Bucher v. State

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ANTHONY JON BUCHER. Appellant, v. THE STATE OF NEVADA, Respondent.

No. 86150-COA

Court of Appeals of Nevada

January 19, 2024

UNPUBLISHED OPINION

ORDER OF AFFIRMANCE

Gibbons C.J.

Anthony Jon Bucher appeals from a judgment of conviction, pursuant to a jury verdict, of aggravated stalking. Third Judicial District Court, Lyon County: John Schlegelmilch. Judge.

Jennifer Nugent called 9-1-1. alleging that her ex-boyfriend. Bucher had been threatening her and was at her front door and she believed he was going to kill himself.^[1] Nugent told police that, after sending her threatening text messages all day. including one in which Bucher stated he would "blow his head off' on her front porch. Bucher went to her residence uninvited and chased her down the street after she ran out through the back door. Deputies with the Lyon County Sheriffs Office were dispatched and located Nugent hiding at a neighbor's residence. Nugent provided deputies with numerous text messages Bucher sent to her containing threats of violence towards Nugent, threats to kill himself, and threats to find her.

Deputies located Bucher outside of Nugent's residence and took him into custody. At the time he was arrested, deputies found three cell phones in Bucher's possession. After being transported to the Lyon County Jail, Bucher requested access to one of his cell phones from which he obtained Nugent's number and attempted to contact her from the telephone in his holding cell. Bucher was formally charged with one count of aggravated stalking.

A month before trial, the State filed a motion seeking to admit evidence that Bucher was convicted of stalking in Yolo County, California, in December 2018. The State argued that the prior conviction was relevant for purposes other than to show a propensity to commit crimes or bad acts; specifically that the evidence was being introduced to demonstrate that Bucher was the sender of the threatening texts that referenced his prior conviction for stalking (i.e., to prove identity); to prove an absence of mistake or accident; and to prove that Nugent's fear of Bucher was heightened and reasonable due to her knowledge of Bucher's past conviction for stalking, which was necessary to help meet the statutory elements of stalking and aggravated stalking. See NRS 200.575(1). (3). Bucher argued that the State failed to overcome the presumption that his prior conviction was inadmissible because it was not relevant, and because its probative value was substantially outweighed by the danger of unfair prejudice, and that the State thus failed to meet its burden of proof under the bad acts admissibility test.

At the hearing on the motion, the State presented a certified copy of the prior stalking conviction and Nugent testified that she was in fear for her life, and that her fear was intensified by text messages she received from Bucher indicating that he had been previously convicted of stalking. The district court found that Nugent's testimony about the prior conviction, as stated in the text messages she received from Bucher and her reaction, could be introduced into evidence. The court, however, would not publish the certified copy of the conviction to the jury and would issue a limiting instruction explaining that Nugent's knowledge of the conviction could only be considered in evaluating whether she feared Bucher and whether a reasonable person would feel that way-elements of the charged crime.

At the beginning of Nugent's testimony at trial, after she identified Bucher in the courtroom, the district court gave the jury a limiting instruction explaining that the testimony "of other collateral acts of the defendant" which they were about to hear "may not be considered by you to prove the character of the defendant in order to show that the defendant acted in conformity therewith." But rather, the court explained, the evidence of the prior conviction was "to be used and considered by you as evidence to provide the jury with the context of the alleged conduct as reasonable people, and the victim's state of mind during the commission of the acts alleged."

During Nugent's testimony, the State presented the threatening text messages that Bucher had sent to Nugent in the days and hours leading to the night of the arrest-including text messages in which Bucher discussed his prior conviction for stalking. Nugent testified that when she began to receive an increase in messages that were darker and intimidating, knowledge of Bucher's prior conviction increased her fear for her life. She testified that the flurry of text messages culminated in Bucher showing up at her residence unexpectedly. When Bucher arrived at her residence, Nugent's front door doorbell camera system alerted her. and it began recording.

