Kassa v. State

485 P.3d 750

Abebaw Tesfaye KASSA, Appellant,

v.The STATE of Nevada, Respondent.

No. 76870

Supreme Court of Nevada.

FILED APRIL 29, 2021

OPINION

By the Court, PICKERING, J.:

A jury found appellant Abebaw Tesfaye Kassa guilty but mentally ill on charges of first-degree felony murder and first-degree arson. Kassa contests the validity of his convictions on the basis that the district court misinstructed the jury on voluntary intoxication, and otherwise erred by denying his motion to vacate the jury's guilty verdict and find him not guilty by reason of insanity. But there is sufficient evidence in the record to support Kassa's convictions, and we disagree that the district court abused its discretion in giving the challenged instruction. Accordingly, we affirm.

I.

Early one morning in 2016, Kassa set fire to the transitional home for persons with mental illness where he had been living without incident for just over a month. Kassa's fellow residents escaped, but the housekeeper, Lolita Budiao, was badly burned and died several days later. Kassa had delayed Budiao's escape by deliberately trapping her in a bathroom while the fire engulfed the home. Kassa himself fled, without injury, through a window as law enforcement arrived at the scene. He tried to run from the officers and resisted arrest when they ultimately caught and restrained him.

The State charged Kassa with first-degree felony murder and first-degree arson. At trial, Kassa admitted setting the fire and causing Budiao's death. But he raised, as an affirmative defense, his alleged legal insanity at the time. Specifically, Kassa alleged that he was suffering from schizophrenic auditory hallucinations when he set the fire—voices were telling him that he had died in a car accident five years prior, that his body was being kept breathing and used by others for nefarious purposes, and that he needed to set and burn in the fire to end his exploitation. Kassa introduced expert testimony by two psychiatrists who had examined him in the years since the fire to support this defense.

The State countered the defense experts by introducing medical records of Kassa, noting statements he made to the medical care providers attending him shortly after the fire. These records reflect that at that time—notably, prior to Budiao's death, when the prospect of murder charges arose—Kassa reported that before the fire he had been snorting "Spice," a synthetic version of marijuana with wide-ranging and potentially hallucinogenic effects. He also reported on the intoxicating mental effects from his use of the Spice, stating that this drug use left him "feeling disturbed and unable to sleep." Based in part on this evidence, the State proposed jury instruction no. 20 regarding voluntary intoxication, which advised jurors that voluntary intoxication—in contrast to a mental disease or defect—did not render any resulting conduct "less criminal." The instruction further advised that this was so even where "the intoxication is so extreme as to make the person unconscious of what he is doing or to create a temporary insanity." The district court provided this instruction over Kassa's objection.

The jury found Kassa guilty but mentally ill (GBMI) on both counts. NRS 175.533 allows a jury to find a defendant GBMI when the jury finds the defendant guilty beyond a reasonable doubt of the offense, and that "due to a disease or defect of the mind, the defendant was mentally ill at the time of the commission of the offense," though falling short of the demanding legal insanity standard that would support a verdict of not guilty by reason of insanity (NGRI). With such a finding, the jury determines that a defendant's mental illness does not excuse his or her criminal conduct; accordingly, the result is not an acquittal, but a guilty verdict that signals certain allowances in sentencing. See Finger v. State, 117 Nev. 548, 554, 27 P.3d 66, 70 (2001) (noting that with a GBMI verdict, "the district court may suggest that the prison system provide certain types of treatment to the convicted individual").

Kassa moved the district court to vacate the GBMI verdicts and find him not guilty by reason of insanity. Following a hearing, the district court denied the motion. The district court sentenced Kassa to serve concurrent prison terms totaling 20 years to life in the aggregate. This appeal followed.

II.

At trial, Kassa conceded that he intentionally started a fire; that he intended that fire to cause death; that he started that fire with knowledge that others were in the home; that he held Budiao captive in a bathroom to prevent her from escaping or extinguishing the fire; and that Budiao died as a result. And even beyond Kassa's admissions, the State presented testimony from multiple eyewitnesses supporting the State's factual account. From this testimony, the jury could have reasonably inferred Kassa's intent to commit the crimes as charged. The crux of the case below was therefore not whether Kassa committed the acts the State alleged, with the intent to cause harm, but whether his conduct was excused from criminal liability based on an NGRI defense. See Finger v. State, 117 Nev. at 568, 27 P.3d at 80 (stating that " ‘legal insanity’ simply means that a person has a complete defense to a criminal act").

