote omitted).

14
477 U.S. 242.

15
477 U.S. 317.

16
475 U.S. 574.

17
Pegasus, 118 Nev. at 713, 57 P.3d at 87.

18
Liberty Lobby, 477 U.S. at 248.

19
E.g., Matsushita, 475 U.S. at 586; Posadas, 109 Nev. at 452, 851 P.2d at 441-42. We use the term trier of
fact here to refer to both the jury and, in a bench trial, the judge.
........................................
[Headnotes 7-9]
While the pleadings and other proof must be construed in a light most favorable to the
nonmoving party, that party bears the burden to do more than simply show that there is some
metaphysical doubt as to the operative facts in order to avoid summary judgment being
entered in the moving party's favor.
20
The nonmoving party must, by affidavit or otherwise,
set forth specific facts demonstrating the existence of a genuine issue for trial or have
summary judgment entered against him.
21
The nonmoving party is not entitled to build a
case on the gossamer threads of whimsy, speculation, and conjecture.'
22

To the extent that Doe relies on the slightest doubt standard, our discussion above
abrogates that standard from Nevada's summary judgment law and renders her arguments
irrelevant.
Summary judgment in favor of Safeway
Applying the summary judgment standard to the case at bar, the relevant inquiry is
whether the evidence, when taken in a light most favorable to Doe, the nonmoving party,
demonstrates that no genuine issue of material fact remains.
The district court granted summary judgment in favor of Safeway based on its
determination that Safeway is immune from suit under the NIIA, NRS Chapters 616A to
616D. The NIIA provides the exclusive remedy for employees injured on the job, and an
employer is immune from suit by an employee for injuries arising out of and in the course of
the employment.
23
This provision not only bars a suit brought by the employee, but also
those by his or her legal representative and dependents.
24
The district court concluded that
Doe's tort claims against Safeway alleged injuries that arose out of and during the course of
her employment and her claims were therefore barred under NRS 616A.020{1), {2) and
NRS 616B.612{4).
____________________

20
Matsushita, 475 U.S. at 586.

21
Bulbman, 108 Nev. at 110, 825 P.2d at 591.

22
Id. (quoting Collins, 99 Nev. at 302, 662 P.2d at 621).

23
NRS 616A.020(1), (2); Conway v. Circus Circus Casinos, Inc., 116 Nev. 870, 874, 8 P.3d 839, 839 (2000)
(quoting NRS 616A.020(1)); see also NRS 616B.609(1)(a), (b) (noting that the remedies provided under the
NIIA cannot be modified by a contract of employment, insurance, relief benefit, indemnity, or any other device,
and any attempt to do so is void).

24
NRS 616A.020(1) provides:
The rights and remedies provided in [the NIIA] for an employee on account of an injury by accident
sustained arising out of and in the course of the employment shall be exclusive . . . of all other rights and
remedies of the employee, his personal or legal representatives, dependents or next of kin, at common
law or otherwise, on account of such injury.
........................................
claims were therefore barred under NRS 616A.020(1), (2) and NRS 616B.612(4).
25

Arising out of and in the course of the employment
Initially, Doe argues that the district court erred in granting summary judgment
because it sometimes used the disjunctive or as opposed to the conjunctive and when
construing Safeway's liability for injuries to employees. While Doe is correct that an
employer is relieved of liability only for personal injuries to employees which arise out of
and in the course of employment, her argument is without merit. First, the district court
concluded both that Doe's injuries were sustained at work in the course of employment and
that Doe's injuries also arose out of her employment. Second, Doe's argument ignores the fact
that this court reviews an appeal of summary judgment de novo, without deference to the
district court's decision.
26

[Headnote 10]
We have recognized that the NIIA does not make an employer absolutely liable and,
therefore, absolutely immune from suit for any and all on-the-job injuries suffered by its
employees.
27
Instead, injuries that fall within the ambit of the NIIA's coverage are those that
both arise out of the employment and occur within the course of that employment.
28
An
injury is said to arise out of one's employment when there is a causal connection between the
employee's injury and the nature of the work or workplace.
29
In contrast, whether an injury
occurs within the course of the employment refers merely to the time and place of
employment, i.e., whether the injury occurs at work, during working hours, and while the
employee is reasonably performing his or her duties.
30

____________________

25
NRS 616B.612(4) provides that any employer within the provisions of the act or any insurer of the
employer is relieved from other liability for recovery of damages or other compensation for those personal
injuries unless otherwise provided by the terms of [the NIIA].

26
GES, Inc. v. Corbitt, 117 Nev. 265, 268, 21 P.3d 11, 13 (2001).

27
Rio Suite Hotel & Casino v. Gorsky, 113 Nev. 600, 605, 939 P.2d 1043, 1046 (1997).

28
NRS 616A.020(1).

29
Gorsky, 113 Nev. at 604, 939 P.2d at 1046 (citing Murphy v. Industrial Com'n of Arizona, 774 P.2d 221,
224 (Ariz. 1989)).

30
Murphy, 774 P.2d at 225 (noting that when the injury occurs at work, during work hours, and while the
employee is engaged in a reasonable activity of his employment, then the injury is said to occur within the course
of the employment); see also Doe v. South Carolina State Hosp., 328 S.E.2d 652, 655 (S.C. Ct. App. 1985).
........................................
Here, Doe does not challenge whether her injury occurred in the course of her
employment. The record sufficiently establishes that Ronquillo-Nino sexually assaulted Doe
while she was at work, during her regular working hours, and while she was performing the
duties of her job. In fact, the very basis of Doe's claim is that Safeway and Action Cleaning
are liable because her injury occurred in the course of her employment. The district court
properly concluded that Doe's injuries occurred within the course of her employment.
[Headnote 11]
However, Doe challenges the conclusion that the assault arose out of her employment.
To resolve this issue, we must determine whether there is a causal link between Doe's
working at Safeway and the sexual assault by Ronquillo-Nino.
31
Whether a sexual assault
results in an injury that arises out of the victim's employment is an issue of first impression in
Nevada. Generally, courts holding that a sexual assault upon an employee arises out of the
employment use an incidental or increased risk test that looks to whether the risk of harm is
related to the conditions of employment or whether the employment increased the risk to the
employee.
32
This test is analogous to the reasoning employed by this court in Cummings v.
United Resort Hotels, Inc.
33
and McColl v. Scherer.
34
However, workers' compensation
statutes do not apply when the animosity or dispute which culminates in the assault is
imported into the place of employment from the injured employee's private or domestic life, .
. . at least where the animosity is not exacerbated by the employment.
35
We affirm the use
of this test.
____________________

31
Cf. Gorsky, 113 Nev. at 604, 939 P.2d at 1046.

32
E.g., South Carolina State Hosp., 328 S.E.2d at 655 (holding the risk of assault and rape of a female nurse
by an escaped mental patient was increased because of the nature or setting of her work); Orr v. Holiday Inns,
Inc., 627 P.2d 1193, 1196-97 (Kan. Ct. App. 1981); Commercial Standard Insurance Company v. Marin, 488
S.W.2d 861, 869 (Tex. Civ. Ct. App. 1972); Employers Insurance Company of Alabama v. Wright, 133 S.E.2d
39, 41 (Ga. Ct. App. 1963) (holding the assault and rape of a female clerk at a laundry company arose out of her
employment because her employment, which required her to go into a secluded part of the premises and pick up
parcels of laundry from customers, created an increased risk of attack). But see Tolbert v. Martin Marietta
Corp., 621 F. Supp. 1099 (D. Colo. 1985) (holding the rape of an employee does not arise out of the
employment when the assault is neither distinctly associated with the employment nor personal to the employee
but rather is directed at the employee because she is a woman).

33
85 Nev. 23, 27, 449 P.2d 245, 248 (1969) (noting that when the employment increases the risk of assault
beyond that of the general public, an ensuing injury is a compensable workplace injury).

34
73 Nev. 226, 315 P.2d 807 (1957).

35
Marin, 488 S.W.2d at 863; see also McColl, 73 Nev. at 230, 315 P.2d at 809.
........................................
Doe argues that sexual gratification is a personal and private motive and that her rape
occurred because of Ronquillo-Nino's individual attraction to her or because he preyed upon
her because of her mental disability.
36
Doe argues that Ronquillo-Nino acted out of personal
animosity because his assault was solely to gratify his own sexual desires and urges this
court to adopt the rule from Villanueva v. Astroworld, Inc.
37

In Villanueva, the Texas Court of Appeals held that the rape of an amusement park
employee by a co-employee raised genuine issues of fact as to whether the victim's injuries
arose out of her employment.
38
The Texas court noted that [s]urely it would be going too
far to say that every assault arises out of the employment if it can be proved that the
acquaintance of the parties came about through the employment.'
39
Then, the court noted
that the general rule is that an injury does not arise out of one's employment if the assault is
not connected with the employment, or is for reasons personal to the victim as well as the
assailant.
40

[Headnote 12]
Under this formulation of the rule, the exception would swallow the rule. It would be
irrelevant whether there is a causal link between the employment and the assault because
every sexual assault could be said to arise from privately held motivations. Thus, every sexual
assault would fall outside the purview of the NIIA, leaving workplace-related sexual assaults
uncovered under the NIIA. This court is reluctant to accept such a broad formulation of the
rule.
____________________

36
Doe argues that statements in Ronquillo-Nino's deposition suggest that he preyed upon Doe because he
believed that she lacked intelligence and was highly vulnerable. When asked about his interactions with Doe,
Ronquillo-Nino stated that Doe would ask him to have sex in inappropriate public places where they would
likely be seen and that he had heard that she was having sex with other men at work, including his brother. He
stated, I thought that maybe some of the screws needed some tightening and what is it with her, is she nuts?
From this, Doe argues that a reasonable juror could conclude that Ronquillo-Nino's motivations were personal to
Doe and unrelated to her employment. Ronquillo-Nino's statements taken as a whole do not imply what Doe
avers, that Ronquillo-Nino preyed upon Doe because of her mental infirmities.

37
866 S.W.2d 690 (Tex. Ct. App. 1993); cf. Heitman v. Bank of Las Vegas, 87 Nev. 201, 203, 484 P.2d 572,
573 (1971) (holding that when an employee is shot because of a personal grudge, animosity or other personal
motivation having nothing to do with her employment, the NIIA does not bar the suit, but when an employee is
injured merely because she happened to be at work when the incident occurred, the NIIA covers the
circumstances (citing McColl v. Scherer, 73 Nev. 226, 315 P.2d 807 (1957))).

38
866 S.W.2d at 695.

39
Id. (quoting A. Larson, The Law of Workmen's Compensation 11.22 (1992)).

40
Id. (citing Highlands Underwriters Insurance Co. v. McGrath, 485 S.W.2d 593, 595 (Tex. Civ. Ct. App.
1972)).
........................................
court is reluctant to accept such a broad formulation of the rule. Instead, we adopt the rule
that the sexual assault of an employee falls within the NIIA if the nature of the employment
contributed to or otherwise increased the risk of assault beyond that of the general public.
41
That same assault is not within the NIIA, however, when the animosity or dispute which
culminates in the assault is imported into the place of employment from the injured
employee's private or domestic life, . . . at least where the animosity is not exacerbated by the
employment.
42

[Headnotes 13, 14]
It is uncontroverted that Doe's employment with Safeway brought her into contact
with the assailant. While the nature of her work required her to interact with employees and
the public, her specific job duties included cleaning various areas of the store and collecting
shopping carts from the parking lot. Two of the sexual assaults occurred while she was
collecting carts from a lot that was behind or next to the store, and the other in a cleaning
supply room that was presumably in an area off limits to the public. As a result, we conclude
that Doe's employment contributed to and increased the risk of assault beyond that of the
general public. Her only contact with Ronquillo-Nino was through her employment. Because
he worked as a janitor there, he was aware of the store layout and which areas of the store
provided vulnerable locations. The sexual assault in this instance was not imported into the
workplace or otherwise the result of motivations peculiar to the assailant and the victim that
are unrelated to the employment. Therefore, under the contributed to or increased the risk test,
Doe's injury falls within the coverage of the NIIA, and her claims are barred by NRS
616A.020.
43
As such, no genuine issues of material fact remain, and summary judgment was
appropriate in this case.
44

____________________

41
E.g., South Carolina State Hosp., 328 S.E.2d at 655; Wright, 133 S.E.2d at 41; cf. Cummings, 85 Nev. at
27, 449 P.2d at 248.

42
Marin, 488 S.W.2d at 863; cf. Heitman, 87 Nev. at 203-04, 484 P.2d at 573; McColl, 73 Nev. at 230, 315
P.2d at 809.

43
In light of Safeway's argument that it is immune from suit under the NIIA for Ronquillo-Nino's workplace
sexual assault, it will be estopped from arguing that her injuries are not covered under a workers' compensation
claim. In holding that the sexual assault and any injuries therefrom fall within the NIIA, we necessarily conclude
that ongoing injuries that are the direct result of Ronquillo-Nino's sexual assault may be covered under the NIIA.

44
Doe argues that the district court erred by finding that she was only mildly mentally retarded; however,
that statement is supported by Judy Wood's own testimony. In addition, Doe notes that the district court
emphasized that Safeway provided Doe with training and materials concerning sexual assault and disregarded
evidence that Doe likely could not have read or understood those materials on her own. Doe points out that the
district court concluded that she failed to adequately inform anyone of the assaults even though deposition
testimony suggests that she approached three different Safe-
........................................
Summary judgment in favor of Action Cleaning
The district court granted summary judgment in favor of Action Cleaning based on
dual grounds that (a) under NRS 41.745 an employer is not liable for harm caused by the
intentional torts of an employee, and (b) Ronquillo-Nino's intervening criminal act was a
superseding cause that relieved Action Cleaning of liability. Doe challenges both conclusions
on the basis that Ronquillo-Nino's acts were foreseeable given that Action Cleaning's
workforce is highly transient, untrained, largely unsupervised, and comprised almost entirely
of illegal aliens.
NRS 41.745 as a bar to recovery
NRS 41.745 addresses specific circumstances in which an employer is not liable for
harm or injury caused by an employee's intentional conduct:
1. An employer is not liable for harm or injury caused by the intentional conduct of
an employee if the conduct of the employee:
(a) Was a truly independent venture of the employee;
(b) Was not committed in the course of the very task assigned to the employee; and
(c) Was not reasonably foreseeable under the facts and circumstances of the case
considering the nature and scope of his employment.
For the purposes of this subsection, conduct of an employee is reasonably foreseeable if
a person of ordinary intelligence and prudence could have reasonably anticipated the
conduct and the probability of injury.
(Emphasis added.)
Before NRS 41.745 was enacted, this court had stated that an employee's intentional
conduct relieves an employer of liability when the employee's tort is truly an independent
venture of his own and not committed in the course of the very task assigned to him.
45
This
court had also acknowledged that if the willful tort is committed in the course of the very
task assigned to the employee," then it is appropriate to extend liability to the employer.
____________________
way employees and attempted to discuss the issue with them. From these facts, Doe argues that genuine issues
remain and summary judgment was inappropriate. We conclude, however, that the facts and inferences, even
when taken in a light most favorable to Doe, are irrelevant to the dispositive issue in this case; which is the
NIIA's coverage and whether it bars recovery because her injuries arose out of and in the course of her
employment. Having concluded that no genuine dispute remains on facts related to the NIIA's coverage, we
conclude that summary judgment is appropriate in this instance.

45
Prell Hotel Corp. v. Antonacci, 86 Nev. 390, 391, 469 P.2d 399, 400 (1970) (citing Chapman v. City of
Reno, 85 Nev. 365, 455 P.2d 618 (1969); J. C. Penney Co. v. Gravelle, 62 Nev. 439, 449-50, 155 P.2d 477,
481-82 (1945)).
........................................
is committed in the course of the very task assigned to the employee, then it is appropriate to
extend liability to the employer.
46
These two observations are essentially codified in NRS
41.745(1)(a) and (b).
In Prell Hotel Corp. v. Antonacci,
47
this court held an employer vicariously liable
when its employee, a blackjack dealer, hit a customer in the face while dealing. The
altercation occurred when the customer, who had apparently consumed a number of free
drinks, became belligerent and insulted the dealer. The dealer proceeded to deal the next
round of cards and then hit the customer without leaving his position behind the blackjack
table. This court affirmed a judgment holding the casino liable because the altercation
occurred within the scope of the very tasks assigned to the employee, in that particular case
dealing blackjack.
48

In contrast, this court held that the employer was not vicariously liable in J. C. Penney
Co. v. Gravelle,
49
when a store clerk assaulted a third-party bystander because the bystander
attempted to prevent the clerk from catching a shoplifter whom the clerk had pursued outside
of the store. The bystander followed the employee back to the store, and the two continued to
argue, resulting in an ensuing altercation where the bystander was injured. This court held
that the employer was not responsible because after the clerk had returned to the store and
turned over the merchandise, his actions in assaulting the bystander no longer concerned his
employment. This court reasoned that based on the circumstances, the assault was an
independent adventure for the employee's own purposes and was not taken on the employer's
behalf or arising from a sense of duty to the employer.
50
The distinguishing fact in Gravelle
is that the altercation occurred after the clerk returned to the store and returned the stolen
merchandise to the manager.
In Rockwell v. Sun Harbor Budget Suites, this court, citing Prell and Gravelle,
reversed the district court's order granting summary judgment in favor of the employer when
an off-duty security guard shot and killed a woman on the employer's premises.
51
We
reversed in that case because conflicting evidence raised a genuine issue of material fact
concerning whether the off-duty guard was acting within the scope of his employment when
the shooting occurred. Specifically, the evidence and affidavits produced by the parties
conflicted over whether security guards were required to remain in radio contact with the
employer and respond to emergency calls when they were off-duty.
____________________

46
Id.

47
86 Nev. at 390, 469 P.2d at 399.

48
Id. at 392, 469 P.2d at 400.

49
62 Nev. 439, 155 P.2d 477.

50
Id. at 447-49, 155 P.2d at 481-82.

51
112 Nev. 1217, 1225-26, 925 P.2d 1175, 1180-81 (1996).
........................................
conflicted over whether security guards were required to remain in radio contact with the
employer and respond to emergency calls when they were off-duty.
52

[Headnote 15]
Doe argues that Action Cleaning failed to produce any evidence to meet the first two
statutory elements, that the sexual assault was a truly independent venture and was not
committed in the course of a task assigned to Ronquillo-Nino. Our review of the record,
however, reveals that Doe is wrong. Action Cleaning produced an affidavit stating that it
provided janitorial services to Safeway, and it is undisputed that Ronquillo-Nino was
employed as a janitor at the Carson City Safeway store. He was not acting on behalf of Action
Cleaning when he assaulted Doe, or out of any sense of duty owed to Action Cleaning. The
sexual assault was also not committed in the course of the tasks assigned to Ronquillo-Nino
as a janitor. Ronquillo-Nino's sexual assault of Doe was an independent venture outside the
course and scope of his employment. Therefore, we conclude that Doe's argument must fail
and Action Cleaning has met the first two requirements under NRS 41.745.
NRS 41.745 also requires an element of foreseeability, in effect raising the standard
and making employers liable only when an employee's intentional conduct is reasonably
foreseeable under the circumstances. Doe asserts that the district court erred by focusing its
foreseeability inquiry on Ronquillo-Nino's lack of a prior criminal record in the United States
or Mexico. According to Doe, Ronquillo-Nino's actions were foreseeable because Action
Cleaning's workforce is highly transient and not adequately trained or supervised, and
because much of Action Cleaning's workforce, including Ronquillo-Nino, are illegal aliens.
Doe argues that Ronquillo-Nino's actions were foreseeable because a reasonable person
would not have regarded it as highly extraordinary that, given the composition of Action
Cleaning's workforce, its employees would sexually harass vulnerable females with whom
they come into contact. We conclude that this argument is without merit.
[Headnote 16]
We note first that the highly extraordinary standard is an incorrect statement of the
law. According to NRS 41.745(1), an employee's conduct is reasonably foreseeable if a
person of ordinary intelligence and prudence could have reasonably anticipated the conduct
and the probability of injury. We have noted that whether an intentional act is reasonably
foreseeable depends on whether one has " 'reasonable cause to anticipate such act and the
probability of injury resulting therefrom.
____________________

52
Id.
........................................
one has reasonable cause to anticipate such act and the probability of injury resulting
therefrom.'
53

The record reveals no genuine issue of material fact as to the foreseeability of
Ronquillo-Nino's conduct. Ronquillo-Nino had no prior criminal history in the United States
or Mexico. Action Cleaning requires applicants to show proof of identification, checks
employment references, and completes the proper Immigration and Naturalization forms for
every employee. Action Cleaning's district manager further stated that he had not received
complaints of sexual harassment regarding Ronquillo-Nino or any other employee in the past
ten years. Under the circumstances of this case, it was not reasonably foreseeable that
Ronquillo-Nino would sexually assault a Safeway employee. Moreover, as noted, the assault
resulted from Ronquillo-Nino's independent acts and was not within the course and scope of
his employment. Consequently, under NRS 41.745, Action Cleaning is not liable for the
intentional conduct of its employee, Ronquillo-Nino, in this case.
The intervening and superseding criminal acts of an employee
[Headnote 17]
For the same reasons, Doe argues that the district court incorrectly found that
Ronquillo-Nino's actions were an intervening cause that relieves Action Cleaning of
liability.
____________________

53
Rockwell, 112 Nev. at 1228-29, 925 P.2d at 1182 (quoting Thomas v. Bokelman, 86 Nev. 10, 13, 462 P.2d
1020, 1022 (1970), and discussing foreseeability for the intentional acts of a third party in the context of
premises liability). The California Court of Appeal has explained foreseeability in the context of respondeat
superior as follows:
One way to determine whether a risk is inherent in, or created by, an enterprise is to ask whether the
actual occurrence was a generally foreseeable consequence of the activity. However, foreseeability in
this context must be distinguished from foreseeability as a test for negligence. In the latter sense
foreseeable means a level of probability which would lead a prudent person to take effective
precautions whereas foreseeability as a test for respondeat superior merely means that in the context of
the particular enterprise an employee's conduct is not so unusual or startling that it would seem unfair to
include the loss resulting from it among other costs of the employer's business. In other words, where the
question is one of vicarious liability, the inquiry should be whether the risk was one that may fairly be
regarded as typical of or broadly incidental to the enterprise undertaken by the employer.
Under the modern rationale for respondeat superior, the test for determining whether an employer is
vicariously liable for the tortious conduct of his employee is closely related to the test applied in workers'
compensation cases for determining whether an injury arose out of or in the course of employment.
Rodgers v. Kemper Construction Co., 124 Cal. Rptr. 143, 148-49 (Ct. App. 1975) (citations omitted). This court
quoted a portion of the above language with approval in State, Department Human Resources v. Jimenez, 113
Nev. 356, 365, 935 P.2d 274, 279-80 (1997). However, that opinion was later withdrawn based on a voluntary
stipulation to dismiss the case. State, Dep't Hum. Res. v. Jimenez, 113 Nev. 735, 941 P.2d 969 (1997).
........................................
cause that relieves Action Cleaning of liability. This court has noted that a negligence action
will not stand when there is an intervening cause that in and of itself is the natural and
logical cause of the harm.
54
An intervening act is a superseding cause only if it is
unforeseeable.
55

The district court cited Kane v. Hartford Accident and Indemnity Co.,
56
for the
proposition that a third party's criminal act is a superseding cause unless it involves a
foreseeable hazard to a member of a foreseeable class of victims. In that case, a nurse filed
suit after a janitor at the hospital where she worked raped her. The nurse sued the insurance
company of the subcontracted janitorial firm that bonded the employees who worked at the
hospital. Her suit was based on the insurance company's failure to properly investigate the
janitorial employee who, in that case, had a criminal record involving various property
crimes.
57
The California Court of Appeals held that the janitor's intervening criminal actions
were unforeseeable because he had no history of violent crimes.
58

[Headnote 18]
Doe attempts to distinguish Kane on the ground that the case involved a negligence
claim based on a failure to investigate the employee's background, whereas her claims
involve a broader set of actions including negligent hiring, failure to train, and failure to
supervise. We conclude that this argument is unpersuasive. The rule that an employee's
superseding actions relieve an employer of liability applies equally to each of the negligence
claims alleged in this case. The issue is not what claims were alleged but instead whether the
specific crime of sexual assault by one of its employees was reasonably foreseeable to the
employer under the circumstances. Having already concluded that Ronquillo-Nino's criminal
actions were not reasonably foreseeable under the circumstances, we similarly conclude that
his actions were an intervening superseding act that relieves Action Cleaning of liability in
this case. Accordingly, no genuine issues of material fact are present, and the district court
properly granted summary judgment in favor of Action Cleaning.
CONCLUSION
We take this opportunity to reject the slightest doubt standard previously used in
Nevada's summary judgment law. We conclude that the district court did not err in
awarding summary judgment in favor of Safeway and Action Cleaning because there was
no genuine issue of material fact.
____________________

54
Thomas v. Bokelman, 86 Nev. 10, 13, 462 P.2d 1020, 1022 (1970).

55
Id.; see also Vallery v. State, 118 Nev. 357, 375, 46 P.3d 66, 78 (2002) (relying on Thomas in addressing
criminal causation).

56
159 Cal. Rptr. 446, 451 (Ct. App. 1979).

57
Id. at 446-48.

58
Id. at 451.
........................................
that the district court did not err in awarding summary judgment in favor of Safeway and
Action Cleaning because there was no genuine issue of material fact. Doe's injuries from
Ronquillo-Nino's sexual assault arose out of and in the course of her employment, and
therefore, the NIIA provides the exclusive remedy for Doe's injuries. Action Cleaning is not
responsible for an employee's actions when those actions were independent of employment,
were not committed within the course and scope of employment, and were not reasonably
foreseeable under the circumstances. Action Cleaning is also not liable for Ronquillo-Nino's
sexual assault of Doe because his intervening criminal actions were a superseding cause that
relieves Action Cleaning of liability.
Accordingly, we affirm the district court's orders granting summary judgment in this
case.
Maupin, J., concurring in part and dissenting in part:
I concur in the result reached by the majority. Under either standard for reviewing
summary judgments previously used by this court, appellants developed no material issues of
fact that would negate immunity under the Nevada Industrial Insurance Act.
I also agree that a reconciliation of our prior case decisions applying inconsistent
standards for awards of summary judgment is long overdue. Certainly, one line of Nevada
cases holds that summary judgment is inappropriate when there is the slightest doubt as to
the operative facts.
1
Other of our decisions have embraced the modern federal standard
for summary judgments utilized in Anderson v.
____________________

1
Perez v. Las Vegas Medical Center, 107 Nev. 1, 4, 805 P.2d 589, 590 (1991); accord Nevada Contract
Servs. v. Squirrel Cos., 119 Nev. 157, 68 P.3d 896 (2003); Pressler v. City of Reno, 118 Nev. 506, 50 P.3d 1096
(2002); SIIS v. Ortega Concrete Pumping, Inc., 113 Nev. 1359, 951 P.2d 1033 (1997); NGA #2 Ltd. Liab. Co. v.
Rains, 113 Nev. 1151, 946 P.2d 163 (1997); Coblentz v. Union Welfare Fund, 112 Nev. 1161, 925 P.2d 496
(1996); Russ v. General Motors Corp., 111 Nev. 1431, 906 P.2d 718 (1995); Dakis v. Scheffer, 111 Nev. 817,
898 P.2d 116 (1995); Basile v. Union Plaza Hotel & Casino, 110 Nev. 1382, 887 P.2d 273 (1994); Schneider v.
Continental Assurance Co., 110 Nev. 1270, 885 P.2d 572 (1994); Dennison v. Allen Group Leasing Corp., 110
Nev. 181, 871 P.2d 288 (1994); Doud v. Las Vegas Hilton Corp., 109 Nev. 1096, 864 P.2d 796 (1993); Posadas
v. City of Reno, 109 Nev. 448, 851 P.2d 438 (1993); Sprague v. Lucky Stores, Inc., 109 Nev. 247, 849 P.2d 320
(1993); Charleson v. Hardesty, 108 Nev. 878, 839 P.2d 1303 (1992); Walker v. American Bankers Ins., 108
Nev. 533, 836 P.2d 59 (1992); Washoe Medical Center v. Churchill County, 108 Nev. 622, 836 P.2d 624
(1992); Nye County v. Washoe Medical Center, 108 Nev. 490, 835 P.2d 780 (1992); Joynt v. California Hotel &
Casino, 108 Nev. 539, 835 P.2d 799 (1992); Roy v. Lancaster, 107 Nev. 460, 814 P.2d 75 (1991); Nevada State
Bank v. Jamison Partnership, 106 Nev. 792, 801 P.2d 1377 (1990); City of Boulder City v. State of Nevada, 106
Nev. 390, 793 P.2d 845 (1990); Sawyer v. Sugarless Shops, 106 Nev. 265, 792 P.2d 14 (1990); Carr-Bricken v.
First Interstate Bank, 105 Nev. 570, 779 P.2d 967 (1989); Charles v. Lemons & Associates, 104 Nev. 388, 760
P.2d 118 (1988); Shapro v. Forsythe, 103 Nev. 666, 747 P.2d 241 (1987); Pacific Pools Constr. v. McClain's
Concrete, 101 Nev. 557, 706 P.2d 849 (1985); Hubert v. Werner, 101 Nev. 193, 698 P.2d 426
........................................
the modern federal standard for summary judgments utilized in Anderson v. Liberty Lobby,
Inc.,
2
Celotex Corp. v. Catrett,
3
and Matsushita Electric Industrial Co. v. Zenith Radio,
4
i.e., that [a] genuine issue of material fact exists [precluding summary judgment] where the
evidence is such that a reasonable jury could return a verdict for the non-moving party.
5
We
have been the rightful subject of criticism within the bench and bar for shaping results by
variant applications of the two standards.
While the federal approach to summary judgments embraced in Liberty Lobby and
Celotex provides greater certainty for use by district courts and may conserve judicial
resources, the approach represented in Parman v. Petricciani
6
and Posadas v. City of Reno
7
ensures that cases are tried on their merits and that essential factual issues are determined by a
jury when requested. Thus, I would stay with the approach taken in Parman and its progeny.
____________________
(1985); Whalen v. State of Nevada, 100 Nev. 192, 679 P.2d 248 (1984); Shepard v. Harrison, 100 Nev. 178,
678 P.2d 670 (1984); Stone v. Mission Bay Mortgage Co., 99 Nev. 802, 672 P.2d 629 (1983); Oak Grove Inv. v.
Bell & Gossett Co., 99 Nev. 616, 668 P.2d 1075 (1983); Servaites v. Lowden, 99 Nev. 240, 660 P.2d 1008
(1983); Mullis v. Nevada National Bank, 98 Nev. 510, 654 P.2d 533 (1982); Nehls v. Leonard, 97 Nev. 325,
630 P.2d 258 (1981); Davenport v. Republic Insurance Co., 97 Nev. 152, 625 P.2d 574 (1981); McDermond v.
Siemens, 96 Nev. 226, 607 P.2d 108 (1980); Golden Nugget, Inc. v. Ham, 95 Nev. 45, 589 P.2d 173 (1979);
Cardinal v. C. H. Masland & Sons, 87 Nev. 224, 484 P.2d 1075 (1971); Zuni Construction Co. v. Great Am.
Ins. Co., 86 Nev. 364, 468 P.2d 980 (1970); Pine v. Leavitt, 84 Nev. 507, 445 P.2d 942 (1968); Short v. Hotel
Riviera, Inc., 79 Nev. 94, 378 P.2d 979 (1963); McColl v. Scherer, 73 Nev. 226, 315 P.2d 807 (1957); Parman
v. Petricciani, 70 Nev. 427, 272 P.2d 492 (1954).

2
477 U.S. 242 (1986).

3
477 U.S. 317 (1986).

4
475 U.S. 574, 586 (1986).

5
Bulbman, Inc. v. Nevada Bell, 108 Nev. 105, 110, 825 P.2d 588, 591 (1992); see also Oehler v. Humana,
Inc., 105 Nev. 348, 350, 775 P.2d 1271, 1272 (1989); Valley Bank v. Marble, 105 Nev. 366, 367, 775 P.2d
1278, 1279 (1989).

6
70 Nev. 427, 272 P.2d 492 (1954).

7
109 Nev. 448, 851 P.2d 438 (1993).
____________
.......................................
121 Nev. 744, 744 (2005) Crawford v. State
DAVID WAYNE CRAWFORD, Appellant, v. THE STATE
No. 40489
October 20, 2005
121 P.3d 582
Rehearing of an appeal from a judgment of conviction, pursuant to a jury verdict, of
first-degree murder with the use of a deadly weapon. Eighth Judicial District Court, Clark
County; Donald M. Mosley, Judge.
The supreme court held that: (1) district court was required to instruct jury on
substance of defendant's proposed heat of passion instruction, overruling Stroup v. State,
110 Nev. 525, 874 P.2d 769 (1994), but (2) district court's error in refusing to instruct jury on
substance of instruction was harmless.
Affirmed.
Philip J. Kohn, Public Defender, and Scott L. Coffee, Deputy Public Defender, Clark
James Tufteland, Chief Deputy District Attorney, and George W. McFetridge Jr., Deputy
District Attorney, Clark County, for Respondent.
1. Burglary.
Trial court's instruction to jury, that any person, who enters any house, room,
apartment, other building, automobile or other vehicle with specific intent to commit
assault, battery, or to kill is guilty of burglary, was not an abuse of discretion in murder
prosecution; instruction correctly stated law and summarized statutory definition of
burglary, State did not present bedroom burglary theory at trial, but instead argued, as
alleged in information, that defendant entered victim's residence with intent to assault,
batter or kill her, and State never departed from its theory of case and did not pursue
unnoticed theory of criminal culpability. NRS 200.030, 205.060.
2. Criminal Law.
A district court has broad discretion to settle jury instructions, and the supreme court
reviews the district court's decision for an abuse of that discretion or judicial error.
3. Criminal Law.
An abuse of discretion occurs if a district court's decision is arbitrary or capricious or
if it exceeds the bounds of law or reason.
4. Criminal Law.
Jurors were not required to be unanimous on underlying felony of burglary before
deliberating on felony-murder charge; although commission of underlying burglary was
an essential element of offense of felony murder, there was no requirement that jurors
consider that element first in deliberating on felony-murder charge, and jury was
properly instructed that its verdict had to be unanimous as to charge of first-degree
murder, but that unanimity was not required on whether that charge was
established under theory of felony murder or under theory of willful, deliberate, and
premeditated murder.
........................................
that its verdict had to be unanimous as to charge of first-degree murder, but that
unanimity was not required on whether that charge was established under theory of
felony murder or under theory of willful, deliberate, and premeditated murder. NRS
200.030.
5. Homicide.
District court was required to instruct jury on substance of defendant's proposed heat
of passion instruction, as theory of defense, in prosecution for first-degree murder with
the use of a deadly weapon; overruling Stroup v. State, 110 Nev. 525, 874 P.2d 769
(1994). NRS 200.030.
6. Criminal Law.
Jurors should neither be expected to be legal experts nor make legal inferences with
respect to the meaning of the law; rather, they should be provided with applicable legal
principles by accurate, clear, and complete instructions specifically tailored to the facts
and circumstances of the case.
7. Criminal Law.
Where a defense theory of voluntary manslaughter is properly at issue in a homicide
case, a district court should provide upon request accurate and complete instructions
setting forth State's burden to prove the absence of heat of passion upon sufficient
provocation unless that principle of law is fully, accurately, and expressly stated in the
other instructions.
8. Criminal Law.
When some evidence in a murder prosecution implicates the crime of voluntary
manslaughter, no matter how weak or incredible that evidence may be, defendant is
entitled upon request to an instruction specifically advising jury that the burden is on
State to prove that defendant did not act in the heat of passion with the requisite legal
provocation.
9. Criminal Law.
District court's error in refusing to instruct jury on substance of defendant's proposed
heat of passion instruction was harmless, in prosecution for first-degree murder with
the use of a deadly weapon; instructions provided to jury correctly advised jury that to
find willful, deliberate, premeditated murder, jury must also necessarily find that State
proved beyond reasonable doubt that defendant killed victim with malice aforethought,
and evidence overwhelmingly established absence of legal provocation necessary to
voluntary manslaughter, and thus, jury's verdict was not attributable to error. NRS
200.030.
10. Homicide.
Defendant was not entitled to instructions providing guidance to jury on how to
consider evidence he presented respecting his diminished capacity, in prosecution for
first-degree murder with the use of a deadly weapon; technical defense of diminished
capacity was not available in State, and defendant's proposed instructions, including
additional heat-of-passion instructions relating to jury's consideration of defendant's
mental or physical frailties, were erroneous statements of state law. NRS 200.030; NRS
200.050 (2004).
11. Homicide.
District court did not abuse its discretion in curtailing defendant's cross-examination
of witness whom victim visited on night of murder, in prosecution for first-degree
murder with the use of a deadly weapon; State offered witness's testimony merely to
establish time that defendant arrived at victim's home, a fact that defendant did not
dispute, and even if defendant had been allowed to inquire into whether witness and
victim were romantically involved, evidence of a relationship would not have
affected jury's perception of witness's testimony.
........................................
were romantically involved, evidence of a relationship would not have affected jury's
perception of witness's testimony.
12. Criminal Law.
District court has discretion to limit the scope of cross-examination, provided
sufficient cross-examination has been permitted to satisfy the Sixth Amendment. U.S.
Const. amend. 6.
OPINION ON REHEARING
1

Per Curiam:
The district court convicted appellant David Wayne Crawford, upon a jury verdict, of
the first-degree murder of Gloria Dugan with the use of a deadly weapon. In this appeal from
his conviction, Crawford argues that the district court erred by: (1) instructing the jury on a
theory of criminal culpability that the State had not alleged in the amended information; (2)
refusing to instruct the jurors that they had to unanimously agree that Crawford committed
burglary before considering the State's felony-murder theory; (3) refusing to give the
defendant's proposed jury instructions on heat of passion and diminished capacity; and (4)
curtailing his cross-examination of a witness.
We reject all of Crawford's contentions but one. In resolving Crawford's contention
respecting his proposed jury instruction on heat of passion, we have revisited our prior
decisions addressing a criminal defendant's entitlement to instructions advising the jury of the
significance of the defendant's theory of defense. We now retreat from our holding in Stroup
v. State
2
and overrule that decision to the extent that it permits the district court to reject a
criminal defendant's proposed jury instructions specifically advising the jury of the
significance of the defense theory of the case. We further conclude, however, that under the
facts and circumstances of this case any error respecting the jury instruction at issue was
harmless beyond a reasonable doubt. Accordingly, we affirm Crawford's conviction.
____________________

1
On September 3, 2004, a panel of this court issued an opinion reversing and remanding this matter for
further proceedings. Thereafter, the court entered an order withdrawing that opinion and directing appellant
Crawford to respond to the State's petition for rehearing. On July 5, 2005, this court entered an order granting
the State's petition for rehearing and submitting the appeal to the En Banc Court for decision. We now issue this
opinion in place of the withdrawn opinion of September 3, 2004.

2
110 Nev. 525, 874 P.2d 769 (1994).
........................................
FACTS
The victim, Gloria Dugan, dated Crawford for approximately seven months while she
resided in the Las Vegas residence of her fianc, a serviceman who was stationed in Korea at
the time. Crawford believed that Dugan was going to end the engagement and at one point
contacted Dugan's fianc and informed him that Dugan planned on ending their engagement
and marrying Crawford instead.
Throughout the weekend prior to the murder, however, Dugan avoided Crawford. On
Sunday night, March 24, 1997, Dugan visited a friend, Michael Lemon, at his apartment
where they watched a movie. Telephone records indicated that Crawford placed several
unanswered calls to Dugan's residence that evening. Crawford was upset and believed that
Dugan was avoiding him because she was involved with another man. Around 10:25 p.m., on
Sunday night, Crawford went to Dugan's residence to discuss their relationship. According to
Crawford, he took his gun to scare Dugan into telling the truth.
Dugan had returned home by the time Crawford arrived. She let Crawford into the
house, and eventually their conversation became heated. Crawford confronted her about
whether she was dating another man. Dugan denied seeing anyone else, but Crawford did not
believe her. He claimed he displayed his gun without pointing it at her, hoping that it would
make her take him seriously. When Dugan smirked in response, Crawford became enraged
and shot Dugan numerous times, killing her in what he described as the heat of the
moment. Afterward in a hysterical state, he called a friend and told her that he had killed
Dugan because she was lying to him. Subsequently, Crawford unsuccessfully attempted
suicide by slitting his wrists.
The State arrested Crawford and eventually charged him by way of an amended
information with first-degree murder with the use of a deadly weapon. The information
alleged two alternative theories of first-degree murder: (1) that Crawford committed a willful,
deliberate, and premeditated murder, as defined in NRS 200.030(1)(a); and (2) that under
NRS 200.030(1)(b), Crawford committed felony murder by killing Dugan during the
perpetration or attempted perpetration of a burglary that occurred when Crawford entered
Dugan's residence with the intent to assault, batter, or kill Dugan.
The jury found Crawford guilty of first-degree murder with the use of a deadly
weapon. Following the penalty phase of the trial, and in accord with the jury's sentencing
verdict, the district court sentenced Crawford to serve two consecutive terms of life in the
Nevada State Prison with the possibility of parole. Crawford will be eligible for parole after
he serves a minimum of 40 years.
........................................
be eligible for parole after he serves a minimum of 40 years. This appeal followed.
DISCUSSION
The bedroom burglary instruction
[Headnote 1]
Crawford contends that the district court erred in instructing the jury that [a]ny
person, who by day or night, enters any house, room, apartment, tenement, shop, warehouse,
store, other building, automobile or other vehicle with the specific intent to commit assault
and/or battery and/or to kill is guilty of burglary. (Emphasis added.) Specifically, Crawford
asserts, this instruction violated his right to due process because it permitted the jury to
convict him based upon a theory of felony murder that was not alleged in the amended
information and of which he had no prior notice, i.e., that he committed burglary after he
entered the house and when he stepped across the threshold of Dugan's bedroom.
[Headnotes 2, 3]
The district court has broad discretion to settle jury instructions, and this court
reviews the district court's decision for an abuse of that discretion or judicial error.
3
An
abuse of discretion occurs if the district court's decision is arbitrary or capricious or if it
exceeds the bounds of law or reason.
4
We perceive no abuse of discretion or judicial error.
The instruction correctly stated the law and summarized the statutory definition of burglary.
5
Furthermore, at trial, the State did not present a bedroom burglary theory, but instead
argued, as alleged in the information, that Crawford entered Dugan's residence with the intent
to assault, batter or kill her. The State never departed from its theory of the case; nor did it
pursue an unnoticed theory of criminal culpability. Crawford's contention is without merit.
The proposed unanimity instruction re: burglary
[Headnote 4]
Crawford argues that the district court erred in refusing his proposed jury instruction
stating: You must be unanimous on the burglary allegation before any of you may consider
the charge of Felony Murder."
____________________

3
Jackson v. State, 117 Nev. 116, 120, 17 P.3d 998, 1000 (2001).

4
Id.

5
See NRS 205.060(1) (providing that [a] person who, by day or night, enters any house, room, apartment . .
. or other building . . . with the intent to commit . . . assault or battery on any person or any felony, is guilty of
burglary).
........................................
Felony Murder. Citing to Apprendi v. New Jersey,
6
Crawford argues that the jurors should
have been required to unanimously agree on the underlying felony of burglary before they
deliberated on the felony-murder charge. We disagree.
First, although the commission of the underlying burglary is an essential element of
the offense of felony murder, there is no requirement that any of the jurors must consider that
element first in deliberating on a felony-murder charge.
7
The district court properly
instructed the jury on the elements of felony murder as follows:
There are certain kinds of Murder in the First Degree which carry with them
conclusive evidence of premeditation, deliberation and malice aforethought. One of
these classes of First Degree Murder is a killing committed in the perpetration or
attempted perpetration of Burglary. Therefore, a killing which is committed in the
perpetration or attempted perpetration of a Burglary is deemed to be Murder in the First
Degree, whether the killing was intentional or unintentional or accidental. This is called
the Felony-Murder Rule.
This Felony-Murder rule may be applied to this case even though the Defendant has
not been charged with the crime of Burglary.
The specific intent to perpetrate or attempt to perpetrate Burglary must be proven
As noted, the jury was also properly instructed respecting the charge of burglary and
the other alleged underlying crimes of assault and battery. Thus, the jury was clearly and
correctly instructed that Crawford could not be found guilty of felony murder unless he
committed the killing during the perpetration of a burglary.
8
To the extent that Crawford
may contend otherwise, we reject that contention.
Second, we also reject Crawford's contention that Apprendi calls into question this
court's prior holdings concluding that jury unanimity on a single theory of the crime is not
required.
____________________

6
530 U.S. 466 (2000).

7
See NRS 200.030(1)(b).

8
We further note that to the extent the proposed instruction could be read to require the jury to unanimously
agree on a single theory of burglary, i.e., whether Crawford entered the residence with the specific intent to kill,
or to commit assault, or to commit battery, the instruction would not comport with our holdings adopting the
United States Supreme Court's rationale in Schad v. Arizona, 501 U.S. 624 (1991) (plurality opinion). See, e.g.,
Tabish v. State, 119 Nev. 293, 313, 72 P.3d 584, 597 (2003). Schad held that [p]lainly there is no general
requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict. 501 U.S.
at 632 (quoting McKoy v. North Carolina, 494 U.S. 433, 449 (1990) (Blackmun, J., concurring)).
........................................
nimity on a single theory of the crime is not required.
9
Where the State proceeds on
alternative theories of first-degree felony murder and willful, deliberate, and premeditated
first-degree murder, we have consistently held that the jury need not unanimously agree on a
single theory of the murder.
10
In Apprendi, the Supreme Court held that facts in support of a
sentencing enhancement, other than a prior conviction, must be determined by the jury
11
Apprendi does not undermine the rationale of our holdings
respecting jury unanimity on alternative theories of murder and provides no support for
revisiting our reasoning on that issue.
Under our prior holdings, the jury was properly instructed in this case that its verdict
had to be unanimous as to the charge of first-degree murder, but that unanimity was not
required on whether that charge was established under a theory of felony murder or under a
theory of willful, deliberate, and premeditated murder. It follows, therefore, that Crawford's
proposed instruction requiring all of the jurors to be unanimous on the burglary allegation
before any of the jurors could consider the charge of felony murder is legally erroneous. Any
jurors who found beyond a reasonable doubt that Crawford committed a willful, deliberate,
and premeditated murder were under no legal obligation to consider the felony-murder theory
at all, let alone the element of burglary at issue under that theory.
The proposed heat-of-passion instruction
[Headnote 5]
Crawford argues that the district court committed reversible error by refusing to give
his proposed jury instruction K. The instruction read:
If after consideration of all the evidence you have a reasonable doubt as to whether or
not the defendant acted in a heat of passion, you must return a verdict of voluntary
manslaughter. This is because the state has the burden of proving beyond a reasonable
doubt that the defendant did not act in the heat of passion.
The district court rejected the proposed instruction on the ground that it was substantially
covered by the other instructions. As discussed below, we conclude that the district court
erred in refusing to provide an instruction incorporating the substance of Crawford's
proposed language.
____________________

9
Tabish, 119 Nev. at 313, 72 P.3d at 597; Moore v. State, 116 Nev. 302, 304, 997 P.2d 793, 794 (2000);
Walker v. State, 113 Nev. 853, 870, 944 P.2d 762, 773 (1997).

10
Moore, 116 Nev. at 304, 997 P.2d at 794; Walker, 113 Nev. at 870, 944 P.2d at 773.

11
530 U.S. at 490.
........................................
cussed below, we conclude that the district court erred in refusing to provide an instruction
incorporating the substance of Crawford's proposed language. Nevertheless, we also conclude
that under the facts and circumstances of this case the error was harmless beyond a reasonable
doubt.
This court has consistently held that the defense has the right to have the jury
instructed on its theory of the case as disclosed by the evidence, no matter how weak or
incredible that evidence may be.
12
The jury in this case was not specifically or expressly
instructed that the State had the burden to prove beyond a reasonable doubt that Crawford did
not act in the heat of passion and upon the provocation required by law. The jury was
instructed generally that the State had the burden of proving beyond a reasonable doubt
every material element of the crime charged, and that if it was not satisfied beyond a
reasonable doubt that Crawford committed first-degree murder, it could find him guilty of
any lesser included offense, including voluntary manslaughter if the evidence was sufficient
to establish his guilt of such lesser offense beyond a reasonable doubt. Additionally, as the
State emphasizes, the jury was instructed: If you are convinced beyond a reasonable doubt
that an unlawful killing has been committed by the defendant, but you have a reasonable
doubt whether such killing was murder or manslaughter, you must give the defendant the
benefit of that doubt and return a verdict of Voluntary Manslaughter. Citing to Stroup v.
State, the State argues that no additional instructions were required.
13

The language in the proposed instruction defining the State's burden is a correct, albeit
in our view incomplete, statement of the law. The United States Supreme Court held in
Mullaney v. Wilbur that the Due Process Clause requires the prosecution to prove beyond a
reasonable doubt the absence of the heat of passion on sudden provocation when the issue is
properly presented in a homicide case.
14
This court has followed the Mullaney doctrine and
has held, with respect to a theory of self-defense, that instructions imposing a burden of proof
upon a defendant to negate an element of a charged offense are improper.
15

We conclude as a threshold matter that no such burden was imposed in this case, and
Crawford's proposed instruction was not specifically required by Mullaney.
____________________

12
Vallery v. State, 118 Nev. 357, 372, 46 P.3d 66, 76-77 (2002) (internal quotation marks omitted).

13
110 Nev. 525, 874 P.2d 769 (1994).

14
421 U.S. 684, 704 (1975).

15
See St. Pierre v. State, 96 Nev. 887, 890-91, 620 P.2d 1240, 1241-42 (1980); Kelso v. State, 95 Nev. 37,
41, 588 P.2d 1035, 1038 (1979); see also Runion v. State, 116 Nev. 1041, 1052, 13 P.3d 52, 59 (2000).
........................................
specifically required by Mullaney. In this, we note that the district court correctly instructed
the jury that: (1) murder is the unlawful killing of a human being with malice aforethought,
whether express or implied; (2) malice aforethought is the intentional doing of a
wrongful act without legal cause or excuse or what the law considers adequate provocation
(emphasis added); (3) the provocation necessary for voluntary manslaughter consists of either
a serious and highly provoking injury inflicted upon the person killing, sufficient to excite an
irresistible passion in a reasonable person, or an attempt by the person killed to commit a
serious personal injury on the person killing; (4) the defendant is presumed innocent until
the contrary is proved; and (5) the State has 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.
Under these instructions, in order to find Crawford guilty of first-degree willful,
deliberate, and premeditated murder, the jury necessarily had to find that the State proved
beyond a reasonable doubt that Crawford killed Dugan with malice aforethought, that is,
without what the law considers adequate provocation. As the Ninth Circuit Court of
Appeals concluded in Dunckhurst v. Deeds under strikingly similar circumstances,
Mullaney's admonition that the State bears the burden of proving the absence of
provocation, where lack of adequate provocation is an element of the crime charged, was
satisfied.
16

As the discussion above illustrates, the instructions actually provided to the jury in
this case did generally and technically encompass Crawford's proposed instruction. Therefore,
the State quite legitimately argues that under this court's holding in Stroup, the district court
did not err in rejecting Crawford's requested instruction on the ground that it was covered by
the other instructions provided. We are of the view, however, that the majority holding in
Stroup places undue limitations on a criminal defendant's ability to have the jury specifically
instructed on the significance of the defendant's theory of the defense. Therefore, we have
reconsidered our holding in Stroup and now expressly overrule it.
In Stroup, a majority of this court held that a defendant was not entitled to a specific
instruction that informed the jurors that they should acquit the defendant if they found the
killing was justifiable.
17
The majority opinion concluded that the instruction proposed by the
defense was unnecessary because other instructions provided to the jury sufficiently informed
the jury of the defendant's theory of the case. The other instructions provided a general,
technical definition of justifiable homicide, but did not specifically advise the jury that a
finding of justifiable homicide gave rise to a duty to acquit.
____________________

16
859 F.2d 110, 113 (9th Cir. 1988).

17
110 Nev. at 528-29, 874 P.2d at 771.
........................................
ically advise the jury that a finding of justifiable homicide gave rise to a duty to acquit.
18

The dissenting opinion in Stroup, however, concluded that the defendant had been
deprived of a fair trial because none of the jury instructions actually informed the jurors of the
significance of the defense theory of the case, namely, that a finding of justifiable homicide
gave rise to a duty to acquit.
19
In Carter v. State,
20
an opinion that is being issued
concurrently with this opinion, we have observed that this court's jurisprudence has
increasingly embraced the view advocated by the dissent in Stroup, i.e., that district courts,
upon request, must include significance instructions in support of the defense theory of the
case. In our view, the majority opinion in Stroup cannot be read in harmony with a significant
line of authority holding that jurors should receive a full explanation of the defense theory of
the case.
More specifically, this court has consistently recognized that specific jury instructions
that remind jurors that they may not convict the defendant if proof of a particular element is
lacking should be given upon request.
21
This court has also recognized that [a] positive
instruction as to the elements of the crime does not justify refusing a properly worded
negatively phrased position' or theory' instruction.
22
In Runion v. State, for example, this
court approved a jury instruction stating in part:
If evidence of self-defense is present, the State must prove beyond a reasonable doubt
that the defendant did not act in self-defense. If you find that the State has failed to
prove beyond a reasonable doubt that the defendant did not act in self-defense, you
must find the defendant not guilty.
23

[Headnote 6]
As noted, with respect to the State's alternative theory of willful, deliberate,
premeditated murder, the jurors in the instant case were generally instructed that the State had
the burden of proving that Crawford killed Dugan with malice aforethought, i.e., without the
requisite legal provocation. Although this instruction was technically correct, the jurors were
not expressly instructed that, in considering the charge of willful, deliberate, premeditated
murder, the burden was on the State to prove beyond a reasonable doubt that Crawford did
not act in the heat of passion induced by the requisite legal provocation.
____________________

18
Id.

19
Id. at 529-30, 874 P.2d at 772 (Springer, J., dissenting).

20
121 Nev. 759, 767, 121 P.3d 592, 597 (2005).

21
See, e.g., Brooks v. State, 103 Nev. 611, 747 P.2d 893 (1987); Margetts v. State, 107 Nev. 616, 818 P.2d
392 (1991).

22
Brooks, 103 Nev. at 614, 747 P.2d at 895.

23
116 Nev. at 1052, 13 P.3d at 59.
........................................
uisite legal provocation.
24
Even though this principle of law could be inferred from the
general instructions, this court has held that the district court may not refuse a proposed
instruction on the ground that the legal principle it provides may be inferred from other
instructions.
25
Jurors should neither be expected to be legal experts nor make legal
inferences with respect to the meaning of the law; rather, they should be provided with
applicable legal principles by accurate, clear, and complete instructions specifically tailored
to the facts and circumstances of the case.
26

[Headnotes 7, 8]
We therefore overrule Stroup and hold that where a defense theory of voluntary
manslaughter is properly at issue in a homicide case, a district court should provide upon
request accurate and complete instructions setting forth the State's burden to prove the
absence of heat of passion upon sufficient provocation unless that principle of law is fully,
accurately, and expressly stated in the other instructions. When some evidence in a murder
prosecution implicates the crime of voluntary manslaughter, no matter how weak or
incredible that evidence may be, the defendant is entitled upon request to an instruction
specifically advising the jury that the burden is on the State to prove that the defendant did
not act in the heat of passion with the requisite legal provocation.
Incomplete aspects of the proposed instruction
We emphasize, however, that we do not hold that Crawford was entitled to the
verbatim heat of passion instruction he requested. As we explain with particularity in
Carter, the conclusion that district courts must provide instructions upon request
incorporating the significance of a defendant's theory of the defense does not mean that the
defendant is entitled to instructions that are misleading, inaccurate, or duplicitous.
27
Rather,
where a defendant's proposed instruction is poorly drafted, but nonetheless proposes a
defense theory of the case instruction that should be given, the State may request additional,
clarifying language more fully explicating the principles of law applicable to the jury's
deliberations. And in the final analysis, the district court is ultimately responsible for not only
assuring that the substance of the defendant's requested instruction is provided to the
jury, but that the jury is otherwise fully and correctly instructed.
____________________

24
See generally Dunckhurst v. Deeds, 859 F.2d 110 (9th Cir. 1988) (construing Nevada law and concluding
that to obtain a first-degree murder conviction the State had to prove the absence of adequate provocation
beyond a reasonable doubt).

25
See Margetts, 107 Nev. at 620, 818 P.2d at 395.

26
Runion, 116 Nev. at 1051, 13 P.3d at 59 (The district courts should tailor instructions to the facts and
circumstances of a case, rather than simply relying on stock' instructions.); Culverson v. State, 106 Nev. 484,
488, 797 P.2d 238, 240 (1990) (A juror should not be expected to be a legal expert.).

27
121 Nev. at 765, 121 P.3d at 596.
........................................
only assuring that the substance of the defendant's requested instruction is provided to the
jury, but that the jury is otherwise fully and correctly instructed. In this, the district court may
either assist the parties in crafting the required instructions or may complete the instructions
sua sponte.
28
By way of example, we note that Crawford's proposed heat of passion
instruction invited further refinement by the State and the district court in at least two
significant respects.
First, Crawford's proposed language referred only to heat of passion and contained
no language defining the State's burden to prove the absence of provocation involved in the
crime of voluntary manslaughter. The State should have sought and the district court should
have completed the requested instruction with additional, clarifying language explaining that
the State has the burden of proving beyond a reasonable doubt that the defendant did not act
in the heat of passion caused by the requisite legal provocation.
29

Second, Crawford's proposed heat of passion instruction did not adequately define
the jury's obligations under the two alternative theories of first-degree murder alleged by the
State. As we noted above, the jury was correctly instructed that as long as all of the jurors
were unanimous in finding that Crawford committed first-degree murder, jury unanimity was
not required as to whether that charge was established under a theory of willful, deliberate,
premeditated murder or a theory of felony murder. As we also noted above, with respect to
the theory of felony murder, the jury was correctly instructed that a killing which is
committed in the perpetration of a Burglary is deemed to be Murder in the First Degree,
whether the killing was intentional or unintentional or accidental.
Thus, Crawford's proposed heat of passion instruction had relevance only to the
State's theory of willful, deliberate, and premeditated first-degree murder and provided no
explanation of the jury's obligations with respect to the State's alternative theory of
first-degree felony murder.
____________________

28
Id.

29
We note that in defining the element of deliberation necessary to the crime of willful, deliberate,
premeditated murder, the jury was correctly instructed that a deliberate determination must not be formed in
passion, and a mere unconsidered and rash impulse is not deliberate, even though it includes the intent to kill.
Without the clarifying language, Crawford's proposed instruction on heat of passion did not adequately
distinguish between a determination formed in passion that could negate the element of deliberation necessary
to a finding of willful, deliberate, premeditated murder and the heat of passion upon sufficient legal
provocation that is necessary to the crime of voluntary manslaughter. A jury finding that the killing occurred as
the result of a mere unconsidered and rash impulse might have resulted in a verdict of second-degree murder.
However, a finding that the State failed to prove the absence of heat of passion upon sufficient legal
provocation could have resulted in a verdict of voluntary manslaughter.
........................................
first-degree felony murder. In order to accurately and fully complement the proposed
instruction, the State should have requested and the district court should have included
language distinguishing the jury's obligations under these separate theories. More specifically,
the State's burden with respect to the element of malice aforethought had no application to
any juror's deliberations respecting the felony-murder theory. Similarly, a juror's obligation to
assess whether the State had met its burden of proof respecting the absence of heat of passion
and legal provocation only arose if that juror found it necessary to consider whether Crawford
committed a willful, deliberate, premeditated murder. Without such clarifying language, the
proposed instruction was not only inaccurate, but could have potentially confused and misled
any jurors who might have found Crawford guilty of felony murder into unnecessarily
deliberating on issues relating to the State's burden regarding malice aforethought, heat of
passion and provocation.
Harmless error
[Headnote 9]
Despite our conclusion that the district court erred in refusing to instruct the jury on
the substance of Crawford's proposed heat of passion instruction, we are convinced beyond
a reasonable doubt that the jury's verdict was not attributable to the error and that the error
was harmless under the facts and circumstances of this case.
30

First, as our analysis above explains, the instructions that were actually provided to
the jury correctlyalbeit very generallyadvised the jury that to find a willful, deliberate,
premeditated murder, the jury must also necessarily find that the State proved beyond a
reasonable doubt that Crawford killed Dugan with malice aforethought, i.e., without what
the law considers adequate provocation.
Second, in our view the evidence presented in this case overwhelmingly established
the absence of the legal provocation necessary to voluntary manslaughter. Specifically, the
evidence established that Crawford made a considered decision to confront Dugan at her
residence with a firearm. He claimed that the sudden provocation occurred when he displayed
the weapon, and Dugan smirked in response. According to Crawford, Dugan's smirk caused
him to become enraged, and he killed her in the heat of the moment. The requisite legal
provocation consists of a serious and highly provoking injury sufficient to excite an
irresistible passion in a reasonable person or an attempt by the victim to inflict a serious
personal injury on the defendant.
____________________

30
See Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) (holding that under Chapman v. California, 386 U.S.
18 (1967), an appellate court may find some errors in instructions harmless where it is clear beyond a reasonable
doubt that the guilty verdict actually rendered in the case was surely unattributable to the error).
........................................
serious personal injury on the defendant. Under these facts, we conclude that no reasonable
jury could have found that the State failed to prove beyond a reasonable doubt that Crawford
did not act in the heat of passion caused by the requisite legal provocation.
Diminished capacity
[Headnote 10]
Crawford also argues that the district court erred in refusing instructions he requested
implicating evidence of his diminished capacity, including that he: (1) attempted to commit
suicide after shooting Dugan, as well as on several previous occasions; (2) did not remember
much after firing the first shot; (3) had been on medication for depression at the time of the
murder; and (4) was admitted to a hospital for psychiatric care immediately after the shooting.
In support of this contention, Crawford cites to language in Finger v. State:
Evidence that does not rise to the level of legal insanity may, of course, be considered
in evaluating whether or not the prosecution has proven each element of an offense
beyond a reasonable doubt, for example in determining whether a killing is first- or
second-degree murder or manslaughter or some other argument regarding diminished
capacity.
31

Based on this language, he argues that he was entitled to instructions providing guidance to
the jury on how to consider the evidence he presented respecting his diminished capacity. We
reject Crawford's contention.
The two rejected instructions specifically referring to diminished capacity would
have essentially instructed the jury that it could consider the diminished capacity of the
defendant in reaching its decision. Nevada law recognizes the M'Naghten standard and the
technical defense of diminished capacity is not available in Nevada.
32
In addition, NRS
200.050 requires provocation sufficient to excite an irresistible passion in a reasonable
person. Crawford's proposed instructions, including the additional heat-of-passion
instructions relating to the jury's consideration of Crawford's mental or physical frailties, were
erroneous statements of Nevada law.
33
Moreover, the proposed instruction provided no
guidance whatsoever on how the jury might properly consider evidence that did not rise
to the level of legal insanity in evaluating whether the State had proven its case beyond a
reasonable doubt.
____________________

31
117 Nev. 548, 577, 27 P.3d 66, 85 (2001).

