Toy Guns, Amended Complaints, and Mayhem


(Supreme Court Order remanding and reversing)

This was an appeal from a district court order granting a writ of mandamus from a dismissal of criminal complaints. Giano Amado was arrested for a battery constituting domestic violence when he pushed his aunt to the floor. He posted a bail bond the same day and was released. Another criminal complaint was filed in a separate case charging him with misdemeanor battery constituting domestic violence against his nephew. Both the aunt and nephew failed to show to trial dates, so the City voluntarily dismissed both complaints. The next day, the criminal complaints were refiled as “Amended Criminal Complaints," using the same case numbers. Amado filed a motion to dismiss these amended complaints in the court, arguing that new case numbers should have been used for the new criminal complaints. The district court agreed with Amado and accordingly dismissed his criminal complaints, requiring the city to have had to file with new case numbers.

The City of Henderson filed an appeal on the grounds that the district court had wrongly granted Amado’s petition for a writ of prohibition that resulted in dismissal of the amended complaints. The City argued that the NRS statute 174.085(5) allows prosecution the “right to file another complaint” and it does not specifically say they must file with a new case number. The City argued prosecution can file a “subsequent complaint in the original case” under the original case number. As it dealt with the same matter as the previous criminal complaint, according to NRS 174.085(6)(a) that in these cases the case must be presented before the judge who had heard the initial complaint. To ensure this, the City used the same case number so it would successfully go to the same judge.

The Supreme Court of Nevada concluded that the City of Henderson was correct in its reasoning for maintaining the same case number and held that the district court acted arbitrarily and capriciously, abusing their discretion by dismissing the complaints against Amado. The Supreme Court of Nevada reversed and remanded this issue back to the district court.


(Supreme Court Unpublished Order affirming in part, reversing in part and remanding)

Michael Perez appeals from his judgment of conviction for battery constituting domestic violence with substantial bodily harm, mayhem, and preventing or dissuading a witness from testifying or producing evidence. Perez had picked up his girlfriend from her job as a stripper. When she asked if he was okay, he hit her in the face. For the 20 minute drive back to their home, he continuously punched her face. When they arrived home, he went to sleep and Cynthia texted her mother asking her to call the police. They arrived to find her covered in blood and her face swollen. Later at the hospital, it was found that, “Cynthia suffered multiple fractures to 19 facial bones, contusion or bruising, damage one eye orbit, and a tear duct and bone were dislodged. Her jaw was broken...her injuries could be permanent and disfiguring.”

The extent of damage Perez had inflicted led prosecutors to charge him with not only battery with substantial bodily harm, but also mayhem. The elements for substantial bodily harm are: "Bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ; or prolonged physical pain." Mayhem, in contrast, is defined as “unlawfully depriving a human being of a member of his or her body, or disfiguring, or rendering it useless..." Prosecution argued that it was quite obviously a case of domestic battery with substantial bodily harm, but also that it was mayhem in that he left her face, nose, and jaw useless until plastic surgery could correct it.

Perez argues that he could not be convicted of both battery constituting domestic violence with substantial bodily harm and mayhem, as they are mutually exclusive charges. In addition, the elements to prove substantial bodily harm are first needed to prove mayhem, supporting his claim that they must be mutually exclusive. Separate and distinct acts can support multiple convictions for two mutually exclusive offenses, but the Court found that it was the same action of beating his victim that caused these two charges. Thus, the Court reversed his conviction of battery constituting domestic violence with substantial bodily harm, as it was the lesser penalty, in favor of keeping the higher mayhem charge. Perez brought a variety of other claims about prosecutorial misconduct and cumulative error, but the Court reversed and remanded for the particular issue of the mutually exclusive charges.


(Court of Appeals Order affirming) 

Appellant Rodney Wilson appeals under NRAP 4(c) from a judgment of conviction, pursuant to a jury verdict, of burglary, theft, and possession of a dangerous weapon.

A motel manager who knew Wilson testified that Wilson had approached him outside of the motel and asked for money. The manager refused and Wilson left. A security guard for a business across the street then noticed an African-American male enter the office, and soon leave with a cash register. The guard then viewed a vehicle drive from the parking lot. He called 911. A police officer saw a vehicle that resembled the description provided to 911, and followed the vehicle as it attempted to flee. The vehicle crashed, the driver fled on foot. Additional officers arrived and a K-9 unit discovered Wilson. He was then taken into custody. The stolen cash register and bag were discovered in Wilson's vehicle. The officer conducted a search incident to arrest and located brass knuckles in Appellant’s shorts pocket. Wilson admitted to an officer he had been driving the vehicle and, when questioned about the motel theft, Wilson responded "times are hard." During the interview, he admitted to being the driver of the vehicle and to possessing brass knuckles.

Wilson argued the district court erred by failing to grant a mistrial when a State's witness mentioned she found a toy gun in Wilson's vehicle. Wilson also argues the district court's admonition to the jury to disregard the statement was insufficient because it directed the jury to disregard mention of a gun, rather than the toy gun the witness had mentioned.

The record demonstrates that both parties had agreed not to discuss the toy gun that was discovered in Wilson's vehicle, but a crime scene analyst mentioned it during her testimony. Wilson immediately objected and moved for a mistrial, asserting the jury may believe Wilson used the toy gun during the commission of the crimes. Defense argued that the jury can infer that the Wilson may have possessed a 'gun' and therefore was more dangerous and/or more likely to commit the crime.

The district court concluded the statement was inadvertent and so brief that a mistrial was not warranted. Given the district court's denial of the motion for mistrial, the defense requested a curative instruction and the district court instructed the jury to disregard the witness' statement regarding the gun. The judgement was affirmed accordingly.