The State played the video footage to the jury during Nugent's testimony. In the video, Nugent can be heard asking Bucher what he wanted and telling him to leave through the camera's built-in speaker. Bucher refused to leave, and he appeared to be reaching for the doorknob while telling Nugent to open the door. Nugent testified that she saw an object in Bucher's hand, which she believed could have been a weapon, or maybe a flare gun.^[2] She testified that she was in fear that Bucher would hurt or kill her, so she called 9-1-1. then ran out the back door when Bucher refused to leave. Nugent testified that she saw Bucher hopping the fence from the front into her backyard as she was running towards the fence separating her property from her next-door neighbor's. She ran to her neighbor's house and knocked on the back door, but no one answered. Nugent testified that she ran another mile or two in the dark until she came upon a group of people sitting around a bonfire, where sheriffs deputies later located her. Bucher presented no evidence.

The jury found Bucher guilty of aggravated stalking. After the clerk read the verdict, the district court thanked the jurors for their service, provided final instructions, and advised them that they were excused. The court remanded Bucher to the custody of the sheriffs office to await sentencing. At that point, as the excused jurors began to privately exit the courtroom through the jury room, Bucher turned and charged towards the public entrance and through the courtroom doors, attempting to flee and evade deputies. This caused a commotion in the courtroom and Bucher later claimed "hearing the jury foreperson make a statement along the lines of. 'Does that happen often? That's how you know he was guilty."' Bucher was taken into custody in the hallway of the courthouse.

At the sentencing hearing, which was approximately two months later, Bucher made an oral request to continue the sentencing so he could file a motion for a new trial and to allow the district court more time to consider letters he had submitted in support of mitigation. The district court continued the sentencing hearing but did not address whether Bucher could have additional time to file his motion. Bucher filed his motion approximately three weeks later. In his motion. Bucher requested that the verdict be set aside and a new trial be granted based on five grounds: (1) his trial counsel was ineffective for refusing to allow Bucher to determine which witnesses to call and what arguments to make. (2) prosecutorial misconduct occurred because the prosecutor "should have known the alleged victim was not being truthful." (3) he should have been charged with the crime of stalking instead of aggravated stalking, (4) judicial misconduct occurred because the judge should have seen "that the case had no merit and that the alleged victim was not telling the truth." and (5) that juror misconduct occurred due to disparaging comments about Bucher that Buchers girlfriend allegedly heard in the courthouse's "parking lot immediately after trial."^[3]

The district court denied Bucher's motion on the grounds that Bucher did not comply with NRS 176.515(4) because he failed to file the motion or request an extension of time in which to file the motion within seven days of the verdict. A judgment of conviction was entered shortly thereafter.

Bucher advances three arguments on appeal. First, he contends that the district court abused its discretion in admitting evidence of his previous stalking conviction because its prejudicial effect on the jury substantially outweighed its probative value. Second, he avers that the State failed to produce sufficient evidence to support a conviction: specifically, he argues that the State's witnesses lacked credibility. And third, he argues that the district court abused its discretion by denying his motion to vacate the judgment and grant a new trial after he presented evidence of juror misconduct.^[4]

The district court did not abuse its discretion in admitting evidence of Bucher's prior stalking conviction for nonpropensity purposes

Bucher contends that the district court abused its discretion when it admitted evidence of his prior stalking conviction because its probative value was substantially outweighed by its prejudicial effect on the presumption of innocence. The State argues that the district court properly analyzed whether to admit the evidence and made findings that the evidence of the prior conviction was relevant and being offered only for nonpropensity purposes, and the probative value was not substantially outweighed by the danger of unfair prejudice.

This court reviews the district court's decision to admit evidence of prior bad acts for a manifest abuse of discretion. Bigpond v. State. 128 Nev. 108. 117, 270 P.3d 1244, 1250 (2012) (citing Ledbetter v. State. 122 Nev. 252. 259, 129 P.3d 671, 676 (2006)). NRS 48.045(2) prohibits the introduction of evidence of other...