For Kassa's alleged insanity to give him a complete defense to the charged crimes, his condition must satisfy the specific and demanding M'Naghten test—that is, "[d]ue to a disease or defect of the mind," he suffered from delusions such that he did not "(1) [k]now or understand the nature and capacity of his ... act; or (2) [a]ppreciate that his or her conduct was wrong." NRS 174.035(6)(b) ; see Finger, 117 Nev. at 556-57, 27 P.3d at 72-73 (discussing M'Naghten’s Case, 8 Eng. Rep. 718, 722, 10 Cl. & Fin. 200, 209-10 (1843), and describing the resulting test). Following his conviction, Kassa moved the district court for a judgment of acquittal pursuant to NRS 175.381(2), based on his supposed satisfaction of M'Naghten. But NRS 175.381(2) sets a high bar—if the record contains evidence on which any rational juror might convict, then its demanding standard is not met, State v. Purcell, 110 Nev. 1389, 1394, 887 P.2d 276, 279 (1994) —that the district court found Kassa failed to clear.

De novo review applies to an appeal from an order denying a motion for a judgment of acquittal, insofar as the appellate court must determine whether the district court applied the correct legal standard in deciding the motion. Evans v. State, 112 Nev. 1172, 1193, 926 P.2d 265, 279 (1996) ; see United States v. Gagarin, 950 F.3d 596, 602 (9th Cir. 2020) (noting that the court reviews de novo a denial of a motion for acquittal under analogous Fed. R. Crim. P. 29 ). However, the Seventh Circuit Court of Appeals has rightly assessed that, phrased in these terms, "this standard of review is slightly deceiving." United States v. Johns, 686 F.3d 438, 446 (7th Cir. 2012). Because the district court decides a motion for a judgment of acquittal under NRS 175.381(2) based on a sufficiency of the evidence standard, Purcell, 110 Nev. at 1394, 887 P.2d at 279 ; see Evans, 112 Nev. at 1193, 926 P.2d at 279, appellate review of an order denying such a motion "is in essence the same as a review of the sufficiency of the evidence." Johns, 686 F.3d at 446. Accordingly, Kassa's path to reversal is onerous.

A.

The record supports the district court's decision: A reasonable juror could have looked at the evidence and concluded that Kassa did not satisfy M'Naghten. Foremost, as the jury instructions emphasized, whether or not Kassa suffers from a mental illness, the State's case still benefits from an initial presumption of his legal sanity —it was Kassa's burden to rebut this by a preponderance of the evidence. NRS 174.035(6) ; see Clark v. State, 95 Nev. 24, 26, 588 P.2d 1027, 1028 (1979). And "[t]he presumption of [legal] sanity operates most critically, of course, at the time the offense is committed." Ford v. State, 102 Nev. 126, 135, 717 P.2d 27, 33 (1986). Accordingly, while the State did not deny the proffered evidence of Kassa's history of delusions and hallucination, neither this nor his psychiatric diagnosis established his legal insanity for the purposes of his NGRI defense—the M'Naghten test hinges on the temporal and causal connection between Kassa's mental illness and the crime. Id. at 136, 717 P.2d at 33.

Had the jury credited the testimony of Kassa's two psychiatrists, an NGRI verdict might have been reached.¹ But as Kassa conceded at oral argument before this court, the jury was under no obligation to accept the experts’ testimony. And circumstances here likely led the jury to be somewhat skeptical. As a foundational matter, two years after the fire—and long after he was charged with arson and murder—Kassa denied to the testifying psychiatric experts that he had used drugs before committing the crime. But in opening and closing arguments, the State noted that medical records made two days after the fire—records that Kassa stipulated to admitting at trial, which his experts confirmed the existence and contents of during their testimony, and which he did not include in his appellate record² —reflect that while in the hospital after the fire Kassa "gives a ... detailed account of using ... Spice, via snorting it." It appears that those nearly contemporaneous records additionally stated that, "Patient reports he had recently been snorting Spice. Reports it was a powder-like substance and that he had a history of using this in the past as well.... [H]e reports feeling disturbed and unable to sleep after snorting it ...."

A reasonable juror could have elevated these medical records—made shortly after the fire, before Budiao died, without any ulterior investigative purpose, and before serious criminal charges were brought—over the testifying expert opinions, based as they were on self-serving information Kassa supplied two years after...