32
See id. at 576, 27 P.3d at 84-85; Miller v. State, 112 Nev. 168, 911 P.2d 1183 (1996) (discussing the
diminished capacity defense).

33
See, e.g., Ricci v. State, 91 Nev. 373, 383 n.10, 536 P.2d 79, 84 n.10 (1975); see also People v. Steele, 47
P.3d 225, 241 (Cal. 2002) (rejecting the contention that the jury was required to consider the defendant's
particular mental disorders and frailties on the ground that such a requirement would resurrect the abolished
defense of diminished capacity in the guise of an expanded form of heat of passion manslaughter).
........................................
provided no guidance whatsoever on how the jury might properly consider evidence that did
not rise to the level of legal insanity in evaluating whether the State had proven its case
The cross-examination of Michael Lemon
[Headnote 11]
Finally, Crawford argues that the district court committed reversible error by
curtailing his cross-examination of Michael Lemon, the man whom Dugan visited on the
night of the murder. Crawford contends that he had the right to inquire whether Lemon was
romantically involved with Dugan in order to expose his potential bias. Additionally,
Crawford contends that Lemon's testimony about his relationship with Dugan was critical to
the defense because it would have supported Crawford's heat-of-passion defense by giving
credence to his belief that Dugan was involved with a third man.
[Headnote 12]
The district court has discretion to limit the scope of cross-examination, provided
sufficient cross-examination has been permitted to satisfy the sixth amendment.
34
We
have recognized that the district court's discretion to curtail cross-examination is more limited
if the purpose of cross-examination is to expose bias.
35
In those instances, counsel must be
permitted to elicit any facts which might color a witness's testimony.
36

In this case, we conclude that the district court did not abuse its discretion in
curtailing the cross-examination of Lemon. Lemon testified that Dugan left his house shortly
before 10 p.m.; she called him when she got home; and while they were talking on the
telephone, the doorbell rang, and Dugan ended the conversation. The State offered Lemon's
testimony merely to establish the time that Crawford arrived at Dugan's home, a fact that
Crawford did not dispute. Even if Crawford had been allowed to inquire into whether Lemon
and Dugan were romantically involved, evidence of a relationship between Lemon and Dugan
would not have affected the jury's perception of Lemon's testimony. Accordingly, we
conclude that Crawford was not prejudiced by the district court's refusal to permit him to
pursue on cross-examination a line of inquiry that went well beyond the scope of Lemon's
testimony on direct examination.
____________________

34
Crew v. State, 100 Nev. 38, 45, 675 P.2d 986, 990 (1984); see also U.S. Const. amend VI.

35
Crew, 100 Nev. at 45, 675 P.2d at 991.

36
Id.
........................................
CONCLUSION
Based on the foregoing analysis, we conclude that Crawford has failed to demonstrate
reversible error. Accordingly, we affirm the judgment of conviction.
____________
121 Nev. 759, 759 (2005) Carter v. State
ANTHONY D. CARTER, Appellant, v. THE STATE
No. 41967
October 20, 2005
121 P.3d 592
attempted sexual assault. Eighth Judicial District Court, Clark County; Lee A. Gates, Judge.
The supreme court, Maupin, J., held that: (1) in general, a defendant is not required to
proffer both the defense's and the State's theories of the case to have proffered instruction
given or to preserve error in connection with the proffer for appellate review, and trial courts
must give complete and accurate theory of the case instructions even though the instruction
requested is viewed as incomplete; overruling Honeycutt v. State, 118 Nev. 660, 56 P.3d 362
(2002); (2) trial court's instructions on reasonable belief of consent were inadequate; (3) trial
court's failure to adequately instruct jury on reasonable mistaken belief of consent was not
harmless; (4) portions of statements made by defendant in taped interview with investigator
were not admissible under hearsay exceptions for statements against interest, prior
inconsistent statements, or statement of declarant's then-existing mental or emotional or
physical condition; (5) any error that resulted when police investigators testified that
defendant had been suspended from his job was cured; and (6) evidence supported giving of
instruction on flight.
Philip J. Kohn, Public Defender, and Robert Hazeltine Thompson, Deputy Public
Defender, Clark County, for Appellant.
1. Rape.
When a sexual assault defendant proffers an instruction on reasonable mistaken belief
of consent, the trial court must give complete instruction regarding such defense, which
states that if jury has a reasonable doubt whether defendant reasonably and in good
faith believed that victim voluntarily consented to engage in sexual intercourse, it
must find defendant not guilty, and states that the defendant's belief is not
reasonable when based upon conduct produced by violence or fear.
........................................
whether defendant reasonably and in good faith believed that victim voluntarily
consented to engage in sexual intercourse, it must find defendant not guilty, and states
that the defendant's belief is not reasonable when based upon conduct produced by
violence or fear.
2. Criminal Law.
In general, a defendant is not required to proffer both the defense's and the State's
theories of the case to have a proffered instruction given or to preserve error in
connection with the proffer for appellate review, and trial courts must give complete
and accurate theory of the case instructions even though the instruction requested is
viewed as incomplete; overruling Honeycutt v. State, 118 Nev. 660, 56 P.3d 362
(2002).
3. Rape.
Trial court's instructions on reasonable mistaken belief of consent in prosecution for
sexual assault were inadequate, where while the instructions stated that consent was a
defense to the charges against defendant, they did not additionally state that a
reasonable doubt on that proposition required that the jury render a verdict of acquittal,
and the instructions failed to indicate that a reasonable doubt as to whether the
defendant acted under a reasonable but mistaken belief of consent likewise gave rise to
a duty to acquit.
4. Criminal Law.
If requested, theory of the case instructions must include statements of significance of
findings made in aid of theory of defense instructions.
5. Criminal Law.
Trial court's failure to adequately instruct jury on reasonable mistaken belief of
consent in sexual assault prosecution was not harmless; case against defendant
depended largely upon the alleged victim's credibility, and jury acquitted defendant on
one of two charges that arose from his interaction with victim.
6. Criminal Law.
Sexual assault defendant waived for appellate review his claim that trial court abused
its discretion in excluding portions of statements defendant made during taped
interview with investigator because the entire tape was the best evidence of the
conversation, where defendant failed to challenge the trial court's exclusion of tape on
best evidence grounds.
7. Criminal Law.
Portions of statements made by sexual assault defendant in taped interview with
investigator were not admissible under hearsay exceptions for statements against
interest, prior inconsistent statements, or statement of declarant's then-existing mental
or emotional or physical condition; statements, which mentioned possible drug use,
were not incriminating, and there were no inconsistencies between the testimony of the
witness and statements on the tape. NRS 51.035(2)(a), 51.105(1), 51.345.
8. Criminal Law.
The supreme court requires prescreening of other crimes evidence to determine
relevancy, whether the probative value of such evidence is substantially outweighed by
the danger of unfair prejudice, and whether it is proven by clear and convincing
evidence. NRS 48.045(2).
9. Criminal Law.
A trial court's failure to conduct a hearing on the record concerning admissibility of
other crimes evidence prior to admitting such evidence may be cause for reversal, but
reversal is not mandated absent any prejudicial effect. NRS 48.045(2).
........................................
10. Criminal Law.
Sexual assault defendant failed to preserve for appellate review claim that trial court
erred in admitting evidence of his prior drug involvement, where defendant did not
timely object to the admission of the State's evidence that he used illegal drugs or
supplied them to others.
11. Criminal Law.
Sexual assault defendant was estopped from raising any objection that admission of
evidence of his prior drug involvement was error, where defendant himself elicited
evidence of his illegal drug use.
12. Criminal Law.
A party who participates in an alleged error is estopped from raising any objection on
appeal.
13. Criminal Law.
Any error that resulted when police investigators testified in sexual assault trial that
defendant had been suspended from his job was cured, where trial court sustained
defendant's contemporaneous objection to such evidence and admonished the jury
accordingly. NRS 48.045(2).
14. Criminal Law.
A witness's spontaneous or inadvertent references to inadmissible material, not
solicited by the prosecution, can be cured by an immediate admonishment directing the
jury to disregard the statement.
15. Criminal Law.
Evidence supported giving of instruction on flight in sexual assault prosecution,
where State presented evidence that defendant's wife misled detectives as to his
whereabouts and that defendant concealed himself under a pile of clothes in his
apartment when he could hear the police searching for him.
16. Criminal Law.
It is proper to instruct on flight where it is reasonable to infer flight from the evidence
presented.
OPINION
In this opinion, we examine the extent to which a defendant in a criminal case is
entitled to have the trial jury instructed upon his theory of the case. This examination
implicates our recent decision in Crawford v. State
1
and requires us to revisit this court's
decision in Honeycutt v. State.
2

This case involves the State's prosecution of appellant Anthony Carter on charges of
sexual assault and attempted sexual assault.
____________________

1
121 Nev. 744, 121 P.3d 582 (2005).

2
118 Nev. 660, 56 P.3d 362 (2002).
........................................
The victim alleged that Carter sexually assaulted her at his apartment in Las Vegas,
Nevada. Carter, in an interview with sexual assault investigators, claimed that the interaction
leading to the charges was consensual. The victim confirmed her allegations at trial, further
testifying that she accompanied Carter to his residence based upon his promise that he would
provide her with illicit drugs. Cross-examination undermined her account of the events in
question, at least to a degree. To corroborate that the two had engaged in sexual activity, the
investigators testified to portions of their interrogation of Carter.
Carter interposed a consent defense through his cross-examination of the victim and
through the testimony of the State's police witnesses concerning his statements to them. He
did not testify. Although the trial jury ultimately acquitted Carter on the sexual assault charge,
it found him guilty of attempted sexual assault. The district court entered judgment upon the
verdict and sentenced Carter to serve a prison term of 62 to 155 months.
On appeal, Carter claims that the district court erred in refusing his proposed
instruction on consent; in its failure to admit the entirety of his taped interview with police
detectives; in the admission of prior bad act testimony; and in giving a flight instruction.
We conclude that rejection of Carter's proffered consent instruction mandates reversal
and remand for a new trial. In this, we retreat from prior authority of this court, upon which
the district court relied in refusing to charge the jury as requested. To provide guidance on
remand, we also address Carter's other assignments of error.
DISCUSSION
Theory of the case instruction
Carter asserts that consent was a central issue at trial. Claims of consent in a sexual
assault prosecution raise specific questions that must be addressed as part of the trial court's
instructions to the jury.
3
Accordingly, in Honeycutt, a panel of this court stated as follows:
[B]ecause a perpetrator's knowledge of lack of consent is an element of sexual assault, we
conclude that a proposed instruction on reasonable mistaken belief of consent must be given
when requested as long as some evidence supports its consideration.
4

Carter proffered the following reasonable belief instruction under Honeycutt:
____________________

3
See Margetts v. State, 107 Nev. 616, 619-20, 818 P.2d 392, 394 (1991).

4
118 Nev. at 670, 56 P.3d at 369.
........................................
It is a defense to a charge of sexual assault that the Defendant entertained a reasonable
and good faith belief that the female person voluntarily consented to engage in sexual
intercourse. If from all the evidence you have a reasonable doubt whether the
Defendant reasonably and in good faith believed she voluntarily consented to engage
in sexual intercourse, you must give the Defendant the benefit of that doubt and find
him not guilty of said charge.
(Emphasis added.) The district court refused Carter's proposed instruction on the ground that
it was substantially covered in other instructions. In this connection, the court instructed the
jury on the elements of the crime of sexual assault and that the alleged victim's voluntary
consent to engage in sexual intercourse is a defense to such a charge. It further instructed the
jury that
[p]hysical force is not necessary in the commission of sexual assault. The crucial
question is not whether a person was physically forced to engage in a sexual assault but
whether the act was committed without her consent or under conditions in which the
defendant knew or should have known, the person was incapable of giving her consent
or understanding the nature of the act. There is no consent where a person is induced to
submit to the sexual act through fear of death or serious bodily injury.
Unlike the emphasized language in Carter's proposed instruction, the instructions given failed
to address the significance of any finding by the jury concerning consent, to wit: that a
reasonable doubt as to whether the victim consented, or whether the defendant harbored a
reasonably mistaken belief of consent, would require an acquittal. Until recently, this kind of
omission did not necessarily require reversal.
5

In Honeycutt, the defendant sought a consent instruction similar to that proffered by
Carter. Our court approved this consent language with one caveat, the instruction was
incomplete and properly refused if it failed to additionally state that
a belief that is based upon ambiguous conduct by an alleged victim that is the product
of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on
the person or another is not a reasonable good faith belief.
6

Because the defendant in Honeycutt proffered a reasonable belief of consent instruction to
which he was otherwise entitled but omitted a proviso that the defendant's belief in that
regard is not reasonable when based upon conduct produced by violence or fear, the
Honeycutt majority concluded that the district court committed no error in refusing
Honeycutt's proffered instruction.
____________________

5
See discussion infra of Stroup v. State, 110 Nev. 525, 874 P.2d 769 (1994).

6
Honeycutt, 118 Nev. at 671, 56 P.3d at 369 (quoting 1 California Jury Instructions, Criminal 10.65, at 828
(6th ed. 1996)).
........................................
ted a proviso that the defendant's belief in that regard is not reasonable when based upon
conduct produced by violence or fear, the Honeycutt majority concluded that the district court
committed no error in refusing Honeycutt's proffered instruction.
Retreat from Honeycutt
The Honeycutt majority required that the defendant include language that undermines
his defense in order to have a reasonable belief of consent instruction given, and to preserve
the validity of the issue on direct appeal. Interestingly, we have never placed such an
obligation with these consequences upon litigants, and the Honeycutt majority cited no
precedent that exacts this burden.
7
Moreover, the defendant in Honeycutt was apparently
denied his theory of defense based upon a technical failure to include language that the State
easily could have requested.
8
Thus, Honeycutt creates a trap for the unwary that exalts form
over substance where a defendant's right to a fair trial is at stake.
9

[Headnote 1]
Carter's instruction likewise omitted the additional language required by Honeycutt.
That omission is of interest because Carter was tried after Honeycutt was decided. Defense
counsel should have known that the instruction was incomplete and was subject to rejection
by the district court. On appeal, without mentioning this defect, Carter simply argues that he
was entitled to the shortened version that he presented. We disagree but now retreat from the
harsh result mandated under Honeycutt and hold that, when such a proffer is made, the
district court must give the complete Honeycutt instruction. Thus, while Carter's proposed
instruction omitted material clearly required under Honeycutt, such a proffer should not be
per se rejected as incomplete.
10

____________________

7
Cf. SCR 172(1)(c) (regarding candor to tribunals and providing that attorneys shall not knowingly fail to
disclose controlling legal authority known to be directly adverse to the position of the client and not disclosed by
opposing counsel).

8
The State in Honeycutt was privy to the California materials containing the omitted language that
accompanied Honeycutt's rejected instruction. See supra note 6.

9
Honeycutt, 118 Nev. at 677-79, 56 P.3d at 373-74 (Rose, J., dissenting). Honeycutt is additionally
problematic because we are not told in the opinion whether the theory of defense was in some way covered by
other instructions.

10
The court's instructions below contain language similar to that fatally omitted from the proffer in
Honeycutt. On this ground, the incomplete instruction may have satisfied Honeycutt. This said, the Honeycutt
court provided the exact instruction blueprint it wanted followed. That blueprint is much more detailed than the
instructions given in this case. Also, as we now hold, such an omission is not fatal to these types of proffers.
........................................
[Headnote 2]
The majority opinion in Honeycutt suffers from four important vices. First, Honeycutt
improperly rejected a theory of defense instruction solely on the ground that the instruction,
although legally correct, was an incomplete statement of the law. Second, it improperly
implies that a defendant must proffer theory of the defense instructions in sexual assault cases
that articulate both defense and prosecution theories. Third, it implies that failure to do so
would invalidate theory of the case proffers made in other contexts, such as in murder cases
where justifiable homicide is at issue. Fourth, it relieves district courts of the obligation to
give complete theory of the case instructions. We therefore further hold that, in general, a
defendant is not required to proffer both the defense's and the State's theories of the case to
have an instruction given or to preserve error in connection with the proffer for appellate
review,
11
and that district courts must give complete and accurate theory of the case
instructions even though the instruction requested is viewed as incomplete. Thus, to the
extent that Honeycutt is inconsistent with this view, we expressly overturn it.
Our ruling today does not mean a defendant in a criminal case is entitled to have an
incomplete statement of the law given in a trial court's jury instructions. First, the State may
request additional language, e.g., as should have been the case here, the fact that reliance on
ambiguous conduct manifesting consent is not reasonable if the conduct is induced by force
or fear. Second, the district court should complete the instruction sua sponte or may assist the
parties in crafting complete instructions. And, as stated by Justice Rose in his dissent to the
Honeycutt majority:
If [a] proposed [defense] instruction is poorly drafted, a district court has an affirmative
obligation to cooperate with the defendant to correct the proposed instruction or to
incorporate the substance of such an instruction in one drafted by the court.
12

Finally, we wish to stress that our retreat from Honeycutt does not mean that district
courts must accept misleading, inaccurate or duplicitous jury instructions.
____________________

11
This assumes compliance with SCR 172(1)(c). While SCR 172(1)(c) does not require that proffered jury
instructions include both sides of the case, proffers must still comply with this rule when supporting authority is
submitted. There is nothing in this record to suggest that the State and the district court were unaware of
Honeycutt's full requirement and, as noted in the margin above, the State's theory was in large part stated in the
instructions given. See supra note 10.

12
118 Nev. at 677-78, 56 P.3d at 373-74 (Rose, J., dissenting).
........................................
Partial reaffirmation of Honeycutt and our retreat from Stroup v. State
13

Honeycutt remains valid authority insofar as it requires district courts to allow theory
of the case instructions in sexual assault cases stating that an alleged perpetrator's knowledge
of lack of consent is an element of sexual assault and, assuming supporting evidence has been
presented, that a reasonable mistaken belief as to consent is a defense to a sexual assault
charge. Thus, although we retreat from Honeycutt in one sense, we reaffirm it in another.
[Headnote 3]
While the court's instructions in this case stated that consent was a defense to the
charges against Carter, they did not additionally state that a reasonable doubt on that
proposition required that the jury render a verdict of acquittal. Going further, the instructions
failed to indicate that a reasonable doubt as to whether the defendant acted under a reasonable
but mistaken belief of consent likewise gave rise to a duty to acquit. As explained below, this
language is required under a reading of Honeycutt with our recent decision in Runion v. State,
14
and Crawford v. State,
15
all of which unwind, to a degree, the effect of our 1994 decision
in the case of Stroup v. State.
16
Thus, under current authority, Carter's defense theory was
not fully covered by the district court.
By way of history, Stroup involved a murder conviction where the district court
instructed the trial jury on the elements of justifiable homicide but refused to instruct that a
finding of justifiable homicide necessitated a verdict of not guilty. We affirmed, concluding
that this necessity was covered in the elements instruction on justifiable homicide.
17
This
ruling fairly left the implication that general elements instructions, coupled with a standard
reasonable doubt instruction, adequately state a defense theory of the case, thus making it
unnecessary for district courts to explicitly include language stating the duty to acquit under
theory of defense instructions.
The dissent in Stroup argued that technical instructions defining when justifiable
homicide may be found were insufficient for a fair trial when the instructions failed to advise
that such a finding required acquittal.
18
The dissenting view developed no particular
following for a time.
____________________

13
110 Nev. 525, 874 P.2d 769 (1994).

14
116 Nev. 1041, 13 P.3d 52 (2000).

15
121 Nev. 744, 121 P.3d 582 (2005).

16
110 Nev. 525, 874 P.2d 769.

17
Id. at 528-29, 874 P.2d at 771 (noting that the defendant's right to have the jury instructed on his theory of
the case does not include the absolute right to have his own instruction given, particularly when the law
encompassed in that instruction is fully covered by another instruction).

18
Id. at 529, 874 P.2d at 772 (Springer, J., dissenting).
........................................
following for a time. However, we approved the insertion of such language in theory of the
case instructions in Runion v. State,
19
requiring significance language in support of a
defense in a murder case based upon reasonably perceived danger from the decedent. And, as
stated, this requirement also now exists under Honeycutt in the context of sexual assault
prosecutions. Thus, the approval of significance instructions in Runion and Honeycutt sub
silentio embraces the dissenting view in Stroup. Finally, in our recent decision in Crawford,
we explicitly held that district courts, upon request, must include statements of the
significance of findings made in aid of theory of defense instructions.
20

[Headnote 4]
In summary, the rejection of Carter's theory of defense instruction, which contained
duty to acquit language, runs afoul of our recent embrace in Runion, Honeycutt and Crawford
of the principles advocated in the dissenting opinion in Stroup. In line with those decisions,
we now expressly reiterate that, if requested, theory of the case instructions must include the
significance of findings made under the theory posited.
21

Application of the current holdings to this case
[Headnote 5]
Carter accurately, but partially, stated the applicable doctrine in his theory of the case
instruction. Additionally, the district court's other instructions failed to include a complete
statement of that theory.
22
Accordingly, we are constrained to reverse Carter's conviction and
remand this matter for a new trial.
23
On remand, the district court must give the complete
Honeycutt instruction.
Investigator's interview with Carter
[Headnote 6]
The district court allowed the State to play enough of a taped interview with Carter to
confirm the victim's allegation that a sexual encounter occurred.
____________________

19
116 Nev. at 1050, 13 P.3d at 58.

20
121 Nev. at 753-54, 121 P.3d at 588-89 (2005) (requiring significance language in a heat-of-passion
instruction that, in a murder case, the jury's reasonable doubt as to whether the defendant acted in the heat of
passion implicated a reduced charge of manslaughter).

21
Our ruling today places the defendant on an equal footing with the State because standard instructions in
criminal cases generally articulate the State's theory of the case.

22
We wish to reiterate that the district court's rulings were consistent with the full majority views in
Honeycutt and Stroup. As noted, we have chosen to revisit that authority in this appeal.

23
The case against Carter depended largely upon the alleged victim's credibility, and the jury acquitted Carter
on one of two charges stemming
........................................
encounter occurred. Carter contends that the district court abused its discretion in excluding
the remaining portions of the interview because the entire tape was the best evidence
24
of the
conversation. Carter failed to challenge the district court's exclusion of the tape on best
evidence grounds. Accordingly, Carter failed to properly preserve this issue for appeal, and
the issue is waived.
25
Additionally, the best evidence rule is not implicated by the testimony
concerning the interview.
26

[Headnote 7]
At trial, the State lodged a timely hearsay objection to the remainder of the interview.
27
The State argued that Carter should not be allowed to present or elaborate upon his
substantive version of events through his own hearsay statement. Carter argued in turn that
the tape was admissible under exceptions to the rule against admission of hearsay, i.e., as a
statement against interest,
28
as a prior inconsistent statement of the police witness who
conducted the interview,
29
and as a statement of Carter's then-existing mental or emotional
or physical condition.
30
The district court found that Carter's taped statements, which
mentioned possible drug use, were not incriminating, and found no inconsistencies between
the testimony of the witness and statements on the tape. Finally, the district court determined
that the statements were made some months after the alleged sexual assault and, thus, could
not be admitted under the exception for statements of a defendant's then-existing mental,
emotional or physical condition. All of these findings were supported by substantial evidence.
We therefore conclude that the district court properly excluded the tape on hearsay grounds.
31

____________________
from the same interaction. Thus, we cannot conclude that the error below was harmless beyond a reasonable
doubt. See Chapman v. California, 386 U.S. 18 (1967).

24
See NRS 52.235 (providing that [t]o prove the content of a writing, recording or photograph, the original
writing, recording or photograph is required, except as otherwise provided in this title).

25
See McKenna v. State, 114 Nev. 1044, 1054, 968 P.2d 739, 746 (1998).

26
See U.S. v. Fagan, 821 F.2d 1002, 1008 n.1 (5th Cir. 1987); see also United States v. Gonzales-Benitez,
537 F.2d 1051, 1053-54 (9th Cir. 1976).

27
Hearsay is an out-of-court statement, offered to prove the truth of the matter asserted. See NRS 51.035.

28
See NRS 51.345.

29
See NRS 51.035(2)(a).

30
See NRS 51.105(1).

31
See Qualls v. State, 114 Nev. 900, 902, 961 P.2d 765, 766 (1998) (The trial court's determination to admit
or exclude evidence is to be given great deference and will not be reversed absent manifest error.); see also
People v. Edwards, 819 P.2d 436, 456-57 (Cal. 1991) (stating that a defendant in a crim-
........................................
Prior bad acts and character evidence
The district court admitted evidence that Carter used and provided illegal drugs to a
third party, as well as evidence that Carter was suspended from his employment. Carter
contends the evidence prejudiced his right to a fair trial.
[Headnotes 8, 9]
There is a general presumption that uncharged bad acts are not admissible.
32
Further,
NRS 48.045(2) forbids the admission of prior bad acts to show that a person acted in
conformity with charged conduct. Generally speaking, we require prescreening of such
evidence under Petrocelli v. State
33
to determine relevancy, whether the probative value of
such evidence is substantially outweighed by the danger of unfair prejudice, and whether it is
proven by clear and convincing evidence.
34
A trial court's failure to conduct a Petrocelli
hearing on the record may be cause for reversal, but reversal is not mandated absent any
prejudicial effect.
35

Prior drug involvement
[Headnotes 10-12]
Carter did not timely object to the admission of the State's evidence that he used
illegal drugs or supplied them to others. Thus, he failed to properly preserve this issue for
appeal. Beyond that, our review of the record reveals that Carter also elicited evidence of his
illegal drug use. A party who participates in an alleged error is estopped from raising any
objection on appeal.
36
We therefore conclude that the district court did not err in admitting
the evidence of illegal drug use.
Loss of Carter's job
[Headnote 13]
One of the police investigators testified that, when he and his colleagues went to arrest
Carter at his apartment, Mrs. Carter indicated that Carter was at work. In response to a
general follow-up question, the officer stated that he checked at Carter's place of employment
and learned that Carter had been suspended.
____________________
inal case may not introduce hearsay evidence for the purpose of testifying while avoiding cross-examination).

32
Tavares v. State, 117 Nev. 725, 731, 30 P.3d 1128, 1131 (2001).

33
101 Nev. 46, 692 P.2d 503 (1985) (validating prescreening procedures for admission of prior bad act
evidence under NRS 48.045(2)).

34

35
Qualls, 114 Nev. at 903, 961 P.2d at 767.

36
Jones v. State, 95 Nev. 613, 618, 600 P.2d 247, 250 (1979).
........................................
[Headnote 14]
A witness's spontaneous or inadvertent references to inadmissible material, not
solicited by the prosecution, can be cured by an immediate admonishment directing the jury
to disregard the statement.
37
Here, the district court sustained Carter's contemporaneous
objection to the evidence and admonished the jury accordingly. We conclude that these
measures cured any problem created as a result. Additionally, this claim of error is marginal
at best, given that the testimony supported the State's theory, discussed below, that Carter had
evaded apprehension by the authorities.
Flight instruction
[Headnotes 15, 16]
Carter contends that the district court erred in giving a flight instruction to the jury. It
is proper to instruct on flight where it is reasonable to infer flight from the evidence
presented.
38

Here, the State presented evidence that Carter's wife misled detectives as to his
whereabouts and that Carter concealed himself under a pile of clothes in his apartment when
he could hear the police searching for him. Accordingly, we conclude that sufficient evidence
supported the instruction and that the district court did not abuse its discretion in giving it.
CONCLUSION
Carter was entitled to a complete instruction on the issue of reasonable belief of
consent. Accordingly, we reverse the judgment of conviction entered below and remand this
matter for a new trial to be conducted in accord with this opinion.
Becker, C. J., Rose, Gibbons, Douglas, Hardesty and Parraguirre, JJ., concur.
____________________

37
Sterling v. State, 108 Nev. 391, 394, 834 P.2d 400, 402 (1992).

38
Hutchins v. State, 110 Nev. 103, 113, 867 P.2d 1136, 1143 (1994).
____________
.......................................
121 Nev. 771, 771 (2005) Canfora v. Coast Hotels & Casinos, Inc.
ALESSANDRO CANFORA and CHRISTINE M. CANFORA, Appellants, v.
COAST HOTELS AND CASINOS, INC., Respondent.
No. 41128
October 20, 2005
121 P.3d 599
Appeal from a post-judgment district court order adjudicating subrogation lien rights.
Eighth Judicial District Court, Clark County; Jackie Glass, Judge.
Insured and family, who had been reimbursed by employer-insurer for medical
expenses following accident, brought action against several defendants for injuries suffered in
that accident. After reaching settlement, insured and family brought motion to adjudicate
employer-insurer's lien rights. The district court ordered payment to employer-insurer, and
insured and wife appealed. The supreme court held that: (1) insureds' reimbursement of
employer-insurer for provided medical benefits did not render moot their appeal, (2)
insurance plan's subrogation clause unambiguously required insureds to reimburse
employer-insurer, (3) make-whole doctrine did not prohibit employer-insurer from obtaining
full reimbursement, and (4) wife was an intended third-party beneficiary of insurance plan
and thus was bound by plan's subrogation agreement.
Affirmed.
Kravitz Schnitzer & Sloane, Chtd., and David J. Feldman and Martin J. Kravitz,
Henderson, for Appellants.
Barry L. Lieberman, Las Vegas; Beckley Singleton, Chtd., and Daniel F. Polsenberg,
Las Vegas, for Respondent.
The supreme court reviews questions of law de novo.
Insureds' reimbursement of employer-insurer for provided medical benefits did not
render moot their appeal of judgment ordering such reimbursement following
settlement of claims against tortfeasors, although they did not file a supersedeas bond or
request a stay of execution.
Payment of a judgment made under coercion does not eliminate the right to appeal,
even if the party fails to file a supersedeas bond or seek a stay of execution of a
judgment.
4. Insurance; Labor and Employment.
Subrogation clause in insurance plan which provided that when an employee receives
the same benefits from the employer's medical insurance plan and a negligent third
party the employee must reimburse the plan for the benefits provided"
unambiguously required insured and his family, who received medical benefits from
employer-insurer following accident, to reimburse employer-insurer after they
recovered from tortfeasors for damages sustained in accident.
........................................
the plan for the benefits provided unambiguously required insured and his family, who
received medical benefits from employer-insurer following accident, to reimburse
employer-insurer after they recovered from tortfeasors for damages sustained in
accident.
5. Contracts.
Generally, when a contract is clear on its face, it will be construed from the written
language and enforced as written.
6. Contracts.
The court has no authority to alter the terms of an unambiguous contract.
7. Insurance.
The make-whole doctrine is a general equitable principle of insurance law that
prevents an insurance company from enforcing its subrogation rights before the insured
has been fully reimbursed for their losses.
8. Insurance.
Under the make-whole doctrine, an insured who has settled with a third-party
tortfeasor is liable to the insurer-subrogee only for the excess received over the total
amount of his loss.
9. Insurance.
Unless it is explicitly excluded, the make-whole doctrine operates as a default rule
that is read into insurance contracts.
10. Insurance.
The make-whole doctrine limits an insurance plan's subrogation rights where an
insured has not received compensation for his total loss, i.e., has not been made whole.
Make-whole doctrine did not prohibit employer-insurer from obtaining full
reimbursement from insured and family, who were left with $7,000,000 from
settlement with defendants following payment of attorney fees and costs; insurance plan
language did not explicitly exclude application of the make-whole doctrine, and
insureds were fully compensated following the settlement.
Employee's wife was an intended third-party beneficiary of employer's insurance plan
and thus was bound by plan's subrogation agreement which required employee and wife
to reimburse employer for medical costs out of accident settlement agreement with
defendants; wife was listed as an intended beneficiary of the plan, and all of her
medical expenses arising from the accident were covered by employer.
13. Contracts.
Generally, an intended third-party beneficiary is bound by the terms of a contract even
if she is not a signatory.
14. Contracts.
Whether an individual is an intended third-party beneficiary depends on the parties'
intent, gleaned from reading the contract as a whole in light of the circumstances under
which it was entered.
1

____________________

1
The Honorable A. William Maupin, Justice, voluntarily recused himself from participation in this matter.
........................................
OPINION
Per Curiam:
This is an appeal from a post-judgment district court order adjudicating the
subrogation lien of respondent Coast Hotels and Casinos, Inc. Appellants Alessandro Canfora
(Alex) and Christine M. Canfora (Chris) argue that (1) the subrogation agreement is
ambiguous, (2) the district court erred by not allowing an offset of attorney fees and costs as
established by this court in Breen v. Caesars Palace,
2
and (3) the district court erred by
enforcing the subrogation agreement against a nonsignatory beneficiary. We conclude that the
Canforas' arguments lack merit and, therefore, affirm the district court's order.
FACTS
On March 16, 1999, Alex and Chris, along with their daughter, Alexis, (collectively
the Canforas) stopped to refuel the family's 1994 Chevrolet Camaro at the Mobil service
station on Arroyo Grande Boulevard in Las Vegas. After stopping, Alexis asked Alex if she
could refuel the car. While exiting the car, Alexis slid across the cloth upholstered seats of the
Camaro, creating an electrostatic charge. As Alexis began refueling the car, this charge
sparked, igniting the gas and engulfing her in flames. Seeing his daughter on fire, Alex
attempted to extinguish the flames, but he too caught fire and was severely burned. Through
the help of a bystander, the fire was put out, but not before Alex suffered second degree
burns to his hands and arms [and] Alexis suffered second and third degree burns over fifty
percent (50%) of her body. Chris also aggravated a prior back injury while assisting Alexis.
At the time of the accident, Coast Hotels employed and provided medical insurance to
Alex and his designated beneficiaries, Chris and Alexis.
3
As a result of this incident, Coast
Hotels paid approximately $227,000 of the Canforas' medical expenses. The group benefit
plan sponsored by Coast Hotels contains a subrogation clause, which states:
If you receive benefits under this plan as a result of an injury caused by another party,
the plan has the right to seek repayment of those benefits from the party that caused
the injury.
____________________

2
102 Nev. 79, 715 P.2d 1070 (1986).

3
Coast Hotels owns and operates its own medical insurance plan referred to as Coast Benefits.
........................................
ment of those benefits from the party that caused the injury. In other words, the plan
subrogates or substitutes for you and assumes your right to seek recovery from the
negligent party. If you bring a liability claim against that person, benefits payable under
this plan must be included in the claim, and when the claim is settled, you must
reimburse the plan for the benefits provided. You are obligated to avoid doing anything
that would prejudice the plan's rights of subrogation and reimbursement, and you may
be required to sign and deliver documents to evidence or secure those rights.
On May 18, 1999, in connection with requesting payment of medical benefits, Alex,
on behalf of himself, Chris, and Alexis, also signed a reimbursement agreement. The
reimbursement agreement states:
This agreement will certify that I have filed a claim with Coast Benefits for covered
medical expenses on the basis of an injury . . . .
I have read and understand the paragraph SUBROGATION OF BENEFITS on page
47 in the Group Benefits Plan booklet (SUMMARY PLAN DESCRIPTION), and I
acknowledge that I am not entitled to coverage for medical expenses under the Coast
Resorts Plan where a third party payment is or will be made from another source for the
same benefits.
I hereby request that Coast Benefits process and pay the medical benefits incurred from
my injury with the full understanding that a third party may be liable for similar
benefits. In consideration of this payment, I agree to reimburse Coast Benefits all
amounts advanced toward my medical expenses from any proceeds resulting from
another payment, settlement or judgment.
After executing the reimbursement agreement, the Canforas, through the law offices
of Campbell & Williams, filed a personal injury complaint against several defendants.
Ultimately, the Canforas settled their suit for $12 million. Of this $12 million, the Canforas
paid over $5 million in attorney fees and costs. Following the settlement, Coast Hotels
contacted Campbell & Williams to obtain reimbursement for the medical expenses it paid on
behalf of the Canforas. In response to this request, the Canforas moved the district court to
adjudicate Coast Hotels' lien rights. While the court considered that motion, Campbell &
Williams paid Coast Hotels $100,000 and retained approximately $127,000 in a separate trust
account.
On February 26, 2003, the district court held a hearing on this motion. After
considering both parties' arguments, the district court upheld the subrogation clause and
reimbursement agreement and ordered Campbell & Williams to pay the remaining
$127,000 to Coast Hotels.
........................................
court upheld the subrogation clause and reimbursement agreement and ordered Campbell &
Williams to pay the remaining $127,000 to Coast Hotels. Alex and Chris timely appealed the
district court's order.
DISCUSSION
Standard of review
[Headnote 1]
In the present case, the facts are not in dispute and the court is faced only with legal
issues to consider. This court reviews questions of law de novo.
4

Mootness
[Headnote 2]
Coast Hotels argues that the offset issue is moot since Alex and Chris have fully
reimbursed the plan for the medical benefits provided. We disagree.
[Headnote 3]
Recently, in Wheeler Springs Plaza, LLC v. Beemon, we addressed the issue of
whether payment of a monetary judgment renders an appeal moot.
5
In Wheeler Springs, we
held that payment of a judgment only waives the right to appeal or renders the matter moot
when the payment is intended to compromise or settle the matter.
6
In other words,
payments made under coercion do not eliminate the right to appeal, even if the party fails to
file a supersedeas bond or seek a stay of execution of a judgment.
7

Here, after settlement of the underlying case, Coast Hotels contacted Campbell &
Williams to obtain reimbursement for the medical expenses paid on behalf of the Canforas. In
response to this request, the Canforas moved the district court to adjudicate Coast Hotels' lien
rights. After considering the parties' arguments, the district court found that Coast Hotels was
entitled to reimbursement and ordered Campbell & Williams to satisfy the lien. Nothing in
the record indicates that the Canforas intended to settle or compromise this matter. The fact
that the Canforas did not file a supersedeas bond or request a stay of execution of judgment is
irrelevant.
In light of Wheeler Springs, we conclude that the Canforas did not waive their right to
appeal the district court's order to satisfy Coast Hotels' subrogation lien.
____________________

4
Wheeler Springs Plaza, LLC v. Beemon, 119 Nev. 260, 263, 71 P.3d 1258, 1260 (2003).

5
119 Nev. at 262, 71 P.3d at 1259.

6
Id. at 265, 71 P.3d at 1261.

7
Id.
........................................
Coast Hotels' subrogation lien. Therefore, their appeal is not moot.
Ambiguity
[Headnote 4]
Alex and Chris argue that the subrogation clause and the reimbursement agreement
are ambiguous. We disagree.
[Headnotes 5, 6]
Generally, when a contract is clear on its face, it will be construed from the written
language and enforced as written.
8
The court has no authority to alter the terms of an
unambiguous contract.
9

In this case, the language in the subrogation clause could not be more plain. The
clause unequivocally provides that when an employee receives the same benefits from the
plan and a negligent third party, the recipient must reimburse the plan for the benefits
provided. Since the subrogation clause is unambiguous, the Canforas are bound by the terms
of the document. In addition, because the subrogation clause alone is sufficient to bind the
Canforas to repayment, it is unnecessary to rely on the language in the reimbursement
agreement.
Offset of attorney fees and costs
Alex and Chris argue that the district court erred by not allowing an offset of their
attorney fees and costs as set forth by this court in Breen v. Caesars Palace.
10
We disagree.
Breen analysis
In Breen, we held that, in the context of the workers' compensation statutes, an
employer may assert a subrogation interest in compensation paid to an employee by a
third-party tortfeasor where a work-related injury was caused under circumstances creating a
legal liability in a third party.
11
However, we were concerned about the ability of an
employer or a subrogee to recover from an employee or subrogor, via subrogation lien,
without proportionally sharing the cost of litigation.
12
With this in mind, we held that [i]t
would be unduly burdensome on the claimant to pay all of the expenses and by the same
token it would unjustly enhance the economic position of the carrier not to assess a
portion of the costs against it.
____________________

8
Ellison v. C.S.A.A., 106 Nev. 601, 603, 797 P.2d 975, 977 (1990).

9
Renshaw v. Renshaw, 96 Nev. 541, 543, 611 P.2d 1070, 1071 (1980).

10
102 Nev. 79, 715 P.2d 1070 (1986).

11
Id. at 81-82, 715 P.2d at 1071-72 (internal quotation marks omitted).

12
Id. at 85, 715 P.2d at 1074 (concluding that an employer or subrogee would be unjustly enriched if it were
permitted to assess its lien against the total proceeds of the settlement without bearing its share of litigation
expenses).
........................................
pay all of the expenses and by the same token it would unjustly enhance the economic
position of the carrier not to assess a portion of the costs against it.'
13
Therefore, we set
forth a formula by which a subrogee's recovery is offset by a portion of the litigation costs.
This court has only applied Breen to workers' compensation lien cases.
14
We
declined to extend the offset formula to situations where the employee's injury was not related
to the workplace.
15
Here, the district court correctly declined to apply Breen since the
injuries had no causal connection to the parties' employment relationship, and therefore the
principles behind the workers' compensation statutory scheme were not implicated. In
addition, as discussed below, the make-whole doctrine of insurance law makes an offset of
attorney fees and costs unwarranted in this case.
16

Make-whole doctrine
[Headnotes 7-10]
The make-whole doctrine is a general equitable principle of insurance law that
prevents an insurance company from enforcing its subrogation rights before the insured has
been fully reimbursed for their losses.
17
Under the doctrine, an insured who has settled with
a third-party tortfeasor is liable to the insurer-subrogee only for the excess received over the
total amount of his loss.
18
Unless it is explicitly excluded, the make-whole doctrine
operates as a default rule that is read into insurance contracts.
19
The make-whole doctrine
limits "a plan's subrogation rights where an insured has not received compensation for his
total loss," i.e.,
____________________

13
Id. at 84, 715 P.2d at 1073-74 (quoting Transport Indemnity Company v. Garcia, 552 P.2d 473, 476 (N.M.
Ct. App. 1976)).

14
This court determined that the Breen off-set formula did not apply to an award obtained under NRS
217.240, the Nevada Crime Fund's subrogation statute. State Victims of Crime Fund v. Barry, 106 Nev. 291,
292, 792 P.2d 26, 27 (1990). However, we noted that due to a specific amendment allowing for the state's
subrogation right to be diminished by litigation costs and attorney fees incurred in obtaining a recovery from a
third party, the Breen formula would apply to the Crime Fund in the future. Id. at 293 n.1, 792 P.2d at 27 n.1.

15
Id. at 293, 792 P.2d at 27.

16
Coast Hotels contends that any state law analysis under Breen is preempted by federal law since its benefits
plan qualifies as an employee benefit plan under ERISA. As Coast Hotels did not raise this issue below, it is
waived on appeal. Diamond Enters., Inc. v. Lau, 113 Nev. 1376, 1378, 951 P.2d 73, 74 (1997).

17
Barnes v. Independent Auto. Dealers of California, 64 F.3d 1389, 1394 (9th Cir. 1995).

18
Guy v. Southeastern Iron Workers' Welfare Fund, 877 F.2d 37, 39 (11th Cir. 1989).

19
Cagle v. Bruner, 112 F.3d 1510, 1520-21 (11th Cir. 1997).
........................................
doctrine limits a plan's subrogation rights where an insured has not received compensation
for his total loss, i.e., has not been made whole.
20

[Headnote 11]
Here, the insurance plan language did not explicitly exclude application of the
make-whole doctrine. After payment of attorney fees and costs, the Canforas were left with
$7 million from the settlement. There is no showing in the record that this amount did not
fully compensate the Canforas.
21
Therefore, Coast Hotels was entitled to full reimbursement
under the terms of the insurance plan.
Public policy
We have previously prohibited an insurer from asserting a subrogation lien against
medical payments of its insured as a matter of public policy.
22
In Maxwell v. Allstate
Insurance Co., we were concerned about the injured party recovering less than their full
damages.
23
However, we have held that where an insured receives a full and total recovery,
Maxwell and its public policy concerns are inapplicable.
24
We also noted that where an
employer is not required to provide insurance coverage by law, an offset provision does not
violate public policy.
25

Because the record does not show that the settlement did not fully compensate the
Canforas for their losses, there is no public policy concern to address in this case. In addition,
Coast Hotels, as a private employer, is not required by law to provide health insurance
benefits for its employees. Because the Canforas entered in to an unambiguous contract to
pay back the benefits provided, Coast Hotels is entitled to enforce this provision of the
insurance plan.
Nonsignatory beneficiaries
[Headnote 12]
Chris and Alex argue that the district court erred in binding Chris and Alexis, two
nonsignatories, to the terms of the insurance plan. We disagree.
____________________

20
Id. at 1521.

21
We reserve ruling on the application of the make-whole doctrine in those cases where the recovery amount
is inadequate to fully compensate the insured for their losses.

22
Maxwell v. Allstate Ins. Co., 102 Nev. 502, 506, 728 P.2d 812, 815 (1986).

23
Id.

24
Ellison v. C.S.A.A., 106 Nev. 601, 605, 797 P.2d 975, 978 (1990).

25
Continental Casualty v. Riveras, 107 Nev. 530, 533, 814 P.2d 1015, 1017 (1991).
........................................
[Headnotes 13, 14]
Because Alexis is not a named party on this appeal, we address solely whether Chris
was bound by the terms of the insurance plan. Generally, an intended third-party beneficiary
is bound by the terms of a contract even if she is not a signatory.
26
Whether an individual is
an intended third-party beneficiary, however, depends on the parties' intent, gleaned from
reading the contract as a whole in light of the circumstances under which it was entered.
27

In the instant case, Chris was an intended third-party beneficiary. In addition to being
listed as an intended beneficiary of the plan, all her medical expenses arising from the 1999
accident were covered by Coast Hotels. The fact that she did not sign the contract herself is
irrelevant. Thus, the district court did not err by binding Chris to the terms of the insurance
plan.
CONCLUSION
We hold that the Canforas did not waive their rights to appeal the district court's order
adjudicating Coast Hotels' subrogation lien. We also conclude that the district court properly
adjudicated Coast Hotels' subrogation lien rights. Additionally, the Canforas are bound to the
terms of the subrogation clause since the language is unambiguous. Further, the district court
correctly declined to apply Breen since the Canforas entered into an unambiguous contract to
pay back the plan and were also made whole by the settlement. Finally, the district court did
not err in binding Chris to the terms of the insurance plan since Chris was a named
beneficiary. Therefore, we affirm the district court's order.
____________
121 Nev. 779, 779 (2005) Blake v. State
ALFONSO MANUEL BLAKE, Appellant, v. THE STATE
No. 43699
October 20, 2005
121 P.3d 567
Appeal from a judgment of conviction, pursuant to a jury verdict, of two counts of
first-degree murder with the use of a deadly weapon and one count of attempted murder with
the use of a deadly weapon and from a sentence of death. Eighth Judicial District Court, Clark
County; Sally L. Loehrer, Judge.
The supreme court, Gibbons, J., held that: (1) State was entitled to cross-examine
defendant's expert psychologist regarding defendant's prior violent acts without first having
hearing to determine admissibility of such prior acts; {2) trial court's act of ordering
defendant at trial, before jury selection, to indicate whether he intended to proceed with
a plea of not guilty by reason of insanity did not prejudice trial counsel's ability to present
a defense and did not deprive defendant of his right to a fair trial; {3) trial court's failure
to give jury instruction regarding the consequences of a verdict of not guilty by reason of
insanity did not constitute reversible error; {4) trial court did not abuse its discretion in
denying defendant's challenge for cause against prospective juror who stated during voir
dire that based on media reports, he believed defendant committed the murders; {5) even
if trial court erred in denying defendant's challenge for cause, such error did not deprive
defendant of any constitutional rights by requiring him to utilize one of his peremptory
challenges; {6) prosecutor's comment during penalty phase, in which prosecutor
commented that death penalty would guarantee that defendant never killed again, was
not improper; and {7) failure to admonish jury to refrain from talking about trial and
avoid contact with media before each and every recess, as mandated by statute, did not
compel reversal of convictions.
____________________

26
County of Clark v. Bonanza No. 1, 96 Nev. 643, 648-49, 615 P.2d 939, 943 (1980); Gibbs v. Giles, 96
Nev. 243, 246-47, 607 P.2d 118, 120 (1980).

27
Jones v. Aetna Cas. and Sur. Co., 33 Cal. Rptr. 2d 291, 296 (Ct. App. 1994).
........................................
121 Nev. 779, 780 (2005) Blake v. State
dant's prior violent acts without first having hearing to determine admissibility of such prior
acts; (2) trial court's act of ordering defendant at trial, before jury selection, to indicate
whether he intended to proceed with a plea of not guilty by reason of insanity did not
prejudice trial counsel's ability to present a defense and did not deprive defendant of his right
to a fair trial; (3) trial court's failure to give jury instruction regarding the consequences of a
verdict of not guilty by reason of insanity did not constitute reversible error; (4) trial court did
not abuse its discretion in denying defendant's challenge for cause against prospective juror
who stated during voir dire that based on media reports, he believed defendant committed the
murders; (5) even if trial court erred in denying defendant's challenge for cause, such error did
not deprive defendant of any constitutional rights by requiring him to utilize one of his
peremptory challenges; (6) prosecutor's comment during penalty phase, in which prosecutor
commented that death penalty would guarantee that defendant never killed again, was not
improper; and (7) failure to admonish jury to refrain from talking about trial and avoid
contact with media before each and every recess, as mandated by statute, did not compel
reversal of convictions.
Affirmed.
Becker, C. J., with whom Hardesty, J., agreed, dissented in part.
[Rehearing denied December 8, 2005]
Steven S. Owens, Chief Deputy District Attorney, and Robert J. Daskas, Deputy District
1. Criminal Law.
State was entitled to cross-examine defendant's expert psychologist regarding
defendant's prior violent acts in capital murder trial without first having hearing to
determine the admissibility of such prior acts, where the evidence of the prior violent
acts was not admitted pursuant to statute allowing for admission of uncharged bad acts,
but was admitted to explore and challenge the basis of expert's opinion that defendant
suffered a brief psychosis at the time of the shootings, as expert in making such
opinion, relied on evidence indicating the defendant was not violent when drawing his
conclusions.
2. Criminal Law.
State's failure to request a limiting instruction prior to introducing evidence of capital
murder defendant's prior violent acts during cross-examination of defendant's expert
psychologist did not constitute reversible error, where on the morning after expert's
testimony concluded, the trial court admonished the jury that the prosecutor's
questions respecting the prior violent episodes were simply asked to determine the
background and knowledge of expert in making his diagnosis that defendant
suffered a brief psychosis at the time of the shootings.
........................................
121 Nev. 779, 781 (2005) Blake v. State
error, where on the morning after expert's testimony concluded, the trial court
admonished the jury that the prosecutor's questions respecting the prior violent episodes
were simply asked to determine the background and knowledge of expert in making his
diagnosis that defendant suffered a brief psychosis at the time of the shootings.
3. Criminal Law.
Record supported finding that State adequately notified capital murder defendant that
it intended to introduce evidence of defendant's prior violent acts during
cross-examination of defendant's expert psychologist; record revealed that State listed
defendant's criminal history in its notice of evidence in support of aggravating
circumstances, filed approximately four months prior to trial, and all of the events about
which expert was cross-examined, except for defendant's prior battery of his girlfriend,
were included in the notice.
4. Criminal Law.
Trial court's act of ordering capital murder defendant at trial, before jury selection, to
indicate whether he intended to proceed with a plea of not guilty by reason of insanity
was proper, even though defendant claimed he had complied with statutory
requirements allowing for such plea by reserving his right to plead not guilty by reason
of insanity; plea of not guilty by reason of insanity was statutorily required to be entered
not less than 21 days before date set for trial, and reserving right to enter plea was not
equivalent to entering a plea. NRS 174.035(4).
5. Criminal Law.
Trial court's act of ordering capital murder defendant at trial, before jury selection, to
indicate whether he intended to proceed with a plea of not guilty by reason of insanity
did not prejudice trial counsel's ability to present a defense and did not deprive
defendant of his right to a fair trial; jury received instructions regarding other defenses
and the lesser-included offenses of second-degree murder and voluntary manslaughter,
as well as insanity, and counsel addressed these theories in closing argument. NRS
194.010(4), (5).
6. Criminal Law.
Trial court's failure to give jury instruction regarding the consequences of a verdict of
not guilty by reason of insanity did not constitute reversible error in capital murder trial;
overwhelming evidence existed against a finding of insanity.
7. Criminal Law.
The refusal to give a jury an instruction that advises them of the consequences of a
verdict of not guilty by reason of insanity does not warrant automatic reversal; rather,
reversal is warranted in cases where the evidence against a finding of insanity is not
overwhelming, and the jury is not otherwise apprised of the consequences of a verdict
of not guilty by reason of insanity.
8. Criminal Law.
To be legally insane, a defendant must be in a delusional state preventing him from
knowing or understanding the nature of his act or from appreciating the wrongfulness
of his act.
9. Criminal Law.
Failure to object during trial generally precludes appellate consideration of an issue,
but the supreme court has the discretion to address an error if it was plain and affected
the defendant's substantial rights.
10. Criminal Law.
Normally, a defendant must show that an unobjected-to error was prejudicial in order
to establish that it affected substantial rights.
........................................
121 Nev. 779, 782 (2005) Blake v. State
Aggravating circumstance to first-degree murder charge that murder was committed
to avoid or prevent a lawful arrest does not require an imminent arrest, and the victim
need not be directly involved in effectuating an arrest. NRS 200.033(5).
Evidence was sufficient to support submission of the preventing a lawful arrest
aggravating circumstance to the jury during penalty phase of capital murder trial, and
jury's finding of such circumstance. NRS 200.033(5).
13. Jury.
Trial court did not abuse its discretion in denying capital murder defendant's challenge
for cause against prospective juror who stated during voir dire that based on media
reports, he believed defendant committed the murders; prospective juror did not express
that his opinion was unqualified, and after further colloquy between the prospective
juror and defense counsel and the prosecutor, prospective juror unequivocally stated
that he could set aside what he had seen and heard about the case, and prospective juror
twice stated that he could render a decision based on the evidence presented at trial.
NRS 16.050(1)(f).
14. Jury.
To hold that the mere existence of any preconceived notion as to the guilt or
innocence of an accused, without more, is sufficient to rebut the presumption of a
prospective juror's impartiality would be to establish an impossible standard; rather, it
is sufficient if the juror can lay aside his impression or opinion and render a verdict
based on the evidence presented in court. NRS 16.050(1)(f).
15. Jury.
A trial court enjoys broad discretion in ruling on challenges for cause. NRS
16.050(1)(f).
16. Criminal Law.
Even if trial court erred in denying capital murder defendant's challenge for cause
against prospective juror who stated during voir dire that based on media reports, he
believed defendant committed the murders, such error did not deprive defendant of any
constitutional rights by requiring him to utilize one of his peremptory challenges;
although defendant exhausted his peremptory challenges, he did not argue that any juror
actually empanelled was unfair or biased. U.S. Const. amends. 5, 6, 14; NRS
16.050(1)(f).
17. Jury.
Peremptory challenges are a means to achieve the end of an impartial jury, and if the
jury actually seated is impartial, the fact that a defendant had to use a peremptory
challenge to achieve that result does not mean that the defendant was denied his right to
an impartial jury.
Prosecutor's comments during penalty phase of capital murder prosecution, in which
prosecutor commented that the death penalty can be viewed as society's expression of
outrage, and punishment achieves a necessary goal in our society, were not
improper.
19. Criminal Law.
whether a prosecutor's statements so infected the proceedings with unfairness as to
make the results a denial of due process. U.S. Const. amend. 14.
........................................
121 Nev. 779, 783 (2005) Blake v. State
20. Criminal Law.
comments standing alone, for the statements or conduct must be reviewed in context.
A prosecutor in a death penalty case properly may ask the jury, through its verdict, to
set a standard or make a statement to the community.
22. Criminal Law; Sentencing and Punishment.
A prosecutor in a penalty phase hearing may properly discuss general theories of
penology such as the merits of punishment, deterrence and the death penalty.
Prosecutor's comment during penalty phase of capital murder trial, in which
prosecutor commented that death penalty would guarantee that defendant never killed
again, was not improper; prosecutor suggested that defendant could kill again but did
not argue that such a killing was certain or that the jury would bear responsibility for it.
Prosecutors may argue during capital case that a defendant poses a future danger
where the evidence supports such an argument, but prosecutors cannot argue that the
jury must either return a death sentence or take responsibility for the death of a future
victim.
25. Criminal Law.
Failure to admonish jury to refrain from talking about trial and avoid contact with
media before each and every recess, as mandated by statute, did not compel reversal of
capital murder conviction, where record was devoid of any evidence suggesting that
defendant was prejudiced by the trial court's omissions in this regard. NRS 175.401.
Record supported finding that State, in capital murder trial, complied with
requirement that it file in the trial court a notice of intent to seek the death penalty
within 30 days after the filing of an information or indictment. SCR 250(4)(c).
27. Criminal Law.
Trial court's instruction concerning the presumption of innocence was adequate in
capital murder trial, even though defendant claimed that the word until, as used in
part of instruction that stated that defendant is presumed innocent until the contrary is
proved, nullified the presumption of innocence by implying that his guilt would
eventually be proven beyond a reasonable doubt; when read as a whole, instruction did
not imply that defendant's guilt would eventually be proved beyond a reasonable doubt,
and the instruction also defined reasonable doubt, which plainly contemplated that guilt
might not be proven.
Evidence during penalty phase of capital murder trial supported finding of aggravating
circumstances that defendant had been convicted of a felony involving the use or threat
of violence to the person of another, that murder was committed to avoid or prevent a
lawful arrest, and that defendant had been convicted of more than one offense of
murder in the immediate proceeding. NRS 177.055(2).
Record supported finding jury did not act under an improper influence in imposing
death for first-degree murder convictions; record indicated that defendant deliberately
and systematically shot three young women in the head, yet jurors found three
mitigating circumstances, although the jury was not persuaded by defendant's
insanity defense, his mental and emotional state was found to be a mitigating
circumstance, and defendant's expression of remorse and the lack of evidence of
any long-standing plan to commit murder were considered mitigating
circumstances.
........................................
121 Nev. 779, 784 (2005) Blake v. State
indicated that defendant deliberately and systematically shot three young women in the
head, yet jurors found three mitigating circumstances, although the jury was not
persuaded by defendant's insanity defense, his mental and emotional state was found to
be a mitigating circumstance, and defendant's expression of remorse and the lack of
evidence of any long-standing plan to commit murder were considered mitigating
circumstances. NRS 177.055(2).
Sentence of death imposed on defendant following first-degree murder convictions
was not excessive; evidence showed that defendant executed two victims and tried his
level best to execute another victim, who survived only by amazing luck, and evidence
in mitigation carried little weight. NRS 177.055(2).
OPINION
Appellant Alfonso Manuel Blake shot Sophear Choy and Priscilla Van Dine to death
and shot but failed to kill Kim Choy. The jury found Blake guilty of two counts of
first-degree murder with the use of a deadly weapon and returned a sentence of death. The
jury also found Blake guilty of attempted murder with the use of a deadly weapon, and he was
sentenced to two consecutive terms of 96 to 240 months in prison.
Blake alleges a number of errors occurred in the district court, none of which, we
conclude, warrant relief. Accordingly, we affirm the judgment of conviction and sentence of
death.
FACTS
Guilt phase
In November 2002, Kim Choy moved to Las Vegas and began dancing at various
clubs in town to earn money for school. Eventually, her younger sister, Sophear Choy, joined
her and worked as a cocktail waitress and later danced at local clubs. While dancing at one
club, Sophear befriended Priscilla Van Dine, also known as Sheila. Also through her
employment, Sophear met Blake.
In late February or early March 2003, Kim, Sophear, and Sheila met Blake at a bar.
During the course of the evening, Blake told Kim that he had a house and would be willing to
rent three rooms to her, Sophear, and Sheila. He told Kim that he did not live at the house but
that three other women did. Regarding the rental arrangement, Blake informed Kim that
each of the women would pay $500 per month and he would pay for health insurance and a
gym membership. Kim told Blake that she would think about it.
........................................
121 Nev. 779, 785 (2005) Blake v. State
think about it. She and Blake agreed that in the meantime she, Sophear, and Sheila would
store some of their belongings in Blake's garage.
About two days later, Kim, Sophear, and Sheila dropped off their belongings at
Blake's house. However, feeling uncomfortable with the arrangement the women decided not
to move in. On March 3, 2003, Kim called Blake and informed him of their decision and
thanked him for allowing them to store their belongings in his garage. Blake was upset by this
news. Kim arranged to go over and retrieve their belongings the next night, around 11 p.m.
On March 4, 2003, Kim, Sheila, and two of their friends drove to Blake's house in two
vehicles, and without much incident they loaded their vehicles. Unable to load everything,
Kim told Blake that they would return for the remainder of their belongings that evening.
Sophear and Sheila accompanied Kim on the second trip. During the trip, Sophear had
a phone conversation with Blake. Kim heard Blake screaming and Sophear telling Blake not
to put their belongings on the street corner. When the women reached Blake's neighborhood,
they noticed some of their possessions on a street corner. The women began loading their
Denali SUV. Two cars soon pulled up behind the Denali. Blake rushed out of one of the
vehicles and nudged Sophear in the back. Blake's companions, Jinah Chung, Bonette Lim,
and Aileen Ramos, surrounded Sophear. Nervous that Sophear was about to be beaten, Kim
called 9-1-1 on her cell phone. Kim told the 9-1-1 operator that her sister was getting beat up
at the corner of Decatur and Lone Grove. Whenever Blake or his accomplices looked at her,
Kim pretended that she was on the phone with a girlfriend.
Blake began choking Sophear and hitting her head against boxes that had been loaded
into the Denali. She unsuccessfully attempted to flee. Kim saw Sophear drop to the ground,
and then she felt someone try to knock the phone out of her hand. When Kim turned around,
Lim tried to hit her and grab the phone. Next, Blake approached, snatched the phone from
Kim, and demanded to know to whom she was speaking.
Sophear, still slouched over, asked Kim to help her walk. Blake told Kim that we all
need to calm down and that we're going to take a walk and just calm down. Confused,
Kim asked Sophear what was wrong. Sophear said that she could not walk or breathe. Blake
ordered Kim to help Sophear walk. As Blake, Kim, Sophear, and Sheila walked toward an
open desert area, Blake ordered Chung, Lim, and Ramos to leave the area.
After walking some distance, Blake told Kim, Look what [Sophear] made me do, she
made me fucking stab her. Blake then pushed Kim and Sophear together and said, Okay,
that's far enough."
........................................
121 Nev. 779, 786 (2005) Blake v. State
enough. He grabbed Sheila's sweater, threw her down on the ground, and told the women to
get on their hands and knees. Blake donned a pair of gloves, pulled a silver revolver out of his
pocket, and said, I warned you I didn't want any problems. He shot Sheila and then Sophear
in the head. Blake pointed the gun at Kim, who waved her hand over her head and screamed.
Blake shot, and the bullet ricocheted off a ring on Kim's right hand and hit her in the head.
Blake shot Kim again in the head, and she lost consciousness.
When Kim woke up, Blake was gone. Kim stumbled across the desert area yelling for
help. She came to a police car and told the officer that she, her sister, and a friend had been
shot by Slinky (Blake's stage name). One of the officers ran to the area from which Kim
emerged and found Sophear dead. However, Sheila was still breathing. Paramedics
transported Sheila to the University Medical Center Trauma Center, where she succumbed to
her injuries a few hours later.
Meanwhile, Blake, although suffering from a stab wound, fled to Los Angeles with
Chung, Lim, and his friend Vandal, in Chung's Blazer. During the drive, Blake and Vandal
discussed Blake's alibi. Eventually the two concocted a story that Blake and Lim had been
kidnapped and dumped in the desert and that Chung picked them up. Blake communicated
the story to Ramos, who remained in Las Vegas. When they arrived in Los Angeles, Vandal
wrapped Blake's gun in a towel and threw it in the sewer. They also stopped to buy hand
cleaner. Blake scrubbed his hands with it and tossed the remainder down the sewer.
Eventually, Blake sought medical treatment for his injuries at a local hospital. He told
personnel that his name was Marcus Edwards and that he had been mugged and stabbed.
While at the hospital, Blake told a police officer that he was living with a friend in Los
Angeles and had been stabbed outside a club in Hollywood.
Blake received a phone call at the hospital. Chung heard him say, How could this be,
there's no possible way. I shot them in the head. Blake left the hospital the day after
checking in. He, Lim, and Chung drove to the San Bernardino, California, area and then
headed back to Las Vegas. At approximately 4 a.m. on March 8, 2003, police officers in
Barstow, California, who were on the lookout for Chung's Blazer, pulled the vehicle over
with weapons drawn. Blake, Lim, and Chung were arrested without incident.
Dr. Gary Telgenhoff, a forensic pathologist with the Clark County Coroner's Office,
performed autopsies on Sheila and Sophear. The autopsies revealed that both women had
sustained gunshot wounds to the head. Additionally, there were a number of sharp force cuts
and stabs on Sophear's left shoulder and back, behind her right ear, above her right breast,
near her armpit, and on her right arm and hand.
........................................
121 Nev. 779, 787 (2005) Blake v. State
hind her right ear, above her right breast, near her armpit, and on her right arm and hand. The
cuts on her hands were consistent with defensive wounds. Dr. Telgenhoff concluded that the
cause of the deaths of both women was gunshot wounds to the head and that the manner of
death was homicide.
Blake called Arlene Oliver, his sister, to testify in his defense. Oliver stated that Blake
appeared at her home around 3 a.m. on March 5, 2003. She testified that Blake appeared
irrational and delusional. Blake told Oliver that he needed a ride. When he got into Oliver's
car, he hid and appeared afraid, as if someone was after him. Oliver testified that she dropped
off Blake in a parking lot on Valley View Road.
Dr. Mortillaro, a psychologist, also testified in Blake's defense. Dr. Mortillaro stated
that he had administered a series of tests and spent several hours interviewing Blake. He also
interviewed Oliver, Blake's brother, Anthony Fleming, and Ramos. Dr. Mortillaro opined that
Blake appeared to have a compromised mental state at the time of the killings, meaning that
he would have difficulty determining right from wrong and thinking logically. He further
testified that Blake exhibited elements of antisocial and histrionic behavior and narcissism.
Dr. Mortillaro testified that, based on his interviews, when the killings occurred Blake
exhibited characteristics of a brief psychotic disorder in which he was confused, delusional,
and disconnected from reality and exercised poor judgment. Dr. Mortillaro also opined that
Blake suffered from post-traumatic stress disorder (PTSD) resulting from the stab wounds he
received.
On cross-examination, Dr. Mortillaro stated that his reconstruction of Blake's mental
state on March 5, 2003, was not dependent upon the tests he administered but upon the
accuracy of the information Oliver, Fleming, and Ramos provided. He acknowledged that the
three told him that Blake was not violent and that Ramos told him that the shootings were out
of character for Blake. However, Dr. Mortillaro acknowledged that he was unaware of a
number of prior violent episodes involving Blake.
In rebuttal, the State's expert psychiatrist, Dr. Thomas Bittker, disagreed with Dr.
Mortillaro's diagnosis that Blake suffered a brief reactive psychosis and stated that Dr.
Mortillaro's opinion did not correspond to any professional standard or to Dr. Bittker's
clinical experience. Dr. Bittker also testified that Blake's PTSD resulted from the homicides
themselves and not from being stabbed. Dr. Bittker concluded based upon a reasonable
degree of medical certainty that Blake understood the nature of his actions during the early
morning hours of March 5, 2003.
The jury found Blake guilty of the first-degree murders of Sophear and Sheila and the
attempted murder of Kim, all with the use of a deadly weapon.
........................................
121 Nev. 779, 788 (2005) Blake v. State
Penalty phase
The State alleged three aggravating circumstances with respect to both murders: (1)
Blake had been convicted of a felony (the attempted murder of Kim) involving the use or
threat of violence to the person of another; (2) the murder was committed to avoid or prevent
a lawful arrest; and (3) Blake had been convicted of more than one offense of murder in the
immediate proceeding. The State presented 13 witnesses at the penalty hearing. Several of
these witnesses testified about Blake's prior violent outbursts, including: an incident in 1988
in which Blake hit a 17-year-old boy on the head with a baseball bat, resulting in a
misdemeanor conviction of battery with substantial bodily harm; another 1988 incident in
which he punched a female motorist twice in the face; a 1989 incident in which Blake
stabbed another 17-year-old boy twice, resulting in a misdemeanor conviction for disorderly
conduct; a 1992 incident in which Blake hit his girlfriend, threw her to the ground, and beat
her; a 1992 incident in which Blake disengaged the fuel line of his girlfriend's car and placed
it next to a wire that was connected to the positive post of the battery, resulting in a
conviction for malicious destruction of personal property; and a 1992 incident in which he
threatened to kill a man with a butcher knife. Chung also testified that Blake beat her on
several occasions after she had undergone breast augmentation surgery at his suggestion.
There was also testimony respecting Blake's misdemeanor conviction for conspiracy
to possess a controlled substance after Blake was apprehended with approximately 164 grams
of marijuana and $1000 on his person. Blake also suffered a felony conviction for possession
of a forged passport and was convicted of two misdemeanor counts of soliciting prostitution.
Several family members, including Kim, testified about the loss of their loved ones.
In mitigation, Blake presented several witnesses on his behalf. His mother, sister,
brother, and niece testified that Blake was a caring, happy person who loved his family. They
further testified that they would benefit from a continuing relationship with Blake.
Blake spoke in allocution, stating that there were no words to express his remorse and
that he prayed that God would somehow ease the deep pain that he had caused. He also
apologized to the family and friends of his victims and to the court and the district attorneys.
The jury found the three aggravating circumstances alleged by the State in each of the
murders. The jury also found three mitigating circumstances: Blake's remorse; his mental,
emotional, or physical state at the time of the incident; and no evidence of a long-standing
plan to commit murder. However, the jury determined that any mitigating circumstances
were insufficient to outweigh the aggravating circumstances and returned a sentence of
death.
........................................
121 Nev. 779, 789 (2005) Blake v. State
mined that any mitigating circumstances were insufficient to outweigh the aggravating
circumstances and returned a sentence of death.
DISCUSSION
Cross-examination of Dr. Mortillaro
[Headnote 1]
Blake argues that the State's cross-examination of Dr. Mortillaro respecting Blake's
prior violent acts without the benefit of a Petrocelli
1
hearing was reversible error. We
disagree.
Dr. Mortillaro opined that Blake exhibited characteristics of a brief psychotic disorder
on March 5, 2003, triggered by a traumatic event, i.e., being stabbed. He based his opinion as
to Blake's mental state at that time on his interviews with Blake, Oliver, Fleming, and Ramos.
Dr. Mortillaro testified that Oliver described Blake as soft-spoken, mellow, and not inclined
to violence. He related that Fleming told him that harming others was not in Blake's
character. And Ramos informed him that the shooting was out of character, as [Blake] isn't
the type of person who has violent tendencies. Dr. Mortillaro repeatedly stated that his
opinion was based on the veracity of those he interviewed and acknowledged that if he were
provided incomplete, inaccurate, or invalid information, his diagnosis might be invalid.
On cross-examination, the State sought to challenge Dr. Mortillaro's premise that
Blake was not violent by cross-examining him on his lack of knowledge of a number of
earlier violent outbursts by Blake. Specifically, the prosecutor queried Dr. Mortillaro about
the following incidents: in 1988 Blake hit a man with a baseball bat and broke his nose; also
in 1988 Blake argued with and punched a woman motorist twice in the face; in 1989 after
agreeing to fight a man, Blake stabbed him twice; in 1992 Blake detached the gas line of his
ex-girlfriend's car and laid a wire connected to the car's battery next to it; also in 1992 Blake
threatened to kill a man with a knife; and again in 1992 he punched his girlfriend in the face,
threw her down on the ground, and beat her. Dr. Mortillaro agreed that he absolutely would
have preferred to have had this information prior to his diagnosis.
We conclude that Blake's reliance on Petrocelli is misplaced. The requirements of
Petrocelli do not apply here because the challenged evidence in this case was not admitted
pursuant to NRS 48.045(2). Rather, the State confronted Dr. Mortillaro with specific
instances of Blake's past violent behavior to explore and challenge the basis of his opinion
that Blake suffered a brief psychosis at the time of the shootings.
____________________

