Martin v. State

499 P.3d 1176 (Table)

Weslie Hosea MARTIN, Appellant,

v.The STATE of Nevada, Respondent.

No. 80077

Supreme Court of Nevada.

FILED NOVEMBER 30, 2021

Clark County Public Defender

Attorney General/Carson City

Clark County District Attorney

ORDER OF AFFIRMANCE

Appellant Weslie Hosea Martin argues that the district court erred or abused its discretion by (1) finding sufficient evidence to support his convictions, (2) admitting evidence in violation of his Fourth Amendment rights, (3) sentencing him in violation of the Double Jeopardy Clause, (4) denying his motion for substitute counsel, (5) denying his motion challenging the venire, (6) denying his pretrial motion seeking to preclude witness testimony, (7) prohibiting discovery of exculpatory information, and (8) failing to give a jury instruction for trespass as a lesser-included crime of attempted burglary. He also argues the district court committed four other plain errors. Alternatively, he argues reversal is warranted based on cumulative error. We disagree with Martin's challenges and affirm the judgment of conviction.

Martin's convictions are supported by sufficient evidence

Martin challenges the sufficiency of the evidence for his convictions of (1) robbery with the use of a deadly weapon, (2) cruelty to animals, (3) ownership or possession of a firearm by a prohibited person, (4) burglary of Nevada Coin and Jewelry, and (5) attempted burglary. Additionally; he challenges the sufficiency of the evidence for all of his convictions on the theory that there was insufficient evidence of aiding or abetting.

When reviewing a sufficiency of evidence challenge, this court considers "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." McNair v. State , 108 Nev. 53, 56, 825 P.2d 571, 573 (1992) (internal quotation marks omitted).

Robbery with the use of a deadly weapon

During the robbery of the Newton residence on June 13, 2018, Martin took two pens belonging to Mr. Newton from the bedroom he shares with Mrs. Newton. While fleeing, Martin was confronted by Mrs. Newton and was attacked by the family's dogs, which he fended off with a large metal object before ultimately being able to escape. Martin was charged and convicted of robbing Mrs. Newton with the use of a deadly weapon stemming from this event.¹

The elements of robbery are the unlawful (1) taking, (2) of another person's personal property, (3) from the person or in the person's presence, (4) against their will, (5) by means of force or violence or creation of fear of injury. NRS 200.380(1).² The penalty for robbery may be enhanced when a firearm or other deadly weapon is used during the commission of the crime. NRS 193.165(1). Martin argues the State did not prove elements two, three, and five, or that a deadly weapon was used in the course of the robbery. We disagree.

First, with respect to the second element, the possessory interest requirement, "the State must show that the victim had possession of or a possessory interest in the property taken." Valentine v. State , 135 Nev. 463, 468, 454 P.3d 709, 715-16 (2019). Martin, relying on Valentine , argues the State did not provide sufficient evidence that Mrs. Newton had a possessory interest because the stolen pens belonged to Mr. Newton.

In Valentine, we held that a defendant had not committed robbery against the wife when the husband handed the defendant $100 from his wallet because the State presented no evidence that the wife had the right to possess the money in her husband's wallet. Id. at 468, 454 P.3d at 716. We specifically rejected the argument that the mere fact the parties were married—which could mean that the property was community property—was sufficient to demonstrate that the wife had a possessory interest in the money taken from the husband. Id. at 468 n.7, 454 P.3d at 716 n.7.

We conclude this case is distinguishable from Valentine because unlike the defendant in Valentine , who took money from the husband's person, here the pens were taken from the house and bedroom where Mrs. Newton lived—a place where she had a right to possess and retain property. The fact Mr. Newton owned the pens does not preclude a rational juror from finding that Mrs. Newton had the right to possess the pens. Therefore, viewing the evidence in the light most favorable to the State, a rational juror could have reasonably concluded that Mrs. Newton had a possessory interest in the stolen pens.

Second, with respect to the third element, the presence requirement, "[w]e have adopted a broad definition of ‘presence’ with respect to robbery." Guy v. State , 108 Nev. 770, 775, 839 P.2d 578, 581 (1992). The presence requirement is satisfied not only when the person is physically present during the taking, but also when the victim is so overcome by violence or fear that they are prevented from retaining possession of the property. Id. at 775, 839 P.2d at 582.