 (Court of Appeals Order affirming) 

Appellant Devion Lawrence appeals from a Supreme Court order denying his motion to modify sentence. Lawrence asserts his sentence should be modified because the district court failed to make the factual findings about his non-existent criminal history, as required by NRS 193.165 before imposing the deadly weapon enhancement. In a prior appeal, the Supreme Court found that the district court had erred in not making a factual finding according to the statute and Mendoza-Lobos vs. State (factual findings must be recorded with the court for each factor of the deadly weapon enhancement statute), but still found that this error was not to Lawrence’s extreme detriment. Accordingly, Lawrence asks the Court of Appeals to modify his sentence of 14 years (144 months sentence and 26 months for the deadly weapon enhancement) to a term of 1 to 6 years.

The Court of Appeals found that Lawrence's claim fell outside the narrow scope of claims permissible in a motion to modify sentence because it did not allege that his sentence was based on mistaken assumption about his criminal record, but that these findings were not accurately documented with the court. This again did not result in extreme detriment to him or his sentence, and therefore he is not warranted relief. The Court of Appeals affirmed his conviction sentence and denied his motion.


(Court of Appeals Order affirming) 

Daniel Sylvester Porter appeals from a judgment of conviction pursuant to a jury verdict of sexual assault with use of a deadly weapon, battery with intent to commit sexual assault with use of a deadly weapon, first degree kidnapping with use of a deadly weapon, and robbery with use of a deadly weapon. Porter was accused of stealing a woman's car and sexually assaulting her. On appeal, Porter asserts (1) the district court abused its discretion by denying his motion to continue trial to conduct further DNA analysis; (2) insufficient evidence supports his convictions for sexual assault, kidnapping, and battery: (3) his three convictions for sexual assault were redundant, and (4) his sentence constitutes cruel and unusual punishment.

During trial, Porter informed the court that he would like a continuance so he could acquire his own DNA expert to have the DNA re-tested. The Court denied Porter’s motion because it was untimely made on the first day of trial. Porter was present during the DNA expert testimony and received a copy of the transcript of the hearing. Porter was unable to demonstrate prejudice because he was aware of and in possession of the DNA information for the entirety of his case. Moreover, Porter did not show that had the court granted his continuance, he would have been able to find a DNA expert or secure the re-testing of the DNA. Further, Porter simply could not demonstrate prejudice because there was no indication that a DNA expert called by the defense would have produced information any different than that produced by the State.

Porter also argued that there was insufficient evidence for his convictions. DNA evidence showed Porter as the perpetrator. It was further concluded that the separate sexual assault convictions were not redundant and did not implicate double jeopardy. This was because Porter was found to have committed three distinct acts of sexual assault--digital penetration, anal, and vaginal penetration. Though they were part of the same situational act, each form of penetration is a distinct and separate act in itself. This also proves that his sentence was not cruel or unusual, as he was found guilty on all charges beyond a reasonable doubt. The judgement was affirmed accordingly.


(Court of Appeals Order affirming) 

Appellant Bruce Timothy Shelton appeals from a judgment of conviction, pursuant to a jury verdict, of conspiracy to commit larceny, two counts of burglary, and grand larceny.  On appeal, appellant contends the district court erred in admitting evidence of three uncharged prior thefts, in which the appellant allegedly participated, because they were more prejudicial than probative.

At trial, the district court allowed evidence of three uncharged thefts at trial. Prosecution contends that the evidence of the three thefts were needed to show "a motive, plan, or scheme."

According to Petrocelli, this prior bad act evidence was not being used to show Shelton’s propensity to commit crimes. Shelton only called into question the third prong of Petrocelli, that the bad act evidence must be more probative than prejudicial to be admitted. The court concluded that the evidence negated Sheldon's defense that he was simply at the wrong place at the wrong time. The Court of Appeals found that the evidence merely showed that Shelton had played the same role in each of the burglaries, thus proving the probative value of the prior bad acts to the current charged crimes because Shelton had played the same role of the ‘distractor’ while his co-conspirators did the actual burglarizing. The Court of Appeals decided that the district court had not erred in allowing the prior bad act evidence, and affirmed Shelton’s conviction.


(Court of Appeals Order affirming) 

Guevara-Pontifes appealed from a judgment of conviction, pursuant to a jury verdict, of first-degree kidnapping, battery with intent to commit sexual assault, and sexual assault.

Guevara-Pontifes contended that the State mischaracterized the evidence when it described the Sexual Assault Response Team ("SART") examiner's testimony as claiming that the victim's bite mark was the worst she had ever seen, and was so serious that it would be included in future SART training sessions. Mischaracterizing it as the "worst" bite wound that Ms. Bristol "had ever seen" served only to improperly inflame the jury's emotions. The Court of Appeals determined that the witnesses' characterization had no substantial effect on the jury verdict.

Guevara-Pontifes also contends that, at his sentencing hearing, the State impermissibly argued that he should be sentenced more severely based upon his failure to express remorse. The Court of Appeals decided that the State merely argued his defense contained several inconsistencies which should undermine his request for leniency.

Lastly, Guevara-Pontifes argued that text messages translated by the victim should not have been admitted as evidence. The State had the victim translate Mr. Pontifes’ text messages and statements for the State, calling into question accuracy and bias. The Court of Appeals addressed this issue in a footnote and determined that the court did not abuse its discretion in allowing the unorthodox translations in court or the subsequent sentence, as none of the issues he brought up on appeal were found to have no merit. The judgement was affirmed accordingly.