1
Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985), modified on other grounds by Sonner v. State, 112
Nev. 1328, 1334, 930 P.2d 707, 711-12 (1996), and superseded by statute on other grounds as stated in
Thomas v. State, 120 Nev. 37, 45, 83 P.3d 818, 823 (2004).
........................................
121 Nev. 779, 790 (2005) Blake v. State
cific instances of Blake's past violent behavior to explore and challenge the basis of his
opinion that Blake suffered a brief psychosis at the time of the shootings. Reference to these
prior violent acts constituted proper cross-examination. It is a fundamental principle in our
jurisprudence to allow an opposing party to explore and challenge through cross-examination
the basis of an expert witness's opinion.
2

Notably, defense counsel argued at trial that proceeding on an insanity defense did not
place Blake's character at issue, unless the doctor says that [he] had to rely on [Blake's]
character to come to [his] conclusions. The record demonstrates that Dr. Mortillaro clearly
relied on evidence indicating that Blake was not violent. And there is no evidence suggesting
that the State lacked a good-faith basis for its query of Dr. Mortillaro.
3

[Headnote 2]
Blake also argues that the State's failure to request a limiting instruction prior to
introducing the prior violent acts constitutes reversible error. However, on the morning after
Dr. Mortillaro's testimony concluded, the district court admonished the jury that the
prosecutor's questions respecting the prior violent episodes were simply asked to determine
the background and knowledge of Dr. Mortillaro in making his diagnosis. Blake fails to
explain what additional instruction he desired the jury to receive. Accordingly, we deny relief
on this basis.
[Headnote 3]
Blake also asserts that the State never notified him that it intended to introduce the
prior violent acts. However, the record reveals that the State listed Blake's criminal history in
its notice of evidence in support of aggravating circumstances, filed approximately four
months prior to trial. All of the events about which Dr. Mortillaro was cross-examined,
except Blake's 1992 battery of his girlfriend, were included in the notice. Blake does not
explain what prejudice resulted from the alleged inadequate notice, and the record reveals
none.
____________________

2
See Anderson v. Berrum, 36 Nev. 463, 469, 136 P. 973, 975-76 (1913) (In this, and in most jurisdictions in
this country, the cross-examination must be limited to matters stated in the examination in chief and questions to
test the accuracy, veracity, and credibility of the witness. . . . On cross-examination it is competent to call out
anything to modify or rebut the conclusion or inference resulting from the facts stated by the witness on his
direct examination.). See generally Singleton v. State, 90 Nev. 216, 219, 522 P.2d 1221, 1222-23 (1974)
(holding that the credibility of a source used by an expert witness in arriving at an opinion is an underlying fact
properly pursued in cross-examination).

3
Blake also argues that the district court erred in denying his motion for new trial based on the State's alleged
improper cross-examination of Dr. Mortillaro. Based on the foregoing discussion, we conclude that the district
court did not err in denying Blake's motion.
........................................
121 Nev. 779, 791 (2005) Blake v. State
prejudice resulted from the alleged inadequate notice, and the record reveals none. Therefore,
we deny relief on this basis.
Entry of plea of not guilty by reason of insanity
[Headnote 4]
Blake claims that the district court committed constitutional error by forcing him to
plead not guilty by reason of insanity. We disagree.
Twenty-one days before the trial began Blake filed a reservation of his right to plead
not guilty by reason of insanity pursuant to NRS 194.010(3). At trial, just before jury
selection, the State requested the district court to inquire whether Blake intended to plead not
guilty by reason of insanity so that the State could arrange for its expert psychiatrist to
evaluate Blake. Defense counsel responded that forcing him to enter a plea of not guilty by
reason of insanity at that time deprived him of other defenses, particularly those set forth in
NRS 194.010(4) and (5).
The district court disagreed and informed counsel that Blake had to indicate whether
he intended to proceed with a plea of not guilty by reason of insanity but that he would be
allowed to argue the defenses set forth in NRS 194.010. Blake then entered a plea of not
guilty by reason of insanity.
Blake argues that the district court's ruling was erroneous because he complied with
the statutory requirements of NRS 174.035(4) by reserving his right to plead not guilty by
reason of insanity. We disagree. NRS 174.035(4) clearly requires that such a plea be entered
not less than 21 days before the date set for trial. Reserving the right to enter a plea is not
equivalent to entering a plea. Therefore, Blake actually received an additional 21 days to
decide his plea without being required to show good cause.
4

[Headnote 5]
We further consider unpersuasive Blake's argument that compelling him to enter a
plea of not guilty by reason of insanity prejudiced his counsel's ability to present a defense
and deprived him of his constitutional right to a fair trial. The jury received instructions
regarding self-defense, defenses pursuant to NRS 194.010(4) and (5), and the lesser-included
offenses of second-degree murder and voluntary manslaughter, as well as insanity.
Additionally, counsel addressed these theories in closing argument. Accordingly, we deny
relief on this basis.
5

____________________

4
See NRS 174.035(4).

5
Blake also argued that the district court erred in denying his motion for new trial based on this claim. We
conclude that Blake's contention lacks merit.
........................................
121 Nev. 779, 792 (2005) Blake v. State
Instruction on consequences of a verdict of not guilty by reason of insanity
[Headnote 6]
Blake requested the district court to explain to the jury the consequences of a verdict
of not guilty by reason of insanity, i.e., such a verdict would result in Blake being taken into
protective custody and transported to a forensic facility for evaluation as to whether he is
mentally ill and subject to commitment to a mental facility.
6
The district court denied
counsel's request, and Blake contends that this ruling was reversible error.
[Headnote 7]
We have held that the district court should advise the jury of the consequences of a
verdict of not guilty by reason of insanity.
7
However, the refusal to give such an instruction
does not warrant automatic reversal.
8
Rather, reversal is warranted in cases where the
evidence against a finding of insanity is not overwhelming, and the jury is not otherwise
apprised of the consequences of a verdict of not guilty by reason of insanity.
9

The district court should have advised the jury of the consequences of a verdict of not
guilty by reason of insanity. We conclude, however, that Blake was not prejudiced by this
omission. There was overwhelming evidence against a finding of insanity. Dr. Mortillaro
testified that his opinion that Blake likely experienced a compromised mental state at the time
of the killings was based on the veracity of the statements he received from Oliver, Fleming,
and Ramos that Blake was not a violent person. However, the State's cross-examination
severely undermined the credibility of Dr. Mortillaro's opinion by raising a host of prior
violent actions by Blake of which Dr. Mortillaro was unaware when he formed his opinion.
Dr. Mortillaro admitted that this information would have affected his opinion had he been
aware of it. Additionally, the jury received conflicting expert evidence regarding Blake's
mental state through Dr. Bittker's testimony.
The record also reveals other evidence demonstrating Blake's sanity. After initially
stabbing Sophear, he ordered Chung, Ramos, and Lim to leave the scene. He then escorted
Kim, Sheila, and Sophear into the desert, reflecting some premeditation. He ordered them to
get on their hands and knees, pulled out a revolver, and shot each of them in the head.
____________________

6
See NRS 175.539.

7
E.g., Harris v. State, 106 Nev. 667, 670, 799 P.2d 1104, 1106 (1990); Bean v. State, 81 Nev. 25, 33, 398
P.2d 251, 256 (1965); Kuk v. State, 80 Nev. 291, 299-300, 392 P.2d 630, 634 (1964).

8
Bean, 81 Nev. at 33, 398 P.2d at 256.

9
Harris, 106 Nev. at 670, 799 P.2d at 1106.
........................................
121 Nev. 779, 793 (2005) Blake v. State
them to get on their hands and knees, pulled out a revolver, and shot each of them in the head.
Approximately five minutes elapsed between the altercation resulting in knife wounds to
Sophear and Blake and the shootings, allowing Blake a period of reflection before the
shootings. He then fled, making his way to Los Angeles. During the trip, he disposed of the
gun and developed an alibi. While seeking medical assistance for his stab wounds, he lied to
hospital personnel and police about his identity and the circumstances of his injury.
[Headnote 8]
To be legally insane, a defendant must be in a delusional state preventing him from
knowing or understanding the nature of his act or from appreciating the wrongfulness of his
act.
10
The record here reveals that the evidence against a finding of insanity was
overwhelming. We conclude that Blake suffered no prejudice from the district court's
erroneous refusal to advise the jury of the consequences of a verdict of not guilty by reason of
insanity. Therefore, we deny relief on this basis.
Preventing-a-lawful-arrest aggravating circumstance
[Headnotes 9, 10]
Blake contends that the district court erred in denying his motion to strike the
preventing-a-lawful-arrest aggravating circumstance.
11
However, the record does not reveal
such a motion or any indication that Blake objected to the submission of this aggravator to the
jury. Failure to object during trial generally precludes appellate consideration of an issue,
but this court has the discretion to address an error if it was plain and affected the
defendant's substantial rights.
12
Normally, the defendant must show that an error was
prejudicial in order to establish that it affected substantial rights.
13

[Headnote 11]
Blake argues that a more restrictive definition of this aggravating circumstance should
have been applied to his case. He acknowledges that pursuant to Cavanaugh v. State
14
and
Evans v.
____________________

10
Finger v. State, 117 Nev. 548, 576, 27 P.3d 66, 84-85 (2001).

11
See NRS 200.033(5) (providing that a first-degree murder is aggravated if it was committed to avoid or
prevent a lawful arrest or to effect an escape from custody).

12
Gallego v. State, 117 Nev. 348, 365, 23 P.3d 227, 239 (2001); see NRS 178.602 (Plain errors or defects
affecting substantial rights may be noticed although they were not brought to the attention of the court.).

13
Gallego, 117 Nev. at 365, 23 P.3d at 239.

14
102 Nev. 478, 729 P.2d 481 (1986).
........................................
121 Nev. 779, 794 (2005) Blake v. State
State,
15
this aggravator does not require an imminent arrest, and the victim need not be
directly involved in effectuating an arrest. However, Blake encourages this court to overrule
Cavanaugh and Evans and apply a more restrictive interpretation. He argues that the principle
of ejusdem generis requires that the items in the statutory listing be interpreted in a manner
consistent with or recognizing their commonality. Therefore, according to Blake, since
escape from custody necessarily involves contact with those enforcing confinement or
custody and the ending of that contact, avoiding or preventing an arrest should likewise be
interpreted as involving contact with those involved in effectuating an imminent arrest.
However, even assuming that commonality between the two prongs of NRS 200.033(5) is
required, escape from custody does not necessarily require any contact with persons enforcing
that custody.
Blake also relies on this court's decision in McConnell v. State, in which we stated:
We conclude that although the felony aggravator of NRS 200.033(4) can theoretically
eliminate death eligibility in a few cases of felony murder, the practical effect is so
slight that the felony aggravator fails to genuinely narrow the death eligibility of felony
murderers and reasonably justify imposing death on all defendants to whom it applies.
16

Blake suggests that in his case, like McConnell, the theoretical application of the
preventing-a-lawful-arrest aggravating circumstance may constitutionally narrow the class of
persons eligible for the death penalty but that the practical effect is so slight as to render the
aggravator unconstitutional. He asserts that virtually every murder case involves some
antecedent crime that provides a motive to avoid or prevent an arrest for that crime by
murdering the victim. Therefore, Blake argues that although theoretically a case could be
envisioned where such preliminary crimes do not exist, such crimes virtually always exist as a
practical matter.
Blake's reliance on McConnell is unpersuasive. The concerns expressed by this court
in McConnell are not present in Blake's case. In McConnell, this court had to determine, in
cases where a first-degree murder conviction is based on felony murder, whether the State
may also allege the felony murder's predicate felony as an aggravator.
17
We concluded that
dual use of the felony in this way was constitutionally impermissible.
18
Here, the possible
antecedent crime that Blake speaks of does not involve any such dual use.
____________________

15
112 Nev. 1172, 926 P.2d 265 (1996).

16
120 Nev. 1043, 1069, 102 P.3d 606, 624 (2004).

17
Id. at 1062-69, 102 P.3d at 620-24.

18
Id. at 1069, 102 P.3d at 624.
........................................
121 Nev. 779, 795 (2005) Blake v. State
[Headnote 12]
We decline Blake's invitation to depart from our prior holdings on this issue. Strong
evidence supported the submission of the preventing-a-lawful-arrest aggravating
circumstance to the jury and the jury's finding of the aggravator. Therefore, we deny relief on
this basis.
Challenge for cause of prospective juror
[Headnote 13]
Blake argues that the district court erroneously denied his challenge for cause against
a prospective juror, depriving him of his right to due process of law in violation of the Fifth,
Sixth, and Fourteenth Amendments. Specifically, he contends that the venire-member's
answers to voir dire questions demonstrated that he had already determined Blake's guilt. We
disagree.
[Headnotes 14, 15]
NRS 16.050(1)(f) provides that a challenge for cause may be taken when a
prospective juror has formed or expressed an unqualified opinion or belief as to the merits of
the action, or the main question involved therein; but the reading of newspaper accounts of
the subject matter before the court shall not disqualify a juror either for bias or opinion.
Clearly, a qualified juror need not be completely unaware of the facts and issues of the case at
hand. To hold that the mere existence of any preconceived notion as to the guilt or
innocence of an accused, without more, is sufficient to rebut the presumption of a prospective
juror's impartiality would be to establish an impossible standard.
19
Rather, [i]t is sufficient
if the juror can lay aside his impression or opinion and render a verdict based on the evidence
presented in court.
20
Because such rulings involve factual determinations, the district court
enjoys broad discretion in ruling on challenges for cause.
21

The veniremember stated that based on media reports, he believed that Blake
committed the murders. However, he did not express that his opinion was unqualified.
After further colloquy between the veniremember and defense counsel and the prosecutor, the
veniremember unequivocally stated that he could set aside what he had seen and heard about
the case, and he twice stated that he could render a decision based on the evidence presented
at trial.
22
Based on the record, we conclude that the district court did not abuse its
discretion in denying Blake's challenge for cause against the prospective juror.
____________________

19
Irvin v. Dowd, 366 U.S. 717, 723 (1961).

20
Id.

21
Leonard v. State, 117 Nev. 53, 67, 17 P.3d 397, 406 (2001).

22
See Snow v. State, 101 Nev. 439, 445-46, 705 P.2d 632, 637-38 (1985).
........................................
121 Nev. 779, 796 (2005) Blake v. State
not abuse its discretion in denying Blake's challenge for cause against the prospective juror.
[Headnotes 16, 17]
Nonetheless, even assuming error, we reject Blake's contention that the district court's
denial of his challenge for cause deprived him of any constitutional rights by requiring him to
utilize one of his peremptory challenges. Peremptory challenges are a means to achieve the
end of an impartial jury.
23
If the jury actually seated is impartial, the fact that a defendant
had to use a peremptory challenge to achieve that result does not mean that the defendant was
denied his right to an impartial jury.
24
Although Blake exhausted his peremptory challenges,
he does not argue that any juror actually empanelled was unfair or biased. Therefore, even if
the district court improperly denied his challenge for cause, because Blake exercised a
peremptory challenge to remove the veniremember and because he has not shown that any
juror actually empanelled was unfair or biased, we conclude that he has not demonstrated any
error of constitutional dimension.
Prosecutorial misconduct during penalty phase
[Headnotes 18-20]
Blake claims that the State committed prosecutorial misconduct during the penalty
phase of his trial. To determine if prejudicial prosecutorial misconduct occurred, the relevant
inquiry is whether a prosecutor's statements so infected the proceedings with unfairness as to
make the results a denial of due process.
25
However, 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.
26

[Headnotes 21, 22]
First, Blake contends that the prosecutor improperly commented on, over his
objection, community standards with statements such as the following: The death penalty
can be viewed as society's expression of outrage, and [p]unishment achieves a necessary
goal in our society. We conclude that these statements were not improper. [A] prosecutor in
a death penalty case properly may ask the jury, through its verdict, to set a standard or make a
statement to the community."
____________________

23
Ross v. Oklahoma, 487 U.S. 81, 88 (1988).

24
Id.; see also Hernandez v. State, 118 Nev. 513, 533-34 & n.53, 50 P.3d 1100, 1114 & n.53 (2002).

25
Thomas v. State, 120 Nev. 37, 47, 83 P.3d 818, 825 (2004) (citing Darden v. Wainwright, 477 U.S. 168,
181 (1986)).

26
United States v. Young, 470 U.S. 1, 11 (1985); see Hernandez, 118 Nev. at 525, 50 P.3d at 1108; Steese v.
State, 114 Nev. 479, 496, 960 P.2d 321, 332 (1998).
........................................
121 Nev. 779, 797 (2005) Blake v. State
to the community.
27
And a prosecutor may properly discuss general theories of penology
such as the merits of punishment, deterrence and the death penalty.
28

[Headnote 23]
Next, Blake asserts that the following argument improperly commented on his
propensity to commit further crimes:
What will the imposition of the death penalty do in this case? Will it bring back
Sophear or [Sheila]? No. Will it bring an absolute end to violence in our society? No.
Could the imposition of the death penalty save innocent life in the future by the
message it sends? Quite possibly. Will the imposition of the death penalty guarantee
that Alfonso Blake never kills again? Most certainly.
Counsel did not object to these comments. Absent objection, generally an appellant must
establish that the assigned error was plain and affected his substantial rights.
29
However,
NRS 177.055(2)(d) requires this court to consider whether a death penalty has been imposed
under the influence of passion, prejudice or any arbitrary factor. Therefore, we consider
whether the challenged remarks were improper and influenced the jury's sentencing decision.
30

[Headnote 24]
Prosecutors may argue that a defendant poses a future danger where the evidence
supports such an argument, but prosecutors cannot argue that the jury must either return a
death sentence or take responsibility for the death of a future victim. As we have explained,
[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. What are prohibited are arguments
which, directly or by implication, place responsibility on the jury for the deaths of unknown
future victims.
31
We have condemned, for example, a prosecutor's argument to jurors that
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 defendant or for the defendant's future
victim.
32

____________________

27
Williams v. State, 113 Nev. 1008, 1020, 945 P.2d 438, 445 (1997); see Schoels v. State, 114 Nev. 981,
987, 966 P.2d 735, 739 (1998), rehearing granted on other grounds, 115 Nev. 33, 975 P.2d 1275 (1999).

28
Witter v. State, 112 Nev. 908, 924, 921 P.2d 886, 897 (1996); see Evans v. State, 117 Nev. 609, 632, 28
P.3d 498, 514 (2001).

29
See NRS 178.602; Gallego, 117 Nev. at 365, 23 P.3d at 239.

30
Butler v. State, 120 Nev. 879, 900, 102 P.3d 71, 85 (2004).

31
Schoels, 114 Nev. at 988-89, 966 P.2d at 740; see also Castillo v. State, 114 Nev. 271, 279, 956 P.2d 103,
109 (1998).

32
Castillo, 114 Nev. at 279-80, 956 P.2d at 109.
........................................
121 Nev. 779, 798 (2005) Blake v. State
We conclude that the challenged comments here were proper. The prosecutor
suggested that Blake could kill again but did not argue that such a killing was certain or that
the jury would bear responsibility for it.
Failure to admonish the jury prior to all recesses of the district court
[Headnote 25]
Blake contends that he was denied his right to a fair trial because the district court
failed to admonish the jury pursuant to NRS 175.401 prior to every recess.
33
The record
reveals six occasions on which the court did not provide the full statutory admonishment and
only reminded the jury that the same admonishment applies. Four of these were described
in the record as brief adjournments. The other two were a noon recess and an afternoon
recess, and the record does not indicate their length. The district court fully admonished the
jury in accordance with NRS 175.401 before all other recesses.
As we did in Bollinger v. State, we stress the importance of fully admonishing the jury
before each and every recess in accordance with the mandatory provisions of NRS 175.401.
34
Therefore, the district court erred in failing to do so. However, the record is devoid of any
evidence suggesting that Blake was prejudiced by the district court's omissions in this regard.
Accordingly, we deny relief on this basis.
Other matters
[Headnote 26]
Blake claims that he was misled into waiving his right to a preliminary hearing
because the State did not file a notice of intent to seek death or reserve its right to do so when
it filed the complaint in this case, as was the State's purported customary practice.
____________________

33
NRS 175.401 provides:
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:
1. Converse among themselves or with anyone else on any subject connected with the trial;
2. Read, watch or listen to any report of or commentary on the trial or any person connected with the
trial by any medium of information, including without limitation newspapers, television and radio; or
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.

34
111 Nev. 1110, 1114, 901 P.2d 671, 674 (1995); see also State v. Lewis, 59 Nev. 262, 91 P.2d 820 (1939).
........................................
121 Nev. 779, 799 (2005) Blake v. State
in this case, as was the State's purported customary practice.
35
We conclude that this claim
lacks merit. SCR 250(4)(c) clearly provides that the State must file in the district court a
notice of intent to seek the death penalty within 30 days after the filing of an information or
indictment. The State complied with this requirement, and there is no evidence in the record
that the State somehow manipulated or tricked Blake into waiving his right to a preliminary
hearing. Accordingly, we deny relief on this basis.
Blake also argues that the district court erred in denying his pretrial motion to prohibit
the State from using its peremptory challenges to exclude jurors who express concerns about
capital punishment. He argues that using peremptory challenges in this manner renders
precisely the same result as that condemned in Witherspoon v. Illinois.
36
However, we have
previously considered and rejected a similar claim in Leonard v. State.
37
Accordingly, we
deny relief on this basis.
[Headnote 27]
Blake further contends that, over his objection, the district court provided an
inadequate jury instruction concerning the presumption of innocence. The challenged
instruction tracked the language of NRS 175.191 and provided in part: The Defendant is
presumed innocent until the contrary is proved. Blake argues that the word until nullified
the presumption of innocence by implying that his guilt would eventually be proven beyond a
reasonable doubt. However, read as a whole, the instruction did not imply this. The
instruction also defined reasonable doubt in accordance with NRS 175.211 and concluded: If
you have a reasonable doubt as to the guilt of the Defendant, he is entitled to a verdict of not
guilty. The instruction plainly contemplated that guilt might not be proven. Accordingly, we
deny relief on this basis.
Blake next contends that the district court erred in refusing to allow him to display as
demonstrative exhibits at the penalty hearing photographs depicting a prison cell and a gurney
used during lethal-injection executions. We conclude that the district court's ruling was not
erroneous,
38
and we deny relief on this basis.
____________________

35
We note that Blake does not assert that he was entitled to a probable cause determination regarding any of
the alleged aggravating circumstances.

36
391 U.S. 510 (1968).

37
114 Nev. 1196, 1205, 969 P.2d 288, 294 (1998); see Kaczmarek v. State, 120 Nev. 314, 335, 91 P.3d 16,
30 (2004) (stating that a juror's hesitance to impose the death penalty is a permissible and race-neutral reason
for exclusion through a peremptory challenge).

38
See generally Westenbarger v. State, 91 Nev. 478, 479, 537 P.2d 1195, 1196 (1975); see also Boyd v.
State, 92 Nev. 73, 74, 545 P.2d 202, 202 (1976).
........................................
121 Nev. 779, 800 (2005) Blake v. State
Blake also contends that due process considerations required allowing the defense to
argue last at the penalty hearing. He complains that NRS 200.030 shifts the burden of proof
by requiring the defense to present evidence in mitigation and the defendant should therefore
have the last opportunity to plead for his life before jury deliberations. However, we have
previously considered and rejected such claims.
39
Moreover, NRS 175.141(5) provides that
the State shall argue last, as this court has repeatedly noted.
40
Accordingly, we conclude that
this claim lacks merit.
Blake next raises several objections to Nevada's use of lethal injection and to the
death penalty generally. However, we have previously upheld as constitutional Nevada's use
of lethal injection and the death penalty.
41
Accordingly, we deny relief on this basis.
Mandatory statutory review of the death penalty
[Headnote 28]
NRS 177.055(2) requires this court to review every death sentence and independently
consider:
(c) Whether the evidence supports the finding of an aggravating circumstance or
circumstances;
(d) Whether the sentence of death was imposed under the influence of passion,
prejudice or any arbitrary factor; and
(e) Whether the sentence of death is excessive, considering both the crime and the
defendant.
Respecting the first question, sufficient evidence supported the three aggravating
circumstances. First, Blake's conviction of the attempted murder of Kim Choy supported the
jury's finding that prior to the penalty hearing Blake had been convicted of a felony involving
the use or threat of violence against another person. Second, as previously discussed, there
was sufficient evidence indicating that Blake committed the murders to avoid or prevent a
lawful arrest. Finally, the jury found that in the immediate proceedings Blake had been
convicted of more than one offense of murder, having been convicted of murdering both
Sophear and Sheila.
____________________

39
Witter, 112 Nev. at 922-23, 921 P.2d at 896; see also Snow, 101 Nev. at 448, 705 P.2d at 639.

40
Johnson v. State, 118 Nev. 787, 805-06, 59 P.3d 450, 462 (2002); Hernandez, 118 Nev. at 534, 50 P.3d at
1114; Witter, 112 Nev. at 923, 921 P.2d at 896; see also NRS 175.151.

41
See McConnell, 120 Nev. at 1056-57, 102 P.3d at 616; Rhyne v. State, 118 Nev. 1, 14, 38 P.3d 163,
171-72 (2002); Servin v. State, 117 Nev. 775, 785-86, 32 P.3d 1277, 1285 (2001); Middleton v. State, 114 Nev.
1089, 1116-17, 968 P.2d 296, 314-15 (1998).
........................................
121 Nev. 779, 801 (2005) Blake v. State
[Headnote 29]
We further conclude that the jury did not act under an improper influence in imposing
death. Blake deliberately and systematically shot three young women in the head, yet jurors
found three mitigating circumstances. Although the jury was not persuaded by Blake's
insanity defense, his mental and emotional state was found to be a mitigating circumstance.
Additionally, Blake's expression of remorse and the lack of evidence of any long-standing
plan to commit murder were considered mitigating circumstances. There is nothing in the
record showing that the jury acted under the influence of passion, prejudice, or any other
arbitrary factor.
[Headnote 30]
Finally, the evidence shows that Blake executed 19-year-old Sophear and 22-year-old
Sheila and tried his level best to execute 22-year-old Kim, who survived only by amazing
luck. His evidence in mitigation carried little weight. We conclude that considering Blake and
his crime, the sentence of death is not excessive.
CONCLUSION
For the reasons discussed above, we conclude that no errors occurred at trial
warranting relief. Therefore, we affirm the judgment of conviction and sentence of death.
Rose, Maupin, Douglas and Parraguirre, JJ., concur.
Becker, C. J., with whom Hardesty, J., agrees, concurring in part and dissenting in
part:
I concur in the majority opinion with one exception, the district court did not err in
refusing to instruct the jury on the consequences of a verdict of not guilty by reason of
insanity for the simple reason that Blake presented no evidence that he was legally insane
under the M'Naghten standard and Finger v. State.
1

Dr. Mortillaro testified that Blake suffered from a compromised mental state and he
had difficulty determining right from wrong. Neither satisfies the legal definition of insanity
under Finger. As noted in Finger, Nevada has applied the strictest definition of insanity for
over one hundred years.
2
This standard permits a finding of legal insanity only if at the time
of the killing, a delusional state: (1) rendered the defendant incapable of knowing or
understanding the nature of his act, i.e., that he was killing a human being, or {2) prevented
the defendant from appreciating the wrongfulness of his act, i.e.,
____________________

1
117 Nev. 548, 27 P.3d 66 (2001).

2
Id. at 562, 27 P.3d at 75-76.
........................................
121 Nev. 779, 802 (2005) Blake v. State
being, or (2) prevented the defendant from appreciating the wrongfulness of his act, i.e., that
the killing was not justified under the law.
3

Nothing in the record supports that Blake thought he was killing something other than
a human being. The record also does not contain evidence to support that Blake, in a
delusional state, thought the killings were justifiable homicide and that the facts of his
delusion, if true, would support such a mistaken belief.
Because I conclude no evidence supported submitting an insanity defense to the jury, I
find no error in failing to instruct the jury on the consequences of an insanity acquittal.
____________
121 Nev. 802, 802 (2005) Bennett v. Dist. Ct.
EDWARD BENNETT, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, in and for THE COUNTY OF CLARK, and THE
HONORABLE JOHN S. McGROARTY, District Judge, Respondents, and THE
STATE OF NEVADA, Real Party in Interest.
No. 44974
October 20, 2005
121 P.3d 605
Original petition for a writ of mandamus in a death penalty case.
Capital defendant, convicted of first-degree murder and awaiting second penalty
hearing, sought writ of mandamus requiring trial court to strike aggravating circumstances
newly alleged in State's amended notice. The supreme court held that: (1) mandamus was
proper remedy; (2) State could not predicate aggravating circumstance on felony murder's
predicate felony; and (3) supreme court's decision in McConnell v. State, 120 Nev. 1043, 102
P.3d 606 (2004), invalidating aggravators charged in original prosecution, did not constitute
good cause warranting amended notice alleging additional aggravating circumstances.
Petition granted.
Peter S. Christiansen, Las Vegas; Patti & Sgro, P.C., and Anthony P. Sgro, Las
Vegas, for Petitioner.
Clark County, for Real Party in Interest.
Robbery and burglary occurring in a single course of conduct can be validly alleged as
separate aggravating circumstances in capital prosecution. NRS 200.033.
____________________

3
Id. at 556-57, 27 P.3d at 72.
........................................
2. Mandamus.
Writ of mandamus is an extraordinary remedy by supreme court to compel the
performance of an act which the law requires as a duty resulting from an office, trust, or
station or to control a manifest abuse of or arbitrary or capricious exercise of discretion
or to clarify an important issue of law.
3. Mandamus.
Decision whether to issue a writ of mandamus lies within supreme court's discretion,
where the court considers the interests of judicial economy and sound judicial
administration.
4. Mandamus.
Writ of mandamus will not be issued by supreme court when the petitioner has a
plain, speedy, and adequate remedy in the ordinary course of law.
5. Mandamus.
Writ of mandamus was proper remedy for capital defendant, convicted of first-degree
murder and awaiting second penalty hearing, on his claim that trial court erred in
determining that supreme court's decision in McConnell v. State, 120 Nev. 1043, 102
P.3d 606 (2004), rendering invalid two aggravators charged in defendant's original
prosecution, constituted good cause warranting amended notice alleging additional
aggravating circumstances; several district courts were confronted with the same issue,
and allowing the penalty hearing to proceed on the invalidly alleged aggravating
circumstances would not serve the interests of justice and would potentially result in a
waste of resources for all concerned. NRS 200.033; SCR 250(4)(d).
6. Criminal Law.
Conviction becomes final when judgment has been entered, the availability of appeal
has been exhausted, and a petition for certiorari to the United States Supreme Court has
been denied or the time for such a petition has expired.
7. Courts.
Conviction of defendant awaiting new sentencing hearing was not final for purposes
of determining retroactive application of supreme court sentencing decisions.
McConnell v. State, 120 Nev. 1043, 102 P.3d 606 (2004), requirement that in death
penalty cases in which the State bases a first-degree murder conviction in whole or part
on felony murder the State must prove an aggravator other than one based on the felony
murder's predicate felony does not apply only when murder conviction was based solely
on felony murder.
In capital prosecution in which the State based first-degree murder conviction on
felony murder, the State could not predicate aggravating circumstance on felony
murder's predicate felony. NRS 200.033.
The supreme court's decision in McConnell v. State, 120 Nev. 1043, 102 P.3d 606
(2004), rendering invalid two aggravators charged in capital defendant's original
prosecution, did not constitute good cause permitting State to amend notice to allege
additional aggravating circumstances in prosecution of defendant awaiting second
penalty hearing; evidence upon which State based newly alleged aggravators was
known at time of initial prosecution, and issuance of opinion would not give State
cause to resurrect aggravating circumstances it previously rejected. NRS 200.033; SCR
250(4)(d).
........................................
Good cause warranting amended notice alleging additional aggravating
circumstances in capital case is not established due to mere oversight on the part of a
prosecutor. SCR 250(4)(d).
OPINION
Per Curiam:
Petitioner Edward Bennett seeks this court's intervention in the proceedings below and
challenges a district court decision finding that our opinion in McConnell v. State
1
provided
the State with good cause to file an amended notice alleging additional aggravating
circumstances pursuant to SCR 250(4)(d). He also asks this court to strike the aggravating
circumstances contained within that notice.
Our intervention in this matter by way of a writ of mandamus is warranted, and we
grant Bennett's petition. An opinion of this court does not establish good cause as
contemplated by SCR 250(4)(d) to allow the State to file an amended notice alleging
additional aggravating circumstances. The amended notice filed by the State against Bennett
on this basis is invalid, and those newly alleged aggravators contained within it must be
stricken.
FACTS
The State filed a notice of aggravating circumstances against Bennett over 17 years
ago on July 7, 1988. He was subsequently convicted of first-degree murder with the use of a
deadly weapon, attempted murder with the use of a deadly weapon, and attempted robbery
with the use of a deadly weapon and sentenced to death. That sentence was later vacated
during post-conviction proceedings, and a new penalty hearing was ordered.
2
Remaining
from the State's original prosecution were three aggravating circumstances: the murder
created a great risk of death to more than one person pursuant to NRS 200.033(3), the murder
was committed during a burglary pursuant to NRS 200.033(4), and the murder was
committed during an attempted robbery pursuant to NRS 200.033(4).
Before Bennett's second penalty hearing, this court decided McConnell on December
29, 2004. In that opinion we held that the practice of convicting a defendant under a theory
of first-degree felony murder and then predicating an aggravating circumstance pursuant
to NRS 200.033{4) on that underlying felony to achieve a death sentence failed to satisfy
constitutional requirements.
____________________

1
120 Nev. 1043, 102 P.3d 606 (2004), reh'g denied, McConnell v. State (McConnell II), 121 Nev. 25, 107
P.3d 1287 (2005).

2
State v. Bennett, 119 Nev. 589, 81 P.3d 1 (2003); Bennett v. State, 111 Nev. 1099, 901 P.2d 676 (1995);
Bennett v. State (Bennett I), 106 Nev. 135, 787 P.2d 797 (1990), overruled in part by Leslie v. Warden, 118
Nev. 773, 59 P.3d 440 (2002).
........................................
practice of convicting a defendant under a theory of first-degree felony murder and then
predicating an aggravating circumstance pursuant to NRS 200.033(4) on that underlying
felony to achieve a death sentence failed to satisfy constitutional requirements.
3

The following day, without mentioning the McConnell decision, Bennett filed a
motion which argued that the aggravating circumstances based on the attempted robbery and
the burglary were duplicative. The State opposed Bennett's motion and on January 13, 2005,
moved to file an amended notice alleging additional aggravating circumstances. Conceding in
its motion that our opinion in McConnell eliminated two of the aggravators originally found
by a jury against this defendant (murder in the course of a burglary and murder in the course
of a robbery), the State sought to add three new ones: the murder was committed by a person
who has been convicted of a felony involving the use or threat of violence pursuant to NRS
200.033(2), the murder was committed to avoid lawful arrest pursuant to NRS 200.033(5),
and the murder was committed to receive money or anything of monetary value pursuant to
NRS 200.033(6)the pecuniary-gain aggravator.
Bennett opposed the State's motion to file the amended notice. The district court
scheduled a hearing on the matter. Two days before the hearing, the State submitted to
Bennett a notice of evidence in support of aggravating circumstances, realleging the
aggravating circumstance based upon the burglary, as well as the new aggravators it sought to
add.
During the hearing Bennett's counsel argued:
Our position, of course, is that the McConnell decision simply corrected something that
has been going on in our system for some time, and it's not good cause to amend or to
circumvent. It was, in fact, an effort to limit those persons who are death eligible.
The district court later inquired, You say it's unfair for them to take two bites out of the
apple. Counsel replied, Absolutely. The Deputy District Attorney later countered:
The Nevada Supreme Court has now said, hey, prosecutor, you can't use a couple of
aggravators that you relied upon the first time around. And we're saying, because of that
change, we're allowed to go back and reexamine it, file a timely notice, which we did
within fifteen days of the McConnell decision, saying we want to add these additional
aggravators.
[Headnote 1]
Recognizing that the State had previously indicated that it would not be pursuing the
aggravators based on the attempted robbery and the burglary, the district court granted
Bennett's motion, which argued that the aggravators were duplicative.
____________________

3
........................................
and the burglary, the district court granted Bennett's motion, which argued that the
aggravators were duplicative.
4
Yet the district court also found that the McConnell opinion
provided the State with good cause pursuant to SCR 250(4)(d) to file an amended notice
alleging additional aggravating circumstances. However, the State's motion was only partially
granted; the district court found that one of the newly alleged aggravatorsthat the murder
was committed to avoid lawful arrestwas unsupported by the evidence. As a result, the
district court struck two aggravating circumstances that were pending against Bennett prior to
our opinion in McConnell and permitted the State to allege two new ones.
This petition followed.
DISCUSSION
[Headnotes 2-4]
A writ of mandamus is an extraordinary remedy by this court to compel the
performance of an act which the law requires as a duty resulting from an office, trust, or
station or to control a manifest abuse of or arbitrary or capricious exercise of discretion
5
or
to clarify an important issue of law.
6
The decision whether to issue a writ lies within this
court's discretion, where this court considers the interests of judicial economy and sound
judicial administration.
7
However, a writ will not be issued by this court where the
petitioner has a plain, speedy, and adequate remedy in the ordinary course of law.
8

[Headnote 5]
We conclude that this matter raises an important issue of law and that the interests of
judicial economy and justice soundly militate in favor of granting Bennett's petition. Not only
does the record before us indicate that several district courts are confronted with this very
issue, but under the circumstances of this case, we conclude that allowing the penalty hearing
to proceed on the invalidly alleged aggravating circumstances would not serve the
interests of justice and would potentially result in a waste of resources for all concerned.
____________________

4
To the extent that the district court considered either aggravator to be duplicative, it erred. Robbery and
burglary occurring in a single course of conduct can be validly alleged as separate aggravating circumstances.
See McConnell, 120 Nev. at 1070, 102 P.3d at 625. However, any error in the district court's reasoning in this
regard was harmless because those two aggravators were nevertheless rendered invalid pursuant to our
McConnell decision, as explained below.

5
State v. Dist. Ct. (Riker), 121 Nev. 225, 231, 112 P.3d 1070, 1074 (2005); see Nev. Const. art. 6, 4; NRS
34.160.

6
State v. Dist. Ct. (Jackson), 121 Nev. 413, 415, 116 P.3d 834, 835 (2005); Smith v. District Court, 113 Nev.
1343, 1345, 950 P.2d 280, 281 (1997).

7
Riker, 121 Nev. at 231, 112 P.3d at 1074.

8
Id.; see NRS 34.170.
........................................
leged aggravating circumstances would not serve the interests of justice and would potentially
result in a waste of resources for all concerned.
Application of McConnell to Bennett's case
As a threshold matter, we first address inaccurate assertions by the State as to the
impact of McConnell on Bennett's case. Despite predicating this entire matter on its assertion
before the district court that McConnell applies to Bennett's case, the State has retreated from
this initial position and has expressed shifting positions about whether the holding announced
in McConnell even applies to Bennett's case at all. As we explain below, it clearly does.
[Headnotes 6, 7]
In a footnote in its answer, the State asserts: This Court's opinion denying rehearing
in McConnell . . . has since rendered the State's action of removing the two felony-murder
aggravators unnecessary since Defendant's conviction has been final since 1990 and
McConnell does not apply. Although this court has not decided whether McConnell is to be
given retroactive effect to final cases,
9
the State incorrectly asserts that Bennett's case is
final. A conviction becomes final when judgment has been entered, the availability of appeal
has been exhausted, and a petition for certiorari to the United States Supreme Court has been
denied or the time for such a petition has expired.
10
This occurred in Bennett's case in 1990.
11
But such finality is not necessarily absolute, and it was undone in Bennett's case when
he was granted post-conviction habeas relief, his death sentence was vacated, and a new
penalty hearing was ordered. Because Bennett is awaiting a new penalty hearing, his
conviction, at least in regard to his sentence, is clearly no longer final. Thus, McConnell
applies to the penalty hearing to be conducted in this matter, and its retroactive application is
simply not an issue.
Moreover, the State later asserts in its answer that there was no specific finding by
the jury that Defendant was found guilty based solely on a felony murder theory. The State
maintains that it is therefore unclear whether the felony murder aggravating circumstances
[based] on burglary and robbery are in fact improper as to Defendant's case. The State's
assertion that it is unclear whether McConnell applies to Bennett's case because there was
no specific finding by the jury that Bennett was convicted based solely on a theory of
felony murder is troubling.
____________________

9
See McConnell II, 121 Nev. at 29, 107 P.3d at 1290.

10
Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987); see Richmond v. State, 118 Nev. 924, 929, 59 P.3d
1249, 1252 (2002).

11
Bennett I, 106 Nev. 135, 787 P.2d 797, cert. denied, 498 U.S. 925 (1990).
........................................
specific finding by the jury that Bennett was convicted based solely on a theory of felony
murder is troubling.
[Headnote 8]
Bennett's murder conviction need not have been based solely on felony murder for
McConnell to apply. We held in McConnell that in cases where the State bases a first-degree
murder conviction in whole or part on felony murder, to seek a death sentence the State will
have to prove an aggravator other than one based on the felony murder's predicate felony.
12

Moreover, the original indictment filed in Bennett's case appears to charge first-degree
murder on a felony-murder theory only. Notably, it does not allege that the murder was
premeditated or deliberate. The murder count provides:
COUNT IIMurder With Use of a Deadly Weapon
[Bennett] did then and there, without authority of law and with malice aforethought,
willfully and feloniously kill MICHELLE MOORE, a human being, during the
perpetration of a robbery and/or attempt robbery, by shooting at and into the body of the
said MICHELLE MOORE with a deadly weapon, to-wit: a firearm, in the following
manner, to-wit: each Defendant aiding and abetting each other by Defendants entering
into a plan to commit robbery and thereafter Defendant EDWARD BENNETT directly
shooting the said MICHELLE MOORE, Defendant JOSEPH N. BEESON acting as a
lookout, each Defendant counseling and encouraging each other throughout, and
accompanying each other to and away from the crime scene.
This language belies the State's suggestion that Bennett was not convicted based solely on a
felony-murder theory. And the State has not provided this court with any documentation
suggesting that premeditated and deliberate murder was ever charged.
[Headnote 9]
Thus, contrary to the State's position, our holding in McConnell squarely applies to a
case such as Bennett'she appears to have been convicted on a theory of felony murder, the
aggravators originally alleged by the State were predicated on the burglary and attempted
robbery underlying that felony murder, and his conviction is not final. We direct the State to a
lengthy, but pertinent, portion of McConnell:
We advise the State, therefore, that if it charges alternative theories of first-degree
murder intending to seek a death sentence, jurors in the guilt phase should receive a
special verdict form that allows them to indicate whether they find first-degree
murder based on deliberation and premeditation, felony murder, or both.
____________________

12
120 Nev. at 1069, 102 P.3d at 624 (emphasis added).
........................................
form that allows them to indicate whether they find first-degree murder based on
deliberation and premeditation, felony murder, or both. Without the return of such a
form showing that the jury did not rely on felony murder to find first-degree murder, the
State cannot use aggravators based on felonies which could support the felony murder.
We further prohibit the State from selecting among multiple felonies that occur during
an indivisible course of conduct having one principal criminal purpose and using one
to establish felony murder and another to support an aggravating circumstance. For
example, in a case like this one, the burglary could not be used to establish first-degree
felony murder while the associated robbery was used as an aggravator to support a
death sentence. The burglary and robbery both occurred in an indivisible course of
conduct whose primary purpose was the murder . . . .
13

Because our opinion in McConnell does apply to Bennett's case, the two aggravators
pursuant to NRS 200.033(4) that were predicated upon the attempted robbery and burglary
giving rise to the felony murder were constitutionally infirm and properly stricken.
Good cause pursuant to SCR 250(4)(d)
[Headnote 10]
We now address whether the issuance of McConnell provided the State with good
cause pursuant to SCR 250(4)(d) to file an amended notice alleging additional aggravating
circumstances. We conclude that it did not.
SCR 250(4)(d) provides:
Upon a showing of good cause, the district court may grant a motion to file a late
notice of intent to seek the death penalty or of an amended notice alleging additional
aggravating circumstances. The state must file the motion within 15 days after learning
of the grounds for the notice or amended notice. If the court grants the motion, it shall
also permit the defense to have a reasonable continuance to prepare to meet the
allegations of the notice or amended notice. The court shall not permit the filing of an
initial notice of intent to seek the death penalty later than 30 days before trial is set to
commence.
14

(Emphases added.)
____________________

13
Id. at 1069-70, 102 P.3d at 624-25 (footnote omitted).

14
See also SCR 250(4)(f) (providing that the State must file a notice summarizing the evidence in
aggravation no later than 15 days before trial unless good cause is shown).
........................................
The purpose of SCR 250(4)(d) is to protect a capital defendant's due process rights to
fair and adequate notice of aggravating circumstances, safeguard against any abuse of the
system, and insert some predictability and timeliness into the process.
15
By requiring the
State through SCR 250(4)(d) to file a motion to amend a notice of aggravating circumstances
within 15 days of learning of the grounds for the amendment and only upon a showing of
good cause, this court requires accountability and diligence by the State when deciding
what aggravators to pursue in the first instance.
SCR 250(4)(d) has two essential prongs. The first prong deals with timelinessa
motion seeking to file an amended notice must be filed within 15 days after the State learns of
the grounds for it. Here, the State has contended that this court's decision in McConnell is the
basis for its motion to amend. McConnell was decided by this court on December 29, 2004.
The State filed its motion exactly 15 days later, on January 13, 2005. Because McConnell
provided the grounds that the State asserted in support of its motion, the motion was timely,
and this prong was satisfied.
It is the second, good cause prong of SCR 250(4)(d) that requires a more difficult
analysis. Whether a fundamental change in death-penalty case law, i.e., McConnell,
constitutes good cause under the facts of this case raises a narrow question with little
persuasive on-point authority to answer it. We have previously addressed the good-cause
provisions of SCR 250(4) in only one opinion, State v. District Court (Marshall),
16
which
provides some, but not definitive, guidance.
In Marshall, we recognized that the good-cause determination under SCR 250(4)(d)
rested within the district court's sound discretion.
17
We concluded that good cause under the
rule was not predicated on a lack of prejudice to a defendant, meaning that good cause is not
satisfied simply because a defendant would not suffer any prejudice from the filing of a late
notice.
18

[Headnote 11]
Although a definitive explanation of good cause was not set forth in that opinion,
considerable weight was given to the district court's finding that [e]verything that the State
considered in this case before deciding to seek the death penalty was known to it prior to the
arraignment in the district court.'
19
We also set the ceiling and the floor of what may and
may not constitute good cause under this rule.
____________________

15
See State v. Dist. Ct. (Marshall), 116 Nev. 953, 959, 11 P.3d 1209, 1212 (2000).

16
116 Nev. 953, 11 P.3d 1209.

17
Id. at 965, 11 P.3d at 1216.

18
Id. at 964, 967, 11 P.3d at 1215, 1217.

19
Id. at 964, 11 P.3d at 1215.
........................................
ceiling and the floor of what may and may not constitute good cause under this rule. For
example, we stated that good cause certainly contemplates the discovery of formerly
unknown evidence of aggravating circumstances.
20
Yet good cause is not established due to
mere oversight on the part of a prosecutor.
21

Here, the good-cause argument proffered by the State and predicated upon the
McConnell opinion is not squarely akin to either of the examples contemplated by this court
in Marshall. We conclude, however, that an opinion by this court in itself does not provide
the State with good cause pursuant to SCR 250(4)(d) to file an amended notice alleging new
aggravating circumstances against a defendant. This is true even when that opinion announces
a fundamental departure from death-penalty precedent, as McConnell did. Good cause
requires something more.
Our view on this matter is only strengthened by the fact that the evidence upon which
the State bases the newly alleged aggravators has existed since Bennett's original prosecution
in 1988. The State originally passed upon these aggravators, which it has recognized in its
answer to Bennett's petition were weaker than the ones it actually chose to pursue. That we
issued the McConnell opinion does not now give the State cause to resurrect weaker
aggravating circumstances it rejected nearly 17 years earlier.
For these reasons, we conclude that the district court's decision granting the State's
motion to file an amended notice alleging additional aggravating circumstances pursuant to
NRS 200.033(2) and NRS 200.033(6) must be vacated. Because these two aggravators are
invalidly alleged and must be stricken, we do not reach the merits of Bennett's substantive
challenges to these aggravators.
22

A single aggravating circumstance remainsthat the murder created a great risk of
death to more than one person pursuant to NRS 200.033(3). We have previously affirmed the
finding of this aggravator in Bennett's case.
23
Our review reveals no facial deficiency
warranting extraordinary intervention with respect to this aggravator at this time. If, after a
second penalty hearing, the jury finds this aggravator and returns a sentence of death, any
challenges that Bennett properly raises on direct appeal will be reviewed.
____________________

20
Id. at 966, 11 P.3d at 1217.

21
Id.

22
Because the pecuniary-gain and attempted robbery aggravating circumstances are based on the same
underlying facts, Bennett contends that they are both equally prohibited by McConnell. We have concluded that
we need not address the merits of the argument at this time.