Applying our broad definition of "presence," Mrs. Newton testified that she was placed in fear when two men, one alleged to be Martin, confronted her outside of the house and beat her dogs before ultimately escaping. A rational juror could have found Mrs. Newton was prevented by fear from retaining possession of the pens. Therefore, we conclude that there was sufficient evidence that the stolen pens were taken from Mrs. Newton's presence.

Finally, we reject Martin's last two contentions—that neither the force nor deadly weapon enhancement were sufficiently proven. Mrs. Newton testified that Martin, or his coconspirator, upon exiting the house, approached her with a long metallic object raised in his hand and proceeded to strike the family's dogs, severely injuring them. A rational juror could have found that this evidence was sufficient to satisfy both elements.

In conclusion, we conclude Martin's robbery conviction was supported by sufficient evidence.³

The district court did not violate Martin's Fourth Amendment rights by denying his oral motion to suppress admission of photographs of his backpack

Martin challenges the district court's decision to allow the State to introduce photographs taken of the inside of his backpack—that showed stolen property belonging to the Newtons—after he was stopped by a police officer. Martin was stopped when an officer was investigating a Crime Stopper's tip that stated Martin was contributing to the delinquency of a minor and was connected to the Newton home invasions.

We review the denial of a motion to suppress as a mixed question of fact and law. State v. Lisenbee, 116 Nev. 1124, 1127, 13 P.3d 947, 949 (2000). "This court reviews findings of historical facts under the clearly erroneous standard, but the legal consequences of those facts are questions of law which we review de novo." Id. Thus, we review the district court's legal conclusion—that the officer had reasonable suspicion to stop Martin—de novo and its factual finding—that Martin consented—under a clearly erroneous standard.

"[P]olice officers may temporarily detain a suspect when officers have reasonable articulable suspicion that the suspect has committed, is committing or is about to commit a crime." Somee v. State , 124 Nev. 434, 442, 187 P.3d 152, 158 (2008) (internal quotation marks omitted). "An anonymous tip can provide reasonable suspicion to justify an investigatory stop if it exhibits sufficient indicia of reliability and is suitably corroborated." McMorran v. State , 118 Nev. 379, 387, 46 P.3d 81, 86 (2002). Whether reasonable suspicion exists is determined based on the totality of the circumstances. Somee , 124 Nev. at 442, 187 P.3d at 158. Totality of the circumstances requires evaluating both the quantity and quality of information possessed by the police. See Alabama v. White , 496 U.S. 325, 330 (1990).

Considering the totality of the circumstances, we conclude the officer had sufficient reasonable suspicion to stop Martin. The officer testified that she possessed a tip stating Martin was involved in the Newton home invasions and that he was also contributing to the delinquency of a missing minor.⁴ She testified that the tip listed the address where both the minor and Martin could be located. The officer went to the address and corroborated that both Martin and the minor had recently been at the residence. Although the officer was told the missing minor was not with Martin, the fact that the minor was still missing, that Martin was alleged to be connected with her, and that he also was connected to the Newton home invasions was sufficient to create reasonable suspicion to stop Martin.

We also conclude that the district court's finding that Martin consented to the search of his backpack was not clearly erroneous because the district court heard testimony that Martin affirmatively provided the officer consent prior to searching his backpack.⁵

In sum, we conclude the district court did not violate Martin's Fourth Amendment rights by denying his oral motion to suppress by admitting the photographs of the inside of his backpack.

Martin's convictions do not violate double jeopardy

Martin argues that his convictions of burglary while in possession of a firearm, grand larceny of a firearm, and possession of a firearm by a prohibited person violate the Double Jeopardy Clause of both the United States and Nevada Constitution because he received multiple punishments for the same offense.

"A claim that a conviction violates the Double Jeopardy Clause generally is subject to de novo review on appeal." Davidson v. State , 124 Nev. 892, 896, 192 P.3d 1185, 1189 (2008). Conviction of multiple crimes is not considered redundant and does not violate the Double Jeopardy Clause if each crime requires proof of an element that the others do not. See Blockburger v. United States, 284 U.S. 299, 304 (1932) (establishing an elements test for determining whether separate offenses exist for double jeopardy purposes)...