23
See Bennett I, 106 Nev. 135, 787 P.2d 797.
........................................
CONCLUSION
Our opinion in McConnell rendered invalid the two aggravators based upon NRS
200.033(4) that were remaining from Bennett's original prosecution. That opinion did not,
however, provide the State with good cause pursuant to SCR 250(4)(d) to file an amended
notice alleging additional aggravating circumstances under the facts of this case. The
amended notice filed by the State against Bennett on this basis is invalid, and those newly
alleged aggravators contained within it must be stricken. We therefore grant Bennett's
petition. The clerk of this court shall issue a writ of mandamus directing the district court to
vacate its order granting the State's motion to file an amended notice and strike the newly
added aggravating circumstances. We also vacate the stay imposed by our order of March 30,
2005.
____________
121 Nev. 812, 812 (2005) McDonald v. D.P. Alexander
JOHN W. McDONALD, Appellant, v. D.P. ALEXANDER & LAS VEGAS BOULEVARD,
LLC,
a Missouri Limited Liability Company, Respondent.
No. 40743
December 1, 2005
123 P.3d 748
Appeal from a district court order granting summary judgment in an action to enforce
and collect upon a promissory note. Eighth Judicial District Court, Clark County; Valorie
Vega, Judge.
Promissory note holder brought action against guarantor after bankruptcy court voided
recording of deed of trust and sold the property. The district court entered summary judgment
in favor of holder as exempt from one-action rule. Guarantor appealed. The supreme court
held that holder's action against guarantor was exempt from the definition of action and
was not barred by one-action rule.
Affirmed.
Callister & Reynolds and William H. Brown and Matthew Q. Callister, Las Vegas, for
Appellant.
Law Offices of Richard McKnight, P.C., and Thomas J. Gilloon Jr., Las Vegas, for
Respondent.
1. Judgment.
The purpose of summary judgment is to avoid a needless trial when an appropriate
showing is made in advance that there is no genuine issue of fact to be tried, and the
movant is entitled to judgment as a matter of law.
........................................
Orders granting summary judgment are reviewed de novo.
3. Statutes.
Statutory interpretation is a question of law.
Review of the district court's interpretation of the one-action rule permitting only one
action for the recovery of any debt is de novo. NRS 40.430(1).
5. Statutes.
When interpreting a statute, courts first determine whether the language of a statute is
ambiguous.
6. Statutes.
When the language of a statute is clear and unambiguous, courts do not look beyond
its plain meaning, and they give effect to its apparent intent unless that meaning was
clearly not intended.
7. Mortgages.
To recover a debt secured by real property, a creditor must seek to recover on the
property through judicial foreclosure before recovering from the debtor personally.
NRS 40.430(1).
8. Guaranty; Mortgages.
The one-action rule permitting only one action for the recovery of any debt or the
enforcement of any right secured by a mortgage or other lien applies to a guarantor or
surety of a debt on a mortgage or other contract secured by an interest in real property.
NRS 40.430(1).
9. Mortgages.
Under the one-action rule, a debtor can require a creditor to foreclose on real estate
security before suing on the note or, if the creditor sues on the note first, force the
creditor to lose its security interest. NRS 40.430(1).
10. Bankruptcy; Guaranty; Mortgages.
Promissory note holder's action against guarantor after bankruptcy court voided
recording of deed of trust and sold the property was exempt from the definition of
action and was not barred by one-action rule permitting only one action for the
recovery of any debt or the enforcement of any right secured by a mortgage; the
bankruptcy court's decision to void the recording as a preferential transfer left the note
unsecured, and its sale of the property to a third party left the holder as a sold-out junior
lienholder. 11 U.S.C. 547(b); NRS 40.430(1), 40.430(4)(i), (j).
11. Bankruptcy; Guaranty.
When a bankruptcy court stays enforcement of a lien, which precludes the creditor
from seeking redress against the person or entity filing bankruptcy, the creditor can
proceed against the guarantor if the guarantor has notice of default. NRS 40.430(4)(i).
12. Bankruptcy; Guaranty; Mortgages.
Guaranty provision waiving guarantor's right to a notice of default by the principal
debtor was a waiver for purposes of statute exempting creditor's suit against guarantor
from one-action rule if bankruptcy court stayed enforcement of the mortgage or other
lien and notice was mailed to the guarantor; the statutory exemption did not act to
reinstate the notice requirement. NRS 40.430(4)(i), 107.095(1).
13. Mortgages.
When a senior lienholder forecloses and sells property to a person other than the
junior lienholder, the junior lienholder is sold-out and can institute proceedings to
collect the debt without attempting to fruitlessly proceed against the property. NRS
40.430(4)(j).
........................................
14. Mortgages.
The one-action rule and its exceptions are intended to protect debtors by preventing
creditors from realizing more than the face value of a debt, not to deny a creditor
recovery of a legal debt altogether. NRS 40.430(1), 40.430(4).
Before Douglas, Rose and Parraguirre, JJ.
OPINION
Per Curiam:
In this appeal, we decide whether a creditor in the position of a sold-out junior
lienholder due to a bankruptcy is exempt, under NRS 40.430(4)(i) and (j), from Nevada's
one-action rule, which provides that a creditor can pursue only one action to recover a debt
secured by a mortgage or lien on real property. Here, the appellant personally guaranteed a
promissory note given by J.W.M. Investments, Inc., to respondent D.P. Alexander & Las
Vegas Boulevard, L.L.C. The note was secured by a deed of trust. After J.W.M. Investments
defaulted on the note, D.P. Alexander recorded the deed of trust. J.W.M. Investments then
filed for bankruptcy. The bankruptcy court voided the recorded deed of trust and sold the
property to another party. After D.P. Alexander sued to collect on the personal guaranty, the
district court granted summary judgment to D.P Alexander, concluding that it was exempted
from the one-action rule.
We conclude that D.P. Alexander is exempt from the one-action rule under NRS
40.430(4)(i) because the bankruptcy court voided the recorded deed of trust as a preferential
transfer. We also conclude that D.P. Alexander is exempt from the one-action rule under
NRS 40.430(4)(j) because D.P. Alexander is, in effect, a sold-out junior lienholder that did
not purchase the property in question. We therefore affirm the order of the district court
granting summary judgment to D.P. Alexander.
FACTS
John W. McDonald was the sole owner of J.W.M. Investments, which acquired and
developed real property. J.W.M. Investments signed a promissory note with D.P. Alexander
in 1999. The note was secured by a deed of trust and by the assignment of leases and rents
between the parties.
J.W.M. Investments had defaulted on the note by September 2000. McDonald
approached D.P. Alexander regarding the status of the note. He agreed to sign a personal
guaranty, and D.P. Alexander agreed to delay collection on the note and to continue to
withhold recordation of the deed of trust until October 15, 2000.
........................................
When McDonald signed the personal guaranty, he guaranteed the payment and performance
of all obligations of JWM due under the Note.
By October 15, 2000, J.W.M. Investments was still in default. Consequently, D.P.
Alexander recorded the deed of trust. D.P. Alexander also sent a demand letter to McDonald
seeking full payment of the outstanding balance due on the note and advising McDonald that
he was personally liable because he had signed the personal guaranty.
J.W.M. Investments then filed a voluntary petition for chapter 11 bankruptcy in
December 2000. The bankruptcy trustee voided the recorded deed of trust as a preferential
transfer under 11 U.S.C. 547(b). D.P. Alexander was therefore left in a position junior to a
mechanic's lien and any other claims given priority by the bankruptcy court. The property was
then sold to TCA Motors, Inc., and the proceeds were applied to pay the bankruptcy estate's
debts.
After the bankruptcy court voided the recordation of the deed of trust and the property
was sold, D.P. Alexander filed suit against McDonald to collect on the personal guaranty. The
district court granted summary judgment to D.P. Alexander, concluding that NRS
40.430(4)(m) exempted D.P. Alexander from the one-action rule and awarding D.P.
Alexander the full amount of the debt plus prejudgment interest. McDonald appealed.
DISCUSSION
[Headnotes 1, 2]
The purpose of summary judgment is to avoid a needless trial when an appropriate
showing is made in advance that there is no genuine issue of fact to be tried, and the movant
1
We review orders granting summary judgment
de novo.
2
The parties in this case do not dispute the fact that McDonald personally
guaranteed the note J.W.M. Investments gave to D.P. Alexander. McDonald argues, however,
that the district court misapplied the one-action rule, NRS 40.430, to exempt D.P. Alexander.
3

[Headnotes 3-6]
Statutory interpretation is a question of law, and our review of the district court's
interpretation of the one-action rule is also de novo.
____________________

1
Coray v. Hom, 80 Nev. 39, 40-41, 389 P.2d 76, 77 (1964).

2
Bulbman, Inc. v. Nevada Bell, 108 Nev. 105, 110, 825 P.2d 588, 591 (1992).

3
As we conclude that D.P. Alexander's case is exempt from the one-action rule, we do not address
McDonald's arguments that he did not waive the one-action rule.
........................................
novo.
4
When interpreting a statute, we first determine whether the language of a statute is
ambiguous.
5
When the language of a statute is clear and unambiguous, we do not look
beyond its plain meaning, and we give effect to its apparent intent unless that meaning was
clearly not intended.
6

The one-action rule
[Headnotes 7, 8]
NRS 40.430(1) provides that
there may be but one action for the recovery of any debt, or for the enforcement of any
right secured by a mortgage or other lien upon real estate. . . . In that action, the
judgment must be rendered for the amount found due the plaintiff, and the court, by its
decree or judgment, may direct a sale of the encumbered property, or such part thereof
as is necessary . . . .
Consequently, to recover a debt secured by real property in Nevada, a creditor must seek to
recover on the property through judicial foreclosure before recovering from the debtor
personally.
7
The one-action rule also applies to a guarantor or surety of a debt on a mortgage
or other contract secured by an interest in real property.
8

[Headnote 9]
As the United States Bankruptcy Court recognized in In re Hart, the purpose behind
the one-action rule in Nevada is to prevent harassment of debtors by creditors attempting
double recovery by seeking a full money judgment against the debtor and by seeking to
recover the real property securing the debt.
9
Under the one-action rule, a debtor can require a
creditor to foreclose on real estate security before suing on the note or, if the creditor sues on
the note first, force the creditor to lose its security interest.
10

____________________

4

5
State v. Quinn, 117 Nev. 709, 713, 30 P.3d 1117, 1120 (2001).

6
Id.

7
See Keever v. Nicholas Beers Co., 96 Nev. 509, 513, 611 P.2d 1079, 1082 (1980); Nevada Wholesale
Lumber v. Myers Realty, 92 Nev. 24, 28, 544 P.2d 1204, 1207 (1976).

8
First Interstate Bank v. Shields, 102 Nev. 616, 618-20, 730 P.2d 429, 430-32 (1986).

9
50 B.R. 956, 960 (Bankr. D. Nev. 1985), rejected on other grounds by In re Pederson, 875 F.2d 781 (9th
Cir. 1989).

10
Keever, 96 Nev. at 513, 611 P.2d at 1082; Hearing on S.B. 479 Before the Senate Comm. on Judiciary,
65th Leg. (Nev., May 30, 1989).
........................................
In 1989, the Legislature, recognizing that the one-action rule can be a trap for the
unwary, enacted and clarified several exemptions from the rule.
11
These exemptions were
included to clarify what the Legislature intended by the word action.
12
The Legislature did
not intend certain actions by creditors, spelled out in the exemptions, to fall under the
one-action rule.
13

[Headnote 10]
In the present case, McDonald signed a guaranty for J.W.M. Investments' promissory
note to D.P. Alexander. J.W.M. Investments subsequently entered bankruptcy, resulting in
D.P. Alexander losing its security interest in the property and the property being sold to a
person other than D.P. Alexander. At least two exceptions to the one-action rule, NRS
40.430(4)(i) and (j), apply to this case.
14

NRS 40.430(4)(i): bankruptcy
[Headnote 11]
NRS 40.430(4)(i) provides that the one-action rule does not apply to enforcement of
an agreement with a surety or guarantor if enforcement of the mortgage or other lien
has been automatically stayed pursuant to 11 U.S.C. 362 or pursuant to an order of a
federal bankruptcy court under any other provision of the United States Bankruptcy
Code for not less than 120 days following the mailing of notice to the surety or
guarantor pursuant to subsection 1 of NRS 107.095.
Thus, when a bankruptcy court stays enforcement of a lien, which precludes the creditor from
seeking redress against the person or entity filing bankruptcy, the creditor can proceed against
the guarantor if the guarantor has notice of default. The language of this statute is
unambiguous, and the plain language of the statute exempts the present case from the
one-action rule.
McDonald is a guarantor of J.W.M. Investments' promissory note to D.P. Alexander.
J.W.M. Investments' promissory note was secured by a deed of trust.
____________________

11
1989 Nev. Stat., ch. 750, 5, at 1768-69; NRS 40.430(4).

12
Hearing on S.B. 479 Before the Senate Comm. on Judiciary, 65th Leg. (Nev., May 30, 1989).

13
Id.

14
Because we conclude that NRS 40.430(4)(i) and (j) apply to exempt D.P. Alexander's claim from the
definition of an action, we leave unanswered the question of whether the district court correctly applied NRS
40.430(4)(m). We therefore affirm the district court's order granting summary judgment on different grounds.
Sengel v. IGT, 116 Nev. 565, 570, 2 P.3d 258, 261 (2000).
........................................
secured by a deed of trust. D.P. Alexander recorded the deed of trust when J.W.M.
Investments defaulted on the promissory note. J.W.M. Investments subsequently filed
bankruptcy. The recordation of the deed was voided as a preferential transfer by order of the
bankruptcy court under 11 U.S.C. 547(b), leaving the debt on the underlying note
unsecured. Thus, D.P. Alexander's claim is not an action under the one-action rule.
[Headnote 12]
McDonald argues, however, that because he waived his right to notice of default, this
exception cannot apply because it requires the mailing of notice to the surety or guarantor
pursuant to subsection 1 of NRS 107.095. The fact that McDonald waived his right as
guarantor to a notice of default by the principal debtor does not make NRS 40.430(4)(i)
inapplicable. D.P. Alexander was only required to mail notice of default to the guarantor
under NRS 107.095(1). If the guarantor waived notice under NRS 107.095(1) in the guaranty,
then notice is also waived under NRS 40.430(4)(i). NRS 40.430(4)(i) does not act to reinstate
the notice requirement. Therefore, McDonald's waiver of the notice requirement renders
notice under NRS 107.095(1) immaterial.
We conclude that D.P. Alexander's claim is excluded from the one-action rule by NRS
40.430(4)(i).
NRS 40.430(4)(j): sold-out junior lienholder
[Headnote 13]
NRS 40.430(4)(j) provides that the one-action rule does not apply to an act or
proceeding
[t]o collect any debt, or enforce any right, secured by a mortgage or other lien on real
property if the property has been sold to a person other than the creditor to satisfy, in
whole or in part, a debt or other right secured by a senior mortgage or other senior lien
on the property.
Thus, when a senior lienholder forecloses and sells property to a person other than the junior
lienholder, the junior lienholder is sold-out and can institute proceedings to collect the debt
without attempting to fruitlessly proceed against the property. Similar to NRS 40.430(4)(i),
this statute is unambiguous and the plain language of NRS 40.430(4)(j) also covers and
exempts D.P. Alexander's claim.
In the present case, the bankruptcy court voided D.P. Alexander's recordation of the
deed of trust, thus rendering D.P. Alexander an unsecured creditor. It was left in the position
of a junior lienholder to a mechanic's lien and any other claims given priority in the
bankruptcy proceeding.
........................................
priority in the bankruptcy proceeding. The bankruptcy trustee sold the property to TCA
Motors, which is an entity other than the creditor, D.P. Alexander. Thus, D.P. Alexander is,
in effect, a sold-out junior lienholder,
15
and NRS 40.430(4)(j) exempts D.P. Alexander's
claim from the one-action rule.
McDonald argues, however, that NRS 40.430(4)(j) is inapplicable to D.P. Alexander's
claim under this court's prior decisions in Carrillo v. Valley Bank
16
and Murphy v. F.D.I.C.
17

In Carrillo, we clarified our holding in McMillan v. United Mortgage Co.
18
McMillan held that a sold-out junior lienholder is exempt from the one-action rule.
19
In
Carrillo, we explained that a junior lienholder who purchased the property at the foreclosure
sale was not sold-out and was not exempt from the one-action rule.
20
This exception was
codified as NRS 40.4591 in 1987.
21
In 1989, the Legislature moved the codification of
Carrillo to NRS 40.430(4)(j) to include it with other exceptions to the one-action rule.
22
Thus, Carrillo supports D.P. Alexander's exemption from the one-action rule under NRS
40.430(4)(j) because D.P. Alexander did not purchase the property during the bankruptcy
sale.
This court decided Murphy in 1990 after the amendments of NRS Chapter 40.
However, the applicability of the sold-out, junior-lienholder exception was not at issue in
Murphy. Instead, Murphy dealt with the retroactive application of First Interstate Bank v.
Shields,
23
which made Nevada's deficiency judgment legislation applicable to guaranty
contracts. In Murphy, this court cited Carrillo merely for the proposition that the retroactive
application of Shields would lead to an inequitable result.
____________________

15
See Keever v. Nicholas Beers Co., 96 Nev. 509, 514-15, 611 P.2d 1079, 1083 (1980) (The opportunity to
sue directly on the obligation afforded to sold out juniors arises from the loss of their liens on the security by
operation of the foreclosure or trustee's sale. Having thus lost their interests in the security, through no fault of
their own, sold out junior lienors are treated as unsecured creditors; they are under no duty to redeem the
property or buy it at a judicial sale in order to limit the debtor's loss. (citation omitted)).

16
103 Nev. 157, 734 P.2d 724 (1987).

17
106 Nev. 26, 787 P.2d 370 (1990).

18
84 Nev. 99, 437 P.2d 878 (1968).

19
Id. at 101-02, 437 P.2d at 879.

20
Carrillo, 103 Nev. at 159, 734 P.2d at 725 ([W]e do not consider [the creditor] to be a sold-out junior
lienor in spite of the legal effect of the trustee's sale in extinguishing the [creditor's] second trust deed. The
[creditor] as a purchaser did not lose its expectations concerning the property as a source of debt satisfaction. . . .
[T]he creditor is permitted resort to a deficiency judgment only to the extent the combined debts exceed the fair
market value of the property.).

21
1987 Nev. Stat., ch. 563, 1, at 1344-45.

22
1989 Nev. Stat., ch. 750, 5, at 1769.

23
102 Nev. 616, 730 P.2d 429 (1986).
........................................
cited Carrillo merely for the proposition that the retroactive application of Shields would lead
to an inequitable result.
24
Thus, this court's reference to sold-out junior lienholders in
Murphy was mere dictum. To the extent that Murphy is inconsistent with NRS 40.430(4)(j),
Carrillo, and our holding today, it is disapproved.
25
Therefore, Murphy does not support
McDonald's argument that NRS 40.430(4)(j) is inapplicable to D.P. Alexander's claim.
CONCLUSION
[Headnote 14]
We conclude that under both NRS 40.430(4)(i) and (j), D.P. Alexander's claim is
exempt from the one-action rule. The one-action rule and its exceptions are intended to
protect debtors by preventing creditors from realizing more than the face value of a debt, not
to deny a creditor recovery of a legal debt altogether. To hold otherwise in this case would
circumvent the purpose of a guaranty contract, which is to make the guarantor obligated in
the event that the principal debtor is unable to meet the underlying obligation and the
collateral proves insufficient to satisfy the debt.
Accordingly, we affirm the district court's order granting summary judgment to D.P.
Alexander.
____________
121 Nev. 820, 820 (2005) Sampson v. State
WILLIE SAMPSON, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 41627
December 1, 2005
122 P.3d 1255
Appeal from a judgment of conviction. Eighth Judicial District Court, Clark County;
Michael L. Douglas, Judge.
Defendant was convicted in the district court of first-degree kidnapping, two counts of
lewdness with a minor under age of fourteen, attempted sexual assault on a minor under age
of fourteen, and sexual assault on a minor under age of fourteen. He appealed. The supreme
court, Rose, J., held that: (1) trial court acted within its discretion when it denied defendant's
request to call late-disclosed expert witness to testify about minor victim's alleged
oppositional defiant disorder; {2) as matter of first impression, prosecutor's eliciting of
police officers' testimony, to support inference of guilt, that defendant refused to consent
to warrantless search was constitutional error; {3) constitutional error in prosecutor's
eliciting of that testimony was harmless; and {4) error in police officer's testimony on
defendant's invocation of his Fifth Amendment right to silence was harmless.
____________________

24
Murphy, 106 Nev. at 29, 787 P.2d at 372.

25
The following language in Murphy is inconsistent with the holding of Carrillo, which was explained above:
In Carrillo v. Valley Bank, we overruled our prior decision in McMillan v. United Mortgage Co., to the extent
that McMillan exempted sold-out junior lienholders from compliance with Nevada's deficiency statutes. 106
Nev. at 29, 787 P.2d at 372 (citations omitted); cf. Carrillo, 103 Nev. at 159, 734 P.2d at 725.
........................................
alleged oppositional defiant disorder; (2) as matter of first impression, prosecutor's eliciting
of police officers' testimony, to support inference of guilt, that defendant refused to consent to
warrantless search was constitutional error; (3) constitutional error in prosecutor's eliciting of
that testimony was harmless; and (4) error in police officer's testimony on defendant's
invocation of his Fifth Amendment right to silence was harmless.
Affirmed.
George Chanos, Attorney General, Carson City; David J. Roger, District Attorney,
James Tufteland, Chief Deputy District Attorney, and Susan M. Pate, Deputy District
1. Criminal Law.
Trial court acted within its discretion when it denied defendant's request to call expert
witness to testify about minor victim's alleged oppositional defiant disorder (ODD), in
trial for kidnapping, lewdness with a minor under age of fourteen, and sexual assault on
a minor under age of fourteen, even though testimony would have been helpful to
defense; defendant did not give timely notice of expert witness to the State, and the
State did not anticipate expert witness and would have been unfairly surprised had
testimony been admitted. NRS 174.295(2), 174.234(1)(a), (2).
2. Criminal Law.
A trial court has discretion to determine the admissibility of expert testimony, and the
supreme court reviews this decision for a clear abuse of discretion.
3. Criminal Law.
When addressing discovery violations, a trial court must be cognizant that defendants
have the constitutional right to discredit their accuser, and this right can be but limitedly
circumscribed.
4. Criminal Law.
To protect a defendant's constitutional right to discredit his accuser, there is a strong
presumption to allow the testimony of even late-disclosed witnesses, and evidence
should be admitted when it goes to the heart of the case; however, the trial court must
also balance this right against not only the waste of judicial time factor but must take
particular care not to permit annoying, harassing, humiliating, and purely prejudicial
attacks unrelated to credibility.
5. Criminal Law.
Fairness during trial is not one-sided and applies to both the defendant and the State.
6. Criminal Law.
Prosecutor's eliciting of police officers' testimony, to support inference of guilt, that
defendant refused to consent to warrantless search of his residence was constitutional
error, in trial for kidnapping, lewdness with a minor under age of fourteen, and sexual
assault on a minor under age of fourteen. U.S. Const. amend. 4.
........................................
7. Criminal Law.
It is constitutional error for a prosecutor to elicit testimony or comment on a
defendant's refusal to consent to a warrantless search to support an inference of guilt; an
individual should be able to invoke his Fourth Amendment rights without having his
refusal used against him at trial. U.S. Const. amend. 4.
8. Criminal Law.
References to a defendant's exercise of his Fourth Amendment rights are harmless
beyond a reasonable doubt and do not require reversal of a conviction if (1) at trial there
was only a mere passing reference, without more, to an accused's post-arrest silence or
(2) there is overwhelming evidence of guilt. U.S. Const. amend. 4.
9. Criminal Law.
Where there is only a mere passing reference, without more, to an accused's
invocation of Fourth Amendment rights, there is harmless error. U.S. Const. amend. 4.
10. Criminal Law.
Constitutional error in prosecutor's eliciting of police officers' testimony, to support
inference of guilt, that defendant refused to consent to warrantless search was harmless,
in trial for kidnapping, lewdness with a minor under age of fourteen, and sexual assault
on a minor under age of fourteen; testimony was no more than passing reference to
defendant's invocation of his Fourth Amendment rights, in that prosecutor asked
officers whether they spoke to defendant and, if so, what he said to them, and this
questioning was not aimed at discussing defendant's refusal to consent. U.S. Const.
amend. 4.
11. Criminal Law.
Error in police officer's testimony on defendant's invocation of his Fifth Amendment
right to silence was harmless, in trial for kidnapping, lewdness with a minor under age
of fourteen, and sexual assault on a minor under age of fourteen; testimony was merely
passing reference to defendant's invocation of his rights, in that testimony was not
solicited by the State and was given in response to questions about what officer found
when he arrived at crime scene and whether he made any contact with defendant at that
time, and this context was not designed to draw meaning from defendant's silence. U.S.
Const. amend. 5.
12. Criminal Law.
Whether a prosecutor's comment on a defendant's invocation of her Fifth Amendment
rights is reversible error depends on whether the language used was manifestly intended
to be or was of such a character that the jury would naturally and necessarily take it to
be comment on the defendant's assertion of her Fifth Amendment rights. U.S. Const.
amend. 5.
13. Criminal Law.
A prosecutor's comments or brief testimonial comments concerning the invocation of
a defendant's Fifth Amendment rights are only unconstitutional when they are designed
to draw a meaning from the silence; when determining the intended meaning, the
supreme court views these improper prosecutorial comments in context, and a criminal
conviction should not be lightly overturned on the basis of the comments alone. U.S.
Const. amend. 5.
14. Criminal Law.
Test for whether a conviction must be overturned due to a prosecutor's or a witness's
comment on a defendant's invocation of her Fifth Amendment rights is whether there
was more than a mere passing reference to the invocation of Fifth Amendment rights.
........................................
Before Becker, C. J., Rose and Parraguirre, JJ.
OPINION
Willie Sampson was sentenced to multiple life sentences after a jury convicted him of
one count of first-degree kidnapping, two counts of lewdness with a minor under the age of
fourteen, one count of attempted sexual assault on a minor under the age of fourteen, and one
count of sexual assault on a minor under the age of fourteen. Sampson pleaded guilty to one
count of possession of a firearm by an ex-felon. Sampson appeals his conviction, arguing that
the district court erred by (1) refusing to allow him to introduce a new expert witness eight
days into trial to testify regarding a mental disorder with which the victim was allegedly
diagnosed, (2) permitting the prosecution to elicit testimony discussing Sampson's refusal to
allow officers to search his home pursuant to his Fourth Amendment right to refuse to
consent to a warrantless search, and (3) denying Sampson's motion for a mistrial based on
police testimony that Sampson had invoked his Fifth Amendment right to remain silent and to
be provided with counsel.
We first conclude that the district court did not abuse its discretion when it denied
Sampson's request to introduce a late-disclosed expert witness to discuss the victim's alleged
mental disorder. Second, we join other courts in adopting the rule that a district court errs
when it allows evidence or testimony during trial regarding a defendant's invocation of Fourth
Amendment rights. However, this error is subject to a harmless error analysis, and where the
evidence or testimony is merely a passing reference, the error is harmless and does not require
reversal of a conviction. We conclude that the reference to Sampson's exercise of his Fourth
Amendment rights was a mere passing reference and, thus, harmless error. Finally, we
conclude that the district court did not err by denying Sampson's motion for a mistrial based
on the testimony concerning his Fifth Amendment rights. We therefore affirm Sampson's
conviction.
FACTS
The events giving rise to Sampson's conviction stem from an encounter where
Sampson picked up the victim, a minor boy, and drove him first to McDonald's and then to
Sampson's residence. Sampson's conviction was based primarily on the testimony of the
minor boy, which drastically conflicted with Sampson's own testimony. At trial, the victim
presented the following testimony.
........................................
The victim said that he first saw Sampson when Sampson drove past him as he
walked down the street. When he stopped to rest at a bus stop, Sampson turned his vehicle
around and stopped next to the victim, asking the victim where the closest McDonald's was
located. Sampson asked the victim if he wanted anything to eat from McDonald's. The victim
replied that he did, and Sampson asked the victim to get into his car. Sampson took him to
McDonald's, where he purchased food for the victim, and then took the victim to Sampson's
residence to eat.
After the victim finished eating, Sampson told the victim that he would be right back
because he needed to get his cell phone from his vehicle. Instead, Sampson returned with a
gun, which he pointed at the victim and told the victim to do what he said. Sampson took the
victim into the bathroom and told him to remove his clothing. Sampson put a white scarf
around the victim's head to cover his eyes and ordered him to get into the bathtub and wash
up good. Sampson then got into the tub and sat face-to-face with the victim. Sampson
washed the victim and touched the victim's penis and buttocks during the washing.
Afterwards, Sampson dried the victim off, took him to a back room, told him to lie
down, and rubbed lotion on the victim. The victim was lying on his back, and Sampson slid
underneath him, also lying on his back. Sampson put the victim's hand on his penis and asked
the victim to masturbate him. The victim refused, and Sampson took the victim's hand, placed
it on Sampson's penis, and forced the victim to masturbate him until he ejaculated.
Sampson also placed his penis near the victim's face, touching the victim's nose and
repeatedly instructing him to suck his penis. The victim refused. Afterward, the victim asked
Sampson if he could watch television and also asked for his clothing back. Sampson did not
return his clothing but, instead, gave the victim a pair of silver boxer shorts and a tee shirt to
wear.
Sampson allowed the victim to watch television in his living room. The victim asked
Sampson for some chips, and Sampson then made a list of items that the victim wanted from
the grocery store. Sampson tied the victim up in a chair and left to go to the store. After
Sampson left for the store, the victim freed himself from the ropes and returned to his own
apartment.
Cross-examination of the victim and the additional testimony of other witnesses
revealed several inconsistencies in the victim's testimony. During the preliminary hearing, the
victim was asked if Sampson ever put his hand on the victim's private parts, to which the
victim replied no. There were also inconsistencies between the victim's trial testimony and
the recorded statement he gave police following the incident. The inconsistencies concerned
the color of the soap that Sampson washed the victim with, whether both Sampson and the
victim ate their McDonald's meals, whether Sampson tied the victim up more than once,
and whether the sexual assault occurred while the victim was tied up.
........................................
Sampson and the victim ate their McDonald's meals, whether Sampson tied the victim up
more than once, and whether the sexual assault occurred while the victim was tied up.
Finally, in his recorded statement, the victim told officers that Sampson rubbed lotion on his
crotch and identified where that was on his body. However, at trial the victim testified that he
believed his crotch was his rectum and said that Sampson never put lotion on his penis.
There were also discrepancies between the victim's testimony and his mother's
testimony. His mother testified that when he arrived at home he was hysterical and crying and
he told her that a man kidnapped him and took him to the man's home. He told her that
Sampson grabbed him and threw him into the car. However, the victim never told officers
that Sampson grabbed him or threw him into his car. The victim also never told his mother
about the trip to McDonald's, but he did tell her that he ate McDonald's food when he arrived
at Sampson's house.
After the victim told his mother about the incident, his mother asked him to take her
to Sampson's house. After he showed her where Sampson lived, his mother called the police
from Sampson's neighbor's house. While the police interviewed the victim, Sampson pulled
into the driveway of his residence.
Sampson allowed the police to search his vehicle, and the police found two grocery
bags, which contained candy, cookies, and chips. Officers then asked Sampson for permission
to search his residence, to recover the victim's clothing, and Sampson refused consent. Once a
search warrant was obtained, officers searched Sampson's residence. They found garbage
from McDonald's, a chair with yellow ropes on it, a bottle of lotion, a black revolver, boy's
boxer shorts, green sweatpants, and a grocery-shopping list. Sampson was taken into custody
and he requested an attorney.
Sampson's testimony differed greatly from the victim's testimony. He stated he
noticed the victim at a bus stop and the victim waved for Sampson to stop. Sampson pulled
over, stopped, and rolled down the car window. The victim apologized for stopping Sampson
and told him that he thought Sampson was his best friend's father because the car Sampson
drove looked similar.
Sampson testified that the minor boy asked him for a ride to McDonald's. Sampson
purchased the McDonald's food and gave the victim two dollars of the change. Sampson said
that he needed to go home to do some work, and the victim asked if he could come with him.
Sampson stated he did not push the boy and did not force him into the house. They
both sat at the kitchen table and ate their meals. Sampson asked the victim to call home but
the victim refused to call home and, instead, watched television while Sampson cleaned the
kitchen.
........................................
Sampson testified that the victim smelled dirty and his clothes were filthy so he
offered to wash the victim's clothes at his neighbor's house and told the victim that he should
take a bath. Sampson testified that he did not bathe at his house, and he did not get into the
tub with the victim.
According to Sampson, the victim put on clothes that Sampson offered to him to wear
until he washed the victim's clothes. Sampson did not remain in the room while the victim
changed clothes. When the victim was changing, the victim noticed a chair with ropes on it
that Sampson used during sexual activities with a female acquaintance. The victim played
with the ropes until Sampson told him to stop and to get away from the chair.
Sampson testified that he cooked chicken for the two to eat and then decided to go to
the store. Sampson denied ever attempting to have sex with the boy or touching him in any
way.
David Welch, a forensic chemist with the Las Vegas Metropolitan Police Department
(LVMPD), testified as an expert for the State. He said that DNA testing on penile swabs from
Sampson and the victim revealed no foreign DNA. The medical examination of the victim
revealed no bodily fluids, bite marks, bruising, or evidence of sexual assault. Semen was
found in a handkerchief inside Sampson's home, but towels found in the bathroom and
Sampson's bedclothes were tested and failed to reveal the presence of any semen. These items
were not tested to reveal the presence of foreign DNA. There was no physical evidence to
corroborate the victim's allegation of oral sex.
On the eighth day of trial, Sampson attempted to introduce the victim's school records,
which indicated that the victim had been diagnosed with Oppositional Defiant Disorder
(ODD). Sampson also attempted to introduce Dr. Racoma as an expert witness, who had
made the ODD diagnosis. ODD is an illness that is characterized by lying. Sampson's defense
theory was that the victim lied about the alleged abduction and molestation, which accounted
for the discrepancies in the victim's stories. The district court denied Sampson's requests.
Additionally, during trial, two officers were questioned regarding whether they spoke
with Sampson at the crime scene, and if so, what Sampson said. Both officers responded that
they asked Sampson's permission to search his residence without a search warrant, which he
refused. Sampson's counsel made no objection to this testimony. Another officer was also
questioned regarding whether he made contact with Sampson at the crime scene. This officer
responded that he did not because by the time the officer arrived at the crime scene, Sampson
was already in a patrol car and had requested an attorney. Sampson's counsel moved for a
mistrial, but the district court denied the request.
........................................
The jury convicted Sampson of one count of first-degree kidnapping, two counts of
lewdness with a minor, one count of attempted sexual assault on a minor under the age of
fourteen, and one count of sexual assault on a minor under the age of fourteen. Sampson was
sentenced to multiple life terms. Sampson appealed, arguing that his conviction should be
reversed because the district court did not allow him to introduce Dr. Racoma and because
the State's witnesses commented on Sampson's invocation of his Fourth and Fifth
Amendment rights.
DISCUSSION
Exclusion of expert testimony
[Headnotes 1, 2]
Sampson argues that the district court erred by refusing to allow him to call Dr.
Racoma to testify regarding the fact that the victim was diagnosed with ODD. The district
court has discretion to determine the admissibility of expert testimony, and we review this
decision for a clear abuse of discretion.
1

Under NRS 174.234(1)(a), both defense counsel and the prosecution must submit to
each other, at least five days prior to trial, written notice of all witnesses they intend to call.
Further, under NRS 174.234(2), written notice of expert witnesses must be filed and served
upon the opposition at least twenty-one days before trial. Pursuant to NRS 174.295(2), the
remedy for a violation of the discovery provisions of NRS 174.234 is that the district court
may order the party to permit the discovery or inspection of materials not previously
disclosed, grant a continuance, or prohibit the party from introducing in evidence the material
not disclosed, or it may enter such other order as it deems just under the circumstances.
[Headnotes 3, 4]
When addressing discovery violations, the district court must be cognizant that
defendants have the constitutional right to discredit their accuser, and this right can be but
limitedly circumscribed.
2
Therefore, to protect this constitutional right, there is a strong
presumption to allow the testimony of even late-disclosed witnesses, and evidence should be
admitted when it goes to the heart of the case.
3
However, the district court must also balance
this right against not only the waste of judicial time factor . . . but must take particular care
not to permit annoying, harassing, humiliating and purely prejudicial attacks unrelated to
credibility."
____________________

1
Brown v. State, 110 Nev. 846, 852, 877 P.2d 1071, 1075 (1994); Smith v. State, 100 Nev. 570, 572, 688
P.2d 326, 327 (1984).

2
Reese v. State, 458 A.2d 492, 496 (Md. Ct. Spec. App. 1983).

3
Farris v. State, 818 N.E.2d 63, 69 (Ind. Ct. App. 2004); see U.S. v. Shay, 57 F.3d 126, 134 (1st Cir. 1995).
........................................
take particular care not to permit annoying, harassing, humiliating and purely prejudicial
attacks unrelated to credibility.
4

We agree with Sampson that the testimony he sought to admit would have been
helpful to his defense. However, the district court did not abuse its discretion when it denied
Sampson the right to call Dr. Racoma. Sampson had access to the victim's school records
prior to trial, but Sampson's counsel states that because the writing in the school records was
unclear, he believed that the doctor's name was Dr. Raconia instead of Dr. Racoma.
Thus, he argues that there was no delay in disclosing Dr. Racoma as an expert witness
because he did not find out that the report was actually referring to Dr. Racoma until the
eighth day of trial.
We find this assertion unpersuasive. Although Dr. Racoma's name was spelled
incorrectly, it nonetheless would not have been difficult for Sampson's counsel to locate Dr.
Racoma based on these records. Also, even if Sampson's counsel could not locate Dr.
Racoma, he could have brought in evidence of the victim's diagnosis of ODD in other ways.
Most clearly, Sampson's counsel could have used the school records to question the victim's
mother regarding the ODD diagnosis.
5

[Headnote 5]
Further, the State did not anticipate this witness and had Dr. Racoma's testimony been
allowed, it would have resulted in an unfair surprise to the State. Fairness during trial is not
one-sided and applies to both the defendant and the State. The fault herein lies not with the
district court, but instead with Sampson's attorney, who inexplicably failed to present the
evidence contained in the school records or timely pursue testimony from Dr. Racoma. Thus,
the district court did not abuse its discretion by denying Sampson's request to introduce Dr.
Racoma.
6

Testimony relating to Sampson's invocation of Fourth Amendment rights
[Headnote 6]
Sampson argues that the district court erred by permitting the State to present
testimony that discussed Sampson's invocation of his Fourth Amendment right to refuse to
consent to a search of his residence.
____________________

4
Reese, 458 A.2d at 497.

5
Sampson's counsel questioned the victim's mother regarding the medication that he took for Attention
Deficit Hyperactivity Disorder. The victim's mother denied that the victim had been diagnosed with any other
disorders. Although Sampson's counsel then had the opportunity to show the victim's mother the school records
reflecting the diagnosis of ODD while she was on the witness stand, he failed to do so.

6
Sampson also argues that the district court erred by limiting the scope of his cross-examination of both the
victim's mother and Dr. Vergara in violation
........................................
his Fourth Amendment right to refuse to consent to a search of his residence. The testimony
at issue was elicited by the State from two LVMPD officers who testified that they asked
Sampson if they could enter his residence to retrieve the victim's clothing, and Sampson
replied that he did not want them to enter his home. Sampson did not object to this testimony
and therefore has the burden of establishing that plain error affecting his substantial rights
occurred.
7
We conclude that he fails to do so.
[Headnote 7]
Whether it is constitutional error for a prosecutor to elicit testimony or comment on a
defendant's refusal to consent to a warrantless search to support an inference of guilt is an
issue of first impression in Nevada. This proposition has been assumed by many courts,
8
and
today we adopt this rule in Nevada. As one court has stated, [A]n individual should be able
to invoke his Fourth Amendment rights without having his refusal used against him at trial.
9

Courts addressing this issue recognize that there are similarities between exercising
Fourth Amendment rights and exercising other constitutional rights, and they determine that
it is improper for the State to effectively punish a defendant for asserting her constitutional
rights.
10
One court has stated, Just as a criminal suspect may validly invoke his Fifth
Amendment privilege in an effort to shield himself from criminal liability, so one may
withhold consent to a warrantless search, even though one's purpose be to conceal evidence
of wrongdoing.
11

____________________
of his due process rights to confront the witnesses against him. We have considered this assertion and conclude
that it is without merit.

7
See NRS 178.602.

8
The Fifth Circuit, when determining that it was constitutional error for a trial court to permit the prosecutor
to comment or present testimony on a defendant's refusal to consent to a warrantless search to support an
inference of guilt, pointed out that all of the circuit courts that have addressed this issue have determined that a
defendant's refusal to consent to a warrantless search may not be used as evidence of guilt. U.S. v. Runyan, 290
F.3d 223, 249 (5th Cir. 2002) (citing U.S. v. Moreno, 233 F.3d 937, 940-41 (7th Cir. 2000); U.S. v. Dozal, 173
F.3d 787, 794 (10th Cir. 1999); U.S. v. Thame, 846 F.2d 200, 205-08 (3d Cir. 1988); United States v. Prescott,
581 F.2d 1343, 1351-52 (9th Cir. 1978)). At least two other state courts agree with this analysis. See Padgett v.
State, 590 P.2d 432, 434 (Alaska 1979); Mackey v. State, 507 S.E.2d 482, 484 (Ga. Ct. App. 1998).

9
Mackey, 507 S.E.2d at 484.

10
Thame, 846 F.2d at 206-07; Prescott, 581 F.2d at 1351.

11
Prescott, 581 F.2d at 1351 (citations omitted). In Prescott, the court instructed that
[s]hould the case proceed to retrial, the district court should take care to exclude all evidence that
Prescott refused to consent to the search and,
........................................
[Headnotes 8, 9]
This court has previously addressed references made during trial to a defendant's
exercise of her Fifth Amendment rights, and in Morris v. State,
12
we set forth the test to
determine whether such a comment results in reversible error. In Morris, we held that
references to a defendant's exercise of her Fifth Amendment rights are harmless beyond a
reasonable doubt and do not require reversal of a conviction if, (1) at trial there was only a
mere passing reference, without more, to an accused's post-arrest silence, or (2) there is
overwhelming evidence of guilt.
13
Today we adopt this test for comments on a defendant's
exercise of Fourth Amendment rights. Thus, where there is only a mere passing reference,
without more, to an accused's invocation of Fourth Amendment rights, there is harmless
error.
14

[Headnote 10]
Based on the test set forth in Morris, we conclude that in the instant case the district
court erred in allowing this testimony. But even assuming that the error was plain, it did not
prejudice Sampson's substantial rights. The testimony of the police officers regarding
Sampson's refusal to consent to the warrantless search of his residence was no more than a
mere passing reference. The officers were asked if they spoke with the defendant, and if so,
what the defendant said to them. This was not questioning that was aimed at discussing
Sampson's refusal to consent to the warrantless search of his residence. Thus, although the
district court erred by allowing this testimony, the error was not prejudicial and does not
require reversal of Sampson's conviction.
____________________
if the evidence comes in inadvertently, should instruct the jury that Prescott's refusal was privileged
conduct which cannot be considered as evidence of the crime charged.
Id. at 1353.

12
112 Nev. 260, 913 P.2d 1264 (1996).

13
Id. at 264, 913 P.2d at 1267-68 (citations omitted). In the instant case, there was not overwhelming
evidence of guilt. Sampson's conviction was based solely on whether the jury found the victim more credible
than Sampson. Thus, our application of the harmless error analysis with regard to comments on the invocation of
Fourth Amendment rights is limited only to what constitutes a mere passing reference. We do not address the
second part of the Morris test concerning overwhelming evidence of guilt. We provide that prong of the Morris
test in this discussion only for completeness in describing the test.

14
However, to be clear, where, for instance, a defendant claims that she cooperated fully with the police
during the investigation, and the State then questions the defendant or other witnesses regarding the defendant's
compliance with the search, the defendant may not then argue that there has been reversible error based on the
State's comment on her invocation of Fourth Amendment rights. The rule we adopt today applies only to
defendants who have not put their compliance with a search into issue.
........................................
allowing this testimony, the error was not prejudicial and does not require reversal of
Sampson's conviction.
Testimony relating to Sampson's invocation of Fifth Amendment rights
[Headnote 11]
During trial, Sampson brought a motion for a mistrial based upon the testimony of
Detective Castaneda discussing Sampson's invocation of the right to remain silent and to have
an attorney. Detective Castaneda testified that when he arrived at the scene of the crime, he
was informed that Sampson had already been detained in a patrol car and that officers and
detectives were not speaking with Sampson because he had requested an attorney. The State
apologized for the testimony, argued that it had not elicited the testimony, and offered a
curative instruction. Sampson refused the instruction. The district court admitted that the
comments were error but determined the error to be harmless and denied Sampson's motion
for a mistrial. We agree with the district court that this testimony was error and that such error
was harmless.
[Headnotes 12-14]
Whether a prosecutor's comment on a defendant's invocation of her Fifth Amendment
rights is reversible error depends on whether the language used was manifestly intended
to be or was of such a character that the jury would naturally and necessarily take it to be
comment on the defendant's [assertion of her Fifth Amendment rights]. '
15
Also,
comments concerning the invocation of a defendant's Fifth Amendment rights are only
unconstitutional when they are designed to draw a meaning from the silence.
16
When
determining the intended meaning, we view these improper prosecutorial comments in
context, and a criminal conviction should not be lightly overturned on the basis of the
comments alone.
17
The same is true for brief testimonial comments. As discussed, the test
for whether a conviction must be overturned is whether there was more than a mere passing
reference to the invocation of Fifth Amendment rights.
18

We conclude that Detective Castaneda's statement was merely a passing reference.
Detective Castaneda's statement was unsolicited by the State, and he testified to the above
in response to questions about what he found when he arrived at the scene of the crime
and whether he made any contact with the suspect at that time.
____________________

15
Knight v. State, 116 Nev. 140, 144, 993 P.2d 67, 71 (2000) (quoting Harkness v. State, 107 Nev. 800, 803,
820 P.2d 759, 761 (1991) (quoting United States v. Lyon, 397 F.2d 505, 509 (7th Cir. 1968))).

16
Washington v. State, 112 Nev. 1054, 1060, 921 P.2d 1253, 1257 (1996).

17
Knight, 116 Nev. at 144-45, 993 P.2d at 71.

18
Morris v. State, 112 Nev. 260, 264, 913 P.2d 1264, 1267-68 (1996).
........................................
by the State, and he testified to the above in response to questions about what he found when
he arrived at the scene of the crime and whether he made any contact with the suspect at that
time. Thus, the context of his statement was not designed to draw a meaning from silence and
amounted to harmless error.
CONCLUSION
For the above-stated reasons, the errors committed at trial warrant no relief.
Accordingly, we affirm the judgment of conviction.
Becker, C. J., and Parraguirre, J., concur.
____________
121 Nev. 832, 832 (2005) Nelson v. Heer
JUDY NELSON, Appellant, v. SCOTT HEER, Respondent.
No. 45571
December 1, 2005
122 P.3d 1252
Motion for stay pending appeal supported by alternate security in lieu of a supersedeas
bond.
The supreme court, Hardesty, J., held that application for stay pending appeal was
required to be made to district court.
Motion denied.
Robert W. Lueck, Las Vegas, for Appellant.
Sylvester & Polednak, Ltd., and Shawn A. Mangano, Las Vegas, for Respondent.
The purpose of security for a stay pending appeal is to protect the judgment creditor's
ability to collect the judgment if it is affirmed by preserving the status quo and
preventing prejudice to the creditor arising from the stay. NRCP 62(d).
The five factors to consider in determining when a full supersedeas bond may be
waived and/or alternate security substituted include: (1) the complexity of the collection
process, (2) the amount of time required to obtain a judgment after it is affirmed on
appeal, (3) the degree of confidence that the district court has in the availability of
funds to pay the judgment, (4) whether the defendant's ability to pay the judgment is so
plain that the cost of a bond would be a waste of money, and (5) whether the defendant
is in such a precarious financial situation that the requirement to post a bond would
place other creditors of the defendant in an insecure position. NRCP 62(d).
Application for stay of judgment pending appeal was required to be made to the
district court because the district court rather than the supreme court was in the best
position to weigh the relevant considerations in determining whether alternate security
in lieu of a supersedeas bond could be used to stay judgment pending appeal. NRAP
8(a); NRCP 62(d).
........................................
121 Nev. 832, 833 (2005) Nelson v. Heer
Before Maupin, Gibbons and Hardesty, JJ.
OPINION
Although we deny appellant's stay motion, we take this opportunity to modify our
previous opinion in McCulloch v. Jeakins
1
concerning the use of alternate security, in lieu of
a supersedeas bond, to support a stay pending appeal. After entering judgment on a jury
verdict for approximately $330,000, the district court granted a stay pending appeal,
conditioned on the posting of a supersedeas bond in the judgment amount. Appellant Judy
Nelson moves this court for a stay pending appeal conditioned on alternate security, rather
than a supersedeas bond. On September 21, 2005, we granted a temporary stay and indicated
that an opinion setting forth our reasoning would follow. In this opinion, we retreat from
McCulloch's emphasis on unusual circumstances
2
and instead adopt the Seventh Circuit
test for when alternate security may be appropriate.
FACTS
After purchasing a cabin on Mount Charleston from Nelson, respondent Scott Heer
discovered that a water pipe had broken in the cabin before he bought it. He had tests
conducted and then claimed that the cabin was contaminated with mold. Nelson had not lived
in the cabin and denied liability. A jury found in Heer's favor, and the district court entered
judgment against Nelson for approximately $330,000 in damages, costs, attorney fees and
prejudgment interest. The district court granted a stay pending appeal but conditioned the stay
on the posting of a supersedeas bond in the judgment amount. The district court rejected
Nelson's request to provide security other than a bond by encumbering a parcel of her real
property. Nelson claimed that the equity in the property exceeded the judgment amount.
Nelson assertedly had difficulty obtaining a supersedeas bond. Heer promptly
obtained a judgment lien on all of Nelson's real property in Clark County, a total of six
parcels (not including Nelson's homesteaded residence), by recording the judgment in his
favor. Also, Heer began to execute on the judgment by garnishing Nelson's slot route operator
income. According to Nelson, the garnishment threatens the viability of her businesses.
Specifically, Nelson owns two small bars, and she asserts that the slot route income pays a
significant portion of the bars' expenses, including employees' salaries, inventory and
supplies.
____________________

1
99 Nev. 122, 659 P.2d 302 (1983).

2
Id. at 123, 659 P.2d at 303.
........................................
121 Nev. 832, 834 (2005) Nelson v. Heer
employees' salaries, inventory and supplies. Additionally, Nelson claims, the bars' income
stream supports Nelson and her family. Nelson states that without this income, not only will
several employees be out of work, but she will be unable to pay her other creditors and the
mortgages on her real property. Nelson therefore filed the instant motion, asking that a stay
pending appeal be conditioned on alternate security, rather than a supersedeas bond.
3

DISCUSSION
NRCP 62(d) governs stays pending appeal and provides:
(d) Stay Upon Appeal. When an appeal is taken the appellant by giving a
supersedeas bond may obtain a stay subject to the exceptions contained in subdivision
(a) of this rule. The bond may be given at or after the time of filing the notice of appeal.
The stay is effective when the supersedeas bond is filed.
This rule is substantially based on its federal counterpart, FRCP 62(d). Most federal courts
interpreting the rule generally recognize that FRCP 62(d) allows an appellant to obtain a stay
pending appeal as of right upon the posting of a supersedeas bond for the full judgment
amount, but that courts retain the inherent power to grant a stay in the absence of a full bond.
4
We have previously recognized that federal decisions involving the Federal Rules of Civil
Procedure provide persuasive authority when this court examines its rules.
5

Our primary opinion discussing security for a stay is McCulloch v. Jeakins.
6
In
McCulloch, we adopted what was then the majority federal approach and held that a
supersedeas bond posted under NRCP 62 should usually be set in an amount that will permit
full satisfaction of the judgment. [But a] district court, in its discretion, may provide for a
bond in a lesser amount, or may permit security other than a bond, when unusual
circumstances exist and so warrant."
____________________

3
Initially, Nelson asked to encumber one of her six parcels of real property in Clark County. We denied this
motion in an unpublished order. Nelson then filed this amended motion asking that Heer's judgment lien serve
as security for a stay. Since we granted the temporary stay, Nelson filed yet another motion asking that funds
held by Nevada Title Company serve as security.

4
See, for example, Fed. Presc. Serv. v. Am. Pharm. Ass'n, 636 F.2d 755, 757-58 (D.C. Cir. 1980), and the
cases cited therein. To the extent that State ex rel. PSC v. District Court, 94 Nev. 42, 44-46, 574 P.2d 272,
273-74 (1978), implies otherwise, it is disavowed. PSC's requirement that the State or a state agency file a
motion for stay pending appeal is not in any way affected by this opinion, however. Id. at 45-46, 574 P.2d at
274.

5
Executive Mgmt. v. Ticor Title Ins. Co., 118 Nev. 46, 53, 38 P.3d 872, 876 (2002).

6
99 Nev. 122, 659 P.2d 302.
........................................
121 Nev. 832, 835 (2005) Nelson v. Heer
other than a bond, when unusual circumstances exist and so warrant.
7

Nelson argues that the phrase unusual circumstances in McCulloch is too restrictive.
According to her, this language is outdated and few, if any courts still use such a rigid
standard. We agree with Nelson and conclude that a more flexible and modern approach will
better serve Nevada litigants and courts.
[Headnote 1]
The purpose of security for a stay pending appeal is to protect the judgment creditor's
ability to collect the judgment if it is affirmed by preserving the status quo and preventing
prejudice to the creditor arising from the stay.
8
However, a supersedeas bond should not be
the judgment debtor's sole remedy, particularly where other appropriate, reliable alternatives
exist. Thus, the focus is properly on what security will maintain the status quo and protect the
judgment creditor pending an appeal, not how "unusual" the circumstances of a given
case may be.
____________________

7
Id. at 123, 659 P.2d at 303 (footnote omitted). The cases cited in McCulloch as support for the language
quoted in the text indicate that unusual circumstances could include: (1) when the judgment debtor
objectively demonstrates a present financial ability to facilely respond to a money judgment and presents to the
court a financially secure plan for maintaining that same degree of solvency during the period of an appeal,
Poplar Grove, Etc. v. Bache Halsey Stuart, Inc., 600 F.2d 1189, 1191 (5th Cir. 1979); (2) when the judgment
debtor's financial condition is such that the posting of a full bond would impose an undue financial burden, id.;
(3) when a full bond would impose an undue financial burden and the debtor's financial dealings can be
restrained to provide alternate security, Fed. Presc. Serv., 636 F.2d at 758 (citing Poplar Grove, 600 F.2d at
1191); (4) when execution on the judgment would render the debtor insolvent and eliminate the debtor as the
creditor's competitor, and alternate security could be provided, id. (citing C. Albert Sauter Co. v. Richard S.
Sauter Co., 368 F. Supp. 501, 520-21 (E.D. Pa. 1973)); (5) when posting the bond is not practicable, such as
when the judgment amount is extremely large, id. (citing Trans World Airlines, Inc. v. Hughes, 314 F. Supp. 94
(S.D.N.Y. 1970), aff'd in pert. part, 515 F.2d 173, 177-78 (2d Cir. 1975)); and (6) when a stay will do the
judgment creditor no material damage or no likelihood of harm from a stay has been shown, id. at 759
(quoting Urbain v. Knapp Brothers Manufacturing Company, 217 F.2d 810, 816 (6th Cir. 1954) and citing
International Controls Corp. v. Vesco, 490 F.2d 1334, 1356 (2d Cir. 1974)). These examples illustrate that
McCulloch's standard may not be as restrictive as Nelson claims. On the other hand, the opinion's emphasis on
when unusual circumstances exist and so warrant implies that alternate security should be permitted only in
rare instances.

8
See McCulloch, 99 Nev. at 123, 659 P.2d at 303; see also Fed. Presc. Serv., 636 F.2d at 756; Poplar Grove,
600 F.2d at 1190-91; Employers Ins. Co. v. American Liberty Ins., 495 So. 2d 1039, 1041 (Ala. 1986); Bruce
Church, Inc. v. Superior Court, 774 P.2d 818, 821 (Ariz. Ct. App. 1989); Ryder Truck Rental, Inc. v. Sutton,
807 S.W.2d 909, 912 (Ark. 1991); Muck v. Arapahoe County Dist. Court, 814 P.2d 869, 872-73 (Colo. 1991);
Seventh Elect Church in Israel v. Rogers, 660 P.2d 280, 289 (Wash. Ct. App. 1983). See generally 11 Charles
Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure 2905, at 522 (1995); 5
Am. Jur. 2d Appellate Review 441, at 181-82 (1993).
........................................
121 Nev. 832, 836 (2005) Nelson v. Heer
ment creditor pending an appeal, not how unusual the circumstances of a given case may
be.
[Headnote 2]
In reflecting on the purposes of security for a stay, the Seventh Circuit, in Dillon v.
City of Chicago,
9
set forth five factors to consider in determining when a full supersedeas
bond may be waived and/or alternate security substituted:
(1) the complexity of the collection process; (2) the amount of time required to obtain a
judgment after it is affirmed on appeal; (3) the degree of confidence that the district
court has in the availability of funds to pay the judgment; (4) whether the defendant's
ability to pay the judgment is so plain that the cost of a bond would be a waste of
money; and (5) whether the defendant is in such a precarious financial situation that the
requirement to post a bond would place other creditors of the defendant in an insecure
position.
10

We conclude that this framework provides a useful analytical tool, and we adopt it for
Nevada. Therefore, when confronted with a motion to reduce the bond amount or for alternate
security, the district court should apply these factors. In considering the second factor, the
district court should take into account the length of time that the case is likely to remain on
appeal.
[Headnote 3]
Here, the district court's order denying Nelson's motion for alternate security contains
no discussion. Thus, we cannot determine what standard the district court used. Also,
Nelson's motion to the district court proposed alternate security in the form of only one of her
several parcels, which was encumbered by a first deed of trust. Thus, the district court has not
had the opportunity to consider Nelson's more recent proposals, which have been presented
only to this court.
NRAP 8(a) requires that an application for a stay pending appeal be made to the
district court in the first instance. This requirement is grounded in the district court's vastly
greater familiarity with the facts and circumstances of the particular case. Additionally, the
district court is better positioned to resolve any factual disputes concerning the adequacy of
any proposed security, while this court is ill suited to such a task.
11

____________________

9
866 F.2d 902 (7th Cir. 1988).

10
Id. at 904-05 (citations and internal quotation marks omitted).

11
See Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 604, 637 P.2d 534, 536 (1981).
........................................
121 Nev. 832, 837 (2005) Nelson v. Heer
Accordingly, we deny Nelson's motion, as the district court is in the best position to
weigh the relevant considerations in determining whether alternate security is warranted.
Nelson may, however, renew her motion for alternate security in lieu of a bond to the district
court, which should consider her request under the principles discussed in this opinion.
12

Maupin and Gibbons, JJ., concur.
____________
121 Nev. 837, 837 (2005) Shuette v. Beazer Homes Holdings Corp.
DARWIN SHUETTE, Individually; MARC FLOYD, Individually; and DIANA TODD,
Individually, Appellants, v. BEAZER HOMES HOLDINGS CORPORATION, a
Delaware Corporation; and BEAZER HOMES NEVADA, INC., a Nevada
Corporation, Respondents.
No. 41611
BEAZER HOMES HOLDINGS CORPORATION, a Delaware Corporation; and BEAZER
HOMES NEVADA, INC., a Nevada Corporation, Appellants, v. DARWIN
SHUETTE, Individually; MARC FLOYD, Individually; and DIANA TODD,
Individually, Respondents.
No. 41768
December 15, 2005
124 P.3d 530
Consolidated appeals from a district court judgment and an order denying a motion
for a new trial in a constructional defect class action. Eighth Judicial District Court, Clark
County; Allan R. Earl, Judge.
Homeowners brought class action against homebuilder, alleging breach of express and
implied warranties, negligence, and negligent misrepresentation. The district court entered
judgment on a jury verdict in favor of homeowners on their negligence and negligent
misrepresentation claims and awarded attorney fees. Homeowners and homebuilder appealed.
The supreme court, Hardesty, J., held that: (1) class action certification was not warranted, (2)
trial court was required to determine reasonableness of requested attorney fees, and (3)
damage award in constructional defect action was subject to prejudgment interest.
____________________

12
We deny Heer's September 28, 2005 motion for reconsideration of our temporary stay and for sanctions,
and we also deny Nelson's October 11, 2005 motion for clarification and for contempt. We further deny Nelson's
October 17, 2005 motion for approval of security as moot in light of this opinion. We vacate our temporary stay
entered on September 21, 2005.
........................................
Dismissed as moot (No. 41611); reversed and remanded (No. 41768).
Robert C. Maddox & Associates and Samuel S. Crano, Nancy A. Cyra and Robert C.
Maddox, Las Vegas, for Appellants in No. 41611 and Respondents in No. 41768.
Beckley Singleton, Chtd., and Daniel F. Polsenberg, Las Vegas; Koeller Nebeker
Carlson & Haluck, LLP, and Robert C. Carlson Jr. and Megan K. Dorsey, Las Vegas, for
Respondents in No. 41611 and Appellants in No. 41768.
Bradley Drendel & Jeanney and Thomas E. Drendel, Reno, for Amicus Curiae
Nevada Trial Lawyers Association.
Jones Vargas and James L. Wadhams, Las Vegas, for Amici Curiae Southern Nevada
Homebuilders Association and Nevada Subcontractors Association.
The supreme court reviews class action certification decisions under an abuse of
2. Parties.
Class action suits are designed to allow representatives of a numerous class of
similarly situated people to sue on behalf of that class in order to obtain a judgment that
will bind all; thereby, class actions promote efficiency and justice in the legal system by
reducing the possibilities that courts will be asked to adjudicate many separate suits
arising from a single wrong and that individuals will be unable to obtain any redress for
wrongs otherwise irremediable because the individual claims are too small or the
claimants too widely dispersed.
3. Parties.
It is the plaintiffs' burden to prove that the case is appropriate for resolution as a class
action.
4. Parties.
Although courts agree that numerosity prerequisites for class certification mandate no
minimum number of individual members, a putative class of forty or more generally
will be found numerous. NRCP 23(a)(1).
5. Parties.
Questions are common to the class as required for class action certification when their
answers as to one class member hold true for all class members. NRCP 23(a)(2).
6. Parties.
Commonality for class action certification does not require that all questions of law
and fact be identical, but that an issue of law or fact exists that inheres in the complaints
of all the class members; thus, this prerequisite may be satisfied by a single common
question of law or fact. NRCP 23(a)(2).
7. Parties.
Generally, the typicality prerequisite for class action certification concentrates on the
defendants' actions, not on the plaintiffs' conduct; thus, defenses that are unique to a
representative party will rarely defeat this prerequisite, unless they threaten to
become the focus of the litigation.
........................................
this prerequisite, unless they threaten to become the focus of the litigation. NRCP
23(a)(3).
8. Parties.
The typicality prerequisite for class action certification can be satisfied by showing
that each class member's claim arises from the same course of events and each class
member makes similar legal arguments to prove the defendant's liability; thus, the
representatives' claims need not be identical, and class action certification will not be
prevented by mere factual variations among class members' underlying individual
claims. NRCP 23(a)(3).
9. Parties.
Typicality of claims as required for class action certification can result when each
owner in a condominium complex suffers damage by way of being assessed for repairs
to leaky common area roofs, even though some of the individual unit owners have not
otherwise suffered from leakage problems. NRCP 23(a)(3).
10. Parties.
A class action may proceed only when it is shown that the representative parties have
the ability to fairly and adequately protect the interests of the class.
11. Parties.
Representative parties of a single class of persons with varying asbestos-related
injuries cannot adequately advance the interests of the entire class when the individual
class members have disparate medical statuses and, therefore, conflicting views on how
a limited amount of recovery should be divided, dispersed, and otherwise dealt with.
12. Parties.
The predominance prong of the class action certification condition regarding whether
common questions of law or fact predominate over individual questions tests whether
proposed classes are sufficiently cohesive to warrant adjudication by representation.
NRCP 23(b).
13. Parties.
Under class action certification condition regarding whether common questions of law
or fact predominate over individual questions, the questions of law or fact at issue are
those that qualify each class member's case as a genuine controversy; therefore, the
questions that class members have in common must be significant to the substantive
legal analysis of the members' claims. NRCP 23(b).
14. Parties.
While the class action certification condition regarding whether common questions of
law or fact predominate over individual questions is related to the commonality and
typicality requirements, it is more demanding. NRCP 23(a), (b)(3).
15. Parties.
Common questions predominate over individual questions in order to certify class
action if they significantly and directly impact each class member's effort to establish
liability and entitlement to relief, and their resolution can be achieved through
generalized proof. NRCP 23(b)(3).
16. Parties.
When the facts and the law necessary to resolve the claims vary from person to
person, taking into account the nature of the defenses presented, or when the resolution
of the common questions would result in superficial adjudications which deprive either
party of a fair trial, individual questions predominate so that class action is an
inappropriate method of adjudication. NRCP 23(b)(3).
........................................
17. Parties.
Class action requirement asking whether class action is superior method of
adjudication promotes the interests of efficiency, consistency, and ensuring that class
members actually obtain relief. NRCP 23(b)(3).
18. Parties.
A proper class action prevents identical issues from being litigated over and over,
avoiding duplicative proceedings and inconsistent results; it also helps class members
obtain relief when they might be unable or unwilling to individually litigate an action
for financial reasons or for fear of repercussion. NRCP 23.
19. Parties.
Factors worth considering in determining if a class action is the superior method of
adjudication include the members' interests in individually controlling the litigation,
whether and the extent to which other litigation of the matter by class members has
already commenced, the desirability of litigating the class action in the particular
forum, whether the class action will be manageable, and the time and effort a district
court must expend in becoming familiar with the case. NRCP 23(b)(3).
20. Parties.
Class action is only superior when management difficulties and any negative impacts
on all parties' interests are outweighed by the benefits of classwide resolution of
common issues. NRCP 23(b)(3).
21. Parties.
When class actions in constructional defect cases make detailed notice of all defects
impractical or would tend to deprive a contractor of the opportunity to repair the
defects, instead forcing it into a class damages settlement or trial, the class action
method of adjudication is not superior to individual actions. NRS 40.645(2)(b), (c);
NRCP 23(b)(3).
22. Parties.
Class action treatment of constructional defect claims would not be superior if it is
likely to force homeowners who do not suffer from home defects to disclose defect
litigation to prospective buyers. NRS 40.688; NRCP 23(b)(3).
23. Parties.
Single-family residence constructional defect cases will rarely be appropriate for class
action treatment. NRCP 23.
24. Parties.
Where specific characteristics of different land parcels are concerned, uniqueness
factors weigh heavily in favor of requiring independent litigation of the liability to each
parcel and its owner rather than class action. NRCP 23.
25. Parties.
When constructional defect issues like causation and impact are widely disparate and
cannot be established by generalized proof, individual trials rather than class actions on
those issues are necessary. NRCP 23.
26. Parties.
Although the need for individualized proof regarding damages determinations, such as
when they cannot be made by mathematical or formula computations, will not generally
by itself defeat class action certification, it may nevertheless make proceeding with a
class action unmanageable. NRCP 23.
27. Parties.
Conditional certification notifies the parties that a court may exercise its discretion to
later revoke certification in complex litigation cases. NRCP 23(c)(1).
........................................
28. Parties.
In cases that appear complex, a district court should grant conditional class action
certification, if appropriate, and then reevaluate the certification in light of any
problems that appear post-discovery or later in the proceedings. NRCP 23(c)(1).
29. Parties.
Common questions of law and fact did not predominate in homeowners'
constructional defect action against homebuilder in which homeowners alleged that
home was damaged by expansive soils, and thus, class certification was not warranted,
where the homes in the development were constructed in different phases and under
different plans, the homes' underlying soils required different levels or types of
preparation, the damage suffered by homes differed, and the conduct of each
homeowner in regards to comparative negligence defense differed. NRS 40.600; NRCP
23(b)(3).
30. Negligence.
Comparative negligence applies only to conduct that proximately contributes to an
injury's causation, and not to subsequent acts that merely aggravate the injury or its
consequences.
31. Damages.
Mitigation issues exist when the wrongdoer attempts to minimize the damages owed
by showing that the harmed person failed to take reasonable care to avoid incurring
additional damages.
32. Damages; Negligence.
When both comparative negligence and mitigation theories are presented to the jury,
the instructions should be clear so as to avoid an improper double reduction of damages
for the same action.
33. Negligence.
When there is an argument in a constructional defect action that no defect is present at
that time, but that the homeowners' actions contributed to then-existing conditions so
that the defect afterward appeared, a comparative negligence defense is proper. NRS
40.615.
34. Parties.
Class action was not the superior method of adjudication of homeowners'
constructional defect action against homebuilder, which alleged that homes suffered
damage by expansive soils; important variances in class members' individual interests
were overshadowed in the resolution of common claims, so that the disposition of the
individual questions inevitably led to inefficiency, unfair results, and overall
unmanageability. NRS 40.600; NRCP 23(b).
35. Parties.
Allowing homeowners' constructional defect case to proceed as a class action without
documenting a thorough analysis regarding the necessary elements of a class action was
improper under rules of civil procedure regarding certification of class actions. NRCP
23.
36. Costs.
Any time that a case is tried by legal counsel and a jury determines that the claimant is
entitled to recover damages proximately caused by a constructional defect, a court can
presume that the claimant is entitled to the recovery of attorney fees, whether or not the
jury verdict explicitly so states. NRS 40.655(1)(a).
37. Costs.
The equitable calculation of attorney fees is a matter traditionally reserved to the
court.
........................................
38. Costs.
The plain language of the statute that allowed attorney fees in constructional defect
actions expressly required the court to determine the reasonableness of the requested
fees. NRS 40.655(2).
39. Costs.
With respect to the amount of an award, it is the trial court, not the jury, that has the
responsibility of determining attorney fees awards pursuant to statute.
40. Costs.
The method upon which a reasonable attorney fee is determined is subject to the
discretion of the court, which is tempered only by reason and fairness; accordingly, in
determining the amount of fees to award, the court is not limited to one specific
approach, and its analysis may begin with any method rationally designed to calculate a
reasonable amount, including those based on a lodestar amount or a contingency fee.
41. Costs.
The lodestar approach to calculating attorney fee awards involves multiplying the
number of hours reasonably spent on the case by a reasonable hourly rate.
42. Costs.
No matter what method is chosen by the court as a starting point in calculating an
attorney fee award, the court must continue its analysis by considering the requested
amount in light of the factors enumerated in Brunzell v. Golden Gate National Bank, 85
Nev. 345, 455 P.2d 31 (1969), namely, the advocate's professional qualities, the nature
of the litigation, the work performed, and the result. In this manner, whichever method
the court ultimately uses, the result will prove reasonable as long as the court provides
sufficient reasoning and findings in support of its ultimate determination.
43. Interest.
Prejudgment interest may not be awarded on an entire verdict when it is impossible to
determine what part of the verdict represented past damages. NRS 17.130(2).
44. Interest.
When a general verdict form does not distinguish between past and present damages,
a trial court cannot award prejudgment interest; however, when nothing in the record
suggests that future damages were included in the award, prejudgment interest is
proper. NRS 17.130(2).
45. Interest.
Damage award in constructional defect action represented only past damages, and
thus, the award was subject to prejudgment interest, where the damages occurred when
the homes were built regardless of when the homeowners actually made or would make
necessary repairs. NRS 17.130(2).
OPINION
In these consolidated appeals, we determine whether class action certification is
appropriate in constructional defect cases. Because single-family residence constructional
defect litigation often raises diverse, individualized claims and defenses, we conclude that,
generally, the requirements for class action certification cannot be met.
........................................
diverse, individualized claims and defenses, we conclude that, generally, the requirements for
class action certification cannot be met. Consequently, the district court erred in granting
class action certification in this case, and we reverse the judgment.
We also take this opportunity to address other important issues affecting our
constructional defect jurisprudence that may arise on remand. In this, we recognize that
attorney fees are damages in constructional defect cases that are nevertheless to be
determined by the court and that prejudgment interest should be calculated on repair costs
even when those costs have not yet been expended.
Beazer Homes Holdings Corp. and Beazer Homes Nevada, Inc. (Beazer Homes)
constructed and sold 206 single-family residences between 1994 and 1999 on a 40-acre
residential subdivision known as The Villages at Craig Ranch in North Las Vegas, Nevada.
In April 2000, three homeowners, individually and as proposed class representatives,
filed a complaint against Beazer Homes alleging constructional defects to their homes. The
homeowners claimed that their houses' foundations and concrete slabs were damaged by
expansive soils, a condition in which the soils beneath a house expand when exposed to water
and contract when the soil dries. This condition can cause a house's foundation and concrete
slab to crack and separate. The homeowners also alleged over 30 additional constructional
defects unrelated to the soils condition. The complaint asserted breach of express and implied
warranties, negligence, and negligent misrepresentation by Beazer Homes as theories of
liability. Beazer Homes, in answer, generally denied liability and asserted, among other
things, the specific defenses of comparative negligence and mitigation of damages. Four
months after the complaint was filed, the homeowners sought class action certification under
NRCP 23, relying on the expansive soils claim as the predominant question justifying
certification. Beazer Homes objected to class action certification, arguing that (a) the theories
of relief and defenses were different depending upon whether the particular homeowner was
the original purchaser or merely a current owner; (b) the cause of the expanding soils required
individualized proof of the source of the water, thus implicating the comparative negligence
and mitigation of damages defenses for each residence; and (c) the additional, unrelated
constructional defects were not common or typical to all residences. Without documenting
any NRCP 23 analysis, the first district court judge assigned to the case granted class
certification, concluding simply that [t]he court has considerable discretion to fashion a plan
or proceedings addressing areas where there are variations in plans, contractors, etc.
Although the order granting certification did not identify the members of the class, a
subsequent notice of class action declared that the members consisted of the then current
owners of homes in The Villages at Craig Ranch.
........................................
tion declared that the members consisted of the then current owners of homes in The Villages
at Craig Ranch.
After the initial class action certification and following considerable discovery, Beazer
Homes sought decertification of the homeowners' class action. Beazer Homes reminded the
newly assigned district court judge that certification was originally granted with respect to the
common question of expansive soils. However, according to Beazer Homes, subsequent
discovery demonstrated that a number of houses were not impacted by expansive soils and
that individualized proof for the cause of expansive soils was required because of grading,
landscaping, changes to drainage, lot slopes, grade preparation and retaining walls. Beazer
Homes also argued that the class could not maintain a claim for negligent misrepresentation
because many members in the class were not original purchasers and Beazer Homes had
made no representations to subsequent homeowners. The district judge denied decertification
without any NRCP 23 analysis, but he cautioned the homeowners to make certain their
evidence comports with a class action requirement, and we'll kind of see it as it goes.
The case proceeded to trial with the homeowners presenting evidence of essentially
three defects: (1) expansive soils causing changes to foundations or concrete flatwork, (2)
defective framing and drywalling, and (3) leaking windows caused by defective sealant. The
homeowners presented the case using group exhibits and summaries, and because the case
was a class action, the district court relaxed normal evidentiary foundations and declined to
take evidence of defects in every home. Instead, the homeowners relied on extrapolation or
statistical inferences to project that certain defects existent in a few homes were in existence
or would manifest in other homes.
The homeowners admitted that expansive soils varied among the lots within the
subdivision and proposed four different categories of repair. In defense of the expansive soils
claim, Beazer Homes asserted that it had provided warnings to the homeowners in a manual,
advising them to keep water away from the foundation and avoid landscaping close to the
home. The homeowners' expert testified that landscape irrigation by owners contributed to
faulty soil conditions and the drainage varied. Beazer Homes contended, therefore, that the
homeowners were comparatively negligent for damages caused by expansive soils.
Beazer Homes also suggested that the defects in framing and drywall were not
common or typical to the class, pointing out that the quality of the work by different
construction crews varied among the houses. In some houses, shear walls were inadequately
supported, and in some houses framing straps were missing. In many houses, construction
crews installed the proper number of drywall nails, while other homes were missing drywall
nails altogether.
........................................
drywall nails, while other homes were missing drywall nails altogether. Stucco cracks varied
among the homes and Beazer Homes claimed that many of those cracks had resulted from
normal causes.
The record indicates further that the existence of window leaks was also not common
or typical to the class. Evidence of window leaks was provided by extrapolation. Some homes
had windows that leaked, while windows in other homes functioned properly. The
homeowners' expert estimated that 1319 windows were defective, while Beazer Home's
expert acknowledged that approximately 2000 windows needed repair.
During trial, Beazer Homes renewed its motion to decertify. In response, the district
court was not persuaded to overturn the first district court judge's decision to certify the class.
Once again, no NRCP 23 analysis was conducted. Instead, the district court concluded that
while a class action was certainly not a perfect vehicle and leaves a great deal to be desired,
it was the most efficient method for trying the case. At the conclusion of trial, Beazer Homes
again sought decertification of the class. The district court acknowledged that the class
action vehicle is awkward for this kind of case, but denied decertification because it would
mean losing four months of trial.
The jury returned a verdict, finding that Beazer Homes did not breach any express or
implied warranties. However, the jury found that Beazer Homes had been negligent and had
negligently misrepresented material facts, and it returned a general damage verdict for the
homeowners in the sum of $7,885,500. In addition, the jury found comparative negligence by
the class, concluding that Beazer Homes was 93 percent negligent and the class was 7 percent
negligent.
The homeowners sought attorney fees pursuant to NRS 40.655, and Beazer Homes
objected, claiming that the subject of attorney fees should have been presented to the jury and
the district court should permit discovery on the calculation of the fees. Without any
documented analysis, the district court awarded a 40 percent contingent fee totaling
$2,033,406. Judgment was entered for 93 percent of the verdict or $7,333,515 plus attorney
fees, homeowners' costs and prejudgment interest. Beazer Homes appeals the final judgment,
and the homeowners appeal the district court's order denying their motion for new trial.
DISCUSSION
Class action certification
As a threshold issue, Beazer Homes argues that class action certification of this matter
was inappropriate under NRCP 23. We agree.
........................................
[Headnotes 1, 2]
This court reviews class action certification decisions under an abuse of discretion
standard.
1
Class action suits are designed to allow representatives of a numerous class of
similarly situated people to sue on behalf of that class in order to obtain a judgment that will
bind all.
2
Thereby, class actions promote efficiency and justice in the legal system by
reducing the possibilities that courts will be asked to adjudicate many separate suits arising
from a single wrong and that individuals will be unable to obtain any redress for wrongs
otherwise irremediable because the individual claims are too small or the claimants too
widely dispersed.
3

[Headnote 3]
So that these goals are not thwarted, NRCP 23(a) and (b) specify the circumstances
under which a case is appropriately designated and maintained as a class action. Under those
subsections, [i]t is the plaintiffs' burden to prove that the case is appropriate for resolution as
a class action.
4
Therefore, when deciding to certify a case to proceed as a class action, the
district court must look to NRCP 23(a) and (b) in pragmatically determin[ing] whether the
plaintiffs have shown that it is better to proceed as a single action, [than as] many individual
actions[,] in order to redress a single fundamental wrong.
5

NRCP 23(a) prerequisites
Under NRCP 23(a), plaintiffs seeking to certify a case as a class action must establish
four prerequisites. First, the numerosity prerequisite requires that the members of a
proposed class be so numerous that separate joinder of each member is impracticable.
6
Second, the commonality prerequisite necessitates the existence of questions of law or fact
common to each member of the class.
7
Third, the typicality prerequisite calls for a
showing that the representative parties' claims or defenses are typical of the class's claims or
defenses.
8
Finally, the adequacy prerequisite mandates that the representative parties be
able to fairly and adequately protect and represent each class member's interests.
____________________

1
See Meyer v. District Court, 110 Nev. 1357, 1363, 885 P.2d 622, 626 (1994).

2
See Johnson v. Travelers Insurance Co., 89 Nev. 467, 471, 515 P.2d 68, 71 (1973).

3
Id. at 470-71, 515 P.2d at 71.

4
Cummings v. Charter Hospital, 111 Nev. 639, 643, 896 P.2d 1137, 1140 (1995).

5
Deal v. 999 Lakeshore Association, 94 Nev. 301, 306, 579 P.2d 775, 778-79 (1978).

6
NRCP 23(a)(1).

7
NRCP 23(a)(2).

8
NRCP 23(a)(3).
........................................
that the representative parties be able to fairly and adequately protect and represent each class
member's interests.
9
Each prerequisite is described below.
Numerosity
[Headnote 4]
Before a class action can be certified, it must be shown that the putative class has so
many members that joinder of all members is impracticable.
10
Although courts agree that
numerosity prerequisites mandate no minimum number of individual members,
11
a putative
class of forty or more generally will be found numerous.
12

As pointed out by the Sixth Circuit Court of Appeals in the context of the analogous
FRCP 23(a) numerosity prerequisite, however, impracticability of joinder cannot be
speculatively based on merely the number of class members, but must be positively
demonstrated in an examination of the specific facts of each case.'
13
Yet, as the Second
Circuit Court of Appeals has stated, Impracticable does not mean impossible.
14
Thus, as
that court has pointed out, in examining the circumstances under which impracticality is
asserted, courts may consider judicial economy arising from the avoidance of a multiplicity
of actions, geographic dispersion of class members, financial resources of class members, the
ability of claimants to institute individual suits, and requests for prospective injunctive relief
which would involve future class members, among any other relevant factors.
15
Under
those considerations, the joinder of two hundred plaintiffs might not prove impracticable,
when they live in geographical proximity with one another and are asserting claims for which,
if proven, they may statutorily recover attorney fees.
____________________

9
NRCP 23(a)(4).

10
NRCP 23(a)(1).

11
See, e.g., Golden v. City of Columbus, 404 F.3d 950, 965 (6th Cir. 2005); Stewart v. Abraham, 275 F.3d
220, 226-27 (3d Cir. 2001).

12
Monaco v. Stone, 187 F.R.D. 50, 61 (E.D.N.Y. 1999); see also Cummings, 111 Nev. 639, 896 P.2d 1137
(concluding that a class of three or four plaintiffs is insufficiently numerous to justify certification as a class
action); cf. Kane v. Sierra Lincoln-Mercury, Inc., 91 Nev. 178, 533 P.2d 464 (1975) (involving an instance
where eighty-five dissimilarly situated plaintiffs were joined in an action).

13
Golden, 404 F.3d at 965-66 (quoting General Telephone Co. v. EEOC, 446 U.S. 318, 330 (1980)); see also
Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993).

14
Robidoux, 987 F.2d at 935.

15
Id. at 936.
........................................
Commonality
[Headnotes 5, 6]
Under the commonality prerequisite, class action certification is proper only when
there are questions of law or fact common to the class.
16
Questions are common to the
class when their answers as to one class member hold true for all class members.
17
Commonality does not require that all questions of law and fact must be identical, but that
an issue of law or fact exists that inheres in the complaints of all the class members.
18
Thus,
this prerequisite may be satisfied by a single common question of law or fact.
19

Typicality
[Headnote 7]
Typicality demands that the claims or defenses of the representative parties be
typical of those of the class.
20
Generally, the typicality prerequisite concentrates on the
defendants' actions, not on the plaintiffs' conduct.
21
Thus, defenses that are unique to a
representative party will rarely defeat this prerequisite, unless they threaten to become the
focus of the litigation.
22

[Headnotes 8, 9]
The typicality prerequisite can be satisfied, then, by showing that each class
member's claim arises from the same course of events and each class member makes similar
legal arguments to prove the defendant's liability."
____________________

16
NRCP 23(a)(2).

17
Spera v. Fleming, Hovenkamp & Grayson, P.C., 4 S.W.3d 805, 810 (Tex. App. 1999) (interpreting the
analogous Texas provision, Tex. Rule Civ. Pro. 42(a)(2)).

18
Id. at 811.

19
Monaco, 187 F.R.D. at 61.

20
NRCP 23(a)(3).

21
See, e.g., Wagner v. Nutrasweet Co., 95 F.3d 527, 534 (7th Cir. 1996) (Typicality under [FRCP] 23(a)(3)
should be determined with reference to the [defendant's] actions, not with respect to particularized defenses it
might have against certain class members.); Forman v. Data Transfer, Inc., 164 F.R.D. 400, 404 (E.D. Pa.
1995) (When inquiring into the typicality requirement under [FRCP] 23(a)(3), the focus must be on the
defendants' behavior and not that of the plaintiffs.).

22
Gary Plastic Packaging v. Merrill Lynch, 903 F.2d 176, 180 (2d Cir. 1990); see also Carbajal v. Capital
One, 219 F.R.D. 437, 440 (N.D. Ill. 2004) (The claims of a proposed class representative are considered
atypical if the representative is subject to a unique defense that is reasonably likely to be a major focus of the
litigation. . . . [I]f the class representative is likely to be preoccupied with a unique defense, his claims are
atypical. (citations omitted)); Trief v. Dun & Bradstreet Corp., 144 F.R.D. 193, 200-01 (S.D.N.Y. 1992) ([I]t
is beyond reasonable dispute that a representative may satisfy the typicality requirement even though that party
may later be barred from recovery by a defense particular to him that would not impact other class members.).
........................................
prove the defendant's liability.
23
Thus, the representatives' claims need not be identical, and
class action certification will not be prevented by mere factual variations among class
members' underlying individual claims.
24
For instance, typicality of claims can result when
each owner in a condominium complex suffer[s] damage by way of being assessed for
repairs to leaky common area roofs, even though some of the individual unit owners have not
otherwise suffered from leakage problems.
25

Adequacy
[Headnotes 10, 11]
A class action may proceed only when it is shown that the representative parties have
the ability to fairly and adequately protect the interests of the class.
26
As the United States
Supreme Court has recognized, this inquiry serves to uncover conflicts of interest between
named parties and the class they seek to represent.
27
In this context, that Court has
generally required that class members possess the same interest and suffer the same
injury ' as other class members.
28
For example, representative parties of a single class of
persons with varying asbestos-related injuries cannot adequately advance the interests of the
entire class when the individual class members have disparate medical statuses and, therefore,
conflicting views on how a limited amount of recovery should be divided, dispersed, and
otherwise dealt with.
29

NRCP 23(b) requirements
In addition to meeting the NRCP 23(a) prerequisites, plaintiffs seeking to maintain a
class action must meet one of three conditions set forth in NRCP 23(b): (1) that separate
litigation by individuals in the class would create a risk that the opposing party would be held
to inconsistent standards of conduct or that nonparty members' interests might be unfairly
impacted by the other members' individual litigation; {2) that the party opposing the class
has acted or refused to act against the class in a manner making appropriate classwide
injunctive or declaratory relief; or {3) that common questions of law or fact predominate
over individual questions, and a class action is superior to other methods of adjudication.
____________________

23
Robidoux, 987 F.2d at 936.

24
Id. at 936-37; see also In re Sumitomo Copper Litigation, 182 F.R.D. 85, 94 (S.D.N.Y. 1998).

25
Deal, 94 Nev. at 306, 579 P.2d at 778.

26
NRCP 23(a)(4).

27
Amchem Products, Inc. v. Windsor, 521 U.S. 591, 625 (1997).

28
Id. at 625-26 (quoting East Texas Motor Freight v. Rodriguez, 431 U.S. 395, 403 (1977) (quoting
Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 216 (1974))).

29
Id. at 626-27; see also City of San Jose v. Superior Ct. of Santa Clara Cty., 525 P.2d 701, 712-13 (Cal.
1974) (concluding that, under a similar California class action requirement, the representative parties would
inadequately represent the putative class because their request for only one aspect of possible recovery on their
claim would effectively preclude other members from later requesting other reasonably expected recovery
related to that claim).
........................................
members' individual litigation; (2) that the party opposing the class has acted or refused to act
against the class in a manner making appropriate classwide injunctive or declaratory relief; or
(3) that common questions of law or fact predominate over individual questions, and a class
action is superior to other methods of adjudication.
Of these three possible ways under NRCP 23(b) to show that a class action is
logistically possible and superior to other actions,
30
the parties in this case focus only on
the third condition. There are two prongs to the third condition under NRCP 23(b):
predominance and superiority. Therefore, our discussion and subsequent analysis likewise
focus on when common questions predominate over individual questions and the class action
vehicle is a superior method for adjudication, thereby advancing the policy reasons behind
allowing cases to proceed as class actions.
31

Predominance
[Headnotes 12, 13]
The predominance prong of the third condition tests whether proposed classes are
sufficiently cohesive to warrant adjudication by representation.
32
The questions of law or
fact at issue in this analysis are those that qualify each class member's case as a genuine
controversy;
33
therefore, the questions that class members have in common must be
significant to the substantive legal analysis of the members' claims.
34

[Headnotes 14, 15]
While the NRCP 23(b)(3) predominance inquiry is related to the NRCP 23(a)
commonality and typicality requirements, it is more demanding.
35
The importance of
common questions must predominate over the importance of questions peculiar to
individual class members.
____________________

30
Meyer, 110 Nev. at 1363, 885 P.2d at 626.

31
See State of Ala. v. Blue Bird Body Co., Inc., 573 F.2d 309, 315-16 (5th Cir. 1978) (reminding district
courts to be mindful of the policy underlying Rule 23 when making analogous FRCP 23(b)(3) certification
determinations and explaining that a (b)(3) action encompasses those cases in which a class action would
achieve economies of time, effort, and expense, and promote uniformity of decisions as to persons similarly
situated, without sacrificing procedural fairness or bringing about other undesirable results' (quoting FRCP 23
advisory committee note (1966))).

32
Amchem Products, 521 U.S. at 623.

33
Id.

34
See Blue Bird Body Co., 573 F.2d at 316 (In order to make the findings required to certify a class action
under [FRCP] 23(b)(3) . . . , one must initially identify the substantive law issues which will control the outcome
of the litigation.); Ingram v. The Coca-Cola Co., 200 F.R.D. 685, 700 (N.D. Ga. 2001).

35
Amchem Products, 521 U.S. at 623-24.
........................................
inate over the importance of questions peculiar to individual class members.
36
For example,
common questions predominate over individual questions if they significantly and directly
impact each class member's effort to establish liability and entitlement to relief,
37
and their
resolution can be achieved through generalized proof.
38

[Headnote 16]
On the other hand, when the facts and the law necessary to resolve the claims vary
from person to person,
39
taking into account the nature of the defenses presented, or when
the resolution of the common questions would result in superficial adjudications which . . .
deprive either [party] of a fair trial,
40
individual questions predominate so that class action
is an inappropriate method of adjudication.
41
Ultimately, as the United States Supreme Court
has pointed out, courts should exercise caution in allowing a class action to proceed when the
individual stakes are high and disparities among class members great.
42

Superiority
[Headnotes 17, 18]
The second prong to the third NRCP 23(b) condition questions whether class action is
the superior method for adjudicating the claims, thereby promoting the interests of
"efficiency, consistency, and ensuring that class members actually obtain relief."
____________________

36
Id. at 624; Ingram, 200 F.R.D. at 700 (recognizing that [w]hether an issue predominates can only be
determined after considering what value resolution of the class-wide issue will have in each class member's
underlying cause of action' (quoting Rutstein v. Avis Rent-A-Car Systems, Inc., 211 F.3d 1228, 1234 (11th Cir.
2000))).

37
Ingram, 200 F.R.D. at 700; see also Moore v. PaineWebber, Inc., 306 F.3d 1247, 1252 (2d Cir. 2002).

38
PaineWebber, 306 F.3d at 1252.

39
See Amchem Products, 521 U.S. at 624 (noting that claims requiring the separate application of different
states' laws to substantially varying factual situations defeats the importance of any common questions); see also
PaineWebber, 306 F.3d at 1252 (noting that classwide issues do not predominate if issues requiring
individualized proof are more substantial); Southwestern Refining Co., Inc. v. Bernal, 22 S.W.3d 425, 434
(Tex. 2000) (The predominance requirement is intended to prevent class action litigation when the sheer
complexity and diversity of the individual issues would overwhelm or confuse a jury or severely compromise a
party's ability to present viable claims or defenses.).

40
City of San Jose, 525 P.2d at 711.

41
See, e.g., Hicks v. Kaufman & Broad Home Corp., 107 Cal. Rptr. 2d 761, 773 (Ct. App. 2001) (concluding
that even though questions of defective material were common to the putative class, the individual factual
questions as to causation and damages predominated so as to make class action litigation unworkable).

42
Amchem Products, 521 U.S. at 625 (citing 28 U.S.C. App. 697 advisory committee note (1966)).
........................................
claims, thereby promoting the interests of efficiency, consistency, and ensuring that class
members actually obtain relief.
43
A proper class action prevents identical issues from being
litigated over and over[,] thus avoid[ing] duplicative proceedings and inconsistent results.
44
It also helps class members obtain relief when they might be unable or unwilling to
individually litigate an action for financial reasons or for fear of repercussion.
45

[Headnotes 19, 20]
Other factors worth considering, however, include the members' interests in
individually controlling the litigation, whether and the extent to which other litigation of the
matter by class members has already commenced, the desirability of litigating the class action
in the particular forum, whether the class action will be manageable,
46
and the time and
effort a district court must expend in becoming familiar with the case.
47
Further, the court
must determine whether other adjudication methods would allow for efficient resolution
without compromising any parties' claims or defenses. For example, NRCP 16.1(f) permits
district courts to waive pretrial discovery requirements for complex litigation; NRCP 19
allows for the joinder of necessary persons; and NRCP 42 governs the court's powers to
consolidate, order joint hearings, and conduct separate trials in actions involving common
questions of law or fact, or in order to promote efficiency or preserve fairness.
48
Further,
NRCP 23(c)(4) provides that the district court may certify a class action under that rule with
respect to certain issues or subclasses. In any case, class action is only superior when
management difficulties and any negative impacts on all parties' interests are outweighed by
the benefits of classwide resolution of common issues.
49

Finally, we note that NRS Chapter 40 governs actions involving constructional
defects. While that chapter neither forbids nor sanctions proceeding with a class action in a
constructional defect case,
50
it does impact the NRCP 23(b) analysis. Thus, in addressing
whether class action is the superior method, the court should also consider the parties'
ability to comply with NRS Chapter 40's requirements concerning constructional defects if
class action certification is granted.
____________________

43
Ingram, 200 F.R.D. at 701.

44
Id.

45
Id.

46
Id.

47
Peltier Enterprises, Inc. v. Hilton, 51 S.W.3d 616, 625 (Tex. App. 2000).

48
See also FRCP 23 advisory committee note (1966) (noting that one or more actions agreed to by the
parties as test or model actions may be preferable to a class action, or the court may be able to make
arrangements so as to avoid duplicative discovery).

49
Peltier Enterprises, 51 S.W.3d at 624.

50
E.g., NRS 40.6452(5) (This subsection [regarding common constructional defects within a single
development] does not establish or prohibit the right to maintain a class action.).
........................................
ing whether class action is the superior method, the court should also consider the parties'
ability to comply with NRS Chapter 40's requirements concerning constructional defects if
class action certification is granted.
For instance, under NRS Chapter 40, before commencing an action, claimants must
generally give detailed notice to the contractor of the defects or any damages or injuries to
each residence or appurtenance, and any known causes, involved in the claim.
51
The
contractor is required to respond, in writing, to each notice of an alleged constructional
defect.
52
Under the statutes, the parties have continuing responsibilities, including the duty
to provide notice to prospective purchasers of houses that are, or have been, the subject of a
constructional defect claim.
53
Finally, under this chapter, settlement is encouraged,
54
but if
an action is commenced, a claimant is permitted to recover certain damages that were
proximately caused by a constructional defect, including any reasonable attorney fees.
55

[Headnotes 21, 22]
These NRS Chapter 40 provisions reveal that the Legislature intended to provide
contractors with an opportunity to repair defects in homes,
56
a goal that should not be
inhibited by class action certification.
____________________

51
NRS 40.645(2)(b), (c). NRS Chapter 40 was substantially revised in 2003. See 2003 Nev. Stat., ch. 362, at
2034-50. Thus, at the time the homeowners' complaint was filed in this matter, the NRS Chapter 40 prerequisites
to maintaining a constructional defect claim were slightly different. Nonetheless, the former provisions contained
notice and response prerequisites, and continuing duties, that were pertinent to determining whether class action
treatment was appropriate under NRCP 23(b). See, e.g., NRS 40.682 (repealed 2003) (requiring, generally,
claimants to give detailed notice to the contractor, before commencing an action on a claim, of the defects and
any damages or injuries to each residence involved in the claim); NRS 40.682(10) (repealed 2003) (requiring
the contractor to describe the cause of the defect, if known, the nature and extent of the damage of the injury,
and the method and adequacy of any estimated cost of repairs); NRS 40.682(4) (repealed 2003) (requiring the
parties to meet to discuss joinder of parties and claims).

52
See NRS 40.6452; NRS 40.6472.

53
See NRS 40.688; see also NRS 40.6452 (governing actions concerning common constructional defects
within a single development); NRS 40.646 (governing responsibilities for defects allegedly caused or
contributed to by subcontractors, suppliers, or design professionals); NRS 40.6472(4) (detailing when it is
appropriate to add additional causes of action to a case).

54
See, e.g., NRS 40.650; NRS 40.665.

55
NRS 40.655(1).

56
See Bruce v. Jim Walters Homes, Inc., 943 S.W.2d 121, 123 (Tex. App. 1997) (The [analogous Texas
law: Residential Construction Liability Act] was enacted to promote settlement between homeowners and
contractors and to afford contractors the opportunity to repair their work in the face of dissatisfaction.); Hearing
on S.B. 395 Before the Assembly Judiciary Comm., 68th
........................................
tification. Thus, when class actions make detailed notice of all defects impractical or would
tend to deprive a contractor of the opportunity to repair the defects, instead forcing it into a
class damages settlement or trial, the class action method of adjudication is not superior to
individual actions.
57
Further, class action treatment would not be superior if it is likely to
force homeowners who do not suffer from home defects to disclose defect litigation to
prospective buyers. Finally, as recognized by a federal district court, [w]here a statute
provides attorney's fees to a prevailing plaintiff[,] there is less incentive to protect by class
certification individuals with small claims.
58
Consequently, class actions may not be
suitable for many constructional defect cases, given the manner in which the NRS Chapter 40
statutory framework provides for dispute resolutions.
Class actions in constructional defects cases, generally
[Headnotes 23, 24]
And as a practical matter, single-family residence constructional defect cases will
rarely be appropriate for class action treatment. As pointed out by the California Supreme
Court, class actions involving real property are often incompatible with the fundamental
maxim that each parcel of land is unique.
59
Although, as that court recognized, the
uniqueness-of-land principle was developed at common law in response to concerns that did
not involve class action issues,
60
the rule take[s] on added significance in this modern era
of development. Simply stated, there are now more characteristics and criteria by which each
piece of land differs from every other."
____________________
Leg. (Nev., June 23, 1995) (recognizing that Nevada's constructional defects law, codified in NRS Chapter 40, is
modeled on Texas law); Hearing on S.B. 241 Before the Senate Commerce and Labor Comm., 72d Leg. (Nev.,
March 19, 2003) (discussing the 2003 amendments to NRS Chapter 40, designed to promote the repair of
constructional defects issues without court action).

57
Compare, for instance, NRS 40.6452's instruction regarding common constructional defects, permitting
claimants to opt-in to a notice by requesting an inspection of the alleged defect, with NRCP 23(c)'s terms
allowing a putative class member to opt-out of a class action.

58
Maguire v. Sandy Mac, Inc., 145 F.R.D. 50, 53 (D.N.J. 1992).

59
City of San Jose v. Superior Ct. of Santa Clara Cty., 525 P.2d 701, 711 (Cal. 1974).

60
See, e.g., Stoltz v. Grimm, 100 Nev. 529, 533, 689 P.2d 927, 930 (1984) (affirming an award of specific
performance because the subject matter of the contract was real property, and as such is unique); Locken v.
Locken, 98 Nev. 369, 372, 650 P.2d 803, 805 (1982) (affirming the imposition of a constructive trust to remedy
the wrongful holding of title to real property, since land is unique).
........................................
every other.
61
Allowing class actions to proceed on issues, especially those of liability, that
involve variables particular to unique parcels of land would require either an alteration of
this principle or an extensive subclassification system that would effectively defeat the
purpose of the class action altogether.
62
Like the California court, we recognize that, where
specific characteristics of different land parcels are concerned, these uniqueness factors
weigh heavily in favor of requiring independent litigation of the liability to each parcel and its
owner.
63

Further, even when the uniqueness of the real property is not substantially implicated,
constructional defect cases relating to several different properties are often very complex,
involving allegations between numerous primary parties and third parties concerning different
levels or types of property damages. In many instances, these types of cases present issues of
causation, liability defenses, and damages that cannot be determined or presumed through the
use of generalized proof, but rather require each party to individually substantiate his or her
claims.
64

For example, a federal district court has recognized that, in addition to individualized
issues of fault, any recovery in such cases often implicate[s] myriad house specific' issues,
including . . . the type of repair needed on each house, local building code requirements, the
costs of materials needed for the repairs, and labor rates.
65
Similarly, the California Court
of Appeal has recognized that tort causes of action in a constructional defect case were at
variance with class action purposes because, to recover, the elements of liability and
causation [could] not be established without individualized proof as to each of the purported .
. . class members, making a class action unmanageable.
66

____________________

61
City of San Jose, 525 P.2d at 711.

62
See id. at 711-12 (recognizing that class action treatment might be appropriate despite the need to
individually determine damages, but [o]nly in an extraordinary situation would a class action be justified where,
subsequent to the class judgment, the members would be required to individually prove not only damages but
also liability).

63
Id. at 711.

64
See, e.g., Muise v. GPU, Inc., 851 A.2d 799, 813-23 (N.J. Super. Ct. App. Div. 2004) (discussing and
distinguishing when class actions might be appropriate despite the need for individualized proof, such as when
there exist predominating common questions of liability and the fact of damage).

65
In re Stucco Litigation, 175 F.R.D. 210, 215 (E.D.N.C. 1997) (footnote omitted) (analyzing a request to
certify a nationwide class of homeowners).

66
Hicks v. Kaufman & Broad Home Corp., 107 Cal. Rptr. 2d 761, 764, 773 (Ct. App. 2001) (recognizing
that each class member would have to come forward and prove specific damage to her home and the cause of
that damage).
........................................
[Headnotes 25, 26]
Thus, when constructional defect issues like causation and impact are widely disparate
and cannot be established by generalized proof, individual trials on those issues are necessary.
Further, although the need for individualized proof regarding damages determinations, such
as when they cannot be made by mathematical or formula computations,' will not
generally by itself defeat class action certification,
67
it may nevertheless make proceeding
with a class action unmanageable.
68
As recognized by the Fifth Circuit, if the effect of class
certification is to bring in thousands of possible claimants whose presence will in actuality
require a multitude of mini-trials (a procedure which will be tremendously time consuming
and costly), then the justification for class certification is absent.
69
For these reasons, courts
in other jurisdictions are seldom able to conclude that common questions predominate over
individual questions and that any remaining individual questions would be manageable, and
so they have consistently refused to certify class actions premised on constructional defects in
single-family homes.
70

This is not to suggest, however, that class action suits involving NRS Chapter
40-governed constructional defects are never appropriate. While we recognize the difficulty
in managing most constructional defect cases given their size and complexity, class action
may be appropriate in some constructional defect cases.
____________________

67
Blue Bird Body Co., 573 F.2d at 329 (quoting Windham v. American Brands, Inc., 565 F.2d 59, 68 (4th
Cir. 1977)); see also Johnson v. Travelers Insurance Co., 89 Nev. 467, 473-74, 515 P.2d 68, 72-73 (1973)
([T]he more recent cases appear to hold that the existence of separate issues concerning the damages sustained
to hold that the existence of separate issues concerning the damages sustained by various class members do[es]
not prevent a common issue of liability from being adjudicated on a class basis. The matter of individual
damages may be postponed to a later date, and a master appointed. (citations omitted)).

68
Blue Bird Body Co., 573 F.2d at 326-29.

69
Id. at 328.

70
See, e.g., Hicks, 107 Cal. Rptr. 2d 761; Simeon v. Colley Homes Inc., 818 So. 2d 125 (La. Ct. App. 2001)
(concluding that since the case involved, concerning houses constructed by different sets of contractors
nationwide who applied different allegedly defective installations of synthetic stucco, presented predominate
individual issues of causation, third-party fault, and compensation, it was not amenable to class action
certification); see also Basurco v. 21st Century Ins. Co., 133 Cal. Rptr. 2d 367, 373 (Ct. App. 2003) (affirming
the denial of class action status in cases involving earthquake damages because the existence, cause, and extent
of property damages and any recovery would necessarily have to be determined on a case-by-case basis);
Brown v. New Orleans Public Service, Inc., 506 So. 2d 621 (La. Ct. App. 1987) (reversing class action
certification in a utilities power interruption case because, while there existed a common claim of alleged
negligence, the individual questions and proofs concerning causation, comparative negligence, and damages
predominated).
........................................
Class action treatment may be proper under NRCP 23, for instance, if the
constructional defect case or issue involves a singular defect that predominates over any other
problems, which remain minimal.
In a California case, Hicks v. Kaufman & Broad Home Corp.,
71
the claimants were
allowed to proceed with a class action on issues regarding breach of warranty, since the
alleged defect consisted of the improper use of a certain material in each house's concrete
slab. With regard to their breach of warranty claims, the parties merely requested economic
damages for the defective items' repair or replacement; thus the claims could be resolved with
generalized proof and simple damages formulas.
On the other hand, the plaintiffs in that case were not permitted to proceed with their
negligence claims arising from the same defect because, for those claims, each class member
would be required to specifically prove damages, and thus the individual factual questions as
to causation and damages would make a class action unmanageable.
72
Likewise, we
recognize that, while constructional defect cases will more often than not be inappropriate for
class action treatment, some constructional defects matters might be amenable to class action
certification. Hence the need for a thorough and documented NRCP 23 analysis is especially
strong in complex constructional defects cases.
73

Conditional certification
[Headnotes 27, 28]
But even if consideration of the NRCP 23 qualifiers initially indicates that class action
certification is appropriate, after the parties' claims and defenses are sufficiently identified,
the court might need to re-determine whether the matter still meets the statute's prerequisites
and conditions. NRCP 23(c)(1) allows a district court to grant class action certification on a
conditional basis. Conditional certification notifies the parties that a court may exercise its
discretion to later revoke certification in complex litigation cases.
74
Thus, in cases that
appear complex, a district court should grant conditional class action certification, if
appropriate, and then reevaluate the certification in light of any problems that appear
post-discovery or later in the proceedings.
75
If a class certification becomes problematic,
the district court must reevaluate class action certification under NRCP 23.
____________________

71
107 Cal. Rptr. 2d 761 (Ct. App. 2001) (analyzing a request for class action certification in a constructional
defect case under California law).

72
Id. at 775.

73
See In re Stucco Litigation, 175 F.R.D. 210, 212 (E.D.N.C. 1997) (The court must conduct a rigorous
analysis' of the [analogous FRCP] 23 prerequisites. (quoting General Tel. Co. v. Falcon, 457 U.S. 147, 161
(1982)).

74
Ex Parte AmSouth Bancorporation, 717 So. 2d 357, 366 (Ala. 1998).

75
See Bywaters v. U.S., 196 F.R.D. 458, 465 (E.D. Tex. 2000).
........................................
becomes problematic, the district court must reevaluate class action certification under NRCP
23.
The homeowners' class action certification
In this case, the district court abused its discretion in several instances relating to the
class certification. First, it certified the matter to proceed as a class action based on the
homeowners' assertions regarding the existence of a common expansive soils issue without
conducting and documenting a thorough NRCP 23 analysis. As became clear at trial and by
the jury's verdict, individualized proof of the cause and defenses to the expansive soils claim
was necessary. Second, the court allowed, again without making any NRCP 23 analysis,
claims regarding other alleged defects to proceed with class action status, even though the
certification applied only to the expansive soils issue. Finally, the court failed to adequately
revisit the certification issue by documenting a thorough NRCP 23 analysis, even when it
became apparent that class action treatment was problematic and Beazer Homes requested the
court to decertify the class.
If the court had followed proper procedure in this case, considering the particularities
of the parties' claims and defenses, it would have discovered that class action treatment was
inappropriate. As Beazer Homes points out, the homeowners' claims and Beazer Homes'
defenses together defeated, at least, the predominance and superiority requirement of NRCP
23(b).
76

NRCP 23(b)(3) predominance
[Headnote 29]
The homeowners' claims fail to satisfy the predominance prong of NRCP 23(b)(3)
because the individual questions of cause and effect are more important than any common
questions of exposure, and they cannot be resolved with generalized proof. As the United
States Supreme Court has explained, a shared experience alone does not justify a class action.
77
Instead, it must be adequately demonstrated that this exposure was similar, and caused
similar effects, within the class.
With regard to the alleged constructional defects for which the class was certified, the
homeowners asserted that all of the houses suffered from exposure to improper design and
soil preparation in light of the nature of the soils on which they were built. But they admit
that the houses were constructed in different phases, under different plans, and with at least
two separate slab designs, and they did not show that each of the houses suffered from
the same design or constructional flaw or were affected by the expanding soils in the
same way.
____________________

76
While it appears doubtful that the homeowners could have satisfied all of the NRCP 23(a) prerequisites, in
light of our conclusion that the class action certification was improper under NRCP 23(b)(3), those requirements
are not further discussed.

77
See Amchem Products, 521 U.S. at 623-24.
........................................
different plans, and with at least two separate slab designs, and they did not show that each of
the houses suffered from the same design or constructional flaw or were affected by the
expanding soils in the same way. Further, the record contains evidence indicating that the
houses' underlying soils required different levels or types of preparation.
Moreover, the homeowners introduced evidence of several different types of property
damage, based on inspections of only some of the houses. Even among the inspected houses,
however, the damages differed. Thus, no reasonable basis exists on which to extrapolate to all
of the houses the property damage, and causes therefor, pertaining to the inspected houses.
Such evidence does not represent property damage suffered by the individual homeowners,
and its extrapolation to each house is unfair to both Beazer Homes and any homeowner who
suffered additional harm. Instead, individualized proof as to the alleged defects, including the
impact of the shifting soils, should have been offered as to each house. Due to the varying
property damage caused by the houses' differing defects, the damages calculation would not
fit into a simple equation, but rather would also require additional, separate litigation.
In addition, in response to the homeowners' claims, Beazer Homes asserted a
comparative negligence defense, which created additional questions requiring individualized
proof. By its nature, the defense requires a comparison between the conduct of the defendant
and each plaintiff, which cannot be made by allotting a single percentage of negligence to the
entire class, when each homeowner may have acted differently and contributed more or less
than other homeowners to each house's damages.
Although the homeowners assert that the defense was improper, since any negligent
acts by the homeowners necessarily occurred after Beazer Homes built the homes, and
therefore should be considered under mitigation of damages and not comparative negligence,
both theories raise questions requiring individualized proof. Moreover, the homeowners are
incorrect.
[Headnotes 30, 31]
Comparative negligence applies only to conduct that proximately contributes to an
injury's causation, and not to subsequent acts that merely aggravate the injury or its
consequences.
78
Thus, [t]he plaintiff's negligence is a legally contributing cause of his harm
if, but only if, it is a substantial factor in bringing about his harm.
79
On the other hand,
mitigation issues exist when the wrongdoer attempts to minimize the damages owed by
showing that the harmed person failed to take reasonable care to avoid incurring additional
damages.
____________________

78
See generally 65 C.J.S. Negligence 245 (2000).

79
Restatement (Second) of Torts 465(1) (1965).
........................................
person failed to take reasonable care to avoid incurring additional damages.
80

[Headnotes 32, 33]
As a result, comparative negligence does not apply when the defect is present from the
time of construction. When there is an argument that no defect
81
is present at that time, but
that the homeowners' actions contributed to then-existing conditions so that the defect
afterward appeared, a comparative negligence defense is proper.
82
Here, Beazer Homes
asserted that various actions of individual homeowners caused some of the defects to appear.
For instance, it alleged, some of the homeowners changed drainage systems or over-watered,
so that soils that would not have shifted in a harmful way under normal wet conditions did so
only with the homeowners' introduction of additional water. Accordingly, this defense also
raised questions that could only be answered with resort to proof of each individual
homeowner's actions.
As a result of these individual questions, even if the homeowners' claims share some
particular aspects, the importance of those common questions is overcome by the fact that,
even after those questions related to the shared aspects are resolved, substantial questions
requiring individualized proof regarding each homeowner's right to recover predominate.
Thus, the homeowners failed to show that common questions predominate under NRCP
23(b)(3).
NRCP 23(b) superiority
[Headnote 34]
Regarding the second prong of NRCP 23(b), superiority, important variances in class
members' individual interests were overshadowed in the resolution of the common claims,
so that the disposition of the individual questions inevitably led to inefficiency, unfair
results, and overall unmanageability.
____________________

80
See Automatic Merchandisers, Inc. v. Ward, 98 Nev. 282, 284, 646 P.2d 553, 554 (1982); Restatement
(Second) of Torts 918, cmt. a (1979) (distinguishing between the reduction of damages for contributory
negligence and avoidable consequences).

81
See NRS 40.615 (defining constructional defect).

82
We note that when both comparative negligence and mitigation theories are presented to the jury, the
instructions should be clear so as to avoid an improper double reduction of damages for the same action. See
Cox v. Lesko, 953 P.2d 1033, 1038 (Kan. 1998) (approving of a mitigation instruction that cautioned the jury not
to include omissions by the plaintiff that the jury found to be comparative fault); Walter v. Wal-Mart Stores,
Inc., 748 A.2d 961, 971 (Me. 2000) (concluding that a defendant is not entitled to a double reduction of
damages; that is, the same action or inaction of the plaintiff that justifies a comparative negligence instruction
should not also authorize a reduction of damages under the doctrine of mitigation or avoidable consequences);
Shaffer v. Debbas, 21 Cal. Rptr. 2d 110, 114 (Ct. App. 1993) (refusing to allow an award to be reduced by both
the mitigation figure and the comparative negligence figure because the special verdicts are far from clear that
the . . . comparative negligence figure . . . is not at least to some extent duplicative of the . . .
mitigation-of-damages reduction).
........................................
owed in the resolution of the common claims, so that the disposition of the individual
questions inevitably led to inefficiency, unfair results, and overall unmanageability. In fact,
the district court admitted that proceeding with a class action in constructional defect cases
like this one was awkward and even stated that it would not proceed in the same manner in
the future. While we recognize that the court was trying to preserve months of work and
expenditures, it should have considered whether other methods of proceeding, such as
through the joinder of parties, would have been more appropriate. Because the homeowners
did not adequately show that class action was a superior method for adjudicating this matter,
the district court should not have allowed the case to proceed in that manner.
[Headnote 35]
Allowing this case to proceed as a class action, at least in its entirety and without
documenting a thorough NRCP 23 analysis, was improper under NRCP 23(b)(3). Although
we reverse the district court's judgment and remand for a new trial based on the improper
certification alone,
83
we take this opportunity to discuss other issues that are important to our
constructional defect jurisprudence.
Attorney fees
In constructional defects cases, claimants may recover attorney fees as an item of
damages under NRS 40.655(1)(a). Generally, Beazer Homes points out, quantities of
damages are determined by the jury. Therefore, it asserts, claimants who fail to submit the
attorney fees issue to the jury, and instead simply request fees in a post-trial motion, waive
their right to those fees. The homeowners concede that issues of damages are generally
presented to the jury,
84
but they argue that the statute nevertheless refers to court-determined
attorney fees.
NRS 40.655(1)(a) provides in part that a claimant may recover only the following
damages to the extent proximately caused by a constructional defect: [a]ny reasonable
attorney's fees. That subsection then lists, as other items of damages, the reasonable cost of
past and future repairs, and temporary housing, any reduction in market value, loss of use,
other property damage, certain additional costs to the claimant, and statutory interest.
____________________

83
In light of this conclusion, we do not reach the homeowners' contentions regarding the order denying their
motion for a new trial, and we dismiss their appeal from that order as moot.

84
See, e.g., Hazelwood v. Harrah's, 109 Nev. 1005, 1009-10, 862 P.2d 1189, 1192 (1993) (noting that in
actions for damages in which the law has provided no legal rule of measurement, it is the jury's responsibility to
determine the amount to be allowed), overruled on other grounds by Vinci v. Las Vegas Sands, 115 Nev. 243,
984 P.2d 750 (1999).
........................................
costs to the claimant, and statutory interest.
85
Subsection 2 of that statute, however, again
addresses the attorney fees issue, providing that [t]he amount of any attorney's fees awarded
pursuant to this section must be approved by the court.
Nothing in NRS 40.655 indicates that the amount of attorney fees recoverable by
prevailing claimants must be decided by the jury.
86
In Sandy Valley Associates v. Sky Ranch
Estates,
87
after pointing out that attorney fees as a cost of litigation are recoverable only
under an agreement, statute, or rule, we stated that [i]f the fees are [so] authorized, the trial
court examines the reasonableness of the fees requested and the amount of any award.
88
Ordinarily, we noted, the court's determination is based on the documentary evidence
submitted to it in a post-judgment motion.
89
Then, we distinguished litigation cost attorney
fees from those fees requested as an element of damages, which constitute a rather narrow
exception to the rule prohibiting attorney fees awards absent express authorization, and
consequently must be specially pleaded and proved just as any other element of damages.
90

[Headnote 36]
Although a party may recover attorney fees as damages in constructional defects
cases, these fees do not fall under the narrow exception to the rule but rather are expressly
authorized by statute and are intended to compensate the claimant for legal fees incurred
when he or she is forced to institute a court action to resolve a valid constructional defect
claim by shifting the fees to the defendant.
91
Unlike attorney fees awarded under the narrow
special damages exception discussed in Sandy Valley, which claimants generally have the
arduous task of proving were a "natural and proximate consequence of the injurious
conduct," NRS 40.655{1){a) allows fees to be recovered "to the extent proximately
caused by a constructional defect."
____________________

85
NRS 40.655(1)(b)-(g).

86
Although Beazer Homes argues that the attorney fees question should be presented to the jury along with
the other listed damages measures, it at the same time recognizes that not all of the listed measures are
necessarily meant for a jury's determination; the list also includes statutory interest, which may be, under the
particular statute, a calculation for the court to make once liability has been determined by the jury. See, e.g.,
NRS 17.130; NRS 99.040; Hazelwood, 109 Nev. at 1009-10, 862 P.2d at 1192.

87
117 Nev. 948, 35 P.3d 964 (2001).

88
Id. at 956, 35 P.3d at 969. Contra City of Garland v. Dallas Morning News, 22 S.W.3d 351, 367 (Tex.
2000) (recognizing the general rule in Texas allowing a jury to determine the reasonableness of statutory
attorney fees).

89
117 Nev. at 956, 35 P.3d at 969.

90
Id.

91
See Hearing on S.B. 395 Before the Assembly Judiciary Comm., 68th Leg. (Nev., June 23, 1995)
(equating, generally, the NRS Chapter 40 attorney fees provision to other fee-shifting provisions in Nevada law);
cf. Neal v. Honeywell Inc., 191 F.3d 827, 833 (7th Cir. 1999) (affirming the district court's method of calculating
attorney fees under the federal false claims act's attorney fees provision, 31 U.S.C. 3730(h) (1986), and
recognizing that while unusually worded, the provision is a fee-shifting law, despite its classification of attorney
fees as a component of special damages).
........................................
generally have the arduous task of proving were a natural and proximate consequence of the
injurious conduct, NRS 40.655(1)(a) allows fees to be recovered to the extent proximately
caused by a constructional defect.
92
Thus, any time that a case is tried by legal counsel and
a jury determines that the claimant is entitled to recover damages proximately caused by a
constructional defect, a court can presume that the claimant is entitled to the recovery of
attorney fees, whether or not the jury verdict explicitly so states.
93

[Headnotes 37-39]
With liability presumed, all that remains is the equitable calculation of the fees, a
matter traditionally reserved to the court.
94
Further, NRS 40.655(2) specifically provides that
the amount of fees recovered under that section "must be approved by the court."
____________________

92
The homeowners, after receiving a favorable verdict on claims for both negligence and negligent
misrepresentation, requested attorney fees, apparently solely under NRS 40.655(1)(a). Fees under that statute
must pertain to a claim governed by NRS 40.600 to 40.695, inclusive and be proximately caused by a
constructional defect. We express no opinion on whether the homeowners' misrepresentation claim falls within
those NRS Chapter 40 sections, so that all of the requested fees in this case were proximately caused by a
constructional defect. See NRS 40.615 (defining constructional defect, in part, as a defect in the design,
construction, manufacture, repair or landscaping of a new residence); Olson v. Richard, 120 Nev. 240, 89 P.3d
31 (2004) (concluding that a claim for negligence in a constructional defects matter can constitute an NRS
Chapter 40 cause of action).

93
See Murphy v. Stowe Club Highlands, 761 A.2d 688, 699-702 (Vt. 2000) (recognizing that, when
entitlement to attorney fees can be determined as a matter of law, parties do not waive their right to such fees by
failing to submit the question to the jury).

94
See Sandy Valley, 117 Nev. at 956, 35 P.3d at 969; NRS 40.655(2) (requiring the court to examine the
amount, for reasonableness, of any attorney fees awarded); Ideal Electronic Sec. Co. v. Intern. Fidelity Ins., 129
F.3d 143, 150 (D.C. Cir. 1997) (recognizing, when attorney fees are requested pursuant to a contract, that if the
entitlement to attorney's fees has been ascertained, the determination of a reasonable fee award is for the trial
court); McGuire v. Russell Miller, Inc., 1 F.3d 1306, 1313-15 (2d Cir. 1993) (concluding that claimants may
submit to the jury the legal question of whether there exists a contractual right to recover attorney fees, but once
the jury finds in their favor, they have no constitutional right to have a jury determine the reasonableness of the
fees awarded, which is an equitable and collateral matter for the court to resolve); Murphy, 761 A.2d at 699-702
(distinguishing (even while recognizing that there is no bright constitutional line) between attorney fees as
damages, which are typically sought in or for a separate suit and present a matter for the jury, and attorney fees
as court costs, which are typically sought within and for the same suit and present a matter for the court;
adopting the McGuire approach and holding that the reasonableness of attorney fees awarded pursuant to
contract is an equitable matter; and recognizing that, when entitlement to attorney fees can be determined as a
matter of law, parties do not waive their right to such fees by failing to submit the question to the jury). See
generally Costello v. Scott, 30 Nev. 43, 62-63 (1908) (distinguishing between legal and equitable matters, and
noting that, [i]n a purely equity case, it is well settled in this state that a party cannot demand a jury as a matter
of right).
........................................
recovered under that section must be approved by the court. Consequently, we take the
plain language of this subsection to expressly require the court to determine the
reasonableness of the requested fees.
95
Thus, with respect to the amount of an award, we
agree with the Second Circuit Court of Appeals that [i]t is the trial court, not the jury, that
has the responsibility of determining attorney's fees awards pursuant to statute.
96

[Headnotes 40-42]
In Nevada, the method upon which a reasonable fee is determined is subject to the
discretion of the court, which is tempered only by reason and fairness.
97
Accordingly, in
determining the amount of fees to award, the court is not limited to one specific approach; its
analysis may begin with any method rationally designed to calculate a reasonable amount,
including those based on a lodestar amount
98
or a contingency fee.
99
We emphasize that,
whichever method is chosen as a starting point, however, the court must continue its
analysis by considering the requested amount in light of the factors enumerated by this
court in Brunzell v.
____________________

95
See Attorney General v. Board of Regents, 119 Nev. 148, 153, 67 P.3d 902, 905 (2003) (noting that, in its
de novo review of statutory construction issues, this court must first look to the plain language of the statute).

96
Bingham v. Zolt, 66 F.3d 553, 565 (2d Cir. 1995) (holding that the trial court properly denied the plaintiff
a jury trial, discovery, and an evidentiary hearing on his request for attorney fees under the federal RICO statute,
18 U.S.C. 1964(c) (1988)).

97
University of Nevada v. Tarkanian, 110 Nev. 581, 594, 591, 879 P.2d 1180, 1188, 1186 (1994).

98
The lodestar approach involves multiplying the number of hours reasonably spent on the case by a
reasonable hourly rate. Herbst v. Humana Health Ins. of Nevada, 105 Nev. 586, 590, 781 P.2d 762, 764
(1989).

99
See Chun v. Bd. of Trustees of E.R.S., 992 P.2d 127, 136, 136-42 (Haw. 2000) (analyzing different
methods used to award attorney fees in common fund cases and concluding that the approach to be applied in
awarding attorney's fees in class action lawsuits generally [should] be left to the discretion of the trial judge);
accord Brundidge v. Glendale Federal Bank, F.S.B., 659 N.E.2d 909 (Ill. 1995); see also Lealao v. Beneficial
California, Inc., 97 Cal. Rptr. 2d 797, 821 (Ct. App. 2000) (analyzing different methods used to calculate
attorney fees in a class action in light of contingency fee considerations and holding that, although the analysis
should start with the lodestar amount, a trial court has discretion to adjust the basic lodestar . . . where
necessary to ensure that the fee awarded is within the range of fees freely negotiated in the legal marketplace in
comparable litigation); Glendora Com. Redevel. Agency v. Demeter, 202 Cal. Rptr. 389 (Ct. App. 1984)
(affirming, under contemporary California rules in a non-class action case, the trial court's attorney fees award,
even though the amount awarded was equivalent to that called for in a contingency fee arrangement, because the
trial court considered a number of relevant factors supporting its conclusion that the fee was reasonable).
Although these cases point out a number of jurisdictions in which the court is to start with the lodestar amount,
many of those jurisdictions also permit the court to adjust the amount in consideration of contingency-fee-related
factors. As those jurisdictions thereby recognize the potential reasonableness of contingency fee amounts, and
since, in Nevada, the district court is already required to consider certain factors when determining
reasonableness, we see no reason to require one approach over another.
........................................
whichever method is chosen as a starting point, however, the court must continue its analysis
by considering the requested amount in light of the factors enumerated by this court in
Brunzell v. Golden Gate National Bank,
100
namely, the advocate's professional qualities, the
nature of the litigation, the work performed, and the result. In this manner, whichever method
the court ultimately uses, the result will prove reasonable as long as the court provides
sufficient reasoning and findings in support of its ultimate determination.
101

Prejudgment interest
Beazer Homes argues that prejudgment interest cannot be awarded on an entire
general verdict when that verdict encompasses both past and future damages.
[Headnotes 43, 44]
Under NRS 17.130(2), the judgment draws interest from the time of service of the
summons and complaint until satisfied, except for any amount representing future damages.
Prejudgment interest may not be awarded on an entire verdict when it is impossible to
determine what part of the verdict represented past damages.
102
For example, when a
general verdict form does not distinguish between past and present damages, a trial court
cannot award prejudgment interest.
103
However, when nothing in the record suggests that
future damages were included in the award, prejudgment interest is proper.
104

____________________

100
85 Nev. 345, 349, 455 P.2d 31, 33 (1969) (recognizing that the factors relevant to determining the
reasonableness of an attorney fee award include: (1) the qualities of the advocate: his ability, his training,
education, experience, professional standing and skill; (2) the character of the work to be done: its difficulty, its
intricacy, its importance, time and skill required, the responsibility imposed and the prominence and character of
the parties where they affect the importance of the litigation; (3) the work actually performed by the lawyer: the
skill, time and attention given to the work; (4) the result: whether the attorney was successful and what benefits
were derived. (quoting Schwartz v. Schwerin, 336 P.2d 144, 146 (Ariz. 1959))).

101
See, e.g., Miller v. Wilfong, 121 Nev. 619, 623, 119 P.3d 727, 730 (2005) (noting that the district court
has discretion to determine the reasonableness of statutory attorney fee awards, but in so doing, it must consider
the Brunzell factors); Schouweiler v. Yancey Co., 101 Nev. 827, 712 P.2d 786 (1985) (reversing the district
court's order awarding attorney fees and remanding the issue to be evaluated under the Brunzell factors); see also
Beattie v. Thomas, 99 Nev. 579, 589, 668 P.2d 268, 274 (1983) (noting that it is an abuse of discretion to award
the full amount of requested attorney fees without making findings based on evidence that the attorney's fees
sought are reasonable and justified).

102
Hazelwood, 109 Nev. at 1011, 862 P.2d at 1192.

103
Stickler v. Quilici, 98 Nev. 595, 597, 655 P.2d 527, 528 (1982).

104
Hazelwood, 102 Nev. 371, 725 P.2d 234 (1986).
........................................
[Headnote 45]
Here, we conclude that prejudgment interest was properly awarded on the entire
verdict, as the award represented only past damages, because the damages occurred when the
homes were built, regardless of when the homeowners actually made or will make necessary
repairs. Likewise, unexpended costs to repair constructional defects, which necessarily
occurred early on, should be treated as past damages, even though the defects will be repaired
in the future. Thus, prejudgment interest should be applied to those past abatement
damages.
The Supreme Judicial Court of Massachusetts reached a similar conclusion when it
considered an argument that prejudgment interest should apply only to that portion of
damages that represented the incurred costs for asbestos removal but not the costs of
abatement projects that had yet to be undertaken.
105
In awarding prejudgment interest on the
entire verdict, that court concluded that the property damage occurred when
asbestos-containing products were installed in the buildings, and that any costs to remove or
repair those products constituted past damages, regardless of when they actually were
awarded.
106
As the Massachusetts court reasoned, abatement costs are not future damages,'
but are rather an estimation of damage that has already occurred, for which compensation is
already due.
107

CONCLUSION
When single-family residence constructional defect cases present substantial issues
requiring individualized determinations, they are not appropriate for class action treatment.
Because the homeowners' claims and Beazer Home's defenses presented just such issues in
this instance, and because the district court failed to conduct and document a thorough class
action certification analysis under NRCP 23, we conclude that the district court abused its
discretion in allowing the homeowners' case to proceed as a class action. Accordingly, we
reverse the district court's judgment, and we remand this matter for a new trial on all issues
consistent with this opinion.
____________________

105
Com. v. Johnson Insulation, 682 N.E.2d 1323, 1333 (Mass. 1997).

106
Id.

107
Id. at 1333-34.
____________
.......................................
121 Nev. 867, 867 (2005) Cheung v. Dist. Ct.
AMY CHEUNG, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for THE COUNTY OF CLARK, and THE
HONORABLE JESSIE WALSH, District Judge, Respondents, and AMBER
SCHLAUDER, Real Party in Interest.
No. 42212
December 15, 2005
124 P.3d 550
Original petition for a writ of mandamus or prohibition challenging a district court
order that reversed a small claims judgment and remanded the matter for a jury trial.
The supreme court, Hardesty, J., held that a small claims court defendant did not have
the right to a jury trial.
Petition granted.
Rose, J., with whom Douglas, J., agreed, dissented. Maupin, J., dissented.
Bruce D. Schupp, Las Vegas, for Petitioner.
Ronald M. Pehr, Las Vegas, for Real Party in Interest.
1. Mandamus.
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.
As a writ petition seeks an extraordinary remedy, the supreme court will exercise its
discretion to consider such a petition only when there is no plain, speedy and adequate
remedy in the ordinary course of law or there are either urgent circumstances or
important legal issues that need clarification in order to promote judicial economy and
administration. NRS 34.170, 34.330.
3. Courts; Mandamus; Prohibition.
Small claims court litigant could not appeal from district court's order that reversed
small claims judgment and remanded the matter for a jury trial, and whether such a jury
trial right existed impacted judicial economy and administration, and thus, supreme
court was authorized to consider litigant's petition for a writ of mandamus or
prohibition. NRS 34.170, 34.330.
4. Jury.
Any jury trial rights held by a plaintiff are not infringed by a bench trial in a small
claims action because the plaintiff could have pursued recovery from a jury in a justice
court civil action.
5. Jury.
Small claims court defendant did not have the right to a jury trial under the Nevada
Constitution. Const. art. 1, 3.
6. Jury.
The jury trial right under the Nevada Constitution applies as it did under the common
law in existence at the adoption of the Constitution in 1864. Const. art. 1, 3.
........................................
7. Jury.
Courts added to the governmental and judicial structure after the Nevada
Constitution's ratification in 1864 do not implicate the right to jury trials absent specific
legislative enumeration. Const. art. 1, 3.
OPINION
In this original writ proceeding, we consider whether Nevada's Constitution includes a
right to a jury trial in small claims court. We conclude that it does not and therefore issue a
writ of mandamus directing the district court to vacate its order that reversed a small claims
judgment and remanded the matter for a jury trial.
FACTS
Amber Schlauder and Amy Cheung were involved in a two-car accident. Cheung
retained counsel and sued Schlauder, filing a small claims Affidavit of Complaint in the
Las Vegas Township Justice Court. Cheung sought $5,000 for medical expenses.
Schlauder retained counsel and filed a motion to remove the case from small
claims court to justice's court, so that she could request a jury trial. A small claims referee
denied the motion, ruling that removal was not possible because small claims court and the
justice court are the same court. The referee also found Schlauder liable for Cheung's medical
expenses and court costs.
Schlauder then filed a jury trial demand, arguing that she had a constitutional right to
a jury trial to test the legitimacy of Cheung's medical expenses. The justice of the peace
rejected Schlauder's argument, reviewed Cheung's medical bills and a letter from Cheung's
treating physician, and awarded Cheung $5,000 and court costs after Schlauder admitted
liability.
Schlauder subsequently appealed to the district court, which reversed the judgment
and remanded the case for a jury trial, reasoning that Schlauder had a constitutional right to
trial by jury. Cheung then filed in this court the instant petition for a writ of mandamus or
prohibition, arguing that no constitutional right to a jury trial exists in a small claims action.
Schlauder answered the petition.
DISCUSSION
[Headnote 1]
requires as a duty resulting from an office, trust or station" or to control an arbitrary or
capricious exercise of discretion.
........................................
fice, trust or station
1
or to control an arbitrary or capricious exercise of discretion.
2
A writ
of prohibition, on the other hand, is available to ensure that a district court operates within its
jurisdiction.
3

[Headnotes 2, 3]
As a writ petition seeks an extraordinary remedy, we will exercise our discretion to
consider such a petition only when there is no plain, speedy and adequate remedy in the
ordinary course of law
4
or there are either urgent circumstances or important legal issues
that need clarification in order to promote judicial economy and administration.
5
Here,
Cheung cannot appeal from the district court's order,
6
and whether there exists a right to a
jury trial in a small claims action is an issue of first impression that impacts judicial economy
and administration. Consequently, the writ petition warrants our consideration.
As recognized by the Justice Court Rules of Civil Procedure (JCRCP), small claims
trials are intended to be informal, with the sole object of dispensing fair and speedy justice
between the parties.
7
Not surprisingly then, no court rule authorizes a jury trial in a small
claims action. There are also no formal pleadings or discovery mechanisms. Similarly, Title 6
of the Nevada Revised Statutes, which also governs justice court procedure, contains no
provision for a jury trial in a small claims action.
8

[Headnotes 4, 5]
Preliminarily, we note that the lack of a statutory or rule-based mechanism for
obtaining a jury trial does not impact a plaintiff. Any jury trial rights held by a plaintiff are
not infringed by a bench trial in a small claims action because the plaintiff could have
pursued recovery from a jury in a justice court civil action.
____________________

1
NRS 34.160.

2
See Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981).

3
NRS 34.320.

4
NRS 34.170; NRS 34.330.

5
State, Div. Child & Fam. Servs. v. Dist. Ct., 120 Nev. 445, 449, 92 P.3d 1239, 1242 (2004).

6
Nev. Const. art. 6, 6; Lippis v. Peters, 112 Nev. 1008, 1010-11, 921 P.2d 1248, 1249-50 (1996).

7
JCRCP 96. See generally Nancy M. King, Annotation, Small Claims: Jury Trial Rights in, and on Appeal
From, Small Claims Court Proceeding, 70 A.L.R. 4th 1119, 1121 (1989) ([T]he basic purpose of small claims
courts is to provide a less costly and protracted summary procedure for the litigation of claims not exceeding a
specified, relatively low maximum amount. Thus, certain legal technicalities which may encumber an ordinary
proceeding are generally dispensed with in a small claims proceeding.).

8
Compare NRS ch. 67 (trial by jury), with NRS ch. 73 (small claims).
........................................
sued recovery from a jury in a justice court civil action.
9
But a small claims defendant has no
similar election by way of removal to another court, transfer to a different docket, or appeal to
the district court.
10
Consequently, we focus on whether a small claims defendant has a
constitutional jury trial right.
[Headnote 6]
The Nevada Constitution guarantees the right to trial by jury and that the jury trial
right shall remain inviolate forever.
11
The jury trial right, however, applies as it did under the
common law in existence at the adoption of the Nevada Constitution in 1864.
12
As this
court, in Aftercare of Clark County v. Justice Court, recently clarified, Nevada's jury trial
right is defined by English common law as modified at the time of the Nevada Constitution's
adoption.
13
This court further observed that the phrase shall remain inviolate means to
perpetuate the jury trial right as it was understood when the Nevada Constitution was
adopted.
14
Therefore, the right to a jury trial is a purely historical question, to be determined
like any other social, political, or legal fact.
15

When reviewing the historical aspects of jury trial rights, most states look to the jury
trial practice in their own territory or colony before statehood, in addition to the English
practice, recognizing that the course of the common law may have been modified by
territorial or colonial statute.
16
This court adopted a broader approach in Aftercare,
concluding that Nevada's jury trial right is based on an 1864 version of the English common
law as statutorily modified in this country."
____________________

9
Aftercare of Clark County v. Justice Ct., 120 Nev. 1, 4, 82 P.3d 931, 932 (2004); see also State ex rel.
McCool v. Small Claims Court, 532 P.2d 1191, 1194 (Wash. Ct. App. 1975) (stating that a small claims plaintiff
waives the [jury trial] right by his choice of the forum); Legislation, Small Claims Courts, 34 Colum. L. Rev.
932, 939-40 (1934); Comment, Courts: Jurisdiction of Small-Claims Courts, 11 Cal. L. Rev. 276, 279 (1923);
e.g., Robb v. Matthews Buick-Pontiac, Inc., 516 N.E.2d 1110 (Ind. Ct. App. 1987).

10
See, e.g., JCRCP 76A (stating that [a] case appealed must not be tried anew).

11

12
E.g., Hudson v. City of Las Vegas, 81 Nev. 677, 409 P.2d 245 (1965); Wainwright v. Bartlett, Judge, 51
Nev. 170, 271 P. 689 (1928).

13
120 Nev. 1, 4, 82 P.3d 931, 932 (2004).

14
Id. at 6, 82 P.3d at 933.

15
Crouchman v. Superior Court, 755 P.2d 1075, 1078 (Cal. 1988).

16
Aftercare, 120 Nev. at 5, 82 P.3d at 933; accord Margreth Barrett, The Constitutional Right to Jury Trial:
A Historical Exception for Small Monetary Claims, 39 Hastings L.J. 125, 130-33 (1987); Kirkland v. Blaine
County Medical Center, 4 P.3d 1115, 1118 (Idaho 2000); People ex rel. Daley v. Joyce, 533 N.E.2d 873, 878
(Ill. 1988); Ela v. Pelletier, 495 A.2d 1225, 1228 (Me. 1985); Bell v. State, 176 N.W. 544, 544 (Neb. 1920);
Gonzales v.
........................................
modified in this country.
17
Based on an examination of the common law's history at the
time of the adoption of the Nevada Constitution, this court concluded in Aftercare that the
Nevada constitutional guaranty of trial by jury covers justice's court civil actions even when
small amounts are in controversy.
18
The Aftercare court noted, however, that a different
conclusion may be warranted in small claims actions.
19

In reaching its decision, the Aftercare court made four observations about the right to
a jury trial in justice court at the time of the founding of our great state. First, in 1861,
Nevada's territorial legislature mandated jury trials in justice court for factual issues, without
regard to any minimum monetary threshold.
20
Second, the omission of a threshold in our
State Constitution was not for lack of a model, given that the United States Constitution's
Seventh Amendment and Utah's territorial laws impressed a twenty-dollar minimum
threshold.
21
Third, during the Nevada constitutional convention, the right to a jury trial in
justice court seemed to be an unchallenged assumption.
22
And fourth, two states prominent
during Nevada's development, California and New York, also allowed justice court jury trials
without regard to a minimum monetary threshold.
23
None of these observations, however,
provide support for extending the right to a jury trial to small claims actions.
Applying the historical test adopted in Aftercare, we note at the outset that the English
common law, as statutorily modified in this country in 1864, provided for juryless small
claims tribunals.
24
In England, actions for small demands were triable before certain
officers having a limited jurisdiction, without a jury.
25
The colonies of Massachusetts and
New Jersey, for example, provided for juryless small claims tribunals for both the plaintiff
and the defendant.
____________________
Lopez, 52 P.3d 418, 422 (N.M. Ct. App. 2002); Unemployment Comp. Com'n v. J. M. Willis B. & B. Shop, 15
S.E.2d 4, 7 (N.C. 1941); Greist v. Phillips, 906 P.2d 789, 796-97 (Or. 1995); White v. White, 196 S.W. 508, 512
(Tex. 1917); Sofie v. Fibreboard Corp., 771 P.2d 711, 718 (Wash. 1989). But see Keeter v. State, 198 P. 866,
872 (Okla. 1921) (declaring that Oklahoma's jury trial right was not predicated upon the statutes existing in the
territory at [the time of the Oklahoma Constitution's adoption], but upon the right of the citizen, as the same was
guaranteed under the federal Constitution and according to the course of the common law).

17
Aftercare, 120 Nev. at 5, 82 P.3d at 933.

18
Id. at 8, 82 P.3d at 935.

19
Id.

20
Id. at 6, 82 P.3d at 934.

21
Id.

22
Id.

23
Id. at 7-8, 82 P.3d at 935.

24
See Roscoe Pound, Organization of Courts 47-52 (1940).

25
John Proffatt, A Treatise on Trial by Jury 99, at 142 (1877), quoted in Wings of the World v. Small
Claims Court, 987 P.2d 642, 644 (Wash. Ct. App. 1999).
........................................
colonies of Massachusetts and New Jersey, for example, provided for juryless small claims
tribunals for both the plaintiff and the defendant.
26

And in Nevada, there is a fundamental difference between a justice court civil action,
existent at the time of statehood, and small claims court, which was created almost sixty years
after the adoption of the Nevada Constitution. Established by our Legislature in 1923,
27
the
small claims court required then, as it still does today, that claims be under a monetary
threshold.
28
Although justices of the peace are designated by the Legislature to preside over
small claims court, in addition to justice court actions, small claims trials are intended to be
informal, with the sole object of dispensing fair and speedy justice between the parties.
29
To that end, in small claims court a party is not permitted to conduct depositions or other
discovery;
30
neither party may obtain attorney fees;
31
the plaintiff may not seek any
prejudgment collection;
32
the proceedings are summary, excusing strict evidence rules;
33
and the collection of any judgment may be deferred and otherwise determined by the justice
of the peace.
34

Thus, the first and second observations made by the court in Aftercare, that a
minimum monetary threshold was not historically required for a jury trial in justice court
actions, is inapplicable to small claims court. Summary small claims actions like those
established in 1923 simply did not exist in Nevada in 1864 and thus were not considered
during the adoption of the State Constitution.
35

The third observation in Aftercare, that the delegates simply assumed that the right to
a jury trial existed in justice court actions, can be distinguished from small claims actions
because that summary procedure was not considered by the delegates as part of the justice
court system at the time of the constitutional convention. The delegates to the constitutional
convention in 1864 did not discuss jurisdictional monetary threshold for justice court actions
in the context of one's right to a jury trial in justice court. Rather, the delegates debated
excluding from the jurisdiction of the justice court claims involving title to real property.
____________________

26
Pound, supra note 24, at 30-32, 41-42, and 43-46.

27
1923 Nev. Stat., ch. 149, 1, at 260-64 (approving a small claims court in Nevada).

28
NRS 73.010.

29
JCRCP 96.

30
JCRCP 92; JCRCP 95.

31
NRS 73.040.

32
NRS 73.020.

33
JCRCP 96.

34
JCRCP 97.

35
See 1861 Nev. Laws, ch. 103, 527, at 404; id. 648-50, at 424.
........................................
court claims involving title to real property. The removal of the proposed monetary threshold
was in response to the concern of some delegates that real property may increase in value,
rendering any minimum limit ineffective for jurisdictional purposes. We should, therefore,
recognize the intent of our founders, at the time of the ratification of the Nevada Constitution,
with regard to the right to a jury trial in justice court. Their decision to omit any monetary
threshold was based on concerns relating to the jurisdiction of the justice courts in civil
actions, not on broadening jury trial rights.
Finally, the fourth observation in Aftercare, that California allowed justice court jury
trials without imposing a monetary minimum, cannot logically be applied to the question of
whether Nevada's jury trial right extends to small claims actions. California, however, has
rejected jury trial rights in small claims court.
36
In considering jury trial rights in small
claims court under a constitutional provision similar to Nevada's, the California Supreme
Court was persuaded by the Iowa Supreme Court, which concluded, If the basic Iowa law is
rooted in English common law, then the constitutional direction that the right of trial by jury
shall remain inviolate' carries with it the common-law concept that minor claims may be
adjudicated without a jury.
37

[Headnote 7]
The United States Supreme Court has stated, It never could be the intention of the
constitution to tie up the hands of the legislature, so that no change of jurisdiction could be
made, and no regulation even of the right of trial by jury could be had.
38
Given the
historical examination of our Constitution, we hold that courts added to the governmental and
judicial structure after the Constitution's ratification in 1864 do not implicate the right to jury
trials absent specific legislative enumeration. As prominent commentators have recognized,
creating a juryless tribunal to resolve minor monetary claims using unique procedures is
solely within the legislature's prerogative.
39
In those tribunals, the right to a trial by jury is to
be regulated by legislation.
40

Finally, we point out that this conclusion simply makes sense in light of other
proceedings within the justice system. As the dissent in Aftercare noted,
41
in criminal cases
where the Sixth Amendment of the United States Constitution applies to state courts, the
right to a trial by jury depends on whether the offense is characterized as "petty" or
"serious."
____________________

36

37
Iowa Nat. Mut. Ins. Co. v. Mitchell, 305 N.W.2d 724, 727 (Iowa 1981), cited with approval in
Crouchman, 775 P.2d at 1080.

38
Capital Traction Company v. Hof, 174 U.S. 1, 27 (1899).

39
See Barrett, supra note 16, at 159.

40
O'Banion v. Simpson, 44 Nev. 188, 193, 191 P. 1083, 1084 (1920).

41
120 Nev. at 12, 82 P.3d at 938 (Gibbons, J., dissenting).
........................................
of the United States Constitution applies to state courts,
42
the right to a trial by jury depends
on whether the offense is characterized as petty or serious.
43
And the United States
Supreme Court has increasingly relied upon the objective criterion of the maximum possible
penalty in deciding whether to characterize an offense as petty' or serious.'
44
That Court
has concluded that when the maximum authorized prison term for an offense does not exceed
six months, the defendant is not entitled to a jury trial.
45
According to the Supreme Court,
the disadvantages of such a sentence, onerous though they may be, may be outweighed by
the benefits that result from speedy and inexpensive nonjury adjudications.'
46

Analogous to the criminal distinction between petty and serious offenses, the
Nevada Legislature established, by the enactment of NRS 73.010, the amount for small
claims civil actions where the amount claimed does not exceed $5,000. This limitation,
distinguishing actions with jury trial rights from those without such rights, is based on an
objective criterion. To conclude otherwise would mean that in Nevada a defendant sued for
one dollar has a right to a jury trial, but a citizen who could be incarcerated for up to six
months in jail does not. It would be unreasonable to suggest that the founders of our
Constitution intended such an imbalance to exist within Nevada's justice system. Given the
historical debate in this case, we conclude our Constitution should not be read to deny
citizens the right to similarly speedy and less expensive trials in small claims civil cases.
CONCLUSION
Historically, there is a distinct difference between justice court and small claims court,
and this difference is found in the sole reason for small claims courts' existence: to provide an
avenue for speedy and effective remedies in civil actions involving minimal sums. Like
specialized courts under the common law, historically, Nevada small claims court law
demands a party be able to bring his case to justice quickly and affordably. Therefore, we
hold that a jury trial right does not exist under our Constitution in actions filed in small
claims court. Accordingly, we grant this petition and direct the clerk of this court to issue a
writ of mandamus directing the district court to vacate its order reversing the small claims
judgment and remanding the matter for a jury trial.
____________________

42
Blanton v. North Las Vegas Mun. Ct., 103 Nev. 623, 633, 748 P.2d 494, 500 (1987), aff'd sub nom.
Blanton v. North Las Vegas, 489 U.S. 538 (1989).

43
State v. Smith, 99 Nev. 806, 809, 672 P.2d 631, 633 (1983).

44
Id.

45
Blanton, 489 U.S. at 542 (citing Baldwin v. New York, 399 U.S. 66, 69 (1970) (plurality opinion)).

46
Id. (quoting Baldwin, 399 U.S. at 73 (plurality opinion)).
........................................
the district court to vacate its order reversing the small claims judgment and remanding the
matter for a jury trial.
Gibbons and Parraguirre, JJ., concur.
Becker, C. J., concurring:
Although I concur in the majority opinion's holding that a jury trial is not required in
small claims proceedings, I write separately to address my reasons for distinguishing this case
from our decision in Aftercare of Clark County v. Justice Court.
1

In Aftercare, we addressed whether a local justice court policy violated Article 1,
Section 3 of the Nevada Constitution. We concluded that it did and that the Nevada
Constitution guaranteed a right to trial by jury in justice court civil actions regardless of the
amount in controversy.
2
We specifically reserved for another day the applicability of the
constitutional provision to legislatively created small claims proceedings.
We are now asked to determine whether litigants in a small claims proceeding are
entitled to a jury trial, either initially or on appeal, in a trial de novo. I conclude that they are
not and that the framers of the Nevada Constitution did not contemplate otherwise.
There is a distinction between a formal civil action and an informal small claims
proceeding, and this distinction was recognized at common law, both in England and the
United States, before the Nevada Constitution was adopted in 1864.
3
Civil actions were tried
before juries; small claims proceedings were not.
4
The distinction developed to permit
individuals to litigate, in an informal manner, legal disputes involving comparatively small
sums of money without the necessity of incurring significant legal expenses.
5

I distinguish this case from Aftercare on four primary grounds: (1) the records of
Nevada's constitutional debates, (2) the history of small claims proceedings in England and
the United States, (3) the California Supreme Court's interpretation of an identical jury trial
provision in the California Constitution, and (4) the 1978 amendments to the judicial article
of the Nevada Constitution.
Beginning with our constitutional debates, the drafters of the Nevada Constitution
envisioned that English common law, as modified by the practices in the United States at the
time of the adoption of the Constitution in 1S64 or by express language in the Constitution
itself, controlled the right to a jury trial.
____________________

1
120 Nev. 1, 82 P.3d 931 (2004).

2
Id. at 8, 82 P.3d at 935.

3
Margreth Barrett, The Constitutional Right to Jury Trial: A Historical Exception for Small Monetary
Claims, 39 Hastings L.J. 125, 129 (1987).

4
Id. at 142-44.

5
Id. at 144.
........................................
tion of the Constitution in 1864 or by express language in the Constitution itself, controlled
the right to a jury trial. This has also been the rule of construction used in interpreting the
Nevada Constitution.
6

The representatives to Nevada's constitutional convention were familiar with the
common-law history of a civil jury trial.
7

The objection suggested by the gentleman from Washoe arises, possibly, from the
difficulty of determining what constitutes a jury. Under the Constitution of the United
States, and under the Constitutions of most of the Statesprobably every State in the
Union where the right of trial by jury is provided for . . . resort must be had for
construction to what is understood by the common law right of jury trial. . . . [I]t would
be necessary, under a constitutional provision simply declaring that the right of trial by
jury shall remain inviolate, that resort should be had to that common law rule in order
to ascertain and determine what number constitutes a jury.
8

Our constitutional drafters clearly intended that the right to a jury trial be interpreted with
reference to common law, and jury trials did not exist under common law for small claims
cases.
In addition, when they intended to depart from the common law, the drafters included
express language to that effect in Nevada's Constitution.
9
Indeed, many of the
representatives argued against the adoption of a three-fourth's majority vote for verdicts in
civil cases because it was a radical departure from common law.
10
If the framers intended to
further depart from common law by prohibiting final nonjury adjudications via small claims
proceedings, the Constitution would have addressed this issue.
Finally, the delegates who drafted Nevada's Constitution were concerned with
preserving a system that afforded litigants an informal, cost-effective method of handling
small claims. In debating why justice court jurisdiction should not include title to real
property, Mr. Charles E. DeLong stated:
Justices' Courts are not Courts of Record; they are courts instituted for the trial of cases
involving small sums of money, or damages in small amounts, and their proceedings
are not surrounded with that degree of dignity and solemnity which causes the
judgments of a court to be referred to subsequently for the matters determined
therein.
____________________

6

7
Debates of Proceedings of the Nevada State Constitutional Convention of 1864, at 57, 198 (Andrew J.
Marsh off. rep., 1866) [hereinafter Report of the Debates] (statements of delegates Cornelius M. Brosnan and J.
Neely Johnson).

8
Id. at 198 (statement of delegate J. Neely Johnson).

9
Id. at 53-58 (debate regarding departure from common-law rule for unanimous verdicts in civil cases to new
rule of three-fourth's majority verdict).

10
Id.
........................................
or damages in small amounts, and their proceedings are not surrounded with that degree
of dignity and solemnity which causes the judgments of a court to be referred to
subsequently for the matters determined therein. It is a court where the pleadings need
not be made in writing, where the allegations and answers may be stated orally, and not
placed on any record, and where nearly all the formalities which are observed in the
higher courts may be dispensed with.
11

Mr. DeLong then expressed his objections to expanding either the monetary jurisdiction of
the justice courts or their substantive jurisdiction because he feared justices of the peace
might not have the requisite learning to handle more complex cases.
12
His remarks do not
clarify what practices existed in the territorial courts or refute the general proposition that jury
trials were not granted in small claims proceedings.
Although delegate Lloyd Frizell commented that people would have a right to a jury
trial in all cases,
13
his comments are at odds with statements of other delegates and the
territorial statutes. For example, delegate John A. Collins indicated that juries would not try
certain cases:
I see no reason why, if a justice is capable of deciding in an action of assumpsit, he may
not also take the testimony and balance evenly the scales of justice in an action of this
kind. If he can decide justly between man and man in the one case, he can in the other.
14

Of course one can argue that by not including a monetary threshold, especially given
the existing example of the United States Constitution's twenty-dollar limit, the drafters
intended that parties have some method of obtaining a jury trial at some stage of a small
claims case. But the debates do not support such a conclusion, and one can equally argue that
the framers intended no greater right than those granted under the United States Constitution.
In light of the drafters' concern for preserving informal and cost-effective methods of
resolving monetarily small disputes, I submit a more harmonious reading is to require jury
trials only in civil actions, which are already more complex and subject to additional costs
and fees.
The long history of small claims proceedings at common law supports the conclusion
that jury trials are not required in any stage of small claims proceedings. In the mid-1800s, the
threshold for juryless trials in England was five pounds.
____________________

11
Id. at 679-70.

12
Id. at 680.

13
Id. at 684.

14
Id. at 683.
........................................
ryless trials in England was five pounds.
15
Moreover, England recognized a distinction
between formal actions and informal small claims proceedings.
16
A plaintiff, by choosing
the forum, also chose whether the claim would be litigated before a judge or a jury.
17
The
United States Constitution limited jury trials in civil cases to controversies exceeding twenty
dollars.
18

It is undisputed that, under English common law in 1864, cases involving small
monetary claims were tried by judges in informal, inexpensive proceedings.
19
Thus, absent a
clear indication that American common law departed from that practice, Nevada's jury trial
provision would not require juries in small claims special proceedings. A review of American
practice in 1864 reveals no clear evidence of a national departure from English common law
on this issue.
While Aftercare contains some language suggesting that territorial law altered English
common law,
20
monetary thresholds for jury trials and small claims proceedings are not
discussed in the territorial laws. In fact, the territorial legislature stated that [t]he Common
Law of England, so far as it is not repugnant to, or inconsistent with the Constitution or Laws
of the United States, or the Laws of the Territory of Nevada, shall be the rule of decision in
all Courts of this Territory.
21

The territorial statutes governing jury trials discussed in Aftercare
22
established the
procedures for demanding and conducting jury trials but did not grant a right to trial. In
addition, many of the sections appear to apply to more formal civil actions, not informal
small claim type proceedings. For example, section 155, which states that a jury decides
issues of fact unless waived,
23
is not found in the section governing civil proceedings in
justice courts.
24
Instead, it falls amongst provisions that apply to civil actions in district, not
justice, courts. Thus, it is unclear whether section 155 was intended to apply to all courts and
proceedings or just civil actions.
____________________

15
1 Sir William Holdsworth, A History of English Law 192 (7th ed. 1956); Barrett, supra note 3, at 143.

16
Barrett, supra note 3, at 154.

17
Id.

18
U.S. Const. amend. VII.

19
Holdsworth, supra note 15, at 186-87.

20

21
1861 Nev. Laws, ch. 1, 1, at 1.

22
Aftercare, 120 Nev. at 6 n.24, 82 P.3d at 934 n.24.

23
1861 Nev. Laws, ch. 103, 155, at 339.

24
The provision is not located in Title XVI, which is captioned Of Proceedings in Civil Cases in Justice
Courts. Id. at 394.
........................................
Moreover, other sections of the territorial laws permitted a judge, not a jury, to decide
issues of fact.
25
In addition, a judge could appoint a referee to hear and decide all issues of
fact in certain cases.
26
I recognize that the actions where a judge, not a jury, tried issues of
fact under the territorial laws appear to involve rights sounding in equity and the
common-law rule prohibiting jury trials in equitable actions,
27
rather than small claims
proceedings. Nevertheless, the presence of provisions permitting judges to try issues of fact
emphasizes that nonjury trials were recognized as part of American common-law practice in
1864.
There appears to be no equivalent in the territorial laws to our modern small claims
proceeding. Actions involving claims for money could be commenced formally in writing or
informally upon an oral statement.
28
Beyond this, however, it appears that the rest of the case
would be tried as though a written complaint had been filed. It is unclear whether the statutes
required a jury trial, unless waived, in oral pleading cases. A demand could certainly be filed,
but we do not know if such demands were stricken in cases involving less than twenty dollars
because a jury trial would not be required under the Seventh Amendment to the Federal
Constitution, which governed right to a jury trial in the federal territories.
Based upon the history of small claims proceedings in England and the United States
as well as the provisions of the territorial laws relating to trial of civil action cases, I conclude
that the framers of the Nevada Constitution did not contemplate eliminating the jury trial
distinction between civil actions and small claims proceedings, and the Legislature was free
to create a nonjury small claims trial and appellate proceedings without violating the Nevada
Constitution.
In addition to the history of small claims proceedings, another rule of constitutional
construction is helpful in resolving this issue. When a constitutional provision or statute is
taken from another state, we look to the construction given that provision by the originating
state when construing the Nevada equivalent provision.
29

Nevada's Constitution, particularly its judicial articles, were taken nearly word for
word from the California Constitution.
30

____________________

25
Id. 181, at 344.

26
Id. 182-83, at 344.

27
C & K Engineering v. Amber Steel Co., Inc., 587 P.2d 1136, 1139-41 (Cal. 1978).

28
1861 Nev. Laws, ch. 103, 511-12, at 401.

29
Harvey v. Dist. Ct., 117 Nev. 754, 763, 32 P.3d 1263, 1269 (2001).

30
Report of the Debates, supra note 7, at 17 (statement of delegate J. Neely Johnson).
........................................
California's constitutional jury trial provision is identical to Nevada's.
31
We therefore look to
California case law interpreting California's Constitution when construing Nevada's identical
constitutional provisions.
The California Supreme Court has stated that the California Constitution preserves
the right to a jury in those actions in which there was a right to a jury trial at common law at
the time the Constitution was first adopted.
32
When considering whether the California
Constitution prohibited the California Legislature or courts from creating a nonjury small
claims procedure, including no method for obtaining a jury trial through trial de novo or
transfer to another docket, the California Supreme Court in Crouchman v. Superior Court
concluded,
The principle established by the English common law as it existed in 1850 was that
small claims, as legislatively defined within limits reasonably related to the value of
money and the cost of litigation in the contemporary economy, were to be resolved
expeditiously, without a jury and without recourse to appeal.
. . . .
. . . [W]e conclude that [defendant] has neither a constitutional nor a statutory right to
jury trial in this proceeding.
33

In reaching its conclusion, the court also referenced section 592 of the California
Code of Civil Procedure, which provided that an issue of fact must be tried by a jury.
34
This language is nearly identical to the Nevada territorial statutes relied upon in Aftercare.
35
The California court concluded that such statutes were not intended to create jury trial rights
beyond those established at common law.
36

Given that Nevada's constitutional drafters were so heavily influenced by practices
and procedures in California and the California Constitution, I agree with the majority's
application of Crouchman to our construction of Nevada's jury trial provision. The creation of
a small claims proceeding that does not provide for a jury trial, either through a trial de novo
or some method of transfer to a civil docket, does not violate Nevada's Constitution.
In addition to the reasons set forth above, I believe that the court should also consider
the 1978 amendments to Nevada's Constitution.
____________________

31
Cal. Const. art. I, 3 (1849) (replaced 1879).

32

33
Id. at 1080-81.

34
Id. at 1078.

35
Aftercare, 120 Nev. at 6 n.24, 82 P.3d at 934 n.24.

36
Crouchman, 755 P.2d at 1078.
........................................
tion. In 1978, the voters approved amendments that eliminated the three hundred dollar
monetary cap and increased substantive jurisdictional limits for justice courts. In approving
the measure for submission to the voters, the Legislature expressed its desire to provide
expanded jurisdiction in justice courts for small dollar amount cases.
37
The primary
argument presented to voters in favor of passage stated that:
Passage of this proposed constitutional amendment would remove the $300 maximum
limit of jurisdiction for Nevada's justice courts and permit the legislature to adjust the
limits as changing times may require. On the assumption that the legislature would
raise this limit, established in 1864, to a realistic and modern figure, more matters could
be heard at the less formal and less expensive level of the peoples' court.
38

Nonjury small claims proceedings had existed in justice courts since 1923. The Legislature
and the voters in 1978 intended to preserve this forum, while giving the Legislature greater
flexibility to adjust justice court jurisdiction. The statement is consistent with common-law
practice in 1864, utilizing less expensive, informal nonjury proceedings to resolve small
claim civil disputes.
For the reasons cited herein, I conclude that the Nevada Constitution does not require
jury trials in small claims actions, either initially, on trial de novo or through some type of
docket transfer. There is nothing inconsistent with treating justice court civil actions
differently from small claims proceedingsthis is the issue specifically left undecided in
Aftercare. I concur with the majority that the trial court acted improperly in ordering the
justice of the peace to conduct a jury trial in a small claims action and would grant the
petition.
39

Rose, J., with whom Douglas, J., agrees, dissenting:
The majority opinion has fashioned a result that appears to be both a practical and
politically popular solution. Unfortunately, it completely fails to recognize the Nevada
Constitution's unqualified guaranty that the right of trial by Jury shall be secured to all.
1
The concurring justice who signed the Aftercare decision over a year and a half ago with not
so much as a murmur of dissent now reaches the opposite conclusion even though both
cases involve court procedures in justice courts.
____________________

37
Hearing on A.J.R. 36 Before Assembly Judiciary Comm., 58th Leg. (Nev., February 16, 1977).

38
1978 General Election Sample Ballot, Argument for Passage of Ballot Question No. 2, at 6.

39
The real party in interest did not argue below, and therefore I do not address, whether the $5,000 limit on
small claims actions is equivalent to fifty pounds or twenty dollars in 1864.

1
........................................
year and a half ago with not so much as a murmur of dissent now reaches the opposite
conclusion even though both cases involve court procedures in justice courts. Since the
majority and concurring opinions seriously erode our holding in Aftercare and do not
recognize the right to a jury trial in a justice court proceeding, I dissent.
The Nevada Constitution guarantees the right to a jury trial and states that the right
shall always remain inviolate,
2
but the majority opinion concludes that the small claims
procedure created in 1923 by statute is really a new court unknown to the founding fathers
and, therefore, it is not encumbered by the constitutional directive. This reasoning is wrong
for three reasons. First, the Nevada Constitution's guaranty of a jury trial is not qualifiedit
does not read, the right to a jury trial shall be secured to all, except for minor matters
handled by a small claims court. Second, the type of actions now processed in small claims
courts existed when the Nevada Constitution was adopted and were processed as minor cases
in justice court. The creation of a small claims process does not mean that those cases did not
exist at the time of Nevada's statehood.
And third, the small claims procedure is part of our justice courts, and justice courts
are created and bound by the Nevada Constitution. The small claims procedure authorized in
1923 is an informal process to be used in justice courts and handled by justices of the peace.
The small claims procedure exists today primarily in the Justice Court Rules of Civil
Procedure,
3
but certain provisions of the procedure are located in Title 6 of the Nevada law,
entitled Justices' Courts and Civil Procedure Therein. Title 6 states that [i]n all cases
arising in the justice's court where the amount is not in excess of $5,000, the justice of the
peace may adopt an abbreviated procedure commonly referred to as a small claims court.
4
Nothing could be more clearthe small claims procedure is part of justice court, yet the
majority opinion concludes that small claims court is different and that the 1923 statute
trumps the unqualified constitutional guaranty of the right to a jury trial.
The majority opinion baldly declares that [g]iven the historical examination of our
Constitution, we hold that courts added to the governmental and judicial structure after the
Constitution's ratification in 1864 do not implicate the right to jury trials absent specific
legislative enumeration. This reasoning would mean that if the Legislature creates a
construction defect process to be handled by district court judges without specifically
stating that parties in those cases have a right to a jury trial, no right to a jury trial exists.
____________________

2
Id.

3
See JCRCP 88-100.

4
NRS 73.010.
........................................
by district court judges without specifically stating that parties in those cases have a right to a
jury trial, no right to a jury trial exists. Surely the majority opinion does not mean to give the
Legislature the right to determine if a citizen gets a jury trial when that unqualified right is
given to all citizens by the Nevada Constitution. But just when you conclude that they can't
possibly mean that, the majority unequivocally states that the right to a trial by jury is to be
regulated by legislation, not guaranteed by the Nevada Constitution.
In fact, Article 6, Section 1 of the Nevada Constitution expressly provides that [t]he
Judicial power of this State shall be vested in a court system, comprising a Supreme Court,
District Courts, and Justices of the Peace. This provision goes on to state that [t]he
Legislature may also establish, as part of the system, Courts for municipal purposes only in
incorporated cities and towns. This constitutional provision does not allow the Legislature to
create any other types of courts. The creation of small claims courts in justice court was either
the addition of an informal process to settle minor complaints or was the illegal creation of a
court outside that permitted by the Nevada Constitution. Obviously, the answer is the former.
In Aftercare, a five-justice majority concluded that the Nevada constitutional
guaranty of trial by jury covers justice court civil actions even when small amounts are in
controversy.
5
Even though we did not expressly hold that this included cases involving
small amounts of money in the small claims procedure, that conclusion seemed almost
inescapable. But the majority and concurring opinions, while leaving intact the final result
reached in Aftercare, now attack the very basis for that decision. The majority and concurring
opinions now make a fundamentally different choice in analysis than we did in the Aftercare
decision. In Aftercare, we explained that Nevada's jury trial right is based on an 1864
version of the English common law as statutorily modified in this country.
6
By 1864, a
number of states had statutorily conferred jury trial rights on small claims participants.
7
The
majority fails to acknowledge this and instead relies on California and Iowa cases that take a
different approach: these courts define the jury trial right based solely on the English common
law.
Our Aftercare decision also pointed out that Nevada's territorial legislature crafted a
jury trial guaranty without any minimum monetary threshold and that this absolute jury
trial guaranty emerged from the Constitutional Convention of 1S64 unchanged.
____________________

5
Aftercare of Clark County v. Justice Court, 120 Nev. 1, 8, 82 P.3d 931, 935 (2004).

6
Id. at 6, 82 P.3d at 933.

7
See Capital Traction Company v. Hof, 174 U.S. 1, 17, 22, 25 (1899) (listing state statutes that authorized a
jury trial at some stage of a small claims proceeding).
........................................
etary threshold and that this absolute jury trial guaranty emerged from the Constitutional
Convention of 1864 unchanged.
8
Aftercare clearly directed that when we interpret Nevada's
jury trial right, we are to interpret the right with regard to English common law, as modified
at the time of the Nevada Constitution's adoption.
9
The concurring justice pays mere lip
service to this mandate but then dives into a lengthy discussion of early English common law
as modified by states that have a much different historical development than Nevada.
In Aftercare, we stated that when states construe the jury trial right, most states look
to the jury trial practice in their own territory or colony prior to statehood.
10
We also
acknowledged that Nevada's case law had previously favored a slightly more expansive
approach, but Aftercare was primarily guided by Nevada's jury trial practice as designed by
our territorial legislature. In Nevada, our territorial legislature removed any monetary
threshold for the jury trial right, and, as the concurring justice appropriately points out,
[t]here appears to be no equivalent in the territorial laws to our modern small claims
proceeding. Thus, contrary to many other states,
11
Nevada did not historically distinguish
small claims actions by requiring that they be adjudicated in juryless proceedings. Therefore,
our constitutional provision giving an unqualified right to a jury trial is not dependent upon
whether the case arises as a justice court civil action or a small claims action. And, citing to
states where the distinction between small claims actions and other types of actions was
recognized at inception and where monetary thresholds were established for a jury trial right
expressly rejects the distinction made in Aftercare.
Finally, the concurrence concludes that we should be influenced by the 1978
amendments to Nevada's Constitution. It states that because nonjury small claims proceedings
had existed in justice courts since 1923, it was the intent of the Legislature and the voters to
preserve this forum. However, one key fact is forgottenthat in 1978 all justice court
actions, not just small claims proceedings, were nonjury actions. The constitutional right to a
jury trial in justice court was not enforced until some twenty-six years later, in Aftercare.
____________________

8
Aftercare, 120 Nev. at 6-7, 82 P.3d at 934.

9
Id. at 4, 82 P.3d at 932.

10
Id. at 5, 82 P.3d at 933.

11
Margreth Barrett, The Constitutional Right to Jury Trial: A Historical Exception for Small Monetary
Claims, 39 Hastings L.J. 125, 145-50 (1987) (discussing the historical right to a jury in American colonies and
territories during the seventeenth, eighteenth, and nineteenth centuries and describing how the colonies and
territories did not allow small monetary claims to be tried by a jury). The very title of this article, which the
concurrence cites as support for her position, describes a history of the jury trial right that is vastly dissimilar
from Nevada's.
........................................
Aftercare. Thus, the 1978 amendments do not support the position taken today by our
concurring justice. Where this leaves our decision in Aftercare is anyone's guess, but it does
appear that Aftercare has been overruled sub silentio.
One final point must be made regarding the result produced today by the majority and
that reached in Aftercare over a year ago. The majority and concurring opinions have now
created a situation where a plaintiff in justice court with a claim under $5,000 can elect to file
the action on the justice court civil docket and request a jury trial pursuant to Aftercare. But a
defendant sued in a small claims proceeding in the very same type of action in justice court
has no such right to demand a jury trial. This results in treating a plaintiff and a defendant
unequally, providing one with the election to have a jury trial and the other without. The
United States and Nevada Constitutions require equal protection under the law for all parties,
12
and this appears to be a blatant violation of those constitutional clauses.
13

The majority opinion ignores two fundamental legal concepts: the difference between
a constitutional provision and a statute, and that the creation of a small claims process to be
handled by justice courts was not the creation of a new court, but rather the authorization of
the use of an informal process in justice court for cases under $5,000. While the majority
opinion opines that there is a difference between a justice court civil action and small claims
court, we do know that they are both part of the justice courts and that justice courts,
whatever the specific court dockets or procedures within them, are subject to the Nevada
Constitution. The majority opinion has reached a pragmatic result, but ignores the Nevada
Constitution in the process.
I dissent for the reasons stated.
Maupin, J., dissenting:
I join Justice Rose in his dissent. I write separately to address a comment made by the
Chief Justice in her separate concurrence with the majority. The concurrence concludes that
the framers of the Nevada Constitution did not intend to grant jury trials in small claims
cases.
____________________

12
U.S. Const. amend. XIV, 1; Nev. Const. art. 4, 21.

13
It appears that no court that has concluded that jury trials are not required in small claims actions has been
confronted with the discrepancy between plaintiffs and defendants that now exists in Nevada. A majority of
courts have concluded that denying jury trials to small claims defendants violates the constitutional right to a
jury trial or to due process unless there is some mechanism for obtaining a jury trial in another tribunal. E.g.,
Windholz v. Willis, 573 P.2d 1100 (Kan. Ct. App. 1977); Ela v. Pelletier, 495 A.2d 1225 (Me. 1985); Flour City
Fuel & Transfer Co. v. Young, 185 N.W. 934 (Minn. 1921); North Central Services, Inc. v. Hafdahl, 625 P.2d
56 (Mont. 1981); Kneeland v. Matz, 388 N.W.2d 890 (S.D. 1986); State Ex Rel. McCool v. Small Claims Court,
532 P.2d 1191 (Wash. Ct. App. 1975).
........................................
claims cases. That is so. The Legislature did not create the small claims division of justice
courts until over one-half century following statehood. The framers must be forgiven for such
a lack of prescience. But, as stated in Aftercare of Clark County v. Justice Court,
1
the
framers clearly intended to hold the right to jury trial inviolate in justice court matters
involving claims for money damages. And because small claims actions are justice court
actions, tried by justices of the peace, such actions are subject to this constitutional right. Yes,
small claims court did not exist at statehood. The subsequent creation of small claims courts
as a division of justice courts cannot circumvent the Constitution.
Only the people of this state may change the Nevada Constitution. The majority today
has usurped this critical prerogative.
____________
121 Nev. 886, 886 (2005) Warren v. State
WILLIE WARREN, aka WILLY WARREN, Appellant, v.
No. 43063
December 15, 2005
124 P.3d 522
robbery. Eighth Judicial District Court, Clark County; Joseph T. Bonaventure, Judge.
The supreme court, Becker, C. J., held that: (1) evidence did not support entrapment
defense; (2) as matter of first impression, in order to preserve issue of admissibility of
impeachment evidence of prior convictions for appeal, a defendant must make offer of proof
outlining his intended testimony, and it must be clear from record that, but for trial court's in
limine ruling, defendant would have testified; (3) defendant adequately preserved his right to
appeal trial court's ruling in limine; (4) certified minute order of defendant's prior out-of-state
conviction was admissible as evidence of predisposition; (5) State was required to prove such
prior conviction with judgment of conviction in order to use it to impeach; and (6)
out-of-state conviction of petit theft was inadmissible for impeachment purposes.
Affirmed.
[Rehearing denied February 2, 2006]
Philip J. Kohn, Public Defender, Craig F. Jorgenson, Chief Deputy Public Defender,
and Mark S. Blaskey, Howard S. Brooks, and Craig D. Creel, Deputy Public Defenders, Clark
____________________

1
120 Nev. 1, 8, 82 P.3d 931, 935 (2004).
........................................
James Tufteland, Chief Deputy District Attorney, and Martin W. Hart, Deputy District
1. Criminal Law.
Robbery defendant waived appellate consideration of his claim of entrapment by
failing to raise entrapment defense at trial or request jury instruction on entrapment.
2. Criminal Law.
Entrapment is an affirmative defense.
3. Criminal Law.
When an affirmative defense is not raised in the district court, argument pertaining to
that defense is waived on appeal.
4. Criminal Law.
Evidence of circumstances of robbery defendant's arrest, as result of police
department's decoy operation, did not support entrapment defense.
5. Criminal Law.
In order to preserve the issue of the admissibility of impeachment evidence of a
defendant's prior convictions for appeal, a defendant must make an offer of proof to the
trial court outlining his intended testimony, and it must be clear from the record that,
but for the trial court's in limine ruling, the defendant would have testified.
6. Criminal Law.
Robbery defendant adequately preserved his right to appeal trial court's ruling on
motion in limine with respect to impeachment evidence of his prior conviction, where
record indicated that defendant intended from outset of case to present entrapment
defense and would have testified to facts supporting that defense, that defendant fully
intended to testify until trial court ruled his prior conviction admissible for
impeachment and to show predisposition, and that defendant would have testified but
for such ruling.
7. Criminal Law.
Substantial evidence supported conclusion that robbery defendant was individual
referenced in certified minute order of out-of-state conviction, as required to support
finding that minute order was admissible to show predisposition in rebuttal to
entrapment defense. NRS 48.055.
8. Criminal Law.
Proof of specific instances of a defendant's prior conduct may be used when character
is an essential element of an offered defense. NRS 48.055.
9. Criminal Law.
Use of certified minute order of robbery defendant's prior out-of-state conviction was
appropriate method to show predisposition, where character was essential element of
defendant's entrapment defense and applicable statute did not limit manner in which
specific instances of prior conduct might be evidenced. NRS 48.055.
10. Criminal Law.
Trial court did not abuse its discretion, in robbery prosecution, in permitting State to
use evidence of defendant's prior out-of-state conviction to show predisposition, in
rebuttal of entrapment defense, where court expressly or impliedly found that other
crime was of similar character to offense on which defendant was being tried, other
crime was not too remote in time from offense charged, and probative value of other
crime was not substantially outweighed by danger of unfair prejudice.
........................................
11. Witnesses.
Probative value of evidence of robbery defendant's prior out-of-state conviction was
not substantially outweighed by danger of unfair prejudice resulting from its admission
at trial for impeachment purposes, where State presented evidence sufficient to
establish that defendant was individual referenced in minute order of conviction,
defendant's testimony as to his claim of entrapment would have placed his credibility at
issue, and out-of-state conviction related to dishonesty and thereby directly challenged
his credibility. NRS 50.095.
12. Witnesses.
Statute governing admission of evidence for impeachment purposes does not limit
impeachment to only evidence of felonies relevant to truthfulness or veracity. NRS
50.095.
13. Criminal Law.
Similarity of a prior offense to the one for which a defendant was on trial increases the
prejudicial effect of evidence of the prior conviction, but that fact alone is insufficient
to find an abuse of discretion in the admission of such evidence when weighed against
its probative value. NRS 50.095.
14. Witnesses.
In seeking to impeach robbery defendant with evidence of prior out-of-state
conviction, State was required to prove such prior conviction with judgment of
conviction, rather than with certified minute order. NRS 50.095.
15. Witnesses.
State may not inquire about a prior conviction for impeachment purposes unless
prepared to prove the conviction with a judgment of conviction. NRS 50.095.
16. Witnesses.
Minute order, certified or otherwise, is insufficient evidence of a prior conviction for
impeachment purposes. NRS 50.095.
17. Witnesses.
Robbery defendant's prior out-of-state conviction of petit theft was inadmissible for
impeachment purposes, where statute under which defendant was previously convicted
provided only for period of imprisonment of not more than one year, and rule
governing impeachment evidence required that crime have been punishable by death or
imprisonment for more than one year. NRS 50.095(1); Cal. Penal Code 487c.
18. Criminal Law.
Trial court's erroneous ruling that minute order evidencing robbery defendant's prior
out-of-state conviction for petit theft was admissible for impeachment purposes to rebut
entrapment defense did not prejudice defendant and was harmless, where minute order
would have been admissible to show predisposition had defendant raised entrapment
defense. NRS 178.598.
OPINION
Willie Warren was charged with one count of conspiracy to commit robbery and one
count of robbery. He was convicted of the robbery count and sentenced to a prison term of
72 to 1S0 months.
........................................
robbery count and sentenced to a prison term of 72 to 180 months. On appeal, Warren
contends that (1) the decoy operation resulting in his arrest constituted entrapment; (2) this
court should reject the United States Supreme Court's holding in Luce v. United States,
1
requiring a defendant to testify or waive any challenge to admissibility of impeachment
evidence; and (3) the district court erred in permitting the State to use a certified minute order
to rebut an entrapment defense and to impeach him if he testified.
2

We conclude that Warren waived standing to raise the entrapment defense on appeal.
We decline to follow Luce and instead adopt the offer of proof procedure outlined in
Wickham v. State.
3
Further, we conclude that the district court properly determined that the
minute order would be admissible to rebut an entrapment defense, and although we conclude
that the district court erred in finding that the minute order could be used for impeachment
purposes, any error was harmless because the minute order would have been independently
admissible. Accordingly, we affirm the conviction and sentence.
Decoy operation and resulting arrest
In November 2003, Las Vegas Metropolitan Police Officer Richard Gagnon posed as
a decoy on Main Street between Carson and Lewis. Gagnon dressed as an off-duty casino
dealer and placed a stack of twenty one-dollar bills in his dress shirt's left breast pocket,
arranged so that they were visible to anyone near him. Gagnon then walked along Main
Street, acting intoxicated and stopping periodically to lean against a wall and drink from a
beer can.
While Gagnon was walking, Warren approached with his friend, Shelia Woods.
Warren initiated a conversation with Gagnon and then placed his left hand on Gagnon's left
shoulder. Gagnon rested his head on Warren's forearm. Gagnon felt Warren fishing around in
Gagnon's left breast pocket with Warren's right hand while Warren continued talking. Gagnon
attempted to see into his pocket, but Warren pushed Gagnon's head away with his forearm.
Gagnon then felt and saw Warren take the money out of his pocket. Warren pushed Gagnon's
head away again more forcefully, and Gagnon feared that Warren might punch him.
Warren and Woods then walked away, and Gagnon conveyed the bust signal. Officers
arrested Warren and Woods, and a search revealed the money taken from Gagnon in
Warren's back pocket.
____________________

1
469 U.S. 38 (1984).

2
Warren also asserts there was insufficient evidence to support the conviction and that the sentence
constitutes cruel and unusual punishment. We have reviewed these claims and conclude that they are without
merit.

3
770 P.2d 757 (Alaska Ct. App. 1989).
........................................
vealed the money taken from Gagnon in Warren's back pocket. The State charged Warren and
Woods each with one count of conspiracy to commit robbery and one count of robbery.
Woods pleaded guilty; Warren pleaded not guilty.
Trial
At the outset of Warren's trial, the State inquired whether Warren intended to pursue
an entrapment defense. If so, the State informed the court that it would use a certified minute
order from a prior California conviction of Warren to rebut the defense by showing
predisposition. Warren's counsel said that Warren would pursue an entrapment defense but
objected to the relevancy of the prior conviction because the document was insufficient to
establish that the person referenced in the conviction was Warren. Warren objected on no
other grounds.
The court inquired whether the State would use the prior conviction for impeachment
purposes, to which the State replied that it was only using it to rebut an entrapment defense.
The court also inquired whether the State would use the prior conviction during its
case-in-chief or on cross-examination. The State informed the court that it anticipated the
entrapment defense would be raised through cross-examination and that it wanted to use the
prior conviction during its case-in-chief. The court ruled that the State could use the
California minute order in its case-in-chief as evidence of predisposition.
The State gave its opening statement without mentioning the California conviction.
Warren's counsel reserved his opening statement. The State presented evidence on the events
that led to Warren's arrest and the decoy operation. The State did not present the California
conviction in its case-in-chief.
Warren's counsel informed the court that Warren would be testifying in his defense.
The district court conducted the appropriate Fifth Amendment colloquy. Warren's counsel
inquired whether the State would use the minute order of the California conviction for
impeachment purposes if he testified. The State answered affirmatively. Warren's counsel
renewed his objection that the prior conviction should be excluded on the basis of identity.
The district court ruled that if Warren took the stand and presented an entrapment defense,
the prior conviction could be used for both impeachment purposes and to show
predisposition.
During a recess, the State informed the court that it also had a 1984 conviction for
Warren from Washington. The State wished to use this conviction for impeachment and
rebuttal purposes. In addition, the State wished to use the fingerprints and photo
accompanying the Washington conviction to establish that the California minute order
conviction referred to Warren.
........................................
panying the Washington conviction to establish that the California minute order conviction
referred to Warren.
4
Warren objected.
The district court ruled that the California conviction was admissible, but prohibited
the State from using the Washington conviction for impeachment or rebuttal purposes due to
its remoteness in time. Warren did not testify, make an opening statement, or call any
witnesses. Consequently, the California conviction was never offered for admission.
During the settling of jury instructions, the district court inquired whether an
entrapment instruction was necessary. Warren's counsel stated that it was not necessary
because he had not put on any evidence of entrapment. Neither party objected to any of the
jury instructions.
At closing argument, Warren's counsel, having abandoned the entrapment defense,
argued that the money could not be considered stolen because it was put in Gagnon's pocket
with the purpose of being taken by someone else. Effectively, the money was being offered
for people to take. Therefore, Warren could not have stolen something that someone was
giving away for free.
Following argument and deliberation, the jury returned a verdict of not guilty on the
one count of conspiracy to commit robbery and guilty on the one count of robbery.
DISCUSSION
Warren argues that his conviction should be set aside based on an entrapment defense.
He also contends that we should reject the holding of Luce and find that he has not waived his
right to contest the district court's ruling on the admission of impeachment evidence. Finally,
Warren asserts that the district court erred by finding a certified minute order reflecting a
prior conviction could be admitted to rebut an entrapment defense and impeach him if he took
the stand to testify.
Entrapment defense
[Headnote 1]
Warren argues that the Las Vegas Metropolitan Police Department's decoy operation
constituted entrapment. Because Warren failed to present an entrapment defense below, we
conclude that he has waived this argument on appeal.
____________________

4
The State presented evidence that the fingerprints on the Washington conviction matched the FBI
fingerprint identification number for Warren and that same FBI identification number appeared in the California
conviction. Based on this evidence, the district court concluded that the California conviction was Warren's.
........................................
[Headnotes 2-4]
Entrapment is an affirmative defense.
5
When an affirmative defense is not raised in
the district court, argument pertaining to that defense is waived on appeal.
6
Although at the
outset of trial, Warren declared his intention to pursue an entrapment defense, he abandoned
this defense at the close of trial when he did not request an entrapment instruction. Warren
therefore waived his entrapment argument on appeal.
7

Applicability of Luce
Warren argues that the district court erred by permitting the State to use the minute
order of his California conviction for impeachment purposes. Warren contends that the court's
ruling prevented him from testifying. The State argues that Warren failed to preserve this
issue for appeal because he did not testify. The State urges this court to adopt the United
States Supreme Court's holding in Luce,
8
which would preclude our review of the issue.
Warren suggests that this court should not adopt Luce's holding because our decision in
Pineda v. State
9
is at odds with Luce.
In Luce, the Supreme Court held as a matter of federal evidence law that in order to
raise and preserve for review the claim of improper impeachment with a prior conviction, a
defendant must testify.
10
The Court offered two primary reasons in support of its holding.
The first reason involves the weighing of probative value versus prejudicial effect.
The Court reasoned that without a defendant's trial testimony, there is an insufficient record
from an in limine ruling to determine whether the trial court properly weighed the probative
value of the impeachment evidence against its prejudicial effect.
11
The precise nature of the
defendant's testimony is necessary to perform the balancing.
12

The second, and more fundamental reason involves the appellate court's ability to
conduct harmless error review. The Court concluded that any harm resulting from a trial
court's erroneous in limine ruling would be speculative absent the defendant's testimony.
____________________

5
Foster v. State, 116 Nev. 1088, 1091, 13 P.3d 61, 63 (2000).

6
See Hubbard v. State, 112 Nev. 946, 948, 920 P.2d 991, 993 (1996).

7
Even if Warren had properly preserved his entrapment argument for appeal, we conclude that the facts of
the LVMPD's decoy operation do not support an entrapment defense under our recently decided cases Daniels v.
State, 121 Nev. 101, 110 P.3d 477 (2005), and Miller v. State, 121 Nev. 92, 110 P.3d 53 (2005).

8
469 U.S. 38.

9
120 Nev. 204, 88 P.3d 827 (2004).

10
469 U.S. at 43.

11
Id. at 41.

12
Id.
........................................
limine ruling would be speculative absent the defendant's testimony.
13
And, the Court
reasoned that even a proffer of the defendant's intended testimony would be insufficient to
determine whether the error was harmless because a defendant's testimony could differ from
the proffer.
14
Further, the trial court might have changed its ruling during trial for any
number of reasons, or the prosecutor might not have actually impeached the defendant with
the prior conviction.
15
Therefore, the Court held that a reviewing court could not determine
whether a trial court's error was harmless without the defendant's trial testimony, and any
error would result in automatic reversal. Were in limine rulings . . . reviewable on appeal,
almost any error would result in the windfall of automatic reversal; the appellate court could
not logically term harmless' an error that presumptively kept the defendant from testifying.
16

We have yet to decide whether to embrace Luce. Warren's reliance on Pineda to reject
Luce is misplaced. In Pineda, we declined to follow the Supreme Court's holding in Ohler v.
United States
17
that a defendant waives the right to appeal a trial court's in limine decision to
admit evidence of prior convictions when he preemptively introduces those convictions on
direct examination.
18
The waiver issue that we addressed in Pineda is different from the one
presented here because it did not implicate the appellate court's ability to conduct a harmless
error review of the in limine ruling. Because our holding in Pineda involved different issues
and considerations, it does not control our decision on whether to adopt the holding from
Luce.
States that have adopted Luce generally agree with its premise that a reviewing court
cannot meaningfully review a trial court's in limine impeachment determination without the
defendant's actual trial testimony.
19

____________________

13
Id.

14
Id. at 41 n.5.

15
Id. at 41-42.

16
Id. at 42.

17
529 U.S. 753 (2000).

18
Pineda, 120 Nev. at 208-09, 88 P.3d at 830-31.

19
See, e.g., State v. Allie, 710 P.2d 430, 437 (Ariz. 1985); Smith v. State, 778 S.W.2d 947, 950 (Ark. 1989);
People v. Collins, 722 P.2d 173, 176-78 (Cal. 1986); People v. Brewer, 720 P.2d 596, 597 (Colo. Ct. App.
1985); State v. Harrell, 506 A.2d 1041, 1046-47 (Conn. 1986); Fennell v. State, 691 A.2d 624, 625-26 (Del.
1997); State v. Garza, 704 P.2d 944, 949 (Idaho Ct. App. 1985); People v. Whitehead, 508 N.E.2d 687, 694 (Ill.
1987); People v. Finley, 431 N.W.2d 19, 21-25 (Mich. 1988); State v. Hunt, 475 S.E.2d 722, 727 (N.C. Ct.
App. 1996); State v. Glenn, 330 S.E.2d 285, 286 (S.C. 1985); State v. Means, 363 N.W.2d 565, 569 (S.D.
1985); State v. Moffett, 729 S.W.2d 679, 681 (Tenn. Crim. App. 1986); Benavides v. State, 763 S.W.2d 587,
590
........................................
Conversely, states declining to follow Luce maintain that the problem of meaningful
review is unfounded when the record sufficiently demonstrates, through an offer of proof, the
nature of the defendant's proposed testimony and that the defendant refrained from testifying
when faced with impeachment by a prior conviction.
20
Under such conditions, a reviewing
court would have a sufficient record to conduct a harmless error analysis.
In Wickham v. State, the Alaska Court of Appeals adopted an offer of proof test to
avoid the appellate review problems discussed in Luce
21
At trial, the defendant's counsel
made an offer of proof specifically describing the defendant's anticipated testimony.
22
Counsel unequivocally stated that the defendant's decision to testify depended on the trial
court's ruling on the impeachment evidence.
23
The appellate court concluded that the record
was sufficient to review the trial court's in limine decision.
24
The Alaska court then reviewed
the trial court's decision for harmless error.
25
Other states that do not follow Luce similarly
engage in harmless error review when the record is sufficient to preserve the impeachment
issue for appeal.
26

[Headnote 5]
We conclude that the offer of proof procedure addressed in Wickham eliminates the
problems identified in Luce. We therefore adopt the Wickham approach, finding it more
persuasive than Luce. When presented with a sufficient record, we will have little difficulty in
reviewing a trial court's decision to admit impeachment evidence of a defendant's prior
convictions. In order to preserve the issue for appeal, we hold that a defendant must make
an offer of proof to the trial court outlining his intended testimony, and it must be clear
from the record that, but for the trial court's in limine ruling, the defendant would have
testified.
____________________
(Tex. App. 1988); State v. Gentry, 747 P.2d 1032, 1036 (Utah 1987); Reed v. Commonwealth, 366 S.E.2d 274,
277 (Va. Ct. App. 1988); State v. Brown, 782 P.2d 1013, 1022-25 (Wash. 1989); Vaupel v. State, 708 P.2d
1248, 1249-50 (Wyo. 1985).

20
See, e.g., Wickham v. State, 770 P.2d 757, 761-62 (Alaska Ct. App. 1989); State v. Ford, 381 N.W.2d 30,
32 n.1 (Minn. Ct. App. 1986); State v. Whitehead, 517 A.2d 373, 376-77 (N.J. 1986); People v. Moore, 548
N.Y.S.2d 344, 346 (App. Div. 1989); State v. McClure, 692 P.2d 579, 584 n.4 (Or. 1984); Commonwealth v.
Richardson, 500 A.2d 1200, 1203-04 (Pa. Super. Ct. 1985).

21
Wickham, 770 P.2d at 762.

22
Id. at 762 n.2.

23
Id. at 762.

24
Id.

25
Id. at 763.

26
See, e.g., Whitehead, 517 A.2d at 376 (acknowledging Luce's concern that harmless error review would be
impossible when a defendant does not testify but concluding that the concern is misplaced and that a defendant's
failure to testify does not place an undue burden on the reviewing court to determine whether any error was
harmless).
........................................
serve the issue for appeal, we hold that a defendant must make an offer of proof to the trial
court outlining his intended testimony, and it must be clear from the record that, but for the
trial court's in limine ruling, the defendant would have testified.
[Headnote 6]
The record in the instant case provides us with adequate details for review. From the
beginning of trial, Warren intended to present an entrapment defense. The record indicates
that he would have testified to the facts supporting that defense. Furthermore, the record
makes clear that Warren fully intended to testify until the district court ruled that the minute
order of his prior conviction could be used for impeachment purposes and to show
predisposition. But for the district court's in limine ruling, Warren would have testified. We
therefore conclude that Warren preserved his right to appeal the impeachment issue. Before
we consider the impeachment ruling, however, we must first review the propriety of the
district court's ruling regarding the admission of the prior conviction to show predisposition
as this affects any harmless error analysis with respect to the impeachment ruling.
Use of minute order to show predisposition
[Headnote 7]
Warren argues that the district court abused its discretion by permitting the State to
use a certified minute order of his California conviction to show predisposition if he
presented an entrapment defense. Specifically, he argues that the minute order was inaccurate
and that the State had no proof that he was the person referenced in the minute order. Warren
further contends that the court's ruling precluded him from presenting his intended defense
and from testifying at trial. We conclude that substantial evidence demonstrates that Warren
was the individual referenced in the minute order and that the certified minute order was
proper evidence of predisposition in rebuttal to an entrapment defense.
[Headnotes 8, 9]
In Foster v. State, we determined that raising an entrapment defense places a
defendant's character directly in issue for purposes of NRS 48.055.
27
Under NRS 48.055,
proof of specific instances of a defendant's prior conduct may be used when character is an
essential element of the defense.
28
The statute does not limit the manner in which specific
instances of prior conduct may be evidenced. Thus, we hold that the State's intended use of a
certified minute order of Warren's prior conviction in California was an appropriate
method to show predisposition.
____________________

27
116 Nev. at 1095, 13 P.3d at 65-66.

28
Id. at 1095, 13 P.3d at 65.
........................................
minute order of Warren's prior conviction in California was an appropriate method to show
predisposition.
[Headnote 10]
Also in Foster, this court outlined a three-part analysis to be used by courts in
determining whether evidence of a prior conviction should be admitted to show
predisposition to rebut an entrapment defense:
(1) the other crime is of a similar character to the offense on which the defendant is
being tried; (2) the other crime is not too remote in time from the offense charged; and
(3) the probative value of the other crime is not substantially outweighed by the danger
of unfair prejudice.
29

Substantial evidence supports the district court's express or implied findings on all three
factors. We therefore hold that the district court did not abuse its discretion by permitting the
State to use the minute order to show predisposition if Warren presented an entrapment
defense.
Use of minute order for impeachment purposes
[Headnote 11]
Warren asserts that the district court erred by not carefully balancing the probative
value of the prior conviction against its prejudicial effect when there was a question as to
whether the person referenced in the minute order was in fact Warren. He further argues that
the district court erred by finding that the State could use a certified minute order rather than a
certified judgment of conviction for impeachment purposes.
[Headnote 12]
We conclude that the probative value of Warren's prior conviction was not
substantially outweighed by any unfair prejudicial effect. The decision of whether to admit a
prior conviction for impeachment purposes under NRS 50.095 is within the discretion of the
district court, and we will not disturb the decision absent an abuse of discretion.
30
Further,
NRS 50.095 does not limit impeachment to only evidence of felonies relevant to truthfulness
or veracity.
31

____________________

29
Id. at 1096, 13 P.3d at 66.

30
Pineda, 120 Nev. at 210, 88 P.3d at 832 (citing Givens v. State, 99 Nev. 50, 53, 657 P.2d 97, 99 (1983),
overruled on other grounds by Talancon v. State, 102 Nev. 294, 721 P.2d 764 (1986)).

31
Id. (citing Yates v. State, 95 Nev. 446, 449-50, 596 P.2d 239, 241-42 (1979)).
........................................
[Headnote 13]
Warren's contention that the California conviction was highly prejudicial because he
was not the person referenced in the minute order is unpersuasive. As discussed above, the
State had ample evidence to prove that Warren was the person referenced, and Warren never
denied that this was his California conviction. Further, had Warren testified, he would have
placed his credibility at issue. Warren's California conviction related to dishonesty, directly
challenging his credibility.
32
Although the similarity of the offense to the one for which
Warren was on trial increases its prejudicial effect, that fact alone is insufficient to find an
abuse of discretion when weighed against its probative value.
33
Therefore, the probative
value of Warren's prior conviction was not substantially outweighed by unfair prejudice, and
the district court did not abuse its discretion in admitting it.
[Headnotes 14, 15]
However, we agree with Warren's other argument that the district court erred in
allowing impeachment with a minute order rather than a judgment of conviction. The State
may not inquire about a prior conviction under NRS 50.095 unless prepared to prove the
conviction with a judgment of conviction.
34
We have previously found error in impeachment
when the prior conviction was evidenced by: (1) a sealed conviction;
35
(2) an incomplete
certified judgment of conviction omitting the defendant's sentence;
36
(3) FBI rap sheets;
37
and (4) testimony by a court clerk that a jury returned a guilty verdict for the defendant a
week prior, but final judgment had not yet been entered.
38

[Headnotes 16, 17]
The document with which the State intended to impeach Warren was a minute order,
certified by a deputy clerk of the Superior Court of California, County of San Francisco.
____________________

32
Warren was convicted of [p]etty theft; conversion of real property to personal property by severance.
Cal. Penal Code 487c.

33
Yates, 95 Nev. at 450, 596 P.2d at 242.

34
See Yllas v. State, 112 Nev. 863, 867, 920 P.2d 1003, 1005 (1996); Tomarchio v. State, 99 Nev. 572, 578,
665 P.2d 804, 808 (1983); Revuelta v. State, 86 Nev. 224, 226-27, 467 P.2d 105, 107 (1970); Fairman v. State,
83 Nev. 287, 289, 429 P.2d 63, 64 (1967) (citing 3 John Henry Wigmore, Evidence 980 (3d ed. 1940)).

35
Yllas, 112 Nev. at 867, 920 P.2d at 1005.

36
Revuelta, 86 Nev. at 226-27, 467 P.2d at 107.

37
Boley v. State, 85 Nev. 466, 470, 456 P.2d 447, 449 (1969) (There can be only one irrefutable
documentation of the conviction and that is from the exemplified copy of the judgment.).

38
Fairman, 83 Nev. at 289, 429 P.2d at 64.
........................................
Court of California, County of San Francisco. Although the minute order indicated the
offense for which Warren was convicted and his resulting sentence, it was not a judgment of
conviction. We hold that a minute order, certified or otherwise, is insufficient evidence of a
prior conviction for impeachment under NRS 50.095. Therefore, the district court erred by
ruling that the State could use the California minute order to impeach Warren.
39

The district court's error was harmless
[Headnote 18]
Although the district court erred in ruling on the admissibility of the minute order for
impeachment purposes, such error was harmless.
40
The minute order was an appropriate
method of showing Warren's predisposition to commit robbery if he raised an entrapment
defense. Had Warren taken the stand, the record reflects his testimony would have implicated
an entrapment defense, and the minute order would have been properly admitted in rebuttal.
Therefore, the district court's error in determining the minute order would be admissible for
impeachment purposes was harmless.
CONCLUSION
For the reasons discussed above, we conclude that Warren's conviction does not
warrant reversal on any ground. Therefore, we affirm the judgment of conviction and
sentence.
Rose, Gibbons, Douglas and Parraguirre, JJ., concur.
Maupin, J., with whom Hardesty, J., agrees, concurring:
We would follow Luce v. United States
1
and not adopt Wickham v. State,
2
but
concur in the result.
____________________

39
We also note that the code section under which Warren was convicted in California provides for
punishment by imprisonment in the county jail for not more than one year, or by a fine not exceeding one
thousand dollars ($1,000), or by both such fine and imprisonment. Cal. Penal Code 487c. NRS 50.095(1)
provides that for a conviction to be used for impeachment, the crime must have been punishable by death or
imprisonment for more than 1 year under the law under which [the witness] was convicted. Because the
California code section under which Warren was convicted only provides for imprisonment for not more than
one year, the district court's ruling that the prior conviction was admissible for impeachment purposes is plain
error.

40
NRS 178.598.

1
469 U.S. 38 (1984).

2
770 P.2d 757 (Alaska Ct. App. 1989).
____________
.......................................
121 Nev. 899, 899 (2005) City of Las Vegas v. Walsh
CITY OF LAS VEGAS, Appellant, v. THE HONORABLE JESSIE WALSH, JUDGE OF
THE
LAS VEGAS MUNICIPAL COURT, and MIKE WAYNE GEHNER, Respondents.
No. 41317
December 15, 2005
124 P.3d 203
Petition for en banc reconsideration of 120 Nev. 392, 91 P.3d 591 (2004). Appeal
from a district court order denying a petition for a writ of mandamus challenging a municipal
court's decision in a criminal proceeding. Eighth Judicial District Court, Clark County; Gene
T. Porter, Judge.
On reconsideration en banc, the supreme court, Becker, C. J., held that: (1) statute
governing admissibility of affidavit of a person who withdraws a sample of blood from
another for chemical analysis did not limit contents of affidavit only to information
specifically listed in statute, and thus nurse's affidavit that she did not use alcohol solutions or
alcohol-based swabs when withdrawing defendant's blood was admissible under statute; (2)
affidavits specified by statute are testimonial statements, and thus their admission, in lieu of
live testimony, would violate Confrontation Clause, overruling DeRosa v. District Court, 115
Nev. 225, 985 P.2d 157 (1999); (3) statute adequately preserves a defendant's Sixth
Amendment right to confrontation; and (4) a defendant's failure to properly raise a dispute of
fact with regard to affidavits admitted under statute constitutes a waiver of the defendant's
Sixth Amendment right to confrontation.
Petition granted; opinion withdrawn; reversed and remanded with instructions.
Bradford R. Jerbic, City Attorney, and Edward G. Poleski, Deputy City Attorney, Las
Martin D. Hastings, Las Vegas, for Respondent Gehner.
1. Mandamus.
A district court's decision to deny a petition for writ of mandamus is generally
reviewed under an abuse of discretion standard.
2. Criminal Law.
Questions of statutory construction are questions of law that the supreme court must
review de novo.
3. Automobiles.
Statute governing admissibility of affidavit of a person who withdraws a sample of
blood from another for chemical analysis did not limit contents of affidavit only to
information specifically listed in statute, and thus, nurse's affidavit that she did not use
alcohol solutions or alcohol-based swabs when withdrawing defendant's blood was
admissible under statute in prosecution for driving under influence of alcohol. NRS
50.315(4), (8).
........................................
4. Statutes.
Primary objective in construing a statute is to give effect to the Legislature's intent. In
so doing, the supreme court must first look to the plain language of the statute, but if
the statutory language is ambiguous or otherwise does not speak to the issue before the
supreme court, it must construe the statute in line with what reason and public policy
would indicate the Legislature intended.
Sixth Amendment right to cross-examine witnesses is fundamental to a fair trial and
applicable to the states through the Fourteenth Amendment. U.S. Const. amends. 6, 14.
6. Criminal Law.
Under Crawford v. Washington, 541 U.S. 36 (2004), the admissibility of a hearsay
statement under the Confrontation Clause necessarily depends on whether the statement
is testimonial in nature. U.S. Const. amend. 6.
7. Criminal Law.
Affidavits specified in statute governing admissibility of affidavit of a person who
withdraws a sample of blood from another for chemical analysis are testimonial
statements, and thus their admission, in lieu of live testimony, would violate
Confrontation Clause; overruling DeRosa v. District Court, 115 Nev. 225, 985 P.2d
157 (1999). U.S. Const. amend. 6; NRS 50.315.
8. Criminal Law.
Statute governing admissibility of affidavit of a person who withdraws a sample of
blood from another for chemical analysis adequately preserves a defendant's Sixth
Amendment right to confrontation; statute provided scheme for a defendant to
challenge affidavit, either by establishing in part that there is a substantial and bona fide
dispute regarding the facts in affidavit, in a misdemeanor case, or by objecting in
writing to admission of affidavit, in a felony case, and if defendant has no bona fide
dispute regarding facts in affidavit and credibility of the declarant, then
cross-examination is meaningless. U.S. Const. amend. 6; NRS 50.315(6), (7).
9. Criminal Law.
Defendant's counsel is vested with the authority to waive the defendant's Sixth
Amendment right to confrontation under statute governing admissibility of affidavit of
a person who withdraws a sample of blood from another for chemical analysis. U.S.
Const. amend. 6; NRS 50.315(6), (7).
10. Criminal Law.
A defendant's failure to properly raise a dispute of fact with regard to affidavits
admitted under statute governing admissibility of affidavit of a person who withdraws a
sample of blood from another for chemical analysis constitutes a waiver of the
defendant's Sixth Amendment right to confront the witnesses against him. U.S. Const.
amend. 6; NRS 50.315(6), (7).
11. Criminal Law.
Any finding that a defendant waived his Sixth Amendment right to confrontation with
respect to an affidavit of a person who withdraws a sample of blood from another for
chemical analysis would be subject to a harmless-error review on appeal. U.S. Const.
amend. 6; NRS 50.315(6), (7).
........................................
OPINION
This case involves the scope of NRS 50.315(4), which permits the admission of a
nurse's affidavit to prove certain facts relating to the withdrawal of blood for testing purposes.
It also implicates the construction of that statute in light of the United States Supreme Court's
recent holding in Crawford v. Washington.
1

On June 11, 2004, a panel of this court issued an opinion in this case limiting the
admissibility of a registered nurse's affidavit in respondent Mike Gehner's trial for driving
under the influence of alcohol. This court concluded that the affidavit was testimonial under
Crawford and that admission of the affidavit violated Gehner's Sixth Amendment right of
confrontation.
2
The panel subsequently denied appellant City of Las Vegas's petition for
rehearing, and the City then filed a petition for en banc reconsideration. Having considered
the City's petition and Gehner's response, we conclude that en banc reconsideration is
warranted because this case involves an issue of substantial precedential and constitutional
importthe constitutionality of NRS 50.315(4) in light of Crawford.
3
We therefore grant
the petition and withdraw the court's June 11, 2004, opinion.
We conclude that the affidavit complied with NRS 50.315(4) and was admissible.
Therefore, the municipal and district courts erred in excluding the affidavit for
noncompliance with the statute. We further conclude that NRS 50.315(4) is not
unconstitutional because it adequately preserves the rights of an accused under the
Confrontation Clause of the United States Constitution.
4
Accordingly, we reverse the
judgment of the district court and remand the matter to the district court with instructions to
grant the writ of mandamus and direct the municipal court to determine whether Gehner has
waived any objection to the admission of the affidavit in light of our opinion.
Gehner was charged with misdemeanor driving under the influence of alcohol. At
trial, the City requested a ruling from the municipal court regarding Gehner's objection to the
admissibility of a registered nurse's affidavit.
____________________

1
541 U.S. 36 (2004).

2
City of Las Vegas v. Walsh, 120 Nev. 392, 91 P.3d 591, as modified, 100 P.3d 658 (2004).

3
NRAP 40A(a).

4
U.S. Const. amend. VI.
........................................
The affidavit stated the nurse's name and employer, that she was authorized to
withdraw blood as a regular part of her duties, the date and time she withdrew the blood, that
she withdrew Gehner's blood in a medically acceptable manner, that she used no alcohol
solutions or alcohol-based swabs, and that she kept the sample in her custody and in the same
condition as when she withdrew it until she delivered it to law enforcement officials.
The City argued that all of the facts contained in the nurse's affidavit were admissible
under NRS 50.315(4). Gehner did not contest the validity of the facts contained in the
affidavit. Rather, he argued that the affidavit's contents exceeded the scope of information
permissible under the statute, namely that the nurse used no alcohol solutions or
alcohol-based swabs. Gehner argued that the inadmissible facts should be redacted from the
affidavit. Gehner then argued that the municipal court should order the prosecution to
produce the nurse so that Gehner could ask whether any alcohol solutions or swabs had been
used in withdrawing the blood.
The municipal court concluded that the nurse's affidavit exceeded the scope of NRS
50.315(4), struck portions of the affidavit as being noncompliant with the statute, and ordered
the prosecution to produce the nurse.
5

The City filed a petition for a writ of mandamus in the district court, requesting the
district court to compel the municipal court to admit the nurse's affidavit in its entirety. After
holding a hearing, the district court denied the petition, agreeing with the municipal court's
interpretation of NRS 50.315(4). The City appealed.
DISCUSSION
[Headnotes 1, 2]
A district court's decision to deny a writ petition is generally reviewed under an abuse
of discretion standard.
6
However, questions of statutory construction are questions of law
that this court must review de novo.
7
Two issues of law are presented in this appeal: (1)
whether factual information in a nurse's affidavit may exceed the enumerated information
contained in NRS 50.315(4), and (2) whether NRS 50.315(4) is unconstitutional under
Crawford.
Affidavit limitations
[Headnotes 3, 4]
Gehner contends that only information specifically listed in NRS 50.315(4) may be
admitted by affidavit. This court's primary objective in construing a statute is to give effect
to the Legislature's intent.
____________________

5
The record reflects that the nurse could not be produced as she had moved out of state.

6

7
Id.
........................................
jective in construing a statute is to give effect to the Legislature's intent.
8
In so doing, this
court must first look to the plain language of the statute.
9
But, if the statutory language is
ambiguous or otherwise does not speak to the issue before this court, this court must construe
the statute in line with what reason and public policy would indicate the legislature
intended.'
10

NRS 50.315(4) provides that the affidavit of a person who withdraws a sample of
blood from another for analysis by an expert is admissible to prove certain facts:
(a) The occupation of the affiant or declarant;
(b) The identity of the person from whom the affiant or declarant withdrew the
sample;
(c) The fact that the affiant or declarant kept the sample in his sole custody or control
and in substantially the same condition as when he first obtained it until delivering it to
another; and
(d) The identity of the person to whom the affiant or declarant delivered it.
On its face, subsection 4 does not discuss much of the information contained in the affidavit
at issue. However, subsection 4 is part of a larger statute. NRS 50.315(8) delegates the power
to adopt regulations prescribing the form of an affidavit under the statute to the Committee on
Testing for Intoxication. The affidavit in this case is a form and encompasses standard
procedures used to withdraw blood for testing. The record indicates that the form was
developed and approved by the committee.
11

The language of subsection 8, when read in conjunction with subsection 4, creates an
ambiguity in the statute. Did the Legislature intend that affidavits cover only the subject
matter enumerated in subsection 4, or did it intend to give the committee authority to broaden
the scope of the affidavits? Given this ambiguity, we turn to the legislative history to
ascertain the Legislature's intent.
The minutes from the Senate Committee on the Judiciary reveal that NRS 50.315(4)
was added to avoid the unnecessary appearance of health care professionals at trials or
hearings when defense counsel had no cross-examination questions.
12
The judiciary
committee was presented with a sample affidavit to illustrate what would be admitted in
place of a health care professional's testimony at trial.
____________________

8
Salas v. Allstate Rent-A-Car, Inc., 116 Nev. 1165, 1168, 14 P.3d 511, 513 (2000).

9
Id. at 1168, 14 P.3d at 513-14.

10
State, Dep't of Mtr. Vehicles v. Lovett, 110 Nev. 473, 477, 874 P.2d 1247, 1249-50 (1994) (quoting State,
Dep't Mtr. Vehicles v. Vezeris, 102 Nev. 232, 236, 720 P.2d 1208, 1211 (1986)).

11
NAC 50.055.

12
Hearing on S.B. 157 Before the Senate Comm. on Judiciary, 68th Leg. (Nev., February 13, 1995); Hearing
on S.B. 157 Before the Senate Comm. on Judiciary, 68th Leg. (Nev., June 1, 1995).
........................................
mittee was presented with a sample affidavit to illustrate what would be admitted in place of
a health care professional's testimony at trial.
13
The sample affidavit is identical in format to
the nurse's in this case, including the language about not using alcohol solutions or
alcohol-based swabs. Accordingly, the Legislature was aware of the type of statements that
might be contained in an affidavit and, thus, arguably did not intend for such statements to be
inadmissible under NRS 50.315(4). Rather, the Legislature set forth the minimum
information that must be contained in an affidavit and left the remaining information to the
discretion of the committee delegated to regulate testing procedures.
Interpreting the statute literally, without regard to subsection 8 or the legislative
history, would lead to an absurd result. Health care professionals would be required to testify
even when the defendant had no issues for cross-examination. This would undermine the
whole purpose of the statute. We conclude that the affidavit was admissible and that the
municipal court and district court erred in excluding it on the basis of statutory
noncompliance. We now turn to the constitutionality of the statute under Crawford and the
Confrontation Clause.
Confrontation Clause
[Headnote 5]
Athough the affidavit may be admissible under state statute, it is still subject to
challenge under the Sixth Amendment of the United States Constitution.
14
The right to
cross-examine witnesses is fundamental to a fair trial and applicable to the states through the
Fourteenth Amendment.
15
Prior to Crawford, the affidavit's admissibility would have been
governed by the previously well-settled rule of Ohio v. Roberts.
16
Under the Roberts test, the
admission of a hearsay statement against a criminal defendant at trial did not violate the
Confrontation Clause provided the statement bore adequate indicia of reliability by either (1)
falling within a firmly rooted hearsay exception, or (2) bearing particularized guarantees
of trustworthiness.
17
In DeRosa v. District Court, we concluded that affidavits under NRS
50.315 contained such guarantees of trustworthiness.
____________________

13
Hearing on S.B. 157 Before the Senate Comm. on Judiciary, 68th Leg. (Nev., February 13, 1995).

14
U.S. Const. amend. VI (In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him . . . .).

15
Pointer v. Texas, 380 U.S. 400, 401 (1965); Drummond v. State, 86 Nev. 4, 6, 462 P.2d 1012, 1013
(1970).

16
448 U.S. 56 (1980), overruled by Crawford v. Washington, 541 U.S. 36 (2004).

17
Id. at 66.
........................................
cluded that affidavits under NRS 50.315 contained such guarantees of trustworthiness.
18
However, the Court in Crawford rejected the Roberts approach.
[Headnotes 6, 7]
In Crawford, the Court held that the Confrontation Clause bars the use of a
testimonial statement made by a witness who does not appear at trial, unless the witness is
unavailable to testify at trial, and the defendant had a prior opportunity to cross-examine the
witness regarding the statement.
19
Thus, under Crawford, the admissibility of a hearsay
statement under the Confrontation Clause now necessarily depends on whether the statement
is testimonial in nature. The Court expressly declined to define the term testimonial,
beyond stating that the term applies at a minimum to prior testimony at a preliminary
hearing, before a grand jury, or at a former trial; and to police interrogations.
20
But the
Court did make some observations, illustrating what might be considered testimonial. The
Court noted that the text of the Confrontation Clause reflects the Framers' focus on ex parte
examinations:
It applies to witnesses against the accusedin other words, those who bear
testimony. Testimony, in turn, is typically [a] solemn declaration or affirmation
made for the purpose of establishing or proving some fact. An accuser who makes a
formal statement to government officers bears testimony in a sense that a person who
makes a casual remark to an acquaintance does not. The constitutional text, like the
history underlying the common-law right of confrontation, thus reflects an especially
acute concern with a specific type of out-of-court statement.
Various formulations of this core class of testimonial statements exist: ex parte
in-court testimony or its functional equivalentthat is, material such as affidavits,
custodial examinations, prior testimony that the defendant was unable to
cross-examine, or similar pretrial statements that declarants would reasonably expect to
be used prosecutorially, extrajudicial statements . . . contained in formalized
testimonial materials, such as affidavits, depositions, prior testimony, or confessions,
statements that were made under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a later trial.
21

____________________

18
115 Nev. 225, 234, 985 P.2d 157, 162 (1999).

19
Crawford, 541 U.S. at 68-69.

20
Id. at 68.

21
Id. at 51-52 (alterations in original) (citations omitted).
........................................
Given the above examples and our recent decision in Flores v. State,
22
we conclude the
affidavits specified in NRS 50.315 are testimonial statements. Although they may document
standard procedures, they are made for use at a later trial or legal proceeding. Thus, their
admission, in lieu of live testimony, would violate the Confrontation Clause. That portion of
DeRosa that found no Confrontation Clause violation using a Roberts analysis is hereby
overruled.
[Headnote 8]
However, DeRosa also held that Confrontation Clause objections may be waived by
failure to comply with statutory procedures.
23
As DeRosa noted, NRS 50.315(6) and (7)
provide the statutory scheme for the waiver of the Confrontation Clause for NRS 50.315
affidavits. NRS 50.315(6) and (7) state:
6. If, at or before the time of the trial, the defendant establishes that:
(a) There is a substantial and bona fide dispute regarding the facts in the affidavit or
declaration; and
(b) It is in the best interests of justice that the witness who signed the affidavit or
declaration be cross-examined,
the court may order the prosecution to produce the witness and may continue the trial
for any time the court deems reasonably necessary to receive such testimony. The time
within which a trial is required is extended by the time of the continuance.
7. During any trial in which the defendant has been accused of committing a felony,
the defendant may object in writing to admitting into evidence an affidavit or
declaration described in this section. If the defendant makes such an objection, the court
shall not admit the affidavit or declaration into evidence and the prosecution may cause
the person to testify in court to any information contained in the affidavit or declaration.
[Headnotes 9, 10]
We concluded in DeRosa that when counsel in a misdemeanor DUI case fails to argue
that a substantial and bona fide dispute exists regarding the affidavit or declaration of the
phlebotomist who drew the defendant's blood, that failure acts as a waiver of the defendant's
confrontation rights.
24
Defendant's counsel is vested with the authority to waive the
defendant's right to confrontation under NRS 50.315.
____________________

22
121 Nev. 706, 120 P.3d 1170 (2005) (discussing the nature of testimonial statements).

23
DeRosa, 115 Nev. at 234, 985 P.2d at 163.

24
Id.
........................................
the authority to waive the defendant's right to confrontation under NRS 50.315.
25
Failure to
properly raise a dispute of fact with regard to affidavits admitted under NRS 50.315
constitutes a waiver of the defendant's opportunity to confront the witnesses against him.
26

DeRosa dealt with a misdemeanor DUI conviction; however, such waiver is available
in felony cases as well. The defendant has a greater ability to challenge and exclude an
affidavit or declaration offered in a felony DUI case. NRS 50.315(7) indicates that when a
defendant in a felony case objects in writing, the court shall not admit the affidavit or
declaration into evidence.
[Headnote 11]
Nothing in Crawford compels us to overrule the waiver language in DeRosa. The
essence of Crawford is the need for cross-examination. If defense counsel has no bona fide
dispute regarding the facts in an affidavit and credibility of an NRS 50.315 declarant, then
cross-examination is meaningless. It serves no purpose to have a witness appear if no
questions will be asked on cross-examination. Therefore, we are convinced that NRS 50.315
adequately preserves the constitutional right to confront witnesses against a defendant by
providing a statutory confrontation mechanism. Any finding of waiver and admission of the
affidavit would be subject to a harmless error review on appeal.
27

CONCLUSION
We conclude that the nurse's affidavit did not exceed the scope of NRS 50.315(4) and
that the district and municipal courts erred in excluding the affidavit on those grounds.
We further conclude that while NRS 50.315 affidavits may be deemed testimonial in
nature under Crawford, certain statutes provide a waiver of that right to confront. The
statutory provisions adequately protect the accused's right to confront the witnesses against
him while streamlining the trial process, serving both the interests of the accused and judicial
economy. We therefore hold that NRS 50.315 adequately preserves the rights of an accused
under the Confrontation Clause of the United States Constitution. Failure to exercise
confrontation rights will act as a waiver of those rights with regard to the affidavits and
declarations prepared pursuant to NRS 50.315.
____________________

25
Id.

26
Id.

27
Crawford, 541 U.S. at 76 (Rehnquist, C. J., concurring); Flores, 121 Nev. at 721, 120 P.3d at 1180.
........................................
Accordingly, we reverse the judgment of the district court and remand this matter for
the district court to grant the petition for a writ of mandamus and direct the municipal court to
determine whether Gehner has waived his confrontation rights under NRS 50.315(6).
Rose, Maupin, Gibbons, Douglas, Hardesty and Parraguirre, JJ., concur.
____________
121 Nev. 908, 908 (2005) Bolden v. State
ANTHONY THOMAS BOLDEN, Appellant, v. THE STATE
No. 42039
December 15, 2005
124 P.3d 191
Appeal from a judgment of conviction, entered upon jury verdicts, of burglary while
in possession of a deadly weapon, home invasion while in possession of a deadly weapon,
first-degree kidnapping with use of a deadly weapon, second-degree kidnapping with use of a
deadly weapon, two counts of robbery with use of a deadly weapon, and conspiracy to
commit robbery and/or kidnapping. Eighth Judicial District Court, Clark County; Joseph
T. Bonaventure, Judge.
The supreme court, Rose, J., held that: (1) sufficient evidence supported defendant's
conviction for conspiracy to commit robbery and/or kidnapping; (2) trial court's error in
instructing jury on theory of vicarious coconspirator liability with regard to specific intent
crimes of burglary and first- and second-degree kidnapping was harmful, thus requiring
reversal of defendant's convictions for burglary and kidnapping; and (3) State provided
nonpretextual and race-neutral explanations for exercise of two peremptory challenges
against African-American jurors.
J. Chip Siegel, Chtd., and Joel Martin Mann, Las Vegas, for Appellant.
1. Criminal Law.
Relevant inquiry in reviewing the sufficiency of the evidence supporting a jury's
verdict 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.
........................................
2. Criminal Law.
Circumstantial evidence alone may support a conviction.
3. Conspiracy.
Sufficient evidence supported defendant's conviction for conspiracy to commit
robbery and/or kidnapping; evidence presented at trial established that defendant and
his cohorts forcibly entered apartment armed with switchblades, box cutters or other
sharp objects and robbed occupants, and State presented overwhelming circumstantial
and direct evidence that defendant participated in joint enterprise to acquire drugs and
money, that he entered into agreement to rob family, that he was not merely a spectator
in apartment, and that when police arrived in apartment, defendant was found hiding
under mattress.
4. Conspiracy.
Conspiracy is an agreement between two or more persons for an unlawful purpose.
5. Conspiracy.
A person who knowingly does any act to further the object of a conspiracy, or
otherwise participates therein, is criminally liable as a conspirator.
6. Conspiracy.
Evidence of a coordinated series of acts furthering the underlying offense is sufficient
to infer the existence of an agreement and support a conspiracy conviction.
7. Conspiracy.
Absent an agreement to cooperate in achieving the purpose of a conspiracy, mere
knowledge of, acquiescence in, or approval of that purpose does not make one a party
to conspiracy.
8. Burglary; Kidnapping.
Sufficient evidence supported defendant's convictions for specific intent offenses of
burglary and kidnapping under State's alternative theories of direct participation and
aiding and abetting liability; defendant was one of five masked men who entered
private residence by force, committed robberies, and moved two victims around in
residence, and State provided ample circumstantial evidence of direct participation in,
and specific intent to aid and abet, all nonconspiracy crimes committed, and thus,
substantial evidence supported both direct participation and aiding and abetting theories
of home invasion, burglary, robbery and kidnapping.
9. Criminal Law.
A person aids and abets the commission of a crime if he aids, promotes, encourages or
instigates, by act or advice, the commission of such crime with the intention that the
crime be committed.
10. Burglary; Kidnapping.
Trial court's instruction to jury on theory of vicarious coconspirator liability with
regard to specific intent crimes of burglary and first- and second-degree kidnapping was
error; court instructed jury that defendant could be found guilty of specific intent crimes
of burglary and kidnapping as long as commission of those offenses was natural and
probable consequence of conspiracy, even if defendant never intended commission of
those crimes, and to convict defendant of burglary and kidnapping, State was required
to prove under state law that he had specific intent to commit those offenses. NRS
195.010, 195.020.
11. Conspiracy; Criminal Law.
A defendant may not be held criminally liable for a specific intent crime committed by
a coconspirator simply because that crime was a natural and probable consequence of
the object of the conspiracy. To prove a specific intent crime, the State must show
that the defendant actually possessed the requisite statutory intent.
........................................
specific intent crime, the State must show that the defendant actually possessed the
requisite statutory intent.
12. Burglary; Criminal Law; Kidnapping.
Trial court's error in instructing jury on theory of vicarious coconspirator liability with
regard to specific intent crimes of burglary and first- and second-degree kidnapping was
harmful, thus requiring reversal of defendant's convictions for burglary and kidnapping;
instruction improperly allowed jury to find defendant criminally liable for specific
intent crimes of burglary and kidnapping under theory of vicarious liability that erased
statutory mens rea element required for specific intent offenses, and since jury returned
general verdict, whether or not jury rested its decision on invalid ground was not
discernible.
13. Jury.
State provided nonpretextual and race-neutral explanations for exercise of two
peremptory challenges against African-American jurors, and thus, defendant failed to
establish pattern of discrimination in prosecution for burglary, home invasion,
kidnapping, and robbery. State justified one challenge based upon prospective juror's
dissatisfaction with police officials for whom he had been previously employed, and
State based other challenge upon prospective juror's belief that family member was
wrongly convicted on charge of burglary, one of the charges at issue against defendant.
OPINION
Appellant Anthony Thomas Bolden and four other masked men broke into Silvia
Rascon's apartment and committed a number of crimes against the occupants. A jury
convicted Bolden of burglary while in possession of a deadly weapon, home invasion while in
possession of a deadly weapon, first-degree kidnapping with use of a deadly weapon,
second-degree kidnapping with use of a deadly weapon, two counts of robbery with use of a
deadly weapon, and conspiracy to commit robbery and/or kidnapping.
1
In this appeal,
Bolden alleges that the district court committed error during jury selection under Batson v.
Kentucky
2
and that the State failed to present sufficient evidence to support the jury's
verdicts with respect to all the charged offenses, failed to prove that the kidnapping charges
were not incidental to the robbery charges, and failed to present sufficient evidence in support
of the deadly weapon enhancements.
____________________

1
The district court imposed a series of concurrent sentences for the separate counts, ranging from 35 to 156
months imprisonment on the home invasion and burglary charges, to life imprisonment with the possibility of
parole for first-degree kidnapping. The district court also imposed equal, consecutive terms in connection with
the charges alleging use of a deadly weapon in the commission of the offense.

2
476 U.S. 79 (1986).
........................................
Although we reject Bolden's specific contentions, in resolving his sufficiency of the
evidence challenge, we have found it necessary to determine whether the jury could have
properly based its verdicts for the specific intent crimes of burglary and kidnapping on the
State's theory of vicarious coconspirator liability. We conclude that the jury was not properly
instructed on this theory of vicarious coconspirator liability and that the error cannot be held
harmless under the circumstances of this case. Therefore, we reverse Bolden's conviction with
respect to the counts concerning the specific intent crimes of burglary and first- and
second-degree kidnapping, and we remand this matter for further proceedings consistent with
this opinion. We affirm Bolden's conviction of the remaining counts.
FACTS
On December 7, 2002, at approximately 2 a.m., Bolden and four other masked men
kicked in the door of Silvia Rascon's apartment. Rascon, her three children and a friend were
present. The men apparently broke into the apartment looking for drugs and money. With the
aid of knives, box cutters or other sharp objects, one or more of the men separately moved
Rascon and her oldest daughter from room to room for the purposes of locating items to steal
and sexually molesting the daughter. Police arrived and apprehended all of the intruders, three
of whom had exited the residence in possession of property stolen from Rascon and her
family. Police found Bolden inside the apartment, hiding under a bedroom mattress.
Ironically, these men were misinformed concerning the presence of either drugs or
considerable financial lucre.
The State charged Bolden and his compatriots with burglary, home invasion,
first-degree kidnapping of Rascon, second-degree kidnapping of Rascon's daughter, robbery
of Rascon, robbery of Rascon's son, and conspiracy to commit robbery and/or kidnapping. All
of the charges, save the conspiracy count, were accompanied by deadly weapon
enhancements. This timely appeal followed.
DISCUSSION
Sufficiency of the evidence
Bolden contends that the State failed to present sufficient evidence to convict him on
any of the charges. In short, he claims that the entire body of proof against him established no
more than his mere presence during the events in question. In this, the district court instructed
the jury that mere presence of the defendant, or his knowledge that a crime is being
committed, is insufficient to establish guilt without proof that the defendant was "a
participant and not merely a knowing spectator."
........................................
establish guilt without proof that the defendant was a participant and not merely a knowing
spectator.
3

More specifically, Bolden asserts that the State failed to prove his participation in a
conspiracy; failed to prove the intent elements of the home invasion, robbery, burglary,
first-degree kidnapping and second-degree kidnapping charges; failed to prove that the
kidnapping charges were not incidental to the robbery charges; and failed to present sufficient
evidence in support of the deadly weapon enhancements.
[Headnotes 1, 2]
The relevant inquiry in reviewing the sufficiency of the evidence supporting a jury's
verdict 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
Moreover, circumstantial evidence alone may support a
conviction.
5
In resolving Bolden's contentions, we have reviewed the evidence supporting
the jury's findings of guilt with respect to each of the charged offenses. Additionally, with
respect to the nonconspiracy offenses, we have reviewed the evidence supporting the jury's
verdicts under the three separate theories of guilt alleged by the State for those offenses.
Conspiracy to commit robbery and/or kidnapping
[Headnotes 3-7]
The State alleged that Bolden and the other defendants met with each other and
willfully, unlawfully, and feloniously conspired and agreed to commit robbery and/or
kidnapping. Additionally, the State alleged that in furtherance of the conspiracy the
defendants in fact committed the crimes of robbery and kidnapping. Nevada law defines a
conspiracy as an agreement between two or more persons for an unlawful purpose.
6
A
person who knowingly does any act to further the object of a conspiracy, or otherwise
participates therein, is criminally liable as a conspirator . . . .
7
Evidence of a coordinated
series of acts furthering the underlying offense is sufficient to infer the existence of an
agreement and support a conspiracy conviction."
____________________

3
See Brooks v. State, 103 Nev. 611, 613-14, 747 P.2d 893, 894-95 (1987) (giving an aiding and abetting
instruction does not justify refusing a properly worded mere presence instruction if the defendant has presented
some evidence supporting a mere presence theory).

4
Koza v. State, 100 Nev. 245, 250, 681 P.2d 44, 47 (1984) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)).

5
Hernandez v. State, 118 Nev. 513, 531, 50 P.3d 1100, 1112 (2002).

6
Doyle v. State, 112 Nev. 879, 894, 921 P.2d 901, 911 (1996), overruled on other grounds by Kaczmarek v.
State, 120 Nev. 314, 91 P.3d 16 (2004).

7
Id.
........................................
support a conspiracy conviction.
8
However, absent an agreement to cooperate in achieving
the purpose of a conspiracy, mere knowledge of, acquiescence in, or approval of that purpose
does not make one a party to conspiracy.
9

Here, the evidence presented at trial established that Bolden and his cohorts forcibly
entered the Rascon apartment armed with switchblades, box cutters or other sharp objects and
robbed the occupants. Some of the men moved two of the victims around in the residence for
purposes that were both incidental and not incidental to the robberies themselves. The State
presented overwhelming circumstantial and direct evidence that Bolden participated in the
joint enterprise to acquire drugs and money; that he entered into an agreement to rob the
Rascon family; that he was not merely a spectator in the Rascon apartment, as he claims; and
that when the police arrived, Bolden was found hiding under a mattress. To the extent that
Bolden contends that the evidence fails to support his participation in the conspiracy, his
contention is without merit. The State presented more than sufficient evidence to support
Bolden's conviction for conspiracy to commit robbery and/or kidnapping.
The burglary, home invasion, robbery, and kidnapping charges
[Headnote 8]
With respect to the burglary, home invasion, robbery and kidnapping charges, the
State alleged three alternative theories of criminal liability: (1) that Bolden directly
committed the offenses, (2) that he aided and abetted his cohorts, or (3) that he was
vicariously responsible for all of the acts of his cohorts done in aid of the conspiracy. When
alternate theories of criminal liability are presented to a jury and all of the theories are legally
valid, a general verdict can be affirmed even if sufficient evidence supports only one of the
theories.
10
When any one of the alleged theories is legally erroneous, however, reversal of a
general verdict is requiredexcept under the very narrowly defined circumstances discussed
belowregardless of the legal and factual sufficiency of the other theories.
11
Accordingly,
we turn to an analysis of the legal and evidentiary support for each of the State's theories of
liability.
____________________

8
Garner v. State, 116 Nev. 770, 780, 6 P.3d 1013, 1020 (2000), overruled in part by Sharma v. State, 118
Nev. 648, 56 P.3d 868 (2002).

9
Id.

10
Phillips v. State, 121 Nev. 591, 597, 119 P.3d 711, 716 (2005) (citing Griffin v. United States, 502 U.S.
46, 56-57 (1991); Turner v. United States, 396 U.S. 398, 420 (1970)).

11
Id. (citing Yates v. United States, 354 U.S. 298, 311-12 (1957), overruled on other grounds by Burks v.
United States, 437 U.S. 1 (1978); Stromberg v. California, 283 U.S. 359, 368 (1931)).
........................................
Aiding and abetting and direct participation
[Headnote 9]
Bolden contends that the jury convicted him primarily upon an aiding and abetting
theory. A person aids and abets the commission of a crime if he aids, promotes, encourages or
instigates, by act or advice, the commission of such crime with the intention that the crime be
committed.
12
Relying upon our decision in Sharma v. State,
13
Bolden argues that the State
failed to prove that he specifically intended to aid and abet the crimes committed at the
Rascon residence.
In Sharma, we held,
[I]n order for a person to be held accountable for the specific intent crime of another
under an aiding or abetting theory of principal liability, the aider or abettor must have
knowingly aided the other person with the intent that the other person commit the
charged crime.
14

Bolden's reliance on Sharma is misplaced for several reasons. First, robbery and home
invasion are not specific intent crimes. Second, the State proceeded on two additional
alternate theories of criminal liability, direct participation as a principal and perpetration of
the offenses in furtherance of a conspiracy. Third, the State presented sufficient evidence for
the jury to convict Bolden under all of its theories of culpability. Fourth, per Sharma, the
district court correctly instructed the jury concerning the State's aiding and abetting theory:
All persons concerned in the commission of a crime who either directly and actively
commit the act constituting the offense or who knowingly and with criminal intent aid
and abet in its commission or, whether present or not, who advise and encourage its
commission, with the intent that the crime be committed, are regarded by the law as
principals in the crime thus committed and are equally guilty thereof.
15

____________________

12
NRS 195.020.

13
118 Nev. 648, 56 P.3d 868 (2002).

14
Id. at 655, 56 P.3d at 872. Sharma overturned Mitchell v. State, 114 Nev. 1417, 971 P.2d 813 (1998), and
Garner v. State, 116 Nev. 770, 6 P.3d 1013 (2000), to the extent those cases held that a defendant could be held
accountable for the specific intent crime of another, under an aiding or abetting theory of principal liability,
without proof that the abettor specifically intended to aid the other in the commission of the charged crime. 118
Nev. at 652-55, 56 P.3d at 870-72.

15
Bolden does not challenge this instruction. Even if he could demonstrate that the instruction did not
precisely track the Sharma decision, any error was harmless. See Chapman v. California, 386 U.S. 18, 24 (1967)
([B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it
was harmless beyond a reasonable doubt.).
........................................
As noted above, Bolden was one of five masked men who entered a private residence
by force, committed the robberies, and moved two of the victims around in the residence. The
State provided ample circumstantial evidence of direct participation in, and the specific intent
to aid and abet, all of the nonconspiracy crimes committed that morning.
16
Bolden was not,
as he now reasons, merely present or a mere spectator. We therefore conclude that
substantial evidence supports the State's direct participation and aiding and abetting theories
of home invasion, burglary, robbery and kidnapping.
17

Coconspirator liability
[Headnote 10]
Our conclusion that there is sufficient evidentiary and legal support for Bolden's
conviction of the charged crimes as a principal and as an aider and abettor does not end our
inquiry. Bolden's sufficiency argument, coupled with his reliance on this court's holding in
Sharma, calls into question the legal viability of the State's remaining theory of vicarious
coconspirator liability. As noted above, if any one of the theories of criminal liability alleged
by the State is legally erroneous, reversal of a verdict that fails to specify the precise theory
upon which the verdict is based is generally required regardless of the legal and factual
sufficiency of the other theories. Despite our conclusion that Bolden's conviction of the
nonconspiracy crimes is legally and factually sufficient under the State's theories of principal
and aiding and abetting liability, we must now determine whether there is a valid legal and
factual basis supporting Bolden's conviction of the nonconspiracy crimes under the State's
theory of vicarious coconspirator liability.
In this respect, the district court gave the following instruction:
Each member of a criminal conspiracy is liable for each act and bound by each
declaration of every other member of the conspiracy if the act or the declaration is in
furtherance of the object of the conspiracy.
The act of one conspirator pursuant to or in furtherance of the common design of the
conspiracy is the act of all conspirators. Every conspirator is legally responsible for an
act of a co-conspirator that follows as one of the probable and natural consequences of
the object of the conspiracy even if that was not intended as part of the original plan
and even if he was not present at the time of commission of such act.
____________________

16
Of the nonconspiracy crimes charged, only burglary and kidnapping required a showing of specific intent.

17
We also reject Bolden's contentions that the State failed to prove that the offenses here involved the
possession or use of deadly weapons. Further, we note that Bolden does not address whether his convictions for
burglary and home invasion are redundant. We therefore express no opinion on that issue.
........................................
not intended as part of the original plan and even if he was not present at the time of
commission of such act.
(Emphasis added.)
In Garner v. State, this court approved the above-quoted probable and natural
consequences doctrine, which exposes conspirators to criminal liability for any act so long
as the act was committed in furtherance of the conspiracy as a natural or probable
consequence of the unlawful agreement.
18
However, Garner restricted the doctrine
considerably by holding that [t]his rule does not constitute a per se basis for holding an
accomplice to one crime liable for a related crime by the principal simply because the related
crime was foreseeable.
19
To do so, we concluded, would be to base criminal liability only
on a showing of negligence rather than criminal intent.'
20
Consequently, Garner concluded
that if the relationship between the defendant's acts and the charged crime is too attenuated,
the State must provide some showing of specific intent to aid in, or specific knowledge of,
the crime charged.'
21
Garner, however, did not discuss vicarious coconspirator and
accomplice liability as discrete concepts.
As previously noted, in Sharma v. State, this court overruled Garner to the extent that
a defendant could be held accountable for the specific intent crime of another, under an aiding
or abetting theory of liability, without proof that he specifically intended to aid the other in
the commission of the charged crime.
22
We stated,
[The natural and probable consequences] doctrine has been harshly criticized by most
commentators . . . as both incongruous and unjust because it imposes accomplice
liability solely upon proof of foreseeability or negligence when typically a higher
degree of mens rea is required of the principal. It permits criminal liability to be
predicated upon negligence even when the crime involved requires a different state of
mind. Having reevaluated the wisdom of the doctrine, we have concluded that its
general application in Nevada to specific intent crimes is unsound precisely for that
reason: it permits conviction without proof that the accused possessed the state of mind
required by the statutory definition of the crime.
. . . As the Supreme Court of New Mexico observed in rejecting the doctrine for
similar reasons, the doctrine thus allows a defendant to be convicted for crimes the
defendant may have been able to foresee but never intended.
____________________

18
116 Nev. at 779-83, 6 P.3d at 1019-21.

19
Id. at 782, 6 P.3d at 1021.

20
Id. (quoting United States v. Greer, 467 F.2d 1064, 1069 (7th Cir. 1972)).

21
Id. (quoting Greer, 467 F.2d at 1069).

22
118 Nev. at 655, 56 P.3d at 872.
........................................
. . . Because the natural and probable consequences doctrine permits a defendant to be
convicted of a specific intent crime where he or she did not possess the statutory intent
required for the offense, we hereby disavow and abandon the doctrine. It is not only
inconsistent with more fundamental principles of our system of criminal law, but is also
inconsistent with those Nevada statutes that require proof of a specific intent to commit
the crime alleged.
. . . .
Accordingly, we . . . hold that in order for a person to be held accountable for the
specific intent crime of another under an aiding or abetting theory of principal liability,
the aider or abettor must have knowingly aided the other person with the intent that the
other person commit the charged crime.
23

Thus, Sharma addressed the natural and probable consequences doctrine only with respect to
a theory alleging that a defendant could be held criminally liable for the specific intent crime
of another under an aiding and abetting theory of principal liability. The question left
unanswered in Garner and Sharma, but presented in this case, is whether a theory of
vicarious coconspirator liability based upon the natural and probable consequences doctrine is
a legally viable theory in this state.
Nearly 60 years ago in Pinkerton v. United States, the United States Supreme Court
defined coconspirator liability in terms of reasonable foreseeability and reaffirmed the
concept that a conspiracy and the completion of the substantive offense are two distinct
criminal acts.
24
The Court concluded,
The criminal intent to do the act is established by the formation of the conspiracy. Each
conspirator instigated the commission of the crime. The unlawful agreement
contemplated precisely what was done. It was formed for the purpose. The act done was
in execution of the enterprise. The rule which holds responsible one who counsels,
procures, or commands another to commit a crime is founded on the same principle.
That principle is recognized in the law of conspiracy when the overt act of one partner
in crime is attributable to all. . . . If [the overt act] can be supplied by the act of one
conspirator, we fail to see why the same or other acts in furtherance of the conspiracy
are likewise not attributable to the others for the purpose of holding them responsible
for the substantive offense.
____________________

23
Id. at 654-55, 56 P.3d at 871-72 (quotation marks and footnotes omitted).

24
328 U.S. 640 (1946). Pinkerton recognized two exceptions to this general principle. One is where the
agreement of two persons is necessary for the completion of the substantive crime and there is no ingredient in
the conspiracy which is not present in the completed crime. Id. at 643. The other is where the definition of the
substantive offense excludes from punishment for conspiracy one who voluntarily participates in another's
crime. Id.
........................................
purpose of holding them responsible for the substantive offense.
A different case would arise if the substantive offense committed by one of the
conspirators was not in fact done in furtherance of the conspiracy, did not fall within
the scope of the unlawful project, or was merely a part of the ramifications of the plan
which could not be reasonably foreseen as a necessary or natural consequence of the
unlawful agreement.
25

Pinkerton applies to federal criminal proceedings and thus federal courts have
employed the rule.
26
The individual states, however, are not obligated to follow Pinkerton.
The Nevada Legislature has not adopted the Pinkerton rule, but a number of states have
addressed the issue by judicial decision. Several states have embraced the rule and permit
defendants to be held liable for the criminal acts of a coconspirator so long as the crime was
foreseeable and committed in furtherance of the conspiracy.
27
Nonetheless, the Pinkerton
rule has garnered significant disfavor. Concerns respecting the ramifications of the rule arose
shortly after the opinion issued:
In the final analysis the Pinkerton decision extends the wide limits of the conspiracy
doctrine to the breaking-point and opens the door to possible new abuses by
over-zealous public prosecutors. While membership in a conspiracy may well be
evidence for the jury's consideration in holding others than the direct actor guilty, it
should not be sufficient, in the absence of some further showing of knowledge,
acquiescence, aid or assistance, to convict one conspirator for another's criminal act.
28

Others have criticized the rule as well. Under the better view, one is not an
accomplice to a crime merely because that crime was committed in furtherance of a
conspiracy of which he is a member, or because that crime was a natural and probable
consequence of another offense as to which he is an accomplice."
____________________

25
Id. at 647-48.

26
See, e.g., U.S. v. Silvestri, 409 F.3d 1311 (11th Cir. 2005); U.S. v. Si, 343 F.3d 1116 (9th Cir. 2003); U.S.
v. Curtis, 324 F.3d 501 (7th Cir. 2003); U.S. v. Newsome, 322 F.3d 328 (4th Cir. 2003); U.S. v. Wade, 318 F.3d
698 (6th Cir. 2003); U.S. v. Navarrete-Barron, 192 F.3d 786 (8th Cir. 1999).

27
See Matthews v. State, 940 S.W.2d 498 (Ark. Ct. App. 1997); State v. Walton, 630 A.2d 990 (Conn. 1993);
State v. Tyler, 840 P.2d 413 (Kan. 1992); Martinez v. State, 413 So. 2d 429 (Fla. Dist. Ct. App. 1982); Everritt
v. State, 588 S.E.2d 691, 693 (Ga. 2003); State v. Harnois, 853 A.2d 1249 (R.I. 2004); Barnes v. State, 56
S.W.3d 221 (Tex. App. 2001).

28
Note, Vicarious Liability for Criminal Offenses of Co-conspirators, 56 Yale L.J. 371, 378 (1947).
........................................
another offense as to which he is an accomplice.
29
The drafters of the Model Penal Code
have similarly rejected the Pinkerton view, commenting that the law would lose all sense of
just proportion if by virtue of his crime of conspiracy a defendant was held accountable for
thousands of additional offenses of which he was completely unaware and which he did not
influence at all.
30

The Washington Supreme Court has rejected Pinkerton as an inaccurate reflection of
state law.
31
A Washington criminal statute provides liability for criminal conspiracy but is
silent respecting vicarious liability for coconspirators. The Washington court concluded that
vicarious liability of coconspirators, if any, must be based on a state accomplice liability
statute, which requires knowledge of the crime charged.
32
Therefore, the court held that
liability based on foreseeability alone is incompatible with its state law.
The Arizona Supreme Court has also rejected the Pinkerton rule, holding that
conspiratorial liability does not extend to separate criminal acts of coconspirators when a
particular coconspirator is not an accomplice or principal to those crimes, even though he
may be guilty of conspiracy.
33
That court noted that its holding simply prevents a
conspirator, who is not also an accomplice, from being held liable for a potentially limitless
number of criminal acts which, though later determined to be foreseeable,' are at the time of
their commission totally beyond the conspirator's knowledge and control.
34

New York has similarly considered and rejected the Pinkerton view, as explained in
People v. McGee:
In rejecting the notion that one's status as a conspirator standing alone is sufficient to
support a conviction for a substantive offense committed by a coconspirator, it is noted
that the Legislature has defined the conduct that will render a person criminally
responsible for the act of another. Conspicuously absent from section 20.00 of the Penal
Law is reference to one who conspires to commit an offense. That omission cannot be
supplied by construction. Conduct that will support a conviction for conspiracy will not
perforce give rise to accessorial liability. True, a conspirator's conduct in many
instances will suffice to establish liability as an accomplice, but the concepts are, in
reality, analytically distinct.
____________________

29
Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law 6.8, at 587 (2d ed. 1986).

30
Model Penal Code 2.06 cmt. 6(a), at 307 (1985).

31
State v. Stein, 27 P.3d 184, 187-89 (Wash. 2001).

32
Id. at 188-89.

33
See Evanchyk v. Stewart, 47 P.3d 1114, 1118 (Ariz. 2002); State ex rel. Woods v. Cohen, 844 P.2d 1147,
1148-51 (Ariz. 1992).

34
Cohen, 844 P.2d at 1151.
........................................
the concepts are, in reality, analytically distinct. To permit mere guilt of conspiracy to
establish the defendant's guilt of the substantive crime without any evidence of further
action on the part of the defendant, would be to expand the basis of accomplice liability
beyond the legislative design.
The crime of conspiracy is an offense separate from the crime that is the object of the
conspiracy. Once an illicit agreement is shown, the overt act of any conspirator may be
attributed to other conspirators to establish the offense of conspiracy and that act may
be the object crime. But the overt act itself is not the crime in a conspiracy prosecution;
it is merely an element of the crime that has as its basis the agreement. It is not
offensive to permit a conviction of conspiracy to stand on the overt act committed by
another, for the act merely provides corroboration of the existence of the agreement and
indicates that the agreement has reached a point where it poses a sufficient threat to
society to impose sanctions. But it is repugnant to our system of jurisprudence, where
guilt is generally personal to the defendant, to impose punishment, not for the socially
harmful agreement to which the defendant is a party, but for substantive offenses in
which he did not participate.
35

The natural and probable consequences doctrine under Nevada law
Nevada case law addressing the principles of conspiracy is limited to the following
concepts.
36
As we noted above, a conspiracy is generally defined as an agreement between
two or more persons for an unlawful purpose.
37
A person who knowingly does any act to
further the object of a conspiracy, or otherwise participates therein, is criminally liable as a
conspirator . . . .
38
Evidence of a coordinated series of acts furthering the underlying
offense is sufficient to infer the existence of an agreement and support a conspiracy
conviction.
39
However, absent an agreement to cooperate in achieving the purpose of a
conspiracy, mere knowledge of, acquiescence in, or approval of that purpose does not make
one a party to conspiracy.
40

____________________

35
People v. McGee, 399 N.E.2d 1177, 1181-82 (N.Y. 1979) (citations omitted).

36
As we noted in Garner, in Nevada [t]here appears to be no comprehensive statutory definition of
conspiracy. Garner, 116 Nev. at 780, 6 P.3d at 1020.

37
Doyle, 112 Nev. at 894, 921 P.2d at 911.

38
Id.

39
Garner, 116 Nev. at 780, 6 P.3d at 1020.

40
Id.
........................................
We have never expressly adopted the Pinkerton rule and our discussion of
coconspirator liability has been limited. In State v. Cushing, a pre-Pinkerton decision, the
defendants were charged with performing illegal abortions.
41
The State did not contend that
the defendants themselves performed the abortions, but that they were accessories before the
fact and chargeable as principals because they entered into a common plan or scheme to
perform the abortions.
42
This court recognized in Cushing that where a person enters into a
common plan or scheme he may be held criminally liable as an accessory for unintended acts
if in the ordinary course of things [they were] the natural or probable consequence of such
[a] common plan or scheme.
43

In McKinney v. Sheriff, McKinney challenged the sufficiency of the evidence
supporting an indictment for murder, which was committed during the course of a robbery.
44
McKinney argued that he was unaware of and did not participate in the murder and thus there
was no probable cause to support the murder charge.
45
In rejecting his claim, this court
stated that the fact that McKinney's cohorts deviated from their agreed-upon plan by
committing the murder did not absolve McKinney of liability.
46
Where the purpose of the
conspiracy is to commit a dangerous felony, each member runs the risk of having the venture
end in homicide . . . . Hence each is guilty of murder if one of them commits homicide in the
perpetration . . . of an agreed-upon robbery. . . .
47

Like the New York court in McGee, our overarching concern in Sharma centered on
the fact that the natural and probable consequences doctrine regarding accomplice liability
permits a defendant to be convicted of a specific intent crime where he or she did not possess
the statutory intent required for the offense.
48
We are of the view that vicarious
coconspirator liability for the specific intent crimes of another, based on the natural and
probable consequences doctrine, presents the same problem addressed in Sharma, and we
conclude that Sharma's rationale applies with equal force under the circumstances of the
instant case. To convict Bolden of burglary and kidnapping, the State was required to prove
under Nevada law that he had the specific intent to commit those offenses. Holding otherwise
would allow the State to sidestep the statutory specific intent required to prove those offenses.
____________________

41
61 Nev. 132, 136, 120 P.2d 208, 211 (1941).

42
Id. at 136-37, 120 P.2d at 211.

43
Id. at 148, 120 P.2d at 216.

44
93 Nev. 70, 560 P.2d 151 (1977).

45
Id. at 71-72, 560 P.2d at 151-52.

46
Id. at 72, 560 P.2d at 152.

47
Id. (citations and quotation marks omitted).

48
118 Nev. at 655, 56 P.3d at 872.
........................................
The overriding factor in our decision to reject the natural and probable consequences
doctrine for coconspirator liability respecting specific intent crimes is the absence of a
statutory basis for it. Our statutes lack a comprehensive statutory definition or explanation of
coconspirator liability. Nevada distinguishes parties as principals or accessories and by statute
outlines the criminal liability of both. NRS 195.010 classifies parties as principals and
accessories. NRS 195.020 defines criminal liability as a principal:
Every person concerned in the commission of a felony, gross misdemeanor or
misdemeanor, 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, gross misdemeanor or misdemeanor is a principal, and
shall be proceeded against and punished as such. The fact that the person aided, abetted,
counseled, encouraged, hired, commanded, 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.
Additionally, NRS 199.480 sets forth the penalties for conspiracy offenses. These statutes are
silent respecting the parameters of coconspirator vicarious liability.
49

[Headnote 11]
NRS 195.020 was codified in 1912 and 1929. Given the age of the statute, and a lack
of legislative history, we cannot say that the Legislature intended the statute to extend
principal liability for a specific intent crime based on the natural and probable consequences
theory permitted by Pinkerton. The power to define crimes and penalties lies exclusively
within the power and authority of the Legislature.
50
No statutory underpinning for the
Pinkerton rule exists in Nevada. In the absence of statutory authority providing otherwise, we
conclude that a defendant may not be held criminally liable for the specific intent crime
committed by a coconspirator simply because that crime was a natural and probable
consequence of the object of the conspiracy. To prove a specific intent crime, the State must
show that the defendant actually possessed the requisite statutory intent.
Although we refuse to adopt the natural and probable consequences doctrine in
general, our decision is limited to vicarious coconspirator liability based on that doctrine for
specific intent crimes only.
____________________

49
To the extent the counsels, encourages language in the statute might apply to conspiracy vicarious
liability, the statute is ambiguous.

50
See Sheriff v. Luqman, 101 Nev. 149, 153, 697 P.2d 107, 110 (1985).
........................................
crimes only. The mental state required to commit a general intent crime does not raise the
same concern as that necessary to commit a specific intent crime. General intent is the intent
to do that which the law prohibits. It is not necessary for the prosecution to prove that the
defendant intended the precise harm or the precise result which eventuated.
51
On the other
hand, specific intent is the intent to accomplish the precise act which the law prohibits.
52
To hold a defendant criminally liable for a specific intent crime, Nevada requires proof that
he possessed the state of mind required by the statutory definition of the crime.
53
Although
we affirm Bolden's conviction for the general intent crimes of home invasion and robbery, we
conclude that in future prosecutions, vicarious coconspirator liability may be properly
imposed for general intent crimes only when the crime in question was a reasonably
foreseeable consequence of the object of the conspiracy. We caution the State that this court
will not hesitate to revisit the doctrine's applicability to general intent crimes if it appears that
the theory of liability is alleged for crimes too far removed and attenuated from the object of
the conspiracy.
We conclude that the district court understandably but erroneously instructed the jury
that Bolden could be found guilty of the specific intent crimes of burglary and first- and
second-degree kidnapping as long as the commission of those offenses was a natural and
probable consequence of the conspiracy, and even if Bolden never intended the commission
of those crimes. We further conclude, however, that the error is applicable only with respect
to Bolden's conviction of the specific intent crimes of burglary and kidnapping and does not
require reversal of his conviction of the general intent crimes of home invasion and robbery.
Harmless error
[Headnote 12]
We next address whether the error noted above is subject to harmless error review
and, if so, whether the error was in fact harmless.
Where, as here, a jury delivers a general verdict that could have been based on either a
legally valid or legally invalid ground, the verdict may not stand because a reviewing court
cannot discern the ground upon which the jury based its verdict.
54
The United States
Supreme Court, however, has never addressed whether harmless error analysis is available
in such cases.
____________________

51
Black's Law Dictionary 810 (6th ed. 1990).

52
Id.

53
See Sharma, 118 Nev. at 654, 56 P.3d at 872.

54
See Stromberg v. California, 283 U.S. 359, 368 (1931); Keating v. Hood, 191 F.3d 1053, 1062 (9th Cir.
1999), overruled on other grounds by Payton v. Woodford, 346 F.3d 1204, 1217 n.18 (9th Cir. 2003).
........................................
error analysis is available in such cases.
55
In Keating v. Hood, the Ninth Circuit Court of
Appeals concluded that [t]here is a limited exception to the principle: reversal may not be
required if it is absolutely certain' that the jury relied upon the legally correct theory to
convict the defendant.
56
We conclude that the absolute certainty rule approved in Keating is
appropriate where, as here, a general verdict could have been based on either a legally valid
or legally invalid ground, and we adopt the rule.
As discussed above, the evidence sufficiently supports the State's alternative theories
of direct participation and aider and abettor liability. Nonetheless the instruction on
coconspirator liability improperly allowed the jury to find Bolden criminally liable for the
specific intent crimes of burglary and kidnapping under a theory of vicarious liability that
erased the statutory mens rea element required for those specific intent offenses. Because the
jury returned a general verdict, whether or not the jury rested its decision on this invalid
ground is not discernible; we can only speculate as to the basis for the jury's decision.
Therefore, we cannot conclude with absolute certainty that the jury did not find Bolden guilty
of the burglary and kidnapping offenses based on the erroneous instruction.
57
Accordingly,
we reverse his convictions for burglary, first-degree kidnapping, and second-degree
kidnapping, and we remand for further proceedings consistent with this opinion.
58

Batson challenge
[Headnote 13]
Bolden argues that the State dismissed minority jurors in violation of Batson v.
Kentucky.
59
In Batson, the United States Supreme Court held that the Equal Protection
Clause forbids the prosecutor to challenge potential jurors solely on account of their race.
60
The Court established a three-step analysis to review a prosecutor's peremptory challenges for
racial discrimination.
61
First, the defendant must establish a prima facie case of purposeful
discrimination; second, the State must provide a race-neutral explanation for its challenge;
and third, "[i]f a race-neutral explanation is tendered, the trial court must then decide .
____________________

55
See Becht v. U.S., 403 F.3d 541, 546-47 (8th Cir. 2005).

56
Keating, 191 F.3d at 1063 (quoting Ficklin v. Hatcher, 177 F.3d 1147, 1152 (9th Cir. 1999)).

57
Id.; see also Neder v. United States, 527 U.S. 1, 18 (1999).

58
Because we conclude that the conviction on the kidnapping counts must be reversed, we need not reach
Bolden's contentions regarding the incidental nature of the kidnappings.

59
476 U.S. 79 (1986).

60
Id. at 89.

61
Id. at 96-98.
........................................
challenge; and third, [i]f a race-neutral explanation is tendered, the trial court must then
decide . . . whether the opponent of the strike has proved purposeful racial discrimination.
62
Batson's second step does not demand an explanation that is persuasive, or even plausible.
63
With regard to step three, this court gives great deference to the trial court's evaluation of
whether purposeful discrimination exists.
64

Bolden lodged objections to the State's exercise of its second and seventh peremptory
challenges against African-American jurors. Following the State's seventh challenge, the
district court held a hearing outside the presence of the jury and determined that the State
provided race-neutral reasons for its dismissal of both prospective jurors.
Bolden alleges that he demonstrated a pattern of discrimination by the State based
upon its prior dismissal of another prospective minority juror. However, the State was not
required to present an explanation for the earlier strike if it provided suitable race-neutral
reasons for the subsequent strikes.
65

The State justified its second challenge based upon the prospective juror's
dissatisfaction with police officials for whom he had been previously employed.
66
It based
its seventh challenge upon the prospective juror's belief that a family member, her husband,
was wrongly convicted on a charge of burglary, one of the charges at issue against Bolden.
We conclude that the State provided nonpretextual and race-neutral explanations for
the exercise of its peremptory challenges and, thus, Bolden failed to establish a pattern of
discrimination.
67

CONCLUSION
Although sufficient evidence supports Bolden's convictions for the specific intent
offenses of burglary and kidnapping under the State's alternative theories of direct
participation and aiding and abetting liability, we must reverse these convictions because
under the particular facts of this case, the jury's general verdict precludes us from concluding
with absolute certainty that the jury did not find Bolden guilty of these offenses based on
the State's alleged theory of coconspirator liability.
____________________

62
Purkett v. Elem, 514 U.S. 765, 767 (1995).

63
Id. at 767-68.

64
Hernandez v. New York, 500 U.S. 352, 364 (1991) (plurality opinion).

65
See Doyle, 112 Nev. at 889 n.2, 921 P.2d at 908 n.2.

66
See Clem v. State, 104 Nev. 351, 355, 760 P.2d 103, 106 (1988) (holding that [a]ssociation with the
criminal justice system is a facially neutral reason to challenge veniremen), overruled on other grounds by
Zgombic v. State, 106 Nev. 571, 798 P.2d 548 (1990).

67
See Doyle, 112 Nev. at 889-90, 921 P.2d at 908-09.
........................................
find Bolden guilty of these offenses based on the State's alleged theory of coconspirator
liability. We affirm Bolden's remaining convictions. Accordingly, we affirm Bolden's
conviction in part, reverse it in part, and remand this matter for further proceedings consistent
with this opinion.
____________
121 Nev. 926, 926 (2005) King v. Cartlidge
CARTER R. KING, Esq., Appellant, v. BLAINE E.
CARTLIDGE, Esq., Respondent.
No. 43278
December 29, 2005
124 P.3d 1161
Appeal from a district court order granting summary judgment. Second Judicial
District Court, Washoe County; Steven R. Kosach and Peter I. Breen, Judges.
The supreme court held that delay in filing written opposition to summary judgment
motion alone was sufficient grounds for the district court to deem motion unopposed and thus
meritorious.
Affirmed.
Thomas L. Qualls, Reno, for Appellant.
Blaine E. Cartlidge Esq., Reno; Lemons Grundy & Eisenberg and Tiffinay Barker
Pagni, Reno, for Respondent.
1. Judgment.
Delay in filing written opposition to summary judgment motion for fourteen days after
deadline alone was sufficient grounds for the district court to deem motion unopposed
and thus meritorious. DCR 13(3).
2. Judgment.
A party opposing summary judgment must set forth specific facts by affidavit or other
proper evidence indicating there is a genuine issue of material fact; mere allegations
and conclusory statements are insufficient to survive summary judgment. NRCP 56(e).
OPINION
Per Curiam:
In this appeal, we consider whether the district court abused its discretion in granting
respondent's motion for summary judgment because appellant failed to file an opposition
within the deadline set by Rule 13{3) of the District Court Rules {DCR) and did not set
forth any evidence showing a genuine issue for trial.
........................................
set by Rule 13(3) of the District Court Rules (DCR) and did not set forth any evidence
showing a genuine issue for trial. We conclude that the district court did not abuse its
discretion and thus affirm.
FACTS
Respondent Blaine Cartlidge sued Maria Marsano in January 2000 for breach of a
contract lien. Marsano was represented by appellant Carter King. King was later named as a
codefendant in the action. A review of the record on appeal demonstrates that King delayed
the prosecution of this action from the time it began in district court. Several instances of
King's conduct support this conclusion.
Before being named as a defendant, King moved for a continuance of the trial date,
arguing that a medical condition caused him to oversleep on the day of the trial setting. The
district court denied the motion, noting that King's actions are deplorable by an officer of the
court, sanctioning him $250.
The district court expressed its displeasure with King's delays in another order after
King had requested an extension of time. The court noted that King has rarely filed a motion
on time in this case, observing that King seems to be under the impression that this Court
and Plaintiff must cater to [King's] erratic schedule and that this action can be delayed as long
as it suits Defendant King. Although the court granted King his requested extension, it also
warned him that no other extensions would be allowed.
Cartlidge moved for summary judgment on November 15, 2002. King filed a tardy
opposition on December 9, 2002, failing to include any evidentiary support. The district court
granted Cartlidge's motion. The court noted that King had filed the opposition late, had been
granted three continuances since the case began, had failed to provide evidentiary support in
any of his numerous motions, and was clearly not ready to pursue the case according to the
scheduled trial date approaching in less than a month. King appeals.
DISCUSSION
DCR 13(3) provides that a party opposing a motion shall serve and file a written
opposition within ten days after the motion was served, together with a memorandum of
points and authorities and supporting affidavits, if any, stating facts showing why the motion
should be denied. If the opposing party fails to serve and file an opposition, the district court
has the discretion to construe that failure as an admission that the motion is meritorious and a
consent to granting the motion.
1

____________________

1
DCR 13(3).
........................................
[Headnote 1]
King filed his opposition twenty-four days after Cartlidge's summary judgment
motion was filed, well beyond the ten-day deadline of DCR 13(3). This delay alone was
sufficient grounds for the district court to deem Cartlidge's motion unopposed and thus
meritorious.
2

[Headnote 2]
In addition, King's tardy opposition violated NRCP 56(e) by failing to include any
evidentiary support. A party opposing summary judgment must set forth specific facts by
affidavit or other proper evidence indicating there is a genuine issue of material fact.
3
Mere
allegations and conclusory statements like those included in King's opposition are insufficient
to survive summary judgment.
4

The district court's decision to grant Cartlidge's motion is particularly appropriate
given King's egregious and dilatory conduct. King's repeated requests for continuances caused
delay and frustration throughout the district court proceedings. His opposition failed to
comply with the clear requirements of DCR 13(3) and NRCP 56(e). As a result, the district
court acted well within its discretion in granting summary judgment in Cartlidge's favor.
5
Accordingly, we affirm the district court order.
____________________

2
See, e.g., Nye County v. Washoe Medical Center, 108 Nev. 896, 899-900, 839 P.2d 1312, 1314-15 (1992)
(affirming district court's decision granting plaintiff's unopposed motion for summary judgment); see also Walls
v. Brewster, 112 Nev. 175, 178, 912 P.2d 261, 263 (1996) (district court acted properly in construing plaintiff's
failure to respond to motion to dismiss as admission that motion was meritorious).

3
NRCP 56(e); Posadas v. City of Reno, 109 Nev. 448, 452, 851 P.2d 438, 442 (1993).

4
NRCP 56(e); Yeager v. Harrah's Club, Inc., 111 Nev. 830, 833, 897 P.2d 1093, 1094-95 (1995).

5
We have reviewed King's other claims and conclude they lack merit.
____________
.......................................
121 Nev. 929, 929 (2005) Edwards v. Direct Access, LLC
PAUL D.S. EDWARDS, Appellant, v. DIRECT ACCESS, LLC, dba DIRECT ACCESS
PARTNERS; BRADLEY S. MUELLER; SHANE W. WATSON; and ELDON JOHN
UPDIKE, Respondents.
No. 42055
December 29, 2005
124 P.3d 1158
Proper person appeal from a district court order dismissing a complaint alleging
violations of federal and state telephone consumer protection laws. Eighth Judicial District
Court, Clark County; Valerie Adair, Judge.
The supreme court, Hardesty, J., held that: (1) as a matter of first impression, Nevada
state courts have general jurisdiction over TCPA claims; and (2) recipient's claimed damages
met limit for jurisdiction.
Paul D.S. Edwards, Las Vegas, in Proper Person.
Bailus Cook & Kelesis and Marc P. Cook, Las Vegas, for Respondents.
When reviewing orders granting a motion to dismiss for failure to state a claim, all
factual allegations in the complaint are regarded as true, and all inferences are drawn in
favor of the nonmoving party.
2. Pretrial Procedure.
A complaint should be dismissed for failure to state a claim only if it appears beyond
a reasonable doubt that even if the plaintiff's factual allegations are true, he or she
would still not be entitled to relief.
3. Telecommunications.
Nevada state courts have general jurisdiction over claims alleging violations of the
Federal Telephone Consumer Protection Act (TCPA). 47 U.S.C. 227(b)(3).
A state, on behalf of its courts, can refuse to accept jurisdiction over Federal
Telephone Consumer Protection Act (TCPA) claims. 47 U.S.C. 227(b)(3).
Nevada state court had jurisdiction over facsimile recipient's Federal Telephone
Consumer Protection Act (TCPA) claim against fax sender; recipient's claimed
damages for six violations, as trebled under the TCPA, exceeded jurisdictional
threshold for district courts when the claim was filed, and recipient also requested
injunctive relief as a separate TCPA remedy. 47 U.S.C. 227(b)(3); NRS 4.370.
Before Maupin, Gibbons and Hardesty, JJ.
........................................
OPINION
In this proper person appeal, we consider whether Nevada courts have jurisdiction to
consider complaints based on the Federal Telephone Consumer Protection Act of 1991
(TCPA),
1
which imposes penalties on persons for sending unsolicited facsimile
advertisements. Because the TCPA extends jurisdiction to state courts and our Legislature has
not acted to divest the district court of jurisdiction over a TCPA claim, we conclude that
Nevada courts may hear complaints alleging violations of this federal act, if they comply with
Nevada's other jurisdictional rules.
In this case, the district court improperly dismissed the underlying TCPA claims for
monetary damages and injunctive relief.
FACTS
On six occasions in late 2002 and early 2003, appellant Paul D.S. Edwards received
one-page unsolicited facsimiles inviting him to contact respondent Direct Access, L.L.C.,
about obtaining low-interest loans. In May 2003, Edwards forwarded a demand to Direct
Access to pay him $3,000 for alleged violations of federal and state law.
When Direct Access refused, Edwards then, in 2003, filed a complaint in the Nevada
district court alleging violations of the TCPA, NRS 41.730 governing electronic mail,
invasion of privacy and nuisance.
2
Under the TCPA, 47 U.S.C. 227, penalties may be
imposed for sending unsolicited facsimiles. Edwards sought damages, under subsection (b)(3)
of that statute, in the amount of $500 for each of the six unsolicited facsimiles. Edwards
asserted that his statutory damages thus equaled $3,000 and that those damages should be
trebled under the statute to total $9,000.
3

Direct Access moved for dismissal, arguing that the district court did not have
jurisdiction over Edwards' claim for two reasons. First, it asserted that the district court did
not have jurisdiction because the TCPA does not create a private right of action in Nevada
state courts. Alternatively, Direct Access argued, if a violation had occurred, the district court
lacked jurisdiction because the total damages were insufficient to meet the district court's
jurisdictional monetary threshold.
____________________

1
47 U.S.C. 227(b) (2000).

2
Edwards has conceded that NRS 41.730 does not apply to facsimile transmissions, and he has abandoned
his appeal of the claims for invasion of privacy and nuisance. Accordingly, we address only his TCPA claims.

3
Under 47 U.S.C. 227(b)(3), the court has discretion to treble the damage award if the court finds that the
defendant willfully or knowingly violated the subsection.
........................................
After a hearing, the district court found that Edwards had failed to state a claim under
both the federal and state statutes and that Edwards had failed to state a claim for damages in
excess of the $10,000 limit for district court actions. This appeal follows.
DISCUSSION
[Headnotes 1, 2]
When reviewing orders granting a motion to dismiss for failure to state a claim, all
factual allegations in the complaint are regarded as true, and all inferences are drawn in favor
of the nonmoving party.
4
A complaint should be dismissed only if it appears beyond a
reasonable doubt that even if the plaintiff's factual allegations are true, he or she would still
not be entitled to relief.
5

The TCPA is a federal statute that prohibits any person from using, among other
technology, a facsimile machine to send an unsolicited advertisement to another facsimile
machine.
6
Section 227(b)(3) of the TCPA creates a private right of action to pursue multiple
remedies.
7
First, the recipient of an unsolicited facsimile can seek an injunction to enjoin a
party from sending additional unwanted facsimiles.
8
In addition, a plaintiff can seek the
greater of actual monetary damages caused by TCPA violations or $500 for each violation.
9
Further, the TCPA gives the court discretion to award treble damages [i]f the court finds that
the defendant willfully or knowingly violated this subsection or the regulations prescribed
under this subsection.
10

Whether Nevada state courts have jurisdiction to consider TCPA claims is an issue of
first impression for this court. The United States Supreme Court has unanimously held that
state courts are not only empowered to hear cases based on federal law but are bound to do so
under the United States Constitution and the laws passed pursuant to it.
11
Section 227(b)(3)
of the TCPA provides that a person or entity may bring a state court action based on the
statute if otherwise permitted by the laws or rules of court . . . in an appropriate court of that
State. In interpreting this phrase, federal circuit courts of appeal have held that Congress
conferred exclusive jurisdiction on state courts and that there is no private cause of action in
federal courts under the TCPA.
____________________

4
Hampe v. Foote, 118 Nev. 405, 408, 47 P.3d 438, 439 (2002).

5
Id.

6
47 U.S.C. 227(b)(1)(C) (2000).

7
Id. 227(b)(3)(A)(B). A plaintiff can choose to pursue either, or both, causes of action. Id. 227(b)(3)(C).

8
Id. 227(b)(3)(A).

9
Id. 227(b)(3)(B).

10
Id. 227(b)(3).

11
Testa v. Katt, 330 U.S. 386, 391 (1947).
........................................
cause of action in federal courts under the TCPA.
12
In reaching this conclusion, the federal
courts have noted that state courts are courts of general jurisdiction, presumed to have
jurisdiction over federally created causes of action unless Congress indicates otherwise.'
13
Based upon this reasoning, we conclude that, unless the laws or court rules of Nevada provide
otherwise, Nevada state courts have jurisdiction over causes of action based on TCPA
violations.
[Headnotes 3, 4]
Some states have held that the language of 227(b)(3), providing that a party may
bring a TCPA action in state courts if the state's laws or court rules permit, automatically
confers jurisdiction on state courts despite the lack of any state law that expressly permits
such claims.
14
Put differently, a separate state law or rule of court conferring jurisdiction to
consider TCPA claims on state courts is not necessary for the state court to have jurisdiction
over the federal claim. However, states retain the ultimate decision of whether private
TCPA' suits are actionable in their courts.
15
Thus, a state, on behalf of its courts, can refuse
to accept jurisdiction over this federally created cause of action. Because the Nevada
Legislature has not passed legislation expressly excluding such claims, Nevada courts retain
general jurisdiction over claims alleging violations of the TCPA.
[Headnote 5]
Nevertheless, such claims must comply with Nevada's jurisdictional requirements. In
this case, Direct Access argued, and the district court agreed, that Edwards did not state a
claim for damages beyond the requisite amount to vest jurisdiction in the district court.
Article 6, Section 6 of the Nevada Constitution states that [t]he District Courts in the several
Judicial Districts of this State have original jurisdiction in all cases excluded by law from the
original jurisdiction of justices' courts."
____________________

12
Murphey v. Lanier, 204 F.3d 911, 913 (9th Cir. 2000); see also Erienet, Inc. v. Velocity Net, Inc., 156 F.3d
513, 520 (3d Cir. 1998); Foxhall Realty Law Offices v. Telecom. Prem. Serv., 156 F.3d 432, 437 (2d Cir. 1998);
Nicholson v. Hooters of Augusta, Inc., 136 F.3d 1287, 1289 (11th Cir. 1998); Chair King, Inc. v. Houston
Cellular Corp., 131 F.3d 507, 514 (5th Cir. 1997).

13
Murphey, 204 F.3d at 913 (quoting Intern. Science & Tech. Institute v. Inacom Comm., 106 F.3d 1146,
1152 (4th Cir. 1997)).

14
See, e.g., Nicholson, 136 F.3d at 1289; Kaufman v. ACS Systems, Inc., 2 Cal. Rptr. 3d 296, 306 (Ct. App.
2003); Reynolds v. Diamond Foods & Poultry, Inc., 79 S.W.3d 907, 910 (Mo. 2002); Zelma v. Market U.S.A.,
778 A.2d 591, 598 (N.J. Super. Ct. App. Div. 2001).

15
Kaufman, 2 Cal. Rptr. 3d at 306 (quoting Intern. Science & Tech. Institute, 106 F.3d at 1158); see also
Intern. Science & Tech. Institute, 106 F.3d at 1150 ([S]tates have been given, subject to their consent, exclusive
subject matter jurisdiction over private actions authorized by the [TCPA].).
........................................
original jurisdiction of justices' courts. NRS 4.370 now provides that the justice courts have
original jurisdiction in matters where the damages claimed do not exceed $10,000.
16
However, for cases filed prior to January 1, 2005, the district courts' original jurisdiction
included all cases involving claims for damages that exceeded $7,500.
17

We have previously recognized that in order to dismiss a case based on lack of
subject matter jurisdiction, it must appear to a legal certainty that the [damages are] worth
less than the jurisdictional amount.
18
Under the TCPA's damages provision, Edwards can
claim damages for actual monetary loss or $500 in damages for each violation, plus treble
damages for willful and knowing violations.
19
Edwards did not claim any actual monetary
damages as a result of Direct Access' facsimiles; thus, a computation under the alternative
method is required. Edwards claimed damages for six unauthorized facsimiles. Six TCPA
violations, multiplied by $500 dollars for each violation, equals $3,000. Assuming that the
district court finds that Direct Access willfully and knowingly violated the TCPA, Edwards
could recover $9,000 under the treble damages provision. This amount exceeds the $7,500
jurisdictional threshold for the district courts when the complaint was filed in 2003. The
district court incorrectly concluded that to a legal certainty, Edwards' damages claims were
worth less than the then applicable jurisdictional amount.
In addition, Edwards also claimed that he was entitled to injunctive relief as a separate
TCPA remedy under 47 U.S.C. 227(b)(3). We note that his request for injunctive relief
provided an independent basis for the district court's jurisdiction as well.
CONCLUSION
In conclusion, we recognize that Nevada state courts have jurisdiction over TCPA
claims; a separate statute or court rule authorizing such claims is not necessary to confer
jurisdiction. Here, it appears to a legal certainty that Edwards' claimed damages exceeded the
district court's jurisdictional threshold in effect at the time his complaint was filed. Further,
injunctive relief provides an independent basis for jurisdiction in the district court.
Accordingly, we reverse the district court's order dismissing Edwards' TCPA claims and
remand this matter for further proceedings.
Maupin and Gibbons, JJ., concur.
____________________

16
Royal Ins. v. Eagle Valley Constr., Inc., 110 Nev. 119, 120, 867 P.2d 1146, 1147 (1994) (holding that
attorney fees and costs cannot be added to a damages claim to raise the damages amount above the statutory
minimum).

17
2003 Nev. Stat., ch. 160, 2, 7, at 849, 853.

18
Morrison v. Beach City LLC, 116 Nev. 34, 38, 991 P.2d 982, 984 (2000).

19
47 U.S.C. 227(b)(3) (2000).
____________
.......................................
121 Nev. 934, 934 (2005) Williams v. State
GARY JEROME WILLIAMS, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 43041
December 29, 2005
125 P.3d 627
Appeal from a judgment of conviction, upon jury verdict, of battery with use of a
deadly weapon causing substantial bodily harm. Eighth Judicial District Court, Clark County;
Stephen L. Huffaker, Judge.
The supreme court, Rose, J., held that: (1) first venire did not violate
African-American defendant's right to a jury drawn from a fair cross section of community;
(2) as an issue of first impression, specific inclusion of distinct classes in a venire is not
allowed unless done to correct a specific constitutional violation; (3) trial court's erroneous
instructions to specifically include African Americans in second venire did not require
dismissal of second venire; (4) State failed to offer any race-neutral reason to justify its
opposition to second venire which contained six African Americans, three of whom were
among the first twelve jurors; (5) new trial, rather a third venire, was appropriate remedy for
State's discriminatory opposition to second venire; (6) evidence of defendant's prior
conviction for aggravated robbery was not admissible for impeachment purposes; and (7) trial
court's error in admitting defendant's prior conviction for purposes of impeachment was not
harmless.
[Rehearing denied April 18, 2006]
Philip J. Kohn, Public Defender, and Mark S. Blaskey, Craig D. Creel, Amy Dreifus
Coffee, and Brigid Hoffman, Deputy Public Defenders, Clark County, for Appellant.
James Tufteland, Chief Deputy District Attorney, and Roy L. Nelson III, Deputy District
1. Jury.
First venire did not violate African-American defendant's right to a jury drawn from a
fair cross section of community; even though African Americans were cognizable
group and representation in first venire constituted an unfair and unreasonable
representation of African Americans, defendant did not show a systematic exclusion of
that group from the jury selection process. U.S. Const. amends. 6, 14.
2. Jury.
A defendant is entitled to a venire selected from a fair cross section of the community.
U.S. Const. amends. 6, 14.
........................................
3. Jury.
Sixth Amendment does not guarantee a jury or even a venire that is a perfect cross
section of the community; rather, it only requires that venires from which juries are
drawn must not systematically exclude distinctive groups in the community and thereby
fail to be reasonably representative thereof. U.S. Const. amend. 6.
4. Jury.
To demonstrate a prima facie violation of requirement that jury be selected from
representative cross section of community, the defendant must show: (1) that the group
alleged to be excluded is a distinctive group in the community, (2) that the
representation of this group in venires from which juries are selected is not fair and
reasonable in relation to the number of such persons in the community, and (3) that
underrepresentation is due to systematic exclusion of the group in the jury-selection
process. U.S. Const. amends. 6, 14.
5. Jury.
For a jury to fairly represent a cross section of the community, there must be an
awareness of the makeup of that community, therefore, jury commissioners should be
cognizant of the makeup of their community, should compare this with the makeup of
the lists used in the jury selection process and the resulting jury pool, and should strive
to create lists of prospective jurors that represent an accurate cross section of the
community. U.S. Const. amends. 6, 14.
6. Criminal Law.
The supreme court reviews questions of law de novo.
7. Jury.
Specific inclusion of distinct classes in a venire is not allowed unless done to correct a
specific constitutional violation.
8. Jury.
State law requires trial juries to be selected randomly, and a trial court cannot
substitute its own judgment for that of the Legislature as to how best to compose a
venire.
9. Jury.
Trial court's instructions to jury commissioner to specifically include African
Americans in second venire was erroneous, where defendant had not demonstrated any
constitutional infirmity.
10. Criminal Law.
Trial court's erroneous instructions to specifically include African Americans in
second venire, even though defendant had not demonstrated any constitutional
infirmity, did not require dismissal of such venire, where record contained no direct
evidence that the jury commissioner complied with such instructions.
11. Jury.
Batson is the appropriate vehicle to determine whether discrimination has occurred,
not only during peremptory challenges but also at other stages of jury selection.
12. Jury.
State failed to offer any race-neutral reason to justify its opposition to second venire
which contained six African Americans, three of whom were among the first twelve
jurors, where while State objected to the lack of randomness, it did not do so until the
racial makeup of the entire venire was revealed.
13. Jury.
In determining whether discrimination occurred in jury selection, a defendant must
first make a prima facie showing that discrimination based on race has occurred from
the totality of the circumstances; second, the burden shifts to the prosecution to
give a race-neutral explanation for challenging the jurors; and finally, the trial court
has the duty to determine whether the defendant has established purposeful
discrimination.
........................................
on race has occurred from the totality of the circumstances; second, the burden shifts to
the prosecution to give a race-neutral explanation for challenging the jurors; and finally,
the trial court has the duty to determine whether the defendant has established
purposeful discrimination.
14. Criminal Law; Jury.
New trial, rather than a third venire, was appropriate remedy for State's discriminatory
opposition to second venire which contained six African Americans; third venire would
be tainted by State's discriminatory action, as granting the State a new venire, one that it
does not object to, would mean that it had successfully discriminated against the target
class.
15. Criminal Law.
The supreme court reviews a trial court's decision to admit evidence of a prior felony
conviction for impeachment purposes for an abuse of discretion. NRS 50.095.
16. Witnesses.
Evidence of defendant's prior conviction for aggravated robbery was not admissible
for impeachment purposes in battery prosecution, where State failed to provide
sufficient evidence to show that the prior conviction was an adult conviction. NRS
50.095(4).
17. Criminal Law.
Trial court's error in admitting evidence of defendant's prior conviction for aggravated
robbery for purposes of impeachment was not harmless in battery prosecution; issue of
innocence or guilt was closely disputed, and jury was required to gauge the credibility
of the witnesses to determine whether to believe victim's or defendant's version of the
events.
18. Criminal Law.
The supreme court will not overturn the judgment where an improperly admitted prior
conviction was harmless error.
19. Criminal Law.
In determining whether an error is harmless beyond a reasonable doubt, the supreme
court considers whether the issue of innocence or guilt is close, the quantity and
character of the error, and the gravity of the harm charged.
OPINION
In this appeal, we decide whether the district court's dismissal of multiple jury venires
was error, whether a subsequent venire cured those errors, and whether the district court erred
when it allowed the State to impeach the defendant regarding a conviction for a crime
committed when he was seventeen years old.
After a trial, a jury selected from the third venire convicted Gary Jerome Williams of
the battery of Robin Swope. Before trial, the district court denied Williams' motion to
suppress his conviction for aggravated robbery, which occurred in 1985 when he was a
juvenile. During jury selection, the district court dismissed the first venire because it did not
reflect the racial makeup of Clark County, Nevada.
........................................
County, Nevada. As a remedy, the district court directed the jury commissioner to specifically
include African Americans in the next venire. The district court dismissed the second venire
because the State was concerned over the randomness of the venire's selection since three of
the first twelve jurors were African Americans. Neither Williams nor the State objected to the
composition of the third venire.
We conclude that the district court erred when it dismissed the second venire because
no evidence in the record establishes that the second venire was not randomly selected and
because the State's objection reveals a racial motive for dismissing the venire. The district
court's order for a third venire was insufficient to cure the State's racial bias present in the
dismissal of the second venire. We also conclude that the district court abused its discretion
in allowing the State to impeach Williams with his conviction when he was a juvenile.
Therefore, we reverse and remand for a new trial.
FACTS
On June 22, 2003, Robin Swope, a male Caucasian, and Gary Jerome Williams, a
male African American, were involved in an altercation in and around the parking lot of the
Wild Wild West Casino-Motel in Las Vegas, Nevada. Swope and his children were staying at
the motel that night. Swope confronted Williams after he saw Williams speaking with
Swope's thirteen-year-old daughter. Details of the altercation were highly disputed at trial,
including who was the first aggressor, who produced a knife with an emblem of a confederate
flag, and whether Swope called Williams a nigger.
Williams was arrested and charged with attempted murder with use of a deadly
weapon and battery with use of a deadly weapon resulting in substantial bodily harm.
Following trial, a jury selected from the third venire found Williams guilty of battery with use
of a deadly weapon resulting in substantial bodily harm.
Williams' prior felony conviction
Before trial, Williams moved to exclude his 1985 felony conviction for aggravated
robbery. Williams was seventeen years old at the time of his conviction in an Arkansas circuit
court. The presentence report issued by the Nevada Department of Public Safety lists the
offense as a juvenile offense. Williams was sentenced to fifteen years of confinement and was
paroled but was subsequently returned to prison. The district court denied Williams' motion
to exclude his conviction but did not address whether it was a juvenile conviction.
........................................
Jury selection
The first venire
1
included only one African-American person out of forty
veniremembers. Clark County, Nevada, contains 9.1% Black or African-American people.
2
Williams moved to strike the first venire because it did not adequately represent a cross
section of the community. The State did not oppose the motion, and the district court
dismissed the first venire.
A meeting was then held in chambers between the court and counsel. During the
meeting, the court telephoned the jury commissioner, who assured the district court that a
randomly reconstituted venire would be sent up that more adequately represented the
African-American cross section of the community. According to the record, the court talked
to the jury commissioner a second time to ensure that the second venire would be randomly
selected. The record does not reflect what was said between the court and the jury
commissioner. However, according to the statements of counsel and the court, the second
venire contained a specific inclusion of African-Americans. The court provided the
following explanation:
Counsel . . . were concerned about the new panel, that it might not be randomly
selected. And so, the Court called back down to the Jury Commissioner, and the Jury
Commissioner told the Court that, yes, it would be randomly selected, but the five or
six African-Americans that were in the entire juror group downstairs would be put into
this panel and then it would be randomly selected.
The second venire contained six African Americans, three of whom were among the
first twelve jurors. The State was aware of the method, specific inclusion, that the jury
commissioner was going to use to prepare the second venire. Once the second venire was
seated, the State moved to dismiss the venire because it objected to the perceived lack of
randomness in the second venire. The State explained:
We just don't feel that it was random. We had three African-Americans in the first
twelve. And we had talked about in chambers that we thought that normally [the
number of African Americans in the jury venire is] around three to five, and all of a
sudden we had six and we had three in the first twelve. So, we don't thinkwe feel that
it wasn't completely random, therefore we are asking for a more random selection
tomorrow, which would be a fresh start.
____________________

1
A venire is defined in this opinion as the group of persons sent to the district court from which a jury is
chosen. A jury pool is the entire group of persons called for jury service that day.

2
U.S. Census Bureau, Profile of General Demographic Characteristics (2000), available at
http://censtats.census.gov/data/NV/05032003.pdf.
........................................
random, therefore we are asking for a more random selection tomorrow, which would
be a fresh start.
In response, Williams objected and sought to have the jury commissioner testify to provide a
record of the jury selection process for the second jury venire. However, a record was not
made. The district court granted the State's motion.
The third jury venire contained three African Americans out of forty veniremembers.
No objections were made to the third venire. Jury selection proceeded, and one African
American sat on the jury that convicted Williams.
DISCUSSION
On appeal, Williams argues that dismissing the second venire was error because the
specific inclusion of African Americans in a venire is permissible when necessary to prevent
discrimination and to ensure a fair cross section of the community. He also argues that the
State's motion to excuse the second venire amounted to an attempt to exclude African
Americans from serving on his jury in violation of Batson v. Kentucky.
3
Finally, he argues
that the district court erred when it allowed the State to impeach him with a conviction for
aggravated robbery that occurred when he was a juvenile.
Dismissal of the second venire
The events leading to the dismissal of the second venire begin with Williams' motion
to dismiss the first venire. Williams moved to dismiss the first venire because it contained
only one African American out of forty veniremembers. He claimed that the first venire
violated his Sixth Amendment right to a jury composed of a fair cross section of the
community.
4
The State did not object to the motion, and the district court dismissed the first
venire.
A fair cross section of the community
[Headnotes 1-3]
Williams is entitled to a venire selected from a fair cross section of the community
under the Sixth and Fourteenth Amendments of the United States Constitution.
5
The Sixth
Amendment does not guarantee a jury or even a venire that is a perfect cross section of the
community. Instead, the Sixth Amendment only requires that venires from which juries are
drawn must not systematically exclude distinctive groups in the community and thereby fail
to be reasonably representative thereof.
____________________

3
476 U.S. 79 (1986).

4
The district court erroneously termed this a Batson issue.

5
........................................
clude distinctive groups in the community and thereby fail to be reasonably representative
thereof.'
6
Thus, as long as the jury selection process is designed to select jurors from a fair
cross section of the community, then random variations that produce venires without a
specific class of persons or with an abundance of that class are permissible.
[Headnote 4]
To demonstrate a prima facie violation of the fair-cross-section requirements, the
defendant must show:
(1) that the group alleged to be excluded is a distinctive' group in the community; (2)
that the representation of this group in venires from which juries are selected is not fair
and reasonable in relation to the number of such persons in the community; and (3)
that this underrepresentation is due to systematic exclusion of the group in the
jury-selection process.
7

Although the district court did not evaluate Williams' argument that the first venire
violated his Sixth Amendment rights, Williams did meet the first two prongs of the test. First,
the group allegedly excluded, African Americans, is a distinctive group in the community.
8
Second, the representation of this group in the first venire was not fair and reasonable in
relation to its representation in Clark County.
9
However, Williams introduced no evidence to
show that Clark County systematically excludes African Americans from the jury selection
process.
Systematic discrimination
Williams uses Brooks v. Beto
10
to support his argument that specific inclusion is the
appropriate remedy to cure systematic discrimination.
____________________

6
Id. (quoting Taylor v. Louisiana, 419 U.S. 522, 538 (1975)).

7
Id. at 1186, 926 P.2d at 275 (quoting Duren v. Missouri, 439 U.S. 357, 364 (1979) (emphases added)).

8
Id. at 1187, 926 P.2d at 275.

9
The 2000 census indicates that the percentage of African Americans in Clark County, Nevada, is 9.1%. U.S.
Census Bureau, supra note 2. Having one African American in a forty-person venire results in only 2.5%
African Americans. Whether a certain percentage is a fair representation of a group is measured by the absolute
and comparative disparity between the actual percentage in the venire and the percentage of the group in the
community. The absolute disparity is 6.6%. This is not a large percentage. But if 6.6% is compared with the
actual percentage of African Americans in Clark County, 9.1%, the comparative disparity is 72.5%. Comparative
disparities over 50% indicate that the representation of African Americans is likely not fair and reasonable. See
Evans, 112 Nev. at 1187, 926 P.2d at 275.

10
366 F.2d 1, 23-24 (5th Cir. 1966).
........................................
crimination. However, the Fifth Circuit in Brooks faced a much different factual situation
than we do today. In Brooks, no African Americans had ever served on a grand jury.
11
Yet,
the demographic makeup of the county was 10% African American, indicating a strong
tradition of discrimination in that court system. The Fifth Circuit recognized the paradox of
allowing the jury selection system to continue as is while attempting to fix the system, thus
producing more unconstitutional grand juries, as opposed to allowing the specific inclusion of
African-American jurors to achieve fair and constitutional grand juries.
12
The Fifth Circuit
upheld the practice of specific inclusion of African Americans to remedy the flaws in the jury
system.
In contrast, Williams demonstrates no history of discrimination and presents no facts
indicating that the jury selection process in Clark County systematically discriminates against
African Americans. The district court stated that, on average, three (7.5%) to four (10%)
African Americans are present in a forty-person venire. This reflects the percentage of
African Americans in Clark County (9.1%). The third prong of the Sixth Amendment's
guarantee requires systematic discrimination. The Sixth Amendment allows variations based
on chance. Even in a constitutional jury selection system, it is possible to draw venires
containing no (0%) or one (2.5%) African American in a forty-person venire. It is equally
possible that the same venire could contain six (15%) to eight (20%) African Americans.
Such variations are normal in a constitutional system.
Even though the variations in Williams' venires
13
are normal in constitutional
systems and appear to indicate the health of the jury selection system in Clark County, several
recent articles in the Las Vegas Sun indicate problems in the jury selection process.
14
The
articles question whether the jury selection process adequately represents the diverse
population of Clark County. While we have no data before us to indicate otherwise, the
articles indicate that the jury selection process may not represent an adequate cross
section of the community.
____________________

11
Id. at 5.

12
Id. at 9.

13
The first venire had one African American out of forty veniremembers, the second venire had six African
Americans, and the third venire had three African Americans.

14
Editorial, Question of Fairness Lingers, Las Vegas Sun, Nov. 8, 2005, available at
http://www.lasvegassun.com/sunbin/stories/sun/2005/nov/08/519628064.html?questions%20of%20fairness%20lingers;
Editorial, Jury Pools Are Shallow, Las Vegas Sun, Nov. 1, 2005, available at
http://www.lasvegassun.com/sunbin/stories/sun/2005/nov/01/519594545.html?
jury%20pools%20are%20shallow; Matt Pordum, The Jury's Still Out, Las Vegas Sun, Oct. 30, 2005, available
at http://www.lasvegassun.com/ sunbin/stories/sun/2005/oct/30/519585122.html?the%20jury's%20still%20out.
........................................
jury selection process may not represent an adequate cross section of the community.
[Headnote 5]
While Clark County's Jury Commissioner is correct that [a] jury of one's peers is
simply a randomly selected cross section of the members of your community,'
15
this
constitutional guarantee is not satisfied by blindly following statutory mandates. To fairly
represent the community, there must be an awareness of the makeup of that community.
16
Therefore, jury commissioners should be cognizant of the makeup of their community,
17
should compare this with the makeup of the lists used in the jury selection process and the
resulting jury pool,
18
and should strive to create lists of prospective jurors that represent an
accurate cross section of the community.
In the present case, however, there is no evidence before us to indicate that the jury
selection process in Clark County systematically excludes African Americans from its jury
selection process. Therefore, we conclude that Williams has not suffered a violation of his
Sixth Amendment rights because the first venire did not violate his right to a venire
composed of a fair cross section of the community. Nevertheless, the State did not object to
Williams' motion, and the district court dismissed the first venire and instructed the jury
commissioner to specifically include African Americans in the second venire to remedy the
perceived violation.
[Headnote 6]
Whether specific inclusion of a distinctive class can be used as a remedy where no
constitutional violation has been found is an issue of first impression in Nevada.
____________________

15
Pordum, supra note 14.

16
Brooks, 366 F.2d at 23.

17
The minority racial profile of Clark County, Nevada, in the 2000 census included American Indian (0.8%),
Asian (5.3%), Black or African American (9.1%), and Hispanic or Latino (22%). U.S. Census Bureau, supra
note 2.

18
Without an awareness of the makeup of the lists used to select the jury pool or the actual jury pool itself, a
jury commissioner cannot adequately determine whether the jury pool or the jury lists reflect a fair cross section
of the community. If the jury list does not produce jury pools that reflect a fair cross section of the community,
then the jury commissioner should use more lists than mandated by statute. E.g., NRS 6.010. In 2002, the
Nevada Jury Improvement Commission recommended that at least three source lists be used to constitute jury
pools. Jury Improvement Commission, Report of the Supreme Court of Nevada 10 (2002), available at
http://www.nvsupremecourt.us/ DOCS/reports/rpt_0210_jury.PDF. We do not hold at this time that being
unaware of the composition of the jury pool is unconstitutional. We do, however, observe that without
knowledge of the composition of the jury pool and jury lists, an assertion that they provide juries comprising a
fair cross section of the community is mere speculation.
........................................
issue of first impression in Nevada.
19
We review questions of law de novo.
20

Specific inclusion of a distinctive class
[Headnote 7]
Williams argues that the specific inclusion of a distinctive class in a venire is
permissible when necessary to prevent discrimination. Specific inclusion, or infusion, of
individuals into a venire is the practice of selecting individuals in the jury pool who meet
specific criteria and purposely placing them into a venire. In the case of racial
underrepresentation in a jury pool, specific inclusion is accomplished by visually observing
individuals or asking them about their race, selecting enough individuals of a specific race to
assure a fair cross section of the community, placing those individuals into the venire, and
then randomly constituting the remaining portion of the venire. Some courts have approved
this practice to achieve a racially balanced venire and avoid any constitutional infirmity.
21

[Headnotes 8, 9]
However, Williams has not demonstrated any constitutional infirmity and a venire that
is constituted by specifically including certain individuals is not random. Nevada law requires
trial juries to be selected randomly,
22
and a district court cannot substitute its own judgment
for that of the Legislature as to how best to compose a venire.
23
Therefore, we conclude that
specific inclusion of distinct classes in a venire is not allowed in Nevada unless done to
correct a specific constitutional violation. Consequently, the district court's instructions to the
jury commissioner to specifically include African Americans in the second venire constituted
error.
[Headnote 10]
Further compounding its error, the district court made no finding of fact as to what the
jury commissioner actually did to constitute the second venire. The record contains no direct
evidence that the jury commissioner complied with the district court's instructions and
specifically included African Americans in the second venire. To establish a violation of the
randomness requirement, the district court should have heard testimony from the jury
commissioner regarding how the venire was constituted, something Williams requested.
____________________

19
We leave unanswered the question of whether specific inclusion would be an appropriate remedy where a
district court first determines that a constitutional violation has occurred.

20
Daniels v. State, 114 Nev. 261, 270, 956 P.2d 111, 116 (1998).

21
E.g., Brooks v. Beto, 366 F.2d 1, 23-24 (5th Cir. 1966).

22
NRS 6.045; NRS 6.090.

23
State v. Echineque, 828 P.2d 276, 279 (Haw. 1992).
........................................
sioner regarding how the venire was constituted, something Williams requested. Therefore,
because adequate evidence of specific inclusion is not present in the record, we conclude that
the district court erred in dismissing the second venire.
The appropriate remedy for a venire that is not randomly constituted, and an
appropriate remedy for the district court's error in dismissing the second venire, is to grant
Williams a new venire. The district court gave Williams a third venire, which Williams does
not contest was randomly constituted and which contained a fair cross section of the
community. Thus, Williams has already received his remedy for these errors.
However, the State's motion to dismiss the second venire contained racial remarks and
is subject to challenge under Batson v. Kentucky.
24
Absent evidence that the second venire
was not randomly constituted and thus validly dismissed, we must consider whether the
State's motion to dismiss the second venire violated Batson.
Discrimination under Batson
Applicability of Batson to the dismissal of the second venire
[Headnote 11]
Williams argues that the State's action in seeking to excuse the second venire shows
that the State sought to exclude African Americans from the jury in violation of Batson. The
State claims, and the district court held, that Batson is inapplicable because (1) the second
venire was dismissed because the jury commissioner did not randomly constitute the venire,
and (2) Batson does not apply to the dismissal of a venire. We have previously determined
that the district court did not establish that the second venire was not randomly constituted,
and we now determine that Batson does apply to challenges resulting in the dismissal of the
venire.
The United States Supreme Court recently decided Miller-El v. Dretke, which
considered in its Batson analysis discrimination inherent in the Texas jury shuffle.
25
The
Texas jury shuffle allows one party to reorganize the order of the jurors in the venire. Thus,
the entire venire is affected, rather than individual jurors, and different jurors will be closer to
serving on the jury. The Supreme Court held that the jury shuffle procedure, when used to
discriminate by shuffling African-American jurors to the back of the venire, implicated the
concerns of Batson.
26
Challenges resulting in the dismissal of the venire are no different.
Changing venires in an attempt to obtain a venire with fewer African Americans is still
discrimination that affects the makeup of the jury.
____________________

24
476 U.S. 79 (1986).

25
545 U.S. 231, 253-55 (2005).

26
Id.
........................................
discrimination that affects the makeup of the jury. Batson, therefore, is the appropriate
vehicle to determine whether discrimination has occurred, not only during peremptory
challenges but also at other stages of jury selection.
In the present case, the State moved to dismiss the second venire, contending it was
not randomly constituted since three African Americans sat in the first twelve spots of the
venire. Similar to the Texas jury shuffle, the State used this objection to obtain a new jury
with a different composition and order. This implicates the same concerns of discrimination
present in Batson. We therefore conclude that Batson is applicable to this case.
Williams' Batson challenge
[Headnotes 12, 13]
Batson provided a three-part test to determine whether discrimination occurred in jury
selection. A defendant must first make a prima facie showing that discrimination based on
race has occurred from the totality of the circumstances. Second, the burden shifts to the
prosecution to give a race-neutral explanation for challenging the jurors. Finally, the district
court has the duty to determine whether the defendant has established purposeful
discrimination.
27

Williams met the first step of Batson by showing a racial motivation for the State's
actions. The State's objection to the second venire involved the location of three
African-American jurors in the first twelve spots of the venire.
28
The timing of the State's
objection is also revealing. The State was present in chambers when the court discussed the
constitution of the next venire. The State did not lodge an objection to specific inclusion, a
violation of the randomness requirement, at that time. Instead, the State waited until it was
able to see the makeup of the second venire. Therefore, we conclude that Williams has met
his burden of providing a prima facie showing of discrimination.
____________________

27
476 U.S. at 96-98; Foster v. State, 121 Nev. 165, 171-72, 111 P.3d 1083, 1088 (2005).

28
From the trial transcripts:
Our objection, Judge, is to the . . . random nature of this reconstituted second jury venire. . . . That is
our objection, not as to the fact that there were six. There could have been seven, there could have been
ten. We just don't feel that it was random. We had three African-Americans in the first twelve. And we
had talked about in chambers that we thought that normally it's around three to five, and all of a sudden
we had six and we had three in the first twelve. So, . . . we feel that it wasn't completely random,
therefore we are asking for a more random selection tomorrow, which would be a fresh start.
(Emphasis added.)
........................................
The second step of Batson does not demand an explanation that is persuasive, or
even plausible,'
29
but it does require that a discriminatory intent not be inherent in the
prosecutor's explanation.'
30
A court may look beyond the four corners of the case at hand to
determine the prosecutor's intent.
31
What is inherent in the prosecutor's explanation is
evident by examining the distinctions between Hernandez v. New York
32
and United States
v. Bishop.
33

In Hernandez, the prosecutor exercised peremptory challenges to remove two
bilingual jurors whose conduct during voir dire persuaded him that they might have difficulty
accepting a translator's rendition of what was said in Spanish as the testimony. The United
States Supreme Court determined that this reason was sufficiently race-neutral, as opposed to
a prosecutor removing the jurors simply because of their bilingual ability, which may
inherently implicate race.
34

In contrast, the prosecutor in Bishop removed a juror because of her residence, age,
and employment. However, the prosecutor did not remove other women jurors of the same
age or a juror with the same occupation. The Ninth Circuit observed that when residence is
used as a factor to remove a juror, then the prosecutor's decision is inherently race-based and
fails the second prong of Batson,
35
because a juror's residence is a substitute for the juror's
probable race and stereotypes of experiences that can be ascribed to that race.
In the present case, while the State did not have the opportunity to explain its actions
in light of Batson, we cannot foresee any explanation that could purge the taint of its racial
remarks. The State would have undoubtedly claimed that it was objecting to the lack of
randomness. However, it did not do so until the racial makeup of the venire was revealed. It
then specifically objected to the fact that three of the first twelve jurors were African
Americans. It is plain that the State did not want a jury containing three or more African
Americans.
36
We conclude that the State cannot offer any raceneutral reason to justify its
opposition to the second venire.
____________________

29
Kaczmarek v. State, 120 Nev. 314, 333, 91 P.3d 16, 29 (2004) (quoting Purkett v. Elem, 514 U.S. 765, 768
(1995)).

30
U.S. v. Bishop, 959 F.2d 820, 827 (9th Cir. 1992) (quoting Hernandez v. New York, 500 U.S. 352, 360
(1991) (plurality opinion)); Kaczmarek, 120 Nev. at 333, 91 P.3d at 29 (quoting Hernandez, 500 U.S. at 360).

31
Miller-El, 545 U.S. at 240.

32
500 U.S. 352.

33
959 F.2d 820.

34
Hernandez, 500 U.S. at 360-61.

35
Bishop, 959 F.2d at 825-27.

36
While the State contended that the venire was not selected in a random manner, its overriding concern was
the racial makeup and positioning of
........................................
neutral reason to justify its opposition to the second venire. Because we conclude that the
State cannot meet the second prong of Batson, we do not reach the third prong.
Batson remedy
[Headnote 14]
The Supreme Court in Batson recognized that the remedy for Batson violations would
vary from jury system to jury system and allowed the courts to fashion their own remedy.
37
One of the remedies often applied is discharging the venire and empanelling an entirely new
one. In the present case, the district court did empanel a third venire. However, the third
venire is not an appropriate remedy in this case.
38

In the usual case of a discriminatory peremptory challenge, the discriminatory effect is
limited only to the jury and venire in the court at that time. Thus, when that venire is
discharged, the discrimination is expunged and a new venire allows the parties to start anew
without the discrimination.
Unlike a peremptory challenge, the State here has not challenged one juror based on
race, but the entire venire. Consequently, where an instance of discriminating against one
juror may be resolved by a new venire, here the discrimination is not resolved by a new
venire. The implication of discriminating against the entire venire is that the State does not
like the makeup of the venire. Granting the State a new venire, one that it does not object to,
means that it has successfully discriminated against the target class. Thus, the new venire is
tainted by the discrimination. To hold that the subsequent venire remedied the discrimination
would condone purposeful discrimination by the State.
The third jury that Williams received is tainted by the State's discriminatory action.
Therefore, we reverse and remand to the district court for a new trial.
Prior juvenile felony conviction
[Headnotes 15, 16]
Williams challenges the order of the district court admitting under NRS 50.095 his
prior felony conviction for aggravated robbery because it was committed when he was a
juvenile. NRS 50.095 permits the admission of a prior felony conviction to impeach a
witness's credibility, but only if the crime was punishable by death or imprisonment for
more than one year, and it has not been more than ten years since the witness's release
from prison or expiration of parole or probation.
____________________
African-American jurors within the venire. Without evidence that the venire was in fact not random, we can only
conclude that the State's concern with randomness was a pretext for discrimination.

37
476 U.S. at 99 n.24.

38
Reinstating the jury members is not an appropriate remedy either, as the jury members were all dismissed.
........................................
peach a witness's credibility, but only if the crime was punishable by death or imprisonment
for more than one year, and it has not been more than ten years since the witness's release
from prison or expiration of parole or probation.
39
Williams does not contest that his prior
conviction resulted in a sentence of more than one year or that his final release from prison
occurred within the ten-year period. However, Williams argues that his conviction was a
juvenile conviction, which is inadmissible under NRS 50.095(4). We review the district
court's decision to admit evidence of a prior felony conviction for an abuse of discretion.
40

The district court denied Williams' motion to exclude his conviction without
addressing whether it was a juvenile conviction. The presentence report issued by the Nevada
Department of Public Safety lists the offense as a juvenile offense. Williams was seventeen
years old at the time of his conviction in an Arkansas circuit court. The record contains no
other information regarding Williams' prior conviction. Based on this evidence, we cannot
conclusively determine that Williams' prior conviction was an adult conviction.
The State argues, however, that the district court did not err because [j]uvenile
adjudications normally do not involve convictions' and incarceration for a lengthy period of
time in the state prison system. However, whether juvenile adjudications in general do or do
not normally involve convictions does not inform us as to whether this conviction was a
juvenile adjudication. The State offers no Arkansas authority that this conviction is not a
juvenile adjudication in that state.
In this case, the State has not provided sufficient evidence to show that Williams'
conviction was an adult conviction. We therefore conclude that the district court abused its
discretion in allowing Williams' conviction to be used to impeach him.
[Headnotes 17-19]
However, we will not overturn the judgment where an improperly admitted prior
conviction was harmless error. In determining whether an error is harmless beyond a
reasonable doubt, we consider "whether the issue of innocence or guilt is close, the
quantity and character of the error and the gravity of the harm charged."
____________________

39
NRS 50.095 provides in relevant part:
1. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a
crime is admissible but only if the crime was punishable by death or imprisonment for more than 1 year
under the law under which he was convicted.
2. Evidence of a conviction is inadmissible under this section if a period of more than 10 years has
elapsed since:
(a) The date of the release of the witness from confinement; or
(b) The expiration of the period of his parole, probation or sentence, whichever is the later date.
. . . .
4. Evidence of juvenile adjudications is inadmissible under this section.

40
Pineda v. State, 120 Nev. 204, 210, 88 P.3d 827, 832 (2004).
........................................
whether an error is harmless beyond a reasonable doubt,
41
we consider whether the issue of
innocence or guilt is close, the quantity and character of the error and the gravity of the harm
charged.
42

In this case, the issue of innocence or guilt was closely disputed. The jury was
required to gauge the credibility of the witnesses to determine whether to believe Swope's or
Williams' version of the events. Williams' prior conviction for aggravated robbery may have
convinced the jury that he was not credible. Therefore, we conclude that the district court's
error was not harmless, and we reverse and remand this case for a new trial for this reason as
well.
CONCLUSION
The district court erroneously instructed the jury commissioner to specifically include
African-American jurors in the second jury venire when no constitutional violations had been
proven. However, the district court did not establish that the jury commissioner complied
with this instruction and that the constitution of that venire violated Nevada statutes. Absent a
valid reason to dismiss the second jury venire, we conclude that the State's motion to dismiss
the venire violated Batson. We further conclude that the third venire was tainted by the
Batson violation. We also conclude that the district court abused its discretion by allowing the
State to impeach Williams with a juvenile conviction.
Accordingly, we reverse the judgment of the district court and remand this matter to
the district court for a new trial.
____________________

41
Richmond v. State, 118 Nev. 924, 934, 59 P.3d 1249, 1255-56 (2002).

42
Weakland v. State, 96 Nev. 699, 701, 615 P.2d 252, 254 (1980).
